Citizens have a general duty to testify if called as a witness in a civil or criminal case. Individuals who refuse to do so may find themselves in contempt of court and incarcerated until they agree to take the stand. However, the common law has long recognized that some relationships require confidentiality, including attorney-client, spousal, doctor/psychologist-patient, and clergy-penitent. Usually, the person communicating information may prohibit the recipient from divulging it. So, for instance, a client may prohibit her lawyer from testifying about a crime she committed and described to the attorney. But the client may testify about what she told her attorney, or permit the attorney to testify about what she told him. 

Clergy-Penitent 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 is, as the name makes clear, a sacrament. Moreover, contemporary Catholic canon law states that “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.” The penalty for purposefully violating this law is automatic excommunication. Canon law also prohibits a priest from breaking the seal of confession even if the penitent gives him permission to do so. (As a matter of state law, the person who “owns” this privilege and when varies.)

Influenced by canon law, early common law judges held that a priest could never be forced to violate the confessional 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 biblical warrant). Because they associated the Sacrament of Reconciliation with Catholicism, English common lawyers abandoned clergy-penitent privilege in the 17th century. The privilege was not recognized in early American common or statutory law.

In 1813, a New York City priest was ordered to testify about a thief who had confessed his crime. The priest refused to do so, and the Court of General Sessions of the City of New York ruled in People v. Phillips that the religious liberty provision of New York’s constitution protected him. Four years later, a different New York court held that the privilege did not apply to a Protestant minister, in part because confession is not considered to be a sacrament by Protestants. In 1828, the New York State legislature passed a law protecting clergy-penitent privilege for Catholics and Protestants alike—the first statute of its kind in the United States. Today, every state and the federal government recognize this privilege.

Mandatory Reporters

Over the past two decades, many states have expanded the number of professionals who are mandated to report child abuse. Currently, clergy are mandatory reporters in 28 states, and 18 states require any person (including clergy) who suspects child abuse to report it. These requirements present little cause for concern if a minister observes child abuse in the course of ordinary life, but matters get complicated if a parishioner reveals information related to child abuse when receiving religious counseling or participating in the sacrament of confession. In 24 states, clergy are exempted from the reporting requirement if, in the language of a North Dakota statute, “the knowledge or suspicion is derived from information received in the capacity of spiritual adviser.” 

Such religious exemptions are controversial. Indeed, legislators in North Dakota recently introduced a bill to remove this religious accommodation. If this bill passes, North Dakota will become the seventh state to remove this sort of exemption. This means that priests and other clerics who learn of child abuse in the course of their religious duties will be 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 require clergy to reveal information confessed to them raises important religious liberty concerns. 

The Sacred Right of Conscience

Unlike other confidential relationships, the clergy-penitent privilege is mandated by the First Amendment and related state constitutional provisions and statutes (as the Court of General Sessions of the City of New York recognized as early as 1813). Surely religious freedom requires that churches and other religious entities must be able to determine for themselves what sacraments they will administer, how they will administer them, and what a cleric may or may not do with information received during the Sacrament of Reconciliation and related practices. 

These protections, like the Supreme Court’s church autonomy doctrine, are grounded in both the Free Exercise and Establishment Clauses (see, for instance, Hosanna-Tabor v. EEOC [2012]). United States Supreme Court justices have mentioned the clergy-penitent privilege in dicta three times, but have never ruled that it is required by the First Amendment (see, for instance, Totten v. United States, 92 U.S. 105, 107 [1875]). 

Under Employment Division v. Smith (1990), a neutral law of general applicability that requires everyone without exception to bring forward evidence of child abuse may survive a Free Exercise Clause challenge. But several states, including Rhode Island and Tennessee, reject clergy-penitent privilege but continue to honor attorney-client confidentiality in cases involving child abuse, so the laws in these states may not be considered to be neutral and would be subject to strict scrutiny. And if the clergy-penitent privilege is protected by a hybrid right (Free Exercise and Establishment Clauses), strict scrutiny should be required under the Smith standard. Even so, governments might successfully argue that they have a compelling interest in requiring clergy to reveal confidential communications with respect to child abuse and other serious crimes. 

Not all religious traditions hold the seal of confession to be as absolute as the Roman Catholic Church. Some Protestant clergy have no objection to reporting evidence of child abuse obtained during the course of religious counseling, prayer meetings, etc., and some Jewish religious leaders have argued that rabbis have an obligation to reveal such information. One creative compromise is to protect only clergy who believe they have a sacred obligation to preserve confidentiality. Louisiana, for instance, requires clergy to report cases of child abuse, but a cleric

is not required to report a confidential communication . . . from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential.

In other words, clergy have a general duty to report confidential communications that give evidence of child abuse unless they are strictly prohibited from doing so by their churches, denominations, etc. Separationists may object that this protection violates the Establishment Clause, but it is no more problematic than exempting only religious pacifists from military service. Such practices may run afoul of the Court’s ahistorical Lemon test, but in no way, shape, or form do they violate the original understanding of the Establishment Clause. 

Prudential Concerns

Attempting to require priests to break the confessional seal could have the unintended consequence of deterring child abusers from seeking spiritual guidance or forgiveness. If someone feels compelled to confess this sin, he may well accept guidance from the priest to sin no more and even to turn himself in. Even if some clerics refuse to obey these mandates, their mere existence may deter would-be penitents.

Religious liberty is not a trump card that wins every time. If states can demonstrate that they have compelling reasons to violate the ancient protection of clergy-penitent privilege—a protection required by the religion clauses of the First Amendment—they could legally justify doing so. But with respect to priests and other clerics who refuse to obey them, these mandates will do no good and may produce added harm.

Religious liberty is a central principle of America’s constitutional order. State officials should not interfere with the clergy-penitent privilege unless they have excellent reasons for doing so, and even in this case they should follow Louisiana’s example of protecting clergy, such as Roman Catholic priests, who are “absolutely forbidden” to “betray in any way a penitent in words or in any manner and for any reason.”