The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge
This case involves an effort by a Title VII plaintiff to force certain entities to identify whether certain persons claim membership in the Unification Church ("the Church"). Plaintiff alleges that The Washington Times Corporation ("TWTC"), where she worked, *fn1 did not give her a raise but instead gave a raise to a member of the Unification Church. She further alleges that she was fired when she complained about this discrimination to the EEOC. She insists that she should be permitted to find out who, within the TWTC organization, is a member of the Unification Church and she has therefore issued subpoenas to entities that might have this membership information.
The subpoenaed entities resist any such disclosure.
In an attempt to find a middle ground, I proposed a solution that would have required defendant TWTC to collaborate with those subpoenaed entities who may have a list of church members. The latter would have identified for TWTC those persons whose names appear in a listing of church members. TWTC would then have created a second list identifying those persons who worked for them. As to each person on the list of church members, TWTC would then indicate the division, department, or section in which each person on the list worked.
TWTC would indicate whether any person who was fired was a church member or not and would provide documentation as to the firing. If a church member got a raise, TWTC would review the salary histories of all employees in that division to ascertain whether the raise given the church member was proportionally greater than the raise given any non-church member in that division or department. As to each department or division in which a church member worked, TWTC would also have to indicate whether anyone in that department or division received a raise, irrespective of church membership.
Most significantly, all of this information would have been provided anonymously. No one would ever have known the name of any church member. Church members would have been identified solely by a number.
The subpoenaed entities rejected my solution. They are understandably reluctant to provide any information about church membership. Ironically, in a country whose earliest European settlers fled religious persecution, there is an ugly history of religious intolerance, such as the expulsion of the Mormons from Nauvoo, the rise and unholy history of the Klu Klux Klan and its hatred of Catholics and Jews, all too persistent anti-Semitism, and the disgraceful bigotry that surfaced in the campaign of Al Smith for the Presidency. Fear of the consequences of the disclosure of one's religious affiliation may be palpable and real at a certain point in history. There is, therefore, in my view, implicit in the First Amendment's guarantee of religious freedom, the right to chose whether or not to disclose one's religious affiliation lest forced disclosure inhibit the free exercise of one's faith. I have to believe that, when a person provides her name and address to a church that has asked her to become a member, she reasonably expects that her name and address will be disclosed to other church members, used by the church to invite her to other church functions, and used to solicit her contribution to the church's financial welfare. There is nothing I know of in the American experience that suggests to me that by giving one's name and address to a church one thereby agrees to the publication of one's religious affiliation to the whole world.
Plaintiff is dismissive of the concern that disclosure of membership in the Unification Church would discourage people from joining or remaining members of the Church. But, plaintiff gives me no reason to doubt the word of Church officials and of a distinguished religious scholar (unaffiliated with the Church) that the Church is controversial and that its members have encountered bigotry and prejudice. Frankly, I hardly need the information. I have heard supposedly well-educated people, who should know better, speak of the members of the Church pejoratively. We all hope for a day when such intolerance will disappear but, until it does, I, for one, cannot honestly dismiss the concerns the Church has that the disclosure of its members will harm them in their professional and personal lives.
As a judge, I cannot ignore what I know as a man-that, in certain mouths, the word "Moonie" is hardly a term of endearment or respect.
I am so firmly convinced of the merits of the principle that one's religious affiliation is one's own business that I have to decided to walk with the Church one more mile. Under my attached order, the law firm that represents TWTC will appoint a person, identified in my order as "the designee," who will be the only person who will ever see the data that indicates which members of the Church work for TWTC. The designee will summarize the results of the examination of the data for me anonymously, using numbers instead of names. This way, I will not even know the names of Church members who work at TWTC. Thus, the Church will be able to maintain its church members' anonymity throughout the discovery process and TWTC will be protected from not learning what it does not want to know: the names of the members of the Church who work for TWTC.
The question then becomes what will happen once I review the documents and the easiest answer is the one judges love: I'll cross that bridge when I come to it. To be less glib, if I find that the data shows absolutely no connection between church membership and employment decisions, the matter will end there with my returning the data to the parties who provided it or destroying it without plaintiff ever seeing it. If, on the other hand, a pattern does emerge, I may ask the defendants to concur with my findings (e.g., in 1997 a church member in circulation got a raise and a non-church member with a similar job did not). I would only seek this concurrence with the understanding that, by so stipulating, defendants in no way concede the relevance of the information to plaintiff's case. While I cannot be certain, I may be able to shape relief that would never disclose what I learned, but would nevertheless provide plaintiff with the same information she would have secured had her counsel seen the documents themselves.
I appreciate that both sides may object to my solution. I can only hope that, like any settlement, it displeases both of them equally.
As for plaintiff, she may justly accuse me of resurrecting the bad old days before the Federal Rules of Civil Procedure when a party had to show good cause to get discovery. She may also say that I am improperly intruding upon the discovery process that generally permits a party's counsel to see what is produced even though its public disclosure is prohibited by a protective order. Perhaps that is true, but my discretionary power over discovery is broad *fn2 and this is not the first case, nor will it be the last, where a party was obliged to make a certain showing before securing additional discovery.
For their part, defendants could complain that even the limited, anonymous relief I am giving plaintiff is more than she should get. They see this case as a simple Title VII case involving a five- person department of the newspaper and argue that discovery as to any other department or division of the newspaper is impermissible because plaintiff has not pled an institution wide pattern of practice and has not retained an expert witness to study the statistical relationship between church membership and employment ...