How a Former Amish Woman Helped Win a Court Case

In a controversial case in southeastern Minnesota, four Amish men sued the Minnesota Pollution Control Agency and Fillmore County, claiming that the installation of septic systems for disposing of their gray water was against their religious beliefs.

According to a report from 2017 in the Courthouse News Service:

MPCA [Minnesota Pollution Control Agency] spokesperson Cathy Rofshus said in a statement, “Everybody needs to properly dispose of their wastewater to protect human and environmental health.”

“Fillmore County has been working since 2006 to bring Amish properties into compliance with state laws on treating gray water. This water, used for washing and other purposes, is considered sewage and can contain pollutants such as bacteria and pathogens. (Washing includes laundering diapers with human waste.),” she said. “It’s especially important to properly treat sewage in Fillmore County, where the karst landscape is vulnerable to pollution. In karst, pollutants can easily reach groundwater used for drinking and streams used for recreation because of the water mixing through porous bedrock.” (Parentheses in original.)

This report quoted statements from the Amish complaint:

“The Minnesota Pollution Control Agency and Fillmore County are requiring plaintiffs to install wastewater treatment systems to process the disposal of indoor household water,” the complaint states. “Plaintiffs believe that installation and use of these wastewater systems is contrary to their religious faith and, if they comply with this policy, they will have to answer for this utilization of wastewater systems at the Day of Judgment.”

The court ruled in favor of the government. The Amish men wanted a new trial, but were denied it. In a recent report in the Post Bulletin it was stated that “The four men will likely appeal their case to the Minnesota Court of Appeals.”

Lizzie Hershberger became an expert witness to provide information about Swartzentruber Amish community practices to the court.

Lizzie Hershberger knows about the daily practices of the Swartzentruber Amish in Southeastern Minnesota because she grew up in that community. She left in February 1992 when she was 17 years old, but returned to her Amish family for a period of time in 1994. She was preparing to be baptized into the Amish church, but she decided that she couldn’t agree with some of the Ordnung and teachings, so she chose to leave. She and her husband, who is from the same community, lived in Ohio for a short time and returned to Fillmore County were they have lived since 1997. They have continued to interact with the Amish Community even though they did not become members of the church.

Lizzie kindly agreed to be interviewed here.

1. How is it that you became an expert witness for this case?

The District Attorney told me that he had three people refer me to him. He first heard about me from the zoning administrator, whom I know. They were looking for someone who would know the inside story, as opposed to someone who may be college educated but doesn’t know the inner workings of the Swartzentruber Amish in this area. I went in for an interview with the DA and after that we emailed back and forth and I agreed to testify.

2. How was the role of expert witness described to you?

To tell the truth about the Amish community I grew up in by explaining in depth their daily practices. I provided a whole list of products they use daily and weekly that goes down into Mother Earth. In our area because of the soil, we drink what goes into the ground within a matter of days. 

3. The Amish don’t normally initiate lawsuits, least of all the strict Swartzentruber groups. I know not all the Amish in Fillmore County were involved in this case. Why did the one church group file this lawsuit?

The man (Amos) who initiated this case is a free-wheeler and he didn’t grow up here, nor is he a member any of the Amish church districts here.

I will explain what I mean by a free-wheeler. Among Swartzentruber Amish groups, there have been numerous splits, and when one of these splits happens, members of the church are given a ‘free period’ in which they get to decide to go whichever way they want. Even if they decide not to join any of the church groups, they are not shunned by the other Amish because they left during that free period. So you have families who live the Amish lifestyle, but they don’t answer to an Amish bishop. This is what I mean by “free-wheeler” Amish. Amos, who initiated the lawsuit, claims he does answer to an Amish bishop elsewhere, but I have not been able to verify that.

The three other men who joined the case are from the Jacob Swartzentruber group, which is the smallest district in our area. They thought this would be a slam-dunk case.

The Jacob group does not associate with the other districts, which means they don’t preach in one another’s districts or have communion together, and their young people are not allowed to marry from outside their group. They said they were of the original Amish here, which is not true. My grandparents and several other families started the settlement in 1974. The Jacob group split away from the main church groups here in Fillmore County over orange buggy triangles back when I was still in the community.

4. I understand there were Amish people in the courtroom. Having grown up in this Amish community, what was it like to testify in front of your former fellow members, including those who were in authority?

When I took the stand, my one uncle, who is a preacher, was in the audience along with many cousins. (He was subpoenaed to testify because he refused to put in the proper septic system and received a fine). His son and son-in-law who live on the same property put in the correct system. I knew most of the Amish in the audience from growing up with them. I figured they wouldn’t like what I had to say, but I was determined not to allow them to intimidate me. I knew why I was there, and I decided to answer the questions as honestly as I could. A few of them told me later they were agreement with what I had to say on the stand.  

5. Did your testimony in court change your relationship with the Amish in your area? If so, how?

With some of the Amish, yes. They will stare at me instead of having anything to do with me. Others still associate with me.

6. Were there Amish in the courtroom who were from the church districts who don’t normally associate with the Jacob Swartzentruber district?

Oh yes. And not just from this county, but from other surrounding Amish communities as well.

7. Were you in agreement with the ruling?

Yes, absolutely. It is a health risk for both humans and animals. I grew up in this Amish community and have lived here in southeast Minnesota most of my life. I drink the water and breath the air here. I care about the environment and our quality of life. 

8.  If the plaintiffs manage to take their case to the Minnesota Court of Appeals, and you are asked to testify, will you?

Yes. 

9. How do you think this law will be enforced, and how do you think the Amish will respond?

Some might move, and some might put in the proper tanks to keep God’s country healthy and safe.

10. Please add any other details about this case that you find relevant.

I was able to provide the information that many of the Amish here in the area build their outhouses right into their washhouses. There is a space down below where the fecal matter collects. When they drain their washing machines, it flushes that fecal matter into the big pipes they installed and carries it, along with the wash water, out and away into their fields and woods.

I testified that many in this area are what I call Freebirds. They ride the fence with one leg on each side, getting all the glory and benefits of being Amish, yet they don’t live by the Amish rules. This was the only time in the courtroom when snickers were heard coming from the Amish. They knew what I meant. The judge caught on to that and asked for clarification that these people can live an Amish life, but they don’t have the preachers to answer to, and I confirmed.

Another topic I covered was how the Amish in this area have changed and allow more technology than they did when I was growing up. Here is part of my summary report:

I know many members of the Amish community have telephones and even smart phones. Some will leave their phones at work or not use them at home in order to maintain their Amish lifestyle. Others will use them at home. Others will say it is the neighbor’s phone that they are using. Other Amish have set up phone booths on a neighbor’s land. We did not have access to phones when I was growing up unless we went to a neighbor’s or took the buggy to town to use the pay phone. Some Amish own vehicles and hire drivers to go places instead of taking their own horse and buggy. We were generally not allowed to hire others or ride with others but is now much more common. Some drive tractors or have their hay baled in large round bales by non-Amish people. The men, women, and children work off the farm in large cities for construction companies, factories, orchards, in-home personal healthcare, and local wineries. This type of working off the farm was not allowed and certainly was not as prevalent when I grew up. Some Amish hire English people to plow and maintain their driveways. This was not allowed when I grew up. Some have portable showers set up in their houses. This was not allowed when I grew up — we were limited to baths. Some of the Infants and toddlers wear throw-away Pampers. Some have Facebook, Snapchat, Twitter, Instagram, and all of the social media outlets that I also use on a daily basis.

Knowing all this, I could not stand by and allow the Amish to claim this was a religious issue. This is an environmental issue, and they need to comply with the laws to keep our water safe to drink and our air safe to breathe.

 

Many of those of us who grew up Amish and left our respective communities know the difference between the way the Amish are viewed by many in the mainstream culture and the reality of living an Amish life. Researchers of Amish culture who paint a rosy-rendition of Amish life must be aware of the hypocrisy and abuses that exist in the culture, and yet they continue painting their rosy-renditions. A good example of that is the interview on Amish America with Karen Johnson-Weiner. Here is a direct quote:

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.

I dare say it is also hard for the Amish to understand. As a former Amish person, I have to say I don’t.

When asked about the departure from Amish beliefs against filing lawsuits, Karen wrote:

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.

Therein lies the technicality — the Amish in this case didn’t file the lawsuit themselves, but it was okay with them that someone filed one on their behalf. This makes me wonder if they would have accepted someone installing septic systems on their behalf.

Karen refers to the “Original Canton district” several times when referring to the Amish who filed the lawsuit, but as Lizzie already noted, they were not the ones who started the settlement, which suggests that Karen takes the Amish at their word. This aids in the misrepresentation.

I was struck by something else Karen wrote:

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.

Not only does this seem irrelevant, but it suggests that mingling with the Amish was more important than being accurate.

When asked what she expects will happen, Karen stated that most of the Amish in the area will likely install the septic system. Then she stated:

The Original Canton district […] 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…

This suggests that result of this case could cause a schism in the Amish church. According to Lizzie, there are Swartzentruber Amish who look forward to the next split so they can have that ‘free period’ to leave without being shunned. So perhaps there is an incentive by some Swartzentruber Amish to cause a split, and therefore it would not be the fault of the local government if a split does occur.

I see why the District Attorney wanted someone who actually knows the inside story to testify on behalf of the government.

I want to say something about Lizzie that is important here. She is not bitter about her Amish background. Rather, she retains the good that came out of her upbringing. Here is an excerpt from her summary report:

I have been married to my husband for over twenty-two years. He grew up in the same Amish church district I did. Neither my husband nor I got baptized Amish so […] we don’t get shunned from eating at the same table with other Amish church members. […] We still live and practice a lot of the Amish traditions. We raise our own beef. I can and freeze the meat. We hang our laundry out to dry on a high Amish clothesline. I cook and bake Amish food. […]

My husband and I interact with the Amish in our area a few times a week. We live as neighbors with my Swartzentruber Amish cousin and her family. […] We buy bulk food items at the Amish bulk food stores as well as produce, baked goods and other items. We use their harness repair and horseshoeing services. […] We have a horse and buggy that we drive occasionally and use our team of horses for spreading manure, pulling logs for firewood, sleigh and wagon rides, and other traditional Amish activities.

[…] I have lived the Amish lifestyle and have regularly interacted with the Amish community since I left. I see and understand both the inside and outside of the Swartzentruber Community.

I want to commend Lizzie Hershberger for having the courage to speak the truth in the courtroom. It took a great deal of gumption for her to speak in front of so many Amish community members.

It is no surprise that the government won this case. They were up against a died-in-the-wool Swartzentruber Amish person who could tell the inside story of that community in an honest and authentic way. Lizzie may have tipped it towards the decision that was made to enforce the installation of septic tanks. And thank goodness for that. From Lizzie’s testimony, it sounds like this was not only a gray water case. With the way some of the outhouses are constructed to flush away the fecal matter, it sounds like it was also a black water case. Most of the Amish in that area have already complied with the laws for gray water disposal. It will be to the health and welfare of everyone if the rest of them comply, including their own families.