Citizens are generally obliged to testify if they are called as a witness in civil or criminal proceedings. Those who refuse may face scorn in court and jailed until they agree to take a stand. However, common law has long recognized that some relationships require confidentiality, including attorney-client, spouse, doctor / psychologist-patient, and clergyman-penitent. Usually, the person submitting information can prevent the recipient from disclosing it. For example, a client can forbid their attorney to testify about a crime they committed and described to the attorney. But the client can testify what she told her lawyer or allow the lawyer to testify what she told him.
Clergy penal privilege
Many religious traditions encourage members to confess sins to religious leaders, but few take the practice as seriously as the Roman Catholic Church. Indeed, Catholics believe that the Sacrament of Reconciliation, as the name makes clear, is a sacrament. Furthermore, in contemporary Catholic canon law it says: “The sacramental seal is inviolable. Hence, it is absolutely forbidden for a confessor to betray a penitent in words, in any way or for any reason. “The penalty for willfully violating this law is automatic excommunication. Canon law also forbids a priest from breaking the seal of confession, even if the penitent gives him permission. (According to state law, the person who “has” this privilege and when.)
Influenced by canon law, early common law judges believed that a priest could never be compelled to break the denominational seal. The Protestant Reformers reduced the number of sacraments from seven to two (baptism and the Lord’s Supper, the only ones for which they found a biblical warrant). Because they associated the sacrament of Reconciliation with Catholicism, English lawyers in the 17th century gave up the privilege of clergy. The privilege was not recognized in early American common law or statutory law.
In 1813 a New York priest was ordered to testify about a thief who confessed to his crime. The priest refused, and the New York City General Sessions Court ruled in the People v. Phillips case that he was protected by the freedom of religion provision of the New York Constitution. Four years later, another New York court ruled that the privilege did not apply to a Protestant minister, partly because the confession is not considered a sacrament by Protestants. In 1828, New York State legislature passed a law protecting clergy privileges for Catholics and Protestants – the first law of its kind in the United States. Today all federal states and the federal government recognize this privilege.
Over the past two decades, many states have increased the number of professionals charged with reporting child abuse. Currently, clergymen are mandatory reporters in 28 states and anyone (including clergy) who suspects child abuse is required to report it in 18 states. These requirements are of little concern when a minister observes child abuse in the course of normal life. However, matters get complicated when a parishioner reveals information about child abuse, receiving religious advice, or participating in the sacrament of confession. In 24 states, clergymen are exempt from reporting requirements if, in the language of a North Dakota statute, “knowledge or suspicion is derived from information received as a spiritual advisor.”
Such religious exceptions are controversial. In fact, North Dakota lawmakers recently tabled a bill to remove this religious shelter. When this law passes, North Dakota will be the seventh state to repeal this type of exemption. This means that priests and other clergy who learn of child abuse as part of their religious duties are forced to report the abuse or face fines or imprisonment. Although the sacrament of Confession is often associated with the Roman Catholic Church, most religious traditions have analogous practices. The movement to oblige clergy to divulge known information raises important concerns about religious freedom.
The sacred right of conscience
Unlike other confidential relationships, clergymen’s privilege is mandated by the First Amendment and related constitutional rules and laws of the state (as recognized by the New York City General Sessions Court as early as 1813). Freedom of religion certainly requires churches and other religious entities to determine for themselves which sacraments to administer, how to administer them, and what a clergyman may or may not do with information received or not received during the Sacrament of Reconciliation and related practices.
The protection of denominations that value the denominational seal may violate the ahistorical lemon test of the court, but in no way violates the original understanding of the establishment clause.
Like the Church’s doctrine of autonomy by the Supreme Court, this protection is based on the clauses on freedom of exercise and settlement (see, for example, Hosanna-Tabor versus EEOC) ). The justices of the United States Supreme Court mentioned the privilege of clergy fines three times in dictations but never ruled that the first amendment made it mandatory (see, for example, Totten v. United States, 92, US 105, 107) ).
According to Employment Division v. Smith (1990), a neutral law of general application requiring everyone to produce evidence of child abuse without exception can survive a challenge to the free exercise clause. However, some states, including Rhode Island and Tennessee, reject the privilege of clergy, but still respect the confidentiality of attorneys and clients in child abuse cases, so the laws in these states may not be considered neutral and subject to rigorous scrutiny. And if clergy’s privilege is protected by a hybrid right (freedom of exercise and establishment clauses), then by the Smith Standard, strict control should be required. Even so, governments could successfully argue that they have a compelling interest in clergymen disclosing confidential notices regarding child abuse and other serious crimes.
Not all religious traditions hold the seal of confession as absolute as the Roman Catholic Church. Some Protestant clergy have no objection to reporting evidence of child abuse obtained during religious counseling, prayer meetings, etc., and some Jewish religious leaders have argued that rabbis are required to disclose such information. A creative compromise is to protect only clergymen who believe they have a sacred obligation to maintain confidentiality. For example, in Louisiana clergymen are required to report child abuse cases, but a clergyman
is not required to report a confidential communication. . . from any person to any member of the clergy who is authorized or accustomed to hear confidential communications under the discipline or practice of that church, denomination or organization, and under the discipline or principles of the church, denomination or organization is required to treat such communications confidentially.
In other words, clergymen are generally required to report confidential communications containing indications of child abuse unless strictly prohibited by their churches, denominations, etc. Separationists can object that this protection violates the establishment clause, but this is no more problematic than exempting only religious pacifists from military service. Such practices may violate the court’s ahistorical lemon test, but in no way violate the original understanding of the Establishment Clause.
Trying to require priests to break the denominational seal could have the unintended result of discouraging child molesters from seeking spiritual guidance or forgiveness. If a person feels compelled to confess that sin, they may accept the priest’s instruction to stop sin and to surrender to themselves. Even if some clergymen refuse to obey these mandates, their very existence can deter potential penitents.
Religious freedom is not a trump card that wins every time. If states can show that they have compelling reasons to violate the old protection of clergymen’s privilege – a protection prescribed in the religious clauses of the First Amendment – they could justify it legally. But with respect to priests and other clergy who refuse to obey them, these mandates will be of no avail and may cause additional damage.
Religious freedom is a central principle of the American constitutional order. State officials should not interfere with clergy’s privilege unless they have good reason to, and even if so, they should follow Louisiana’s example of clergy protection, such as Roman Catholic priests, who are “absolutely forbidden” To “betray” in any way a penitent in words or in any way and for any reason. “