The Volokh Conspiracy
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Confession and the Constitution
Washington State's new law on clergy reporting in child abuse cases.
This month, Washington State enacted a law requiring clergy to report suspected child abuse or neglect, even when the information is obtained through a confidential spiritual communication, like Confession in the Catholic Church. The new law seems clearly unconstitutional under current doctrine; that's the easy part. But the deeper issues are more interesting and more difficult, and they have been with us for a very long time.
The new law departs significantly from the approach in most other states, even those that mandate clergy reporting. Most of those states preserve the traditional clergy-penitent privilege while mandating that clergy report abuse they learn about in other contexts. What's more, Washington's law expressly preserves other professional privileges, like the attorney-client privilege, but explicitly eliminates the clergy-penitent privilege. That unequal treatment presents a serious problem under current free exercise law.
Under cases like Fulton v. City of Philadelphia and Tandon v. Newsom, which adopt what scholars have called the "most favored nation" approach, laws that provide exemptions for secular conduct but not analogous religious conduct must survive strict scrutiny. That means the government must show that the law advances a compelling state interest and that it uses the least restrictive means of doing so. Punishing child abuse is undoubtedly a compelling state interest, but if the law allows attorneys to withhold relevant information while requiring clergy to disclose it, the state will have difficulty justifying its choice.
The issues surrounding the clergy-penitent privilege have been with us a long time. In one of the earliest American cases on religious liberty, People v. Philips (1813), a Catholic priest refused to testify in a criminal trial about a penitent who had confessed to returning stolen goods. The state argued that public safety required all citizens to cooperate with the criminal process and that religion was no excuse. The court, however, sided with the priest, reasoning that public safety did not justify requiring him to violate a core "ordinance" of his faith. Confession might in fact encourage culprits to come clean, as had happened in Philips; the stolen goods had been returned. What's more, the court noted that the state already recognized an attorney-client privilege, and implied that religious privileges deserved equal respect.
Philips was decided under the New York State Constitution, not the Free Exercise Clause, but the debate—public safety versus religious liberty, civic obligation versus spiritual commitment—remains much the same. And that is because balancing personal religious commitments and civic duties, whatever the specific legal doctrine, is an enduring problem in a pluralistic society. Too much deference to religious commitments interferes with public policy and threatens chaos. Too little renders our commitment to religious freedom hollow.
The clergy-penitent privilege, in particular, has become more problematic over time. Confidentiality imposes costs, which can be very high in the child abuse context. Historically, though, the privilege was narrow, covering only sacramental confessions in traditions, like Catholicism, where such practices were theologically mandated. The costs were contained to a few situations.
Starting in the mid-20th century, though, courts expanded the privilege to cover a wide range of spiritual communications, sometimes in informal or undefined contexts. That expansion may have been necessary in the interests of state religious neutrality. But it has made the privilege costlier and harder to defend in the face of pressing state interests like child protection.
My colleague Marc DeGirolami and I discuss the new Washington State law, and the pros and cons of the clergy-penitent privilege generally, in a new Legal Spirits podcast. Listen in!
