dissenting:
I respectfully dissent from the opinion of my colleagues. I do not believe the government satisfied its burden of proving that requiring these witnesses to testify against their father in violation of what we assume to be a devoutly held religious belief is the least restrictive means of furthering the government’s purported compelling interest in this investigation. For the reasons that follow, I believe that we should remand to the district court for an ex parte hearing. Following that hearing the district court can determine if disclosure of the affidavit and further proceedings are warranted. It is only after such a probing, fact-specific inquiry that the district court can properly conduct the weighing that is required under RFRA. Absent at least an ex parte hearing, there is no way to insure the compelling nature of the government’s inquiry or that there is no less intrusive way to gather the evidence the government is seeking. Forcing these witnesses to testify without requiring such a showing is inconsistent with Congress’s attempt “to restore the compelling interest test” to enforce generally applied rules over conflicting religious beliefs. See Maj. Op. at 829.
I.
The majority cites Smilow v. United States, 465 F.2d 802, 804-05 (2d Cir.), vacated on other grounds, 409 U.S. 944, 98 S.Ct. 268, 34 L.Ed.2d 215 (1972); Port v. Heard, 764 F.2d 423, 432-33 (5th Cir.1985); and In re Grand Jury Proceedings of John Doe v. U.S., 842 F.2d 244, 247-48 (10th Cir.1988), to conclude that “[t]hese cases remain a useful aid in interpreting RFRA in light of the expressed congressional intent to restore the status of the law before Smith.” See Maj. Op. at 831. However, I do not think those cases support the majority’s analysis.
Although a religious objection was the basis of a challenge to a grand jury subpoena in Smilow, I believe that case argues for, not against, granting a hearing here. The same is true of Port v. Heard. In both cases, grand juries were investigating serious crimes of violence resulting in death. In Port, the grand jury subpoenaed the parents of a suspect in an effort to get them to supply information that could be used to indict their son for murder; in Smilow, the grand jury subpoenaed a 17-year old potential witness in a fatal fire bombing. Both witnesses asserted a privilege against testifying based on their First Amendment freedom of religion.1 Although the Courts of Appeals for the Second and Fifth Circuits ruled against the witnesses, both courts were careful to limit the scope of their holdings to the facts of the particular case. In Port, the court stated:
We hold that in the context of this case, the states’s interest in procuring every person’s testimony for the thorough investigation of the crime of homicide outweighs the Ports’ First Amendment claims, but only if the state’s procurement of the testimony was ‘the least restrictive means of achieving’ that interest.
764 F.2d at 432 (emphasis added). Similarly, the court in Smilow noted “the compelling state interest in this case in uncovering serious crimes of violence.” 465 F.2d at 804. Thus, although the language in Smilow, Port, and their progeny provides some basis for the majority’s holding, I am concerned that the majority has expanded those cases beyond the point supported by those courts’ opinions.
Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), is the foundation for many of the cases relied upon by the majority, including Smilow *838and Port. However, those cases rely upon the language of Branzburg without giving adequate consideration to the facts of that case, or the actual holding of the Supreme Court. In Branzburg, the Court considered the consolidated appeals of several different reporters who had independently been subpoenaed in connection with unrelated grand jury investigations. The various investigations included allegations of drug trafficking, civil unrest, and even Presidential assassination. The reporters argued that the First Amendment guarantee of Free Speech and Free Press implicitly established a qualified privilege against disclosing news sources. The Court summarized the reporters’ argument as follows:
Petitioners ... press First Amendment claims that may be simply put: that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment. Although the newsmen in these cases do not claim an absolute privilege against official interrogation in all circumstances, they assert that the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure.
408 U.S. at 679-80, 92 S.Ct. 2646. The Court held that no such privilege exists. In so holding, the Court noted that had it recognized such a conditional privilege, the privilege would require courts to conduct a fact-specific analysis each time a reporter was subpoenaed:
In each instance where a reporter is subpoenaed to testify, the courts would also be embroiled in preliminary factual and legal determinations with respect to whether the proper predicate had been laid for the reporter’s appearance: Is there probable cause to believe a crime has been committed? Is it likely that the reporter has useful information gained in confidence? Could the grand jury obtain the information elsewhere? Is the official interest sufficient to outweigh the claimed privilege?
Branzburg, 408 U.S. at 695, 92 S.Ct. 2646. The Court reasoned that Congress was free to determine whether a statutory newsman’s privilege is necessary and desirable, id. at 706, 92 S.Ct. 2646, but until Congress did so, reporters were not entitled to resist grand jury subpoenas on First Amendment grounds. The Court stated:
[although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that ‘the public ... has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege, is particularly applicable to grand jury proceedings.
Id. at 688 (emphasis added).
RFRA creates the privilege absent in Branzburg, and the cases relying upon it. Thus, Branzburg is of dubious assistance to our inquiry. In Branzburg, as well as the other cases where claims of privilege have been struck down because the law did not recognize the particular privilege, there was no weighing of interests because there was nothing to weigh on the witnesses’ side of the balance. Under RFRA’s statutory framework, however, Congress expressly requires the government to prove that it has a compelling *839governmental interest and that enforcing a grand jury subpoena is the least restrictive means for furthering that interest.2 Therefore, I do not believe we can determine whether coercing the testimony in this case satisfies RFRA’s dictates without requiring a hearing to determine whether the government can meet its burdens.3
The Court in Branzburg did state, in dicta, that “[t]he requirement of those eases which hold that a State’s interest must be compelling or paramount to justify even an indirect burden on First Amendment lights, are also met here.” 408 U.S. at 700, 92 S.Ct. 2646 (internal quotation marks and citations omitted). The Court then explained:
If the test is that the government ‘convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest,’ it is quite apparent ... that the State has the necessary interest in extirpating the traffic in illegal drugs, in forestalling assassination attempts on the President, and in preventing the community from being disrupted by violent disorders endangering both persons and property ...
Id. at 701, 92 S.Ct. 2646. That is not orn-ease. The violent nature of the crimes being investigated in Branzburg was an important factor in the Court’s conclusion; thus, to the extent that the Court’s mention of the “compelling interest test” provides precedent for our analysis at all, neither the district court nor the majority opinion gives adequate consideration to the nature of the charges here.
Smilow and Port only highlight the distinctions between Branzburg and this case. See Maj. Op. at 831-32. In Smilow, the witness resisting a grand jury subpoena in a fatal fire bombing investigation claimed that he was an “ ‘observant and committed Jew’ [and therefore] must refuse to answer the grand jury questions or else suffer ‘Divine punishment and ostracism from the Jewish Community’ as an ‘informer.’ ” 465 F.2d at 804. However, the privilege that he asserted was not recognized under law at the time.4 The court noted: “The legal *840claim is apparently a novel one and its precise religious basis is not clear from the record before us.” Id. The court then relied in part upon Branzburg to find a compelling state interest that overcame the religious objection. The court stated: “[W]e do not believe that appellant’s right to refuse to answer highly relevant questions is any greater than those claimed by petitioners in Branzburg, in the face of the compelling state interest in this case in uncovering evidence of serious crimes of violence.” Id.
The courts in Smilow and Port also relied largely on the fact that the crimes being investigated by the grand jury involved extreme violence. The court in Smilow explained: “we believe that appellant’s first amendment claim is outweighed by the compelling state interest in having the grand jury hear ‘every man’s evidence’ bearing on alleged criminal activity that resulted in the death of an innocent person." 465 F.2d at 805 (citing Branzburg) (emphasis added). Similarly, in Port, the court repeatedly recognized the need for a complete investigation because the underlying crime involved a murder. See, e.g., 764 F.2d at 432 (“in the context of this case, the state’s interest in procuring every person’s testimony for the thorough investigation of the crime of homicide outweighs the Ports’ First Amendment claims”); id. at 433 (“First Amendment interests may be subjugated to [the state’s interest in discovering the truth about a crime] in the proper circumstances” and holding that pursuing investigation of a murder presents proper circumstances) (emphasis added).
Given the nonviolent nature of the crimes being investigated here, I am far more reluctant than my colleagues to rely on precedent where the courts were obviously influenced by the violent nature of the crimes being investigated.
II.
Absent an ex parte hearing at the very least, I remain unconvinced that the underlying crimes here justify a rule elevating the government’s claimed compelling interest over the religious rights of these witnesses. This is not to say that the crimes being investigated are not serious, or that they are not worthy of prosecution. Rather, I submit that the nature of the investigation here has not been properly placed on the RFRA scale. Indeed, it does not appear to have been considered at all. This is not a situation involving violence or disruption or a threat to public safety. Indeed, it does not even appear that the alleged crimes are continuing. Rather, it is an investigation into past conduct. The majority asserts that “[t]he District Court correctly recognized that the duty to prosecute persons who commit serious crimes is part and parcel of the government’s ‘paramount responsibility for the general safety and welfare of all its citizens.’ ” See Maj. Op. at 831-32. But the record simply does not establish that the “general safety and welfare” of the citizenry is implicated here.
Moreover, I do not believe that the deference we owe to the district court’s conclusion justifies upholding the deference it showed to the untested affidavit of the prosecution, as opposed to taking adequate steps to protect the religious rights asserted by the witnesses and protected under RFRA. The majority states, “the witnesses have submitted no evidence beyond their own self-serving allegations to contradict [the suggestion that, as employees, they are uniquely situated to have first hand knowledge] or to establish that the government can conveniently obtain comparable information from other sources.” Maj. Op. at 833. However, the witnesses do not dispute that they may possess relevant information; nor do they deny (or confirm) that they were employees of the target *841(although it is unclear why that makes them “uniquely situated” compared to other employees). Instead, the witnesses argue that the government has failed to establish that similarly probative information cannot be obtained elsewhere, either from other witnesses or through documentary evidence, without burdening their religious beliefs.
In addition, the majority’s approach shifts the government’s burden under RFRA to the witnesses. This is exacerbated by the “Catch 22” in which the witnesses are ensnared. They have made only bare and unsupported assertions because they have been denied a hearing, and are therefore forced to shoot blindly at an affidavit they have not seen. Yet, the majority partially i’elies on their inability to assert more than bald allegations to affirm the district court’s refusal to grant them a hearing.
The majority’s analysis suggests that the procedures routinely used to review grand jury subpoenas under Schofield are necessarily adequate to review RFRA challenges. I can not agree. In Schofield II, we held, “[T]he Government [is] required to ... [show] that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.” In re Grand Jury Proceedings, 507 F.2d 963, 966 (3rd Cir.1975). Such an inquiry is totally inadequate to afford the protections Congress intended under RFRA. The usual Schofield affidavit does not establish the compelling nature of the government’s interest nor address whether there are alternative means of obtaining the evidence.5 That is not the purpose of the Schofield affidavit; rather, it merely seeks to insure that the subpoena process is not being abused. To the extent we hold that a Schofield inquiry is sufficient under RFRA, we lower the statutory bar Congress has erected. Indeed, we may well eliminate that bar as the Schofield inquiry does not address the compelling need of the prosecutor nor the existence of alternative avenues of investigation at all. Therefore, I disagree with the conclusion that “similar procedures are appropriate.” See Maj. Op. at 834. An inquiry along the lines set out in Schofield may be necessary for the government to meet its burden under RFRA, but it is by no means sufficient to do so.
Thus, I fear that our holding today will have the unintended consequence of creating a per se rule that will preclude a court from ever concluding that there is a less restrictive means for obtaining information than actually compelling grand jury testimony. At oral argument before the district court, the district court essentially held that to satisfy its burden in any criminal investigation the government merely has to assert that it has a compelling interest in “pursuing] all avenues in the search for the truth in a criminal investigation,” app. at 48 (emphasis added), and that there is no practical alternative. We now endorse that low threshold by holding that so long as “[t]here is substantial reason to. believe that the witnesses possess relevant information necessary for the prosecution of serious crimes,” enforcing the subpoena is the least restrictive means of advancing the government’s compelling interest in protecting “the general safety and welfare of all its citizens.” See Maj. Op. at 832-33 & 832.
We are told that these witnesses will be forced to commit a grave sin under the tenets of their religion, and we assume that is so. It is a sin for which there is no atonement. Yet, we do not even grant an ex parte hearing to make the government prove that the need for their testimony is sufficiently compelling and the alternatives *842so nonexistent as to justify this affront to their religion under RFRA. The language of RFRA, and the First Amendment doctrine from which RFRA evolved, require more. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 235, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“courts must move with great circumspection in performing the sensitive and delicate task of weighing a State’s legitimate social concern when faced with religious claims for exemption from generally applicable [laws]” and noting particularized showing as to the adequacy of the alternatives); Employment Div. Dept. of Human Resources v. Smith, 494 U.S. 872, 899, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (O’Connor, J., concurring) (“Even if, as an empirical matter, a government’s criminal laws might usually serve a compelling interest in health, safety, or public order, the First Amendment requires a case-by-case determination of the question, sensitive to the facts of each particular claim.... ”).
Because I believe the government’s Schofield affidavit alone does not satisfy those burdens, and the district court’s scrutiny was wholly inadequate, I would remand for a more searching examination of the government’s need for the testimony in this particular case and a determination of whether alternatives might exist. Accordingly, I respectfully dissent.
. The parents in Port also asserted a parent-child privilege based on their fundamental right of privacy and the Equal Protection Clause.
. Indeed, in Branzburg, the Supreme Court never applied the fact-intensive "least restrictive means” test required by RFRA; rather, the Court merely noted that compelling the testimony in that case “bears a reasonable relationship to the achievement of the governmental purpose.” Branzburg, 408 U.S. at 700, 92 S.Ct. 2646. Thus, Branzburg provides no guidance for determining whether the fact-specific, statutory "least restrictive means” test is satisfied.
. On remand, I would leave it to the district court’s discretion to decide whether a full evidentiary hearing after disclosure of the Schofield affidavit is required, or whether the ex parte hearing will suffice. The ex parte hearing would involve probing into the nature of the alleged crime and the precise conduct alleged to be criminal, the specific testimony sought from the witnesses, whether other witnesses exist, and if so, who they are and what they will likely testify to, whether the government has already interviewed other witnesses, and if so, the nature of their testimony, whether documentary evidence might exist and whether it will corroborate witness testimony, whether the government can obtain personal financial statements of the three children, and any other facts that may shed light on the government's need for the testimony.
With respect to disclosure of the Schofield affidavit, I believe the district court should also weigh the government's interest in secrecy in this particular case against the witnesses' substantial interests in arguing their position. At oral argument, the government asserted that it opposed disclosure of the Schofield affidavit in this case because such disclosure could result in the fabrication of testimony or evidence. That is, of course, a risk in any prosecution involving Lhe testimony of witnesses, and there are sanctions for such conduct including prosecution for perjury. Thus, I fail to see how the government's concern for perjury outweighs the witnesses’ substantial interest in reviewing the affidavit to determine whether some alternative, less restrictive means for furthering the governmental interesL exists. Nevertheless, here, I would leave the disclosure decision up to the district court following an ex parte hearing.
.Similarly, when Port was decided no parent-child privilege was recognized under the First Amendment, the Equal Protection Clause, or the fundamental right to privacy. Texas had recognized a marital privilege, but not a pa*840rental privilege. The court held that ''[t]he right to refuse to testify against one's child is not a fundamental right. Nor does the distinction between the marital and parental privileges involve a suspect class.” 764 F.2d at 431.
. In fairness to the government, and to its credit, the affidavit that was submitted here is far more specific than the usual boilerplate that is pasted into a Schofield affidavit. However, the procedure utilized here is inadequate to insuring that the government can satisfy both prongs of RFRA.