The Volokh Conspiracy
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Court Blocks Washington Requirement that Clergy Report Child Abuse, Even Learned from Confessions
From today's opinion by Judge David G. Estudillo (W.D. Wash.) in Etienne v. Ferguson:
At present, Washington clergy who learn of child abuse or neglect while acting within their official supervisory capacity are required to report such abuse to public authorities. Only information obtained "as a result of a privileged communication" is exempted from this mandatory reporting requirement. Effective July 27, 2025, however, Washington law [SB 5375] will require clergy to report child abuse or neglect regardless of how they learn about such information…. The Court concludes Plaintiffs are likely to succeed on the merits of their Free Exercise Clause challenge ….
There is no question that SB 5375 burdens Plaintiffs' free exercise of religion. In situations where Plaintiffs hear confessions related to child abuse or neglect, SB 5375 places them in the position of either complying with the requirements of their faith or violating the law. In this way, the statute "affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs."
[The law must therefore be judged under the "strict scrutiny" test unless it is neutral and generally applicable.-EV] [A] law is "not neutral and generally applicable, and therefore trigger[s] strict scrutiny … [if it] treat[s] any comparable secular activity more favorably than religious exercise." Tandon v. Newsom (2021)….
SB 5375 modifies existing law solely to make members of the clergy mandatory reporters with respect to child abuse or neglect. However, other groups of adults who may learn about child abuse are not required to report. Parents and caregivers, for example, are not mandatory reporters.
Moreover, the Washington legislature passed Substitute House Bill 1171 ("SHB 1171")—"AN ACT Relating to exempting attorney higher education employees from mandated reporting of child abuse and neglect as it relates to information gained in the course of providing legal representation to a client"—around the same time as it passed SB 5375….The twin passage of SHB 1171 and SB 5375 appears to be a textbook example of "permitting secular conduct that undermines the government's asserted interests in a similar way" to religious conduct that is regulated. The government interest at issue in both statutes—protecting children from abuse and neglect—is the same. Nevertheless, one law eliminates the privilege for clergy while the other expands the privileges available to secular professionals. "The underinclusion is substantial, not inconsequential" here.
Thus, SB 5375 is neither neutral nor generally applicable because it treats religious activity less favorably than comparable secular activity. The State has not presented compelling evidence that the exemption for law professors and those they supervise is not comparable in terms of the "risk" posed to children by a communications privilege exception to the mandatory reporting requirement. As Plaintiffs point out, multiple law schools in Washington have clinics and programs that directly serve children. Moreover, the exemption for university attorneys applies to all attorneys employed by higher education institutions—not just clinical professors….
The court also noted that the law may also not be neutral and generally applicable if it "targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation," and that this appeared to be so here (though it ultimately chose to rely instead on the treats-secular-activity-more-favorably analysis quoted above):
Here, clergy were explicitly singled out. The law itself is titled "AN ACT Relating to the duty of clergy to report child abuse and neglect[.]" … [Defendants have not been able] to explain why the language in § 1(b) of the bill doubled down on singling out clergy when § 1(a) had already added clergy to the list of mandatory reporters who could not invoke a communication privilege.
The targeted exception for clergy raises concerns, as the text of the bill and its legislative history arguably evince the intentional abrogation of a practice that the legislature understood to be religiously sacrosanct. For example, one of SB 5375's co-sponsors stated that: "We as a state do not have to be complicit when religious communities choose to cover up abuse and neglect of children. We can establish our laws, they can have the rules. And if they are in conflict, I believe they can change their rules." As the Ninth Circuit recently noted, "government actions coupled with 'official expressions of hostility to religion … [are] inconsistent with what the Free Exercise Clause requires … [and] must be set aside.'"
The fact pattern at hand is readily distinguishable from cases where courts have found that a law's lack of religious exception does not necessarily give rise to a free exercise claim. In this case, clergy were the only professionals whose pre-existing exception was eliminated by the legislature….
And the court concluded that the law likely failed strict scrutiny:
When a plaintiff's religious exercise is burdened by a law that is either not neutral or not generally applicable, the burden shifts to the defendants to demonstrate that the challenged action survives strict scrutiny. "A government policy can survive strict scrutiny only if it advances 'interests of the highest order' and is narrowly tailored to achieve those interests.'"
Here, Plaintiffs have raised a serious question as to whether SB 5375 would survive strict scrutiny. Plaintiffs do not dispute that the State has a significant interest in preventing child abuse and neglect and in implementing measures to further that interest. Nor do Plaintiffs dispute that members of the clergy can be designated mandatory reporters in most contexts in a manner consistent with the First Amendment. However, strict scrutiny requires "that a law inhibiting religious belief or practice go only as far as necessary to further the government interest." States cannot "justify an inroad on religious liberty" without first "showing that it is the least restrictive means of achieving some compelling state interest."
The State arguably could have chosen a less restrictive means of advancing its interest in protecting children from abuse and neglect by adding members of the clergy to the list of mandated reporters while also permitting a narrow exception for the confessional, as approximately 25 other states have done. There is also the possibility that the State could have worked alongside clergy to determine where state intervention is needed to further this interest within the context of the different religious communities in Washington and worked backwards from gaps identified to formulate a narrowly tailored remedy. As Etienne states, "the Archdiocese of Seattle has adopted and implemented policies that go further in the protection of children than the current requirements of Washington law on reporting child abuse and neglect," which include "reporting to proper law enforcement agencies or the department of children, youth, and families whenever church personnel—defined to include clergy and lay faithful working for the diocese, its parishes, schools, or agencies—have reasonable cause to believe child abuse or neglect has occurred." Etienne further suggests that:
[B]ecause absolution given by a priest requires true contrition for all confessed sins, I, and the priests within the Archdiocese of Seattle to whom are confessed sins of child abuse or neglect by the penitent, could help counsel the penitent to self-report and obtain the necessary temporal intervention and held. I, and the priests within the Archdiocese of Seattle who suspect based on what is disclosed during confession that the penitent is suffering from abuse or neglect, the penitent has engaged in abuse or neglect, or some third party has engaged in abuse or neglect, could invite the penitent for counseling outside of the Sacrament of Confession. If the penitent were to agree to such counseling and I or a priest within the Archdiocese of Seattle were to learn information in that non- sacramental counseling providing reasonable cause to believe abuse or neglect has been committed, I or the priest is obligated to report that suspected abuse or neglect to proper law enforcement agencies or the department of children, youth, and families.
Ultimately, Washington's failure to demonstrate why it has an interest of the highest order in denying an exemption to clergy while making such exemptions available to other professionals who work with underserved children—as discussed supra—is likely fatal to SB 5375. As in Lukumi, the law is "underinclusive to a substantial extent with respect to … the interest[] that [the state] has asserted." The state, in removing the privileged communication exception for clergy but expanding it for other professionals, cannot demonstrate the narrow tailoring strict scrutiny requires.
