Brian Lipford, the attorney for the Amishmen, has since asked for a new trial along with “amended and additional findings of fact” on the basis that “the state and the county failed to prove that there were no alternative subsurface sewage systems that were less intrusive on the men’s religious beliefs.”
The men had proposed an alternative “mulch basin” system that they said would suffice for disposal of gray water. That decision on a new trial/amended findings should be coming soon.
More from an expert witness
To get a better sense of this unusual case (Amish, with their bedrock values of nonresistance, almost never sue in court), I asked Karen Johnson-Weiner some questions.
Karen served as an expert witness for the plaintiffs, and is Distinguished Service Professor of Anthropology Emerita at SUNY-Potsdam. Her books include New York Amish: Life in the Plain Communities of the Empire State, and The Amish (co-authored with Donald Kraybill and Steven Nolt).
Karen knows the Swartzentruber Amish as well as just about any non-Amish person (see previous Swartzentruber-themed guest posts by Karen on the Amish skid house, confusingly-similar Amish names, and braiding girls’ hair), so it’s no surprise she was asked to be involved in this case.
Why did these Amish decide to go to court? What’s the big deal about installing a septic tank? What could happen next?
Karen kindly answers these and other questions and shares some of the behind-the-scenes of this case below.
Karen Johnson-Weiner on The Minnesota Swartzentruber Gray Water Case
Amish America: Could you share briefly a little on the case background and how you got involved?
Karen Johnson-Weiner: The Minnesota Case, filed by the Southern Minnesota Regional Legal Services on behalf of the Swartzentruber Amish in Fillmore County against the County and the Minnesota Pollution Control Agency, challenged the constitutionality of State and County mandates to have a septic system. In particular, it challenged the requirement of wastewater treatment systems to process the disposal of indoor household water (e.g. the waste water that results from dishwashing, laundry, bathing) or “gray water.” The case did not touch on septic systems having to do with sewage, but several of the Amish told me that they thought that would be next if they lost this case.
I had heard a bit about the Minnesota case through the Swartzentruber grape vine, and a Swartzentruber bishop proved prescient when he told me several years ago that he thought gray water issues would be the next thing that landed his people in court.
Brian Lipford, attorney for the Amish, contacted me in September, 2017, to ask if I’d be willing to testify in court about the sincerity of Amish belief as part of the Amish claim that complying with the requirement to install septic systems would be a violation of their religious beliefs.
The Minnesota case actually began well before Brian contacted me. When Minnesota first passed the law requiring septic systems, members of the Swartzentruber community wrote to the Governor to express their objections and to state their hope that a compromise could be reached.
Being (in my opinion) the last people in the country who think something can be accomplished by writing to elected officials, the Swartzentrubers were both surprised and disappointed that no one came from St. Paul to talk with them about the issue. By the time I got involved, there had been criminal prosecutions, administrative penalty orders, contempt of court hearings, and court actions seeking the removal of Amish individuals from their farms.
Amish America: What are the objections of these Amish to installing a septic system?
Karen Johnson-Weiner: As you know, the so-called “Swartzentruber” Amish are an Amish affiliation that traces its origin to a schism that occurred in Holmes County, Ohio between 1913 and 1917 over differences in the application of Bann (excommunication) and Meidung (shunning).
Today there are several non-fellowshipping Swartzentruber sub-affiliations, with minor differences between them (e.g. some Swartzentruber Amish have adopted LED flashlights while others have not); however, all of the Swartzentruber Amish groups are noted (even among the Amish) for their extreme conservatism, and their Ordnungs resist innovation in household technology, farming practices, dress, and worship rituals.
In Fillmore County, there are six Swartzentruber districts, five of which fellowship with each other. The non-fellowshipping district, the Original Canton district, has a more conservative Ordnung.
For the Swartzentrubers, the installation of septic tanks constituted a change that was incompatible with their religious beliefs. It’s difficult for non-Amish to understand, but the change that installing septic systems would make in Swartzentruber life was, to Amish eyes, considerable.
It’s not the expense or the size of the tank that they objected to (although Fillmore County requires a larger tank than the state does); rather it is the departure from a way of life sanctified by tradition. Various community members told me that since God’s laws don’t change, those who follow them shouldn’t either.
Others suggested that installing septic tanks for gray water was the first step down a slippery slope, and that if they made this change, they would soon be called on to make others. Finally, more than one suggested that “Ordnung came first,” and that the State was being unfair in suggesting that a new law should take precedence over Ordnungs tested by time.
The Amish were willing to seek a compromise, an alternative method of waste water disposal that would meet government goals without requiring a change in lifestyle that would violate religious beliefs. At the trial, an expert witness on gray water disposal, Dr. Laura Allen, testified to the efficacy of a “mulch” system currently in use in many of the western states. The Amish indicated their willingness to use this system, and several had already begun using it. Despite its widespread acceptance, however, the mulch system was not acceptable to the authorities.
Have other Swartzentruber Amish communities had similar objections to septic tanks?
Karen Johnson-Weiner: This was not the first time Swartzentruber Amish had found themselves in court because of their objections to septic tanks.
For example, members of the Swartzentruber community in Nicktown, Pennsylvania, were willing to go to jail and finally to leave their homes rather than comply with the sewage regulations. While secular authorities framed the issue as a question of environment and public health, the Swartzentruber Amish understood it as a matter of religious belief.
As the Swartzentrubers put it in a handwritten letter to the sewage enforcement agency, “We feel this sewage plan enforcement along with its standards is against our religious (beliefs). Our forefathers and the church are conscientiously opposed to install the sewage method accordingly to the world’s standards.”i
For the Nicktown Swartzentrubers, to comply meant going against the Ordnung, which they had made a baptismal vow to obey. Further, in their eyes, compliance with the code would mean serving the state rather than serving God. They were unwilling to pay fines imposed on them because to do so would suggest that God and the Ordnung were wrong. The state had changed and was now enacting new regulations; God’s truth had not changed and so the Swartzentrubers could not in good conscience comply. As a member of the Nicktown community put it, “I will take a stand for my religion. If I don’t, it could destroy the whole church group.”ii*
Ultimately, the Nicktown Swartzentruber community chose to migrate rather than change their sewage disposal practices, most moving back to St. Lawrence County (Somerville), NY, where some of them had originally come from.
Some were surprised to see this because given their nonresistance beliefs, it’s not common that Amish bring lawsuits. What motivated them to do so in this case?
Karen Johnson-Weiner: As is true, I think, of most cases in which the Amish go to court, it was a non-Amish friend who first contacted a lawyer on their behalf. Amish will accept lawyers willing to act for them pro bono, but they are generally unwilling to hire a lawyer. Brian told me that he first got involved when an English friend of the community contacted him after the County sought to have one Amish man removed from his home and his house destroyed for non-compliance with the new septic regulation.
Generally, the Amish are willing to go along with court action on their behalf to get relief from laws they feel violate their 1st amendment right to practice their religion. Years ago, when the Amish in Morristown, NY, sued the town of Morristown, an elderly bishop insisted that the Amish wouldn’t take any money. He was quite concerned that people would think the Amish were “just trying to get rich.” Their lawyer told them that there had to be financial damages, but that if the Amish won, they didn’t have to take the money. Only when they were assured that any money they were awarded could be returned to the town did they go ahead with the lawsuit.
What was the experience like of testifying? Were Amish present in the court?
Karen Johnson-Weiner: Testifying was an interesting experience. There were many Amish in the courtroom, and I was gratified at their support. The community was so welcoming! As a witness, I couldn’t be in the courtroom until it was time for my own testimony, so I hung out in a side room with the Amish witnesses and other Amish, who would leave the courtroom every now and then for a break. Everyone brought food! On the last day of testimony, several of the women sent in a hot meal. Others invited us (me, Laura, and Brian) to their homes for meals.
Testifying was also very frustrating. The county attorney seemed to have the idea that the Amish simply forbade anything new, as if “newness” was what made something unacceptable. Exhibits presented by the prosecution included photos of motors and plastic containers, as if the Amish use of these things showed them to be hypocritical.
Any ideas what might happen next following the court’s decision?
Karen Johnson-Weiner: Now that the Amish in Fillmore County have lost the case, it remains to be seen whether they will agree to an appeal [ed. note – this interview preceded the news about the Amish seeking a new trial]. The case in Fillmore is particularly interesting because, as I’ve noted, the Swartzentrubers there do not all fellowship together. One bishop told me that, while those in the district who had installed the septic systems did so under pressure from the county, there were others who weren’t opposed to doing so. He said that none of the bishops (outside of the Original Canton district) wanted to bring it up at Ordnungsgmay because they worried that it would split the church.
I think that losing the case will motivate most members of these districts to comply with the new regulations. I doubt it will be brought up for discussion at Ordnungsgmay; rather, I think folks will go ahead and install them without saying anything, and so they’ll soon be accepted.
The Original Canton district (which fellowships with “Joe Troyer Swartzentrubers” elsewhere) is another story. This district has a somewhat lower Ordnung and has taken a stronger stand than the others. Here it’s an Ordnung issue, and so installing a septic system means violating the Ordnung and risking Bann. Any move to change the Ordnung would likely cause a schism, and so I expect most of those in the Original Canton district to move. In fact, several families have already done so.
I also think there will be other cases like this. The Swartzentrubers are expanding and establishing new settlements in areas that aren’t used to the Amish and certainly aren’t used to Amish as conservative as the Swartzentrubers. In facing the challenges posed by mainstream society, groups can change or they can move to areas where they don’t have to. The Swartzentrubers have generally chosen the second way.
*The Swartzentruber Amish community abandoned the Nicktown settlement and established a new community in Somerville, New York. See “Embattled Amish sect in Cambria County moving to Upstate New York,” Triblive.com. 11/24/12. https://triblive.com/home/3016359-74/amish-county-swartzentrubers-moving-sewage-state-pennsylvania-swartzentruber-york-cambria