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Religious Freedom and the Sanctity of the Confessional

The Florida Evidence Code apparently requires clergy to testify about confessions to them, if the penitent allows them to do so -- but Catholic doctrine forbids any such testimony, regardless of the penitent's wishes. Which should prevail?

To my knowledge, all American states have an evidentiary rule under which clergy can generally refuse to testify about confessions, if they believe such confessions to be confidential. (The confessions are often called "penitential communications," to stress that they need to be Catholic-style confessions.) But the Florida Evidence Code apparently treats this as primarily a right of the penitent; thus, if the penitent says she would like the clergy member to testify, the clergy member can be ordered to do so.

The Catholic Church, though, apparently takes a different view: It believes the clergy member cannot reveal things said in the confessional, regardless of whether the penitent wants them revealed. Here's how this played out in today's Florida Court of Appeals decision in Ronchi v. State.

In June 2017, Loren Burton was charged in a four-count information with committing sexual offenses against a minor. The charged offenses were alleged to have occurred when the alleged victim was seven years old and when she was thirteen years old. The record reflects that the criminal investigation of Burton commenced after the alleged victim, then seventeen years old, disclosed to her mother that she had been sexually abused by Burton.

In August 2017, the State filed a notice of intent to introduce child hearsay statements ... [under a Florida evidence rule that] statute permits the introduction of out-of-court statements made by a child victim with a physical, mental, emotional, or developmental age of sixteen or less that describe any act of sexual abuse against the child provided that, inter alia, the time, content, circumstances or the statement provide sufficient safeguards of reliability. Here, the State alleged that when the alleged victim was fifteen years old, she disclosed to Ronchi that Burton had sexually abused her.

Ronchi objected, arguing, among other things, that the Florida Religious Freedom Restoraction Act entitled him to an exemption from the usual duty to testify. And the court agreed, at least on the facts of this case:

FRFRA expressly provides that the government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

A substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. In the instant case, the record establishes that if Ronchi complies with the State's demand that he testify as to his communications with the alleged victim during the Sacrament of Reconciliation, Ronchi would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court's order can only be upheld if the State establishes that coercing Ronchi's testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.

Here, it is undisputed that the State has a compelling governmental interest in prosecuting sex offenses perpetrated against children. However, we disagree with the State's contention that coercing Ronchi to testify regarding communications that occurred during the Sacrament of Reconciliation, in contravention of his sincerely held religious beliefs, would be the least restrictive means to further its compelling governmental interest of prosecuting Burton.

First, as the State acknowledges, the testimony of Ronchi would, at most, be corroborative evidence. There is no allegation that Ronchi was a witness to any sexual abuse. Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events. Third, ... the State could seek to have the alleged victim testify as to her purported prior disclosure of sexual abuse to Ronchi.

Because we conclude that the trial court's order contravenes FRFRA, we grant the petition and quash the trial court's order to the extent that it required Ronchi to "respond to the subpoena and ... be questioned about the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse."

This reasoning might yield a different result, though, when the evidence really is necessary for the accurate resolution of the underlying prosecution (or even civil lawsuit). Some state clergy-penitent privilege statutes do by their terms provide an absolute right for the clergy to refuse to testify, regardless of what the penitent wants—but if the clergy can't prevail under that specific statute, and have to instead call on the state RFRA, then their RFRA right to a religious exemption can be overcome by a showing that requiring them to testify is the least restrictive means of serving a compelling government interest.

To be sure, some might argue that requiring a priest to testify isn't the least restrictive means of getting testimony, because it would fail to get the testimony: Catholic priests seem likely to be unwilling to break the confessional even if they are threatened with jail. I'm not sure how that argument would play out (and whether it would yield one result for priests of religions that are notoriously insistent on confidentiality and another for clergy that are less militant and thus perhaps more open to being swayed by the threat of jail). But in this case, the court didn't have to reach this complicated question, because the priest's testimony wasn't seen as important enough to the justice system.

Finally, some might ask: Given that we have a conflict between a state RFRA statute and state evidentiary statute (the general duty to testify, as modified by the relatively narrow Florida clergy-penitent privilege), why should RFRA prevail? The answer is that RFRAs are deliberately crafted, and deliberately enacted by legislatures, as potential exceptions to the whole body of the jurisdiction's law, including criminal laws, zoning laws, evidence laws, and more; courts likewise interpret them that way.

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  • santamonica811||

    An interesting case (or, an interesting test of a priest's adherence to this policy) is when the disclosure exculpates a defendant. In other words, if the priest testifies truthfully, then the innocent defendant goes free. If the priest does not, he goes to prison/is executed. (And let's assume that it was not the guilty party that confessed, since there then might be a clear "wrong" done by the priest testifying...the harm to the guilty of later being arrested and tried.)

  • bernard11||

    And let's assume that it was not the guilty party that confessed, since there then might be a clear "wrong" done by the priest testifying...the harm to the guilty of later being arrested and tried.

    That's harm, certainly, but is it a "wrong" in a religious sense?

    Anyway, we can imagine something else, as you suggest.

    The defendant's truthful alibi is that he was confessing at the time of the crime - miles away from the scene. The priest is the only, or perhaps best, witness as to the defendant's whereabouts. Now what?

  • Inwoods||

    Other priests I know disagree, but I always took the rule to not cover the immediate context. "I saw them in the parking lot" "I saw them approaching church," etc.

    In order to avoid that testimony, you'd have to argue extending the privilege to cover anything that might allow people to infer that you even met, let alone that they confessed and what they confessed. The farther away from content you get the less critical the seal is.

    For reference:

    Can. 983 §1. The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.

    For whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office but that he shall also be sent into the confinement of a monastery to do perpetual penance.
    — Hefele-Leclercq, Histoire des Conciles at the year 1215; Mansi or Harduin, "Coll. conciliorum"

    I don't see any command that prevents a priest from making known that confession took place, actually. I certainly don't see a command that says you can't report seeing someone in the hall just because you heard their confession a moment later.

    edit: trying this with links/citations removed?

  • perlchpr||

    I'm not Catholic so my opinion here has basically zero weight, however it does seem that "Steve came to confession" would be a fairly innocuous statement for a priest to make, in order to establish an alibi. It's certainly a huge jump from that to "And Steve told me that he molested a goat while he was confessing".

  • James in Perth||

    Let's hear from the expert:

    "[Father Joseph] Waters [both a priest and a judicial vicar in the Catholic Church] averred that a Catholic priest is prohibited from disclosing any aspect of a penitent's communication during the Sacrament of Reconciliation including but not limited to, the penitent's participation in the Sacrament, the nature of the confession, the priest's mental impressions of the confession, and the priest's communications to the penitent during Reconciliation, even if disclosure is agreed to by the penitent. Reverend Waters further opined that violations of the Sacrament are considered among the most grave violations of Church law and would subject a priest to excommunication from the Church."

    Which makes sense because any of that information may compromise the penitent or the confessor and discourage people from receiving absolution. I've heard priests throw out some pretty frightening hypotheticals. But the answer was always "no, you cannot disclose."

  • Rev. Arthur L. Kirkland||

    If a penitent tells the priest that the guy scheduled for execution tomorrow is innocent, and that the penitent knows this because the penitent committed the murder, and that the penitent is hiding the murder weapon behind a radiator panel in the confessional because God has called the penitent to do so, what (if anything) can the priest tell another person about this?

    If the answer is "nothing," what decent society would acquiesce?

  • ReaderY||

    It sounds impressive, but it seems to me you would have to come up with a scenario in which this would actually occur. How would "society" know this happened. If the murderer revealed he had confessed this, how would the priest's hearsay testimony reveal anything more than the murder himself. And if the murderer didn't reveal this, how would the priest know?

    In the case at bar the government knew about the individual by other means and wanted to know about the confession to obtain additional information - dubious, since testimony about a confession is inherently hearsay.

    How would, how could your hypothetical of the identity of a perpetrator becoming known to the government only by pressing a priest to tell about a confession come about? How wod the government identify which priest to press? I think we can assume that a priest willing to fight a subpoena would have tattled in the first place.

  • ReaderY||

    Would not have rattled in the first place.

  • Ben of Houston||

    Reverend, the proper answer is that the priest should refuse absolution.

    The priest is under no obligation to provide this evidence to the court, and in any case, it would be only hearsay and, thus, inadmissible. However, the priest does have the authority in the church to (literally) damn the guilty party until they publicly confess.

    In fact, that is the ONLY acceptable option if a person confesses a crime of such magnitude. Include proper disclosure to the authorities as part of their penitence.

  • David Nieporent||

    If a penitent tells the priest that the guy scheduled for execution tomorrow is innocent, and that the penitent knows this because the penitent committed the murder, and that the penitent is hiding the murder weapon behind a radiator panel in the confessional because God has called the penitent to do so, what (if anything) can the priest tell another person about this?

    If the answer is "nothing," what decent society would acquiesce?

    If a client tells his lawyer that the guy scheduled for execution tomorrow is innocent, and that the client knows this because the client committed the murder, and that the client is hiding the murder weapon behind a radiator panel, what (if anything) can the lawyer tell another person about this?

    If the answer is "nothing," what decent society would acquiesce?

  • Rev. Arthur L. Kirkland||

    The issue appears to hinge upon the importance one places upon the role at each position along a continuum that includes attorney, physician, spouse, best friend, priest, therapist, Uber driver, police officer, victim advocate, nurse, and dozens of others.

    Another relevant point involves the nature of a communication. Does anyone contend a credible, detailed statement of resolve to kill or rape someone in a few days ever deserves confidentiality, or that a decent person would not reveal the content of that communication?

  • Agammamon||

    Given the contempt you show towards the religious on H & R i can see why this might be difficult for you to understand, the priest is *beyond* the attorney, or even the spouse or physician in terms of confidentiality and trust.

    Your attorney would be required to report you, your physician would be, your spouse may not, your priest definitely not - if it was revealed in the context of the confessional.

  • perlchpr||

    Well, and there you have it, why my position holds no weight. :)

  • bernard11||

    That makes sense.

    Thank you.

  • Don Nico||

    "The priest is the only, or perhaps best, witness as to the defendant's whereabouts. Now what?"

    That depends on whether the priest knows the identity of the penitent. Say the penitent makes an appointment at a specific time. My guess it that the priest may testify as to the appointment written in his appointments ledger. Otherwise I don't know if the fact of the confession (as opposed to its contents) is under seal by Catholic canon law.

  • Ben of Houston||

    The fact that the man was there is not protected. The fact that they confessed and anything said in the confession is off limits.

  • FlameCCT||

    A priest would be able to testify that the defendant was at the church, at the time specified, as that would be consistent with anyone else seeing the defendant at a place/time. They could not force the priest to testify about what was said in the confession itself.

  • TwelveInchPianist||

    One would hope that the compulsory process clause would override the state RFRA in a case like that, although IANAL and don't know the specifics of that clause.

  • Rev. Arthur L. Kirkland||

    Not if the Republicans are calling the shots.

  • TwelveInchPianist||

    Note that this is a sexual abuse case. The Dems have been pissing away their props for due process in such cases as fast as their kidneys will let them.

  • Rev. Arthur L. Kirkland||

    An interesting case (or, an interesting test of a priest's adherence to this policy) is when the disclosure exculpates a defendant.

    I would wager that's an easy one for the church where the confession would identify a criminal, perhaps a killer with more plans. Church rules prevail over morality and decency, with the side benefit that the guy most likely to drop a tenner in the collection basket is free to pay another day.

    And our society has enough vestigial gullibility to permit this to continue . . . for now.

  • Eidde||

    "When recruiting members, the Klan sometimes distributed cards listing '(t)he separation of church and state' as one of the organization's principles. Bearing this out, Klan pamphlets declared that '(t)he fathers" and "the founders of our republic' had 'wisely provided for the absolute divorce of church and state.' Both in the South and the North, members even recited in their Klansman's Creed": 'I believe in eternal separation of Church and State.' Commenting on such vows, an 'authoritative' writer - identified only as '931 KNOIOK' - explained: 'The Klan is pledged to...complete separation of Church and State, and the Roman Catholics fight this...The Roman Catholic Church is first, last and forever opposed to the Separation of Church and State and in favor of the absolute domination and control of the State by the Roman Catholic Church.'"

    -Philip Hamburger, Separation of Church and State, pp. 408-09

    Karry on, Klinger.

  • David Nieporent||

    Kirkland is just being an asshole here. There are several evidentiary privileges other than the priest/penitent one, but he would never declare that, e.g., lawyers who don't turn in their clients are putting legal ethics over morality and decency. It's just because he's a bigot that he says this.

  • James in Perth||

    Absolutely correct, Mr. Nieporent.

  • Rev. Arthur L. Kirkland||

    I do not like the marital privilege, either. I dislike special, unearned privilege, regardless of whether the snowflake is married or superstitious, especially where that privilege seems nearly calculated to harm others.

  • Eidde||

    Whatever you say, Rev. KKKirKKKland.

  • David Nieporent||

    Note how Kirkland dodged what I said and tried to deflect by bringing up an entirely different privilege.

    But if he ever gets married, maybe he'll understand the basis of the spousal privilege.

  • Rev. Arthur L. Kirkland||

    You indicated my skepticism concerning the priest-penitent privilege derived from hostility toward religion. I indicated similar skepticism concerning a similar privilege unrelated to religion.

    I have been married for more than 30 years. I understand why a spouse, or a priest, or a best friend, or a therapist, or someone else might wish to refrain from testifying. I am less understanding about provision of special privilege to some or all of those persons at the life-or-death expense of an innocent.

    Do you still claim to be a libertarian?

  • Agammamon||

    I know you don't - you claim to be a full-bore statist - but we understand that the state should be limited in its ability to compel speech. Yes innocents may potentially be hurt because of these limitations - but time has shown that far fewer are hurt than in regimes where the state's ability to compel speech is not so restricted.

  • Agammamon||

    That is simply because you refuse to accept that some limits to the power of the state make things better for us. These 'privileges' have evolved over multiple centuries because they are important to the smooth running of the state. They make the state more capable on the large-scale despite it looking like a small-scale restriction of state power.

  • Stephen Lathrop||

    The lawyer/client privilege serves an important constitutional purpose, and ought to be protected. Likewise, an argument can be made, (for reasons I have explained in other threads, I don't make it) that a journalist/source privilege serves a similar purpose, and deserves similar protection. It baffles me that few lawyers seek to extend to journalists an identical privilege. The lawyers know the privilege is not only vital to their own practice, but to their clients, and to the constitutional purpose of preserving rights. And they know it would work alike in every respect for journalists and their sources—yet lawyers habitually resist (for the most part) extending the privilege to journalists.

  • The original jack burton||

    Fundamentally there is little to no difference between the bigots of the KKK and AK... except in their choice of wardrobe and the object of their bigotry and hate.

  • Deep Lurker||

    I'm told that one of the reasons to never talk to the police is that nothing you say can be used in your favor in a court of law, because exculpatory statements are inadmissible hearsay. Wouldn't this also apply to exculpatory statements made to a priest?

    As time goes on, I find myself moving away from supporting religious exceptions to various laws: If a religious motive is enough to justify an act, then what justification is there for the act to be illegal in the first place?

    So my preferred solution, in this case, would be to dump the "admission against interest" exception to the hearsay rule. Then priests won't be called on to reveal confessions made to them because it would be mere hearsay no longer covered by the "admission against interest" exception. And if it would make life harder for cops not to be able to use a suspects statements against him in a court of law, were such statements to become inadmissible hearsay, then I weep big crocodile tears for the cops.

  • Don Nico||

    The priest must decline to testify accept going to jail and formally ask his hierarchy for adjudication under canon law if he does testify.

    With respect to the Florida lawyer, the solution seems to be to subpoena the penitent to testify or at least provide a statement in a limited deposition or in a extra-confessional conversation with the priest.

  • James in Perth||

    There is no adjudication under canon law. The priest is automatically excommunicated but may appeal to the Apostolic See (i.e., the Vatican). Such a tragic case recently occurred in a diocese in Australia.

    Can. 1388 §1. A confessor who directly violates the sacramental seal incurs a latae sententiae excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.

  • Rev. Arthur L. Kirkland||

    Why is it tragic?

    Any decent person would renounce the priesthood and go straight to the authorities to rescue an innocent, condemned man.

  • Rev. Arthur Ꮮ. Kirkland||

    Any decent person would realize that protecting immortal souls logically outweighs any possible temporal concern, even if he himself doesn't believe in their existence, and would refrain from trying to force people who believe in such souls to commit acts that they believe would imperil such souls.

    But, then, Rev. Arthur L. Kirkland and decency are eternal enemies.

  • Rev. Arthur L. Kirkland||

    A fine time for an appearance by Right-Wing, Gullible, Superstitious Mini-Me.

    Does Prof. Volokh compensate you for these appearances?

  • FlameCCT||

    IIUC you saying that lawyers, journalists, like priests, are not decent people?
    Or are you just talking out your ass again?

  • Eidde||

    "The answer is that RFRAs are deliberately crafted, and deliberately enacted by legislatures, as potential exceptions to the whole body of the jurisdiction's law, including criminal laws, zoning laws, evidence laws, and more; courts likewise interpret them that way."

    Also because until 1990, the rules embodied in RFRA represented more or less how the US Supreme Court interpreted the 1st Amendment - then came Scalia's worst mistake, in the *Smith* case.

    Scalia was at least trying to curb judicial arbitrariness - but in this case he did so at the expense of allowing legislative arbitrariness.

    Leaving religious exemptions to the legislature (as Smith does) doesn't mean that all the laws will be "neutral and generally applicable." It means there will be an arbitrary patchwork of religious exemptions, created by the legislature for the benefit of influential and popular religions. And the courts won't be able to recognize other exemptions for the unpopular and small religions. Even if the advocates of religious repression can't make a compelling case for their side, they get to practice repression anyway, unless the legislature restrains them, and this, again, will be a function, of which religions have better lobbyists and which religions prompt bad reactions from legislators.

  • Eidde||

    This is why the RFRAs are called Religious Freedom *Restoration* Acts - they aren't making up new rules, they're trying to reinstated rules recognized by the Supremes until they changed their mind in 1990.

  • Stephen Lathrop||

    I see it otherwise. I see the naming of the act as an example of political framing—in support of broadening religious intrusion into politics and civil affairs. In short, making up new rules. I don't agree at all with your own premise that absent a RFRA, a pre-Smith Supreme Court would have decided Hobby Lobby the way it was decided post-RFRA.

  • Eidde||

    Who knows whether the court which said the Amish had the right to be exempt from compulsory-school-attendance laws would have said that a business had the right not to provide contraception to its employees? That would depend on the political context. The First Amendment doesn't enforce itself.

    They *would* have to explain, absent *Smith,* why the Amish won and Hobby Lobby lost, without resorting to misleading remarks about generally-applicable laws.

  • Eidde||

    In fact, comparing the right not to send minor children to school to the right to insist that your employees pay for contraception out of their regular salary, not out of company insurance benefits, might end with a situation where the government's case with adult employees is *less* compelling than the government's case with minor children.

  • Eidde||

    Also, the RFRAs are a response to *government intrusion* into religion, in cases where the government is unable to show that the intrusion is the least restrictive means of achieving a compelling interest.

    Talking of religious intrusion - the government can't stop a Native American religion from using peyote as a sacrament, what an aggression - partakes of "stop hitting my fist with your face."

  • Stephen Lathrop||

    Your assertion about "misleading remarks about generally-applicable laws," may rest on a misunderstanding. If I am reading you right, you suppose that if "generally applicable laws," have in fact been passed as an exercise of arbitrarily-exercised legislative power, that makes them, somehow, not generally applicable laws. That is not so.

    In the American system of government, entirely legitimate enumerated powers include arbitrary powers, delegated to the political branches from the sovereign People. Without such delegation, the People's own sovereignty—which rests, as all sovereignty does, on unlimited, uncontrollable power—could not be exercised through government.

    Any government which purports to check the sovereign power which underlies it is a contradiction. History shows that sovereigns lose legitimacy when subjected to purported checks by rival power, wherever from. When thus challenged, sovereigns either defeat the challenger, or surrender unchecked absolute power to the challenger.

    It is not possible to devise a system of checks upon a sovereign which does not imply the abolition of sovereignty itself. However exercised, sovereign power must always remain unchecked. Courts can not check the sovereign power of the People without themselves becoming sovereign, and themselves exercising unchecked power in the People's stead.

  • Eidde||

    My point was that the law codes of the federal government and the states are *not* "neutral and generally applicable," since they're filled with religious exemptions created by the legislature.

    Thus, the Court is defending a nonexistent, ideal (and in any event undesirable) system when it speaks of "neutral, generally applicable laws."

  • Krayt||

    The entire concept is void with respect to the First Amendment. By default and requirement, Congress shall make no law.

    You shouldn't need an FRFA in the first place. All "general" laws automatically exempt speech and religious restrictions.

    The zeal with which defenders of "general applicability" laws wanna fight tooth and nail to ram it down the throat of the religious, causing them to sin or give up participation in society demonstrates it's not even a general law conceptually.

  • Don Nico||

    Stephen, you make a very strong argument for Brexit and you explain why the Brits never abandoned the pound.

    Brexit will have large costs to the UK, but the sovereign power of the UK government will have been reasserted against the faceless, unelected bureaucrats of the European Commission.

  • Stephen Lathrop||

    Scalia was at least trying to curb judicial arbitrariness - but in this case he did so at the expense of allowing legislative arbitrariness.

    Government—all government—rests on arbitrary, uncontrollable, sovereign power. America's founders wisely chose to cabin the exercise of the arbitrary part of that power within the political branches, where its mis-exercise would be susceptible more readily to correction by the sovereign People than it would be in the courts.

    Thus, the notion of the Supreme Court "allowing legislative arbitrariness," expresses a misunderstanding of the American system of government—by implication making too broad the Court's power to check the legislature. Better to stick to the customary approach, which understands individual rights as specific sovereign decrees for the limitation of government, which the Court should enforce.

    In the absence of such explicit decrees, the Court has no business awarding itself an additional power for second-guessing the political branches—no matter how arbitrary their decisions might appear to the justices—or might actually be—in the exercise of enumerated powers. The sovereign People authorized the political branches in some instances—the enumerated powers—to exercise the People's own arbitrary power, and did not do so for the courts.

  • Eidde||

    There are plenty of limits on legislative arbitrariness, even under a legal-positivist interpretation of the Constitution which regards rights as granted by the document (which is a narrower concept than is actually the case).

    The Fifteenth Amendment, for instance, constrains the sovereign people in that it doesn't allow them to limit the right to vote on racial grounds.

    The First Amendment guarantees "free exercise" of religion and the 14th Amendment protects the privileges and immunities of citizens of the United States.

    These are constraints recognized by the people themselves on the power of those they elect.

    To allow the legislature to limit religious exercise without even having to prove this is the least restrictive means necessary to achieve a compelling interest...how is this *not* a restriction on the free exercise of religion?

    How is it *not* arbitrary for the legislature to say "these religions get a break from our otherwise-omnipresent regulations, while these other religions...tough luck"?

    It doesn't help that legislative, especially Congressional power in "secular" areas has grown so much, not necessarily in a constitutionally-valid manner, either.

    Be that as it may, if the legislature can't justify the restraints it places on religious exercise, such that there's no other way to achieve important, legitimate objectives, it's a violation of the free exercise of religion.

  • Eidde||

    Recall that Congress has given legislative breaks to religious pacifists, to Amish who object to Social Security, to Christian Scientists with regard to laws which operate on the secular version of medicine, etc.

    And they've arbitrarily withheld legislative breaks from religious groups which use particular substances in their key rituals.

    Why do the Christian Scientists get a break and the Rastafarians don't?

    I imagine that the legislative situation might have been reversed if Haldeman and Ehrlichman (when there were powerful White House aides) had been Rastafarians rather than Christian Scientists (which they were).

  • Stephen Lathrop||

    This comment is a hopeless muddle. You aren't wrong about where you want to end up, but your notions about what is possible, and how made possible, are contradictory.

    Take as an example this, The Fifteenth Amendment, for instance, constrains the sovereign people in that it doesn't allow them to limit the right to vote on racial grounds.

    Like all the amendments, the 15th is a sovereign decree of the People, for the constraint of government, not a check on the People by the Constitution. If you keep that in mind, then the force of a notion you acknowledge elsewhere—These are constraints recognized by the people themselves on the power of those they elect—can become a guide to logically consistent thinking about rights, government and sovereignty.

    If you don't keep that in mind, you will continue illogically to suppose the Constitution constrains the sovereign, and that it is up to the courts to make it do that. That will put you in plentiful company, but at the cost of encouraging repeated nonsense.

  • Eidde||

    To clarify what you think I said, you could tell me what company I'm keeping - who holds similar views to mine, in your opinion? Then I can tell you whether you're right.

  • Eidde||

    Oh, I see, the people are sovereign and can't be constrained by the courts.

    I should have only said that the *agents* of the people can be constrained by the courts - agents like Presidents, Congress, state legislators, etc., etc. And the courts are also agents of the people and can be constrained by other branches.

  • Stephen Lathrop||

    Almost. Under the American system, persons collectively have a dual character: first, as the People, who are sovereign, and can not be constrained in the exercise of their sovereignty; second, as people, who are the nation's subjects, and whom the courts, the congress, and the executive are all free to govern and constrain according to their constitutional powers. It's paradoxical, of course, but history has proved it to be one of mankind's wisest and most useful inventions, no matter how many folks it baffles.

  • Eidde||

    OK, but the American theory is (or was) that the people, in exercising their sovereignty, were pooling the powers they had in a state of nature and delegating some of these powers to the government - and they can only delegate those powers which they possess in the state of nature, so they cannot delegate a power to do injustice, because in the state of nature they have no such right.

    But to get down to specifics, the First and Fourteenth Amendments were two of the specific constraints the people put on their agents (government). At minimum, this disallows arbitrary religious discrimination. Unlike the court in *Smith*, we need to look at the law code as a whole to see if it's discriminatory, not just look at a single statute in isolation and try to call it "neutral."

    The federal law code has exemptions for religious objectors to military service, payroll-tax-resisting Amish, Christian Scientist health practices, and I'm sure many others. So if there's a federal statute *without* a religious exemption, you can't look at it in isolation and say "look! neutrality!" You have to ask how come there's no religious exemption in *this* statute when there's exemptions in other statutes. That should be enough to get rid of *Smith.*

  • Eidde||

    But more fundamentally, a religious practice whose repression which the government cannot justify (under some RFRA-like standard of proof) sounds to me like the free exercise of religion, protected by the First Amendment.

    The alternative (the *Smith* alternative) is to let the legislature carve out some religious exemptions for large or sympathetic religions, while refusing exemptions for small/unpopular religions.

  • James in Perth||

    You quote from the case that the priest's testimony "would subject him to possible excommunication from the Church." Actually, no. The priest would automatically be excommunicated (although he could appeal to the Apostolic See in Rome). Thus, he would lose his vocation, his livelihood, his self-respect, and his congregation subject to his hope in a favorable decision from Rome. It sounds a lot worse when it's put more accurately.

    "Can. 1388 §1. A confessor who directly violates the sacramental seal incurs a latae sententiae excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict."

    The testimony of the victim's mother and the other woman is interesting since their testimony appears to be in conflict. The most likely scenario is that the topic came up and the priest acknowledged their concerns without directly or indirectly acknowledging that he heard the child's confession. This is basic sacramental training for Roman Catholic priests and seems quite natural in the context. The concurring justice opined that indirect disclosure of confession is not enough to waive the privilege.

  • arch1||

    Nit: Should "penitentially communications" instead be "penitential communications"?

  • Eugene Volokh||

    Whoops, fixed, thanks!

  • Longtobefree||

    So a priest has fewer rights than a 'reporter'?

    Welcome to the revolution.

  • Rev. Arthur L. Kirkland||

    A priest has greater rights than a reporter?

    Welcome to the kiddie table.

  • Krayt||

    Both should be able to defend their first amendment rights against government canopeners that reduce that right.

    Having said that, the priest's case is an obvious violation and the argument is government gets to override that anyway. The reporter, who agreed to anonymity in exchange for info for freedom of speech, is directly debatable before you even get to the imagined power of government to tromp on the first amendment right.

  • Tall Paul||

    Generally, a privilege belongs to the speaker, not the doctor, lawyer, spouse or other person who heard the privileged statement. If the state statute grants the speaker the right to waive the privilege, a priest's only grounds for refusing to testify would be some sort of religious liberty argument. Frankly, I can't see how a priest's religious commitment not to disclose communications in a confessional outweigh a litigant's right to compel the truthful testimony of any witness with relevant information.

  • Eidde||

    Bear in mind that power of plea-bargains. In exchange for a lighter sentence, a defendant can "voluntarily" waive the confidentiality of the confessional.

    Then the government might ask the priest to be party to a deal it extorted from the defendant - a deal which is "voluntary" only in some specialized legal sense and which to a normal person looks like coercion.

    But that's how the system defines "voluntary," and that's the scenario priests will be facing if they have to wait for someone else to invoke the penitential privilege for them.

  • Don Nico||

    Does not matter. A Catholic priest must refuse despite being subject to legal penalties.

  • Krayt||

    ===Frankly, I can't see how a priest's religious commitment not to disclose communications in a confessional outweigh a litigant's right to compel the truthful testimony of any witness with relevant information.===

    It's easy to see -- the weighting of that value judgement was done by The People when they made the First Amendment. No need to rub one's fuzzy chin and try to second guess it. The People told you, the government, which is more important.

  • ||

    alleged victim

    Why do even courts use this journalistic expression? What's wrong with "complaining witness"?

  • Eugene Volokh||

    "Complaining witness" seems to me like a circumlocution, and not always a precise one: Indeed, sometimes a criminal prosecution might be brought because of a report by a witness who is not the alleged victim (or even a report by someone who isn't a witness, but heard about the crime from some other source).

    "Alleged victim" seems both more precise and more direct. That's what we're talking about -- someone who is said to be the victim of the crime, but that hasn't yet been proved to be the victim.

  • David Welker||

    I think the word alleged has some baggage though. As in "mere allegations."

    There ought to be a more neutral way to describe the "alleged victim." One that does not give either side a psychological edge.

  • BrotherMovesOn||

    "Any decent person would renounce the priesthood and go straight to the authorities to save an innocent, condemned man."
    Remember the San Francisco case a few years back where the real killer confessed to two downtown trial lawyers about a bar fight/murder, said attorneys then watched in court as an innocent man was convicted?
    The truth came to light only upon the death of the real killer, sparking over 400 comments on this blog.
    Wow, that was some firefight.

  • Frog Legs||

    Lawyer/client privilege is worth more than the outcome of a few edge cases.

  • David Welker||

    I do not agree with the court. Saying that the priests testimony is "merely corroboration" understates the importance of corroboration in sexual assault cases where the "alleged victim" is often accused of lying and has their credibility fiercely attacked by the defense.

    I find it ironic that the court goes out of its way to use the phrase "alleged victim" over and over again and then downplays the importance of the sort of evidence that would establish that a crime has actually occurred.

    This case shows why we ought to make an effort to repeal RFRA statutes and their state counterparts. These statutes have had a lot of unanticipated consequences. More narrow statutes with more narrow consequences would be better justified.

  • Eidde||

    Suppose you "win" and priests start breaking the sacramental seal? Criminals won't be confessing to priests very much after that, will they?

    But of course even the worldly American clergy would not be prey to such cowardice and sacrilege, so you'd simply have the spectacle of a new *kulturkampf* which Bismarck would envy, and the only ones to benefit would be the enemies of the Constitution (the "domestic enemies" whom many people have taken an oath to resist).

    Imagine lawyers ordered to disclose whether their clients are guilty.

  • Eidde||

    PS - The priest/penitent privilege has been recognized long before the RFRAs were passed, so the main "victories" you'd get from repealing RFRA and related laws would be Jewish prisoners getting served pork, Native American Church members getting arrested for using peyote in their rituals, etc., etc.

  • David Welker||

    This case is not about a criminal who has confessed their own crimes. It is about an "alleged" victim who told the priest about the crimes committed against her. The victim, unlike a criminal, wants the priest to testify.

  • Eidde||

    I've discussed above how the system doesn't do a good job of distinguishing voluntary from involuntary, if that's the concern.

    You want to replace the RFRAs with narrower statutes, which would cause the main victims to be the small and unpopular religions.

  • BrotherMovesOn||

    Eidde, were you around for the San Francisco incident?

    "Imagine lawyers ordered to disclose whether their clients are guilty."

    As Picard once said in a TNG episode: "We are not qualified to judge your crimes."

  • Eidde||

    I missed that case. Google didn't help me. Was it about a lawyer who was ordered to violate his client's confidentiality to say if the client had confessed to the lawyer?

    Again, if that becomes the new rule, clients will simply have the sense not to confess to their lawyers.

    If the client is someone who is willing to confess to someone he knows can be ordered to disclose the confession, then that client would have no objection to confessing to his bartender or girlfriend or other non-privileged source.

    If the only person to whom he confesses is his lawyer, that suggests that the client is familiar with the relevant legal privilege and trusts the attorney won't fink on him. Absent that assurance, he would no more confess to his lawyer than to his bartender.

  • ReaderY||

    I think a basic problem here is that a confession is inherently hearsay - it is not direct evidence of anything, but only of what somebody else said. And think the existence and long history of the hearsay rule tends to weigh against any claim that the interest in extracting testimony about a confession is compelling. If the state has no compelling interest in hearsay generally because it is inherently suspect, why be so interested in this?

    Indeed, for the state to claim that religious confession is somehow inherently more reliable than other kinds of hearsay results in all kinds of First Amendment issues. Depending on ones point of view, the state may be either establishing religion or discriminating against it.

  • BrotherMovesOn||

    David Welker,
    I understand. I don't quite understand ReaderY's comment that that is hearsay.
    "I spoke to this guy at this time on this date."

  • BrotherMovesOn||

    ReaderY, in the San Fransisco case the "confession" was not hearsay but information given forth that only the true culprit would know. Maybe straying off topic a bit but there seems to be some similarities with respect to publishing "known facts" to the ROW. If hearsay is any out of court statement introduced to prove the truth of the matter asserted therein, why is this not simply testimony from the lawyer, "hey, this guy came into my office and told me this"? Beyond my abilities but that kind of Sophie's choice I hope to never deal with in real life.

  • BrotherMovesOn||

    ReaderY, in the San Fransisco case the "confession" was not hearsay but information given forth that only the true culprit would know. Maybe straying off topic a bit but there seems to be some similarities with respect to publishing "known facts" to the ROW. If hearsay is any out of court statement introduced to prove the truth of the matter asserted therein, why is this not simply testimony from the lawyer, "hey, this guy came into my office and told me this"? Beyond my abilities but that kind of Sophie's choice I hope to never deal with in real life.

  • BrotherMovesOn||

    Sorry for dup

  • ReaderY||

    In the case at bar, the statements are acknowledged to be hearsay, and there is apparently a recent statute permitting admission of statements made by children to adults.

    But the fact that everyone acknowledges the statements involved would ordinarily be considered hearsay, and would remain so in many states, cuts against a claim that the stage's interest is compelling.

    I suggest that this is the notmal case.

  • Bored Lawyer||

    In the case at bar, the statements are acknowledged to be hearsay.

    Really, by whom?

    As I see it, the purpose of the statements is not to prove the truth of them -- that the defendant abused the complaining victim. It is to show that she is not making it up -- she said something about it at the time, albeit only to her priest. That limited purpose is not hearsay. (The judge would have to give a limiting instruction, of course.)

  • BrotherMovesOn||

    Ok. ReaderY, you are helping my understanding, I admit I am slightly more interested in the existential issues than the FRE. Thanks.

  • ReaderY||

    Finally, because the rules of evidence are riddled with exceptions not just for hearsay but for various confidentiality privileges for doctors, lawyers, etc. etc., under the Police v. Newark framework the laws involved are not laws of general applicability within the meaning of Smith (as Police interprets it), even in the absence of a RFRA.

    The idea is that if you can make exceptions for all these other things, you can perfectly well make one for religion too.

  • Eidde||

    Exactly - even if we narrowly focus on the specific statute you can probably find plenty of nonreligious exceptions and no reasonable reason to deny a religious exception.

    And I would further suggest that we look at the law code as a whole - in which case we'll see all sorts of religious exemptions, so denying a religious exemption to one particular law then becomes a matter of defending religious discrimination, so the whole premise of the *Smith* decision comes into question because I can't think of a law code (at least in this country) with *no* religious exceptions.

  • ReaderY||

    Agreed. And I'd like to ask a question to everyone who has expressed righteous indignation about the horrors of a society that could permit priests to keep silence under various hypotheticals: Where is your righteous indignation when it comes to doctors, lawyers, and the various other people that have confidentiality privileges in our society? Why is it directed only at religious confidentiality and not all the other kinds?

    We are not talking about people who are part of a conspiracy and use religion as a cover o break the law. We are only talking about outside parties who have heard religious confessions of people who likely wouldn't confess in the first place if they suspected confidentiality wouldn't hold. It's not like breaking confidentially will gain society anything.

    We already see this with immigrants. If you think the local police or your doctor will turn you in to ICE, you don't report crimes to the local police and you don't see your doctor. Do you think the outcome here is going to be any different?

  • Bored Lawyer||

    Does the sacrament of confession cover the fact that the person confessed, or just the content.

    Suppose someone is accused of a crime. His alibi is that at the time he was at church in confession. Would the priest be allowed to testify, yes, John Doe was at confession at 10:30 am in Sunday morning? Without revealing the contents?

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