How Secrets Are Kept: Viewing the Current Clergy-Penitent Privilege Through a Comparison with the Attorney-Client Privilege

In 1813, a New York court ruled that the Free Exercise Clause prohibited the state from compelling a Catholic priest to disclose information learned in a confidential confession.1 This decision to preserve the clergy-penitent privilege2 on constitutional grounds3 is the central feature of one of the great stories concerning church and state in America. Daniel Phillips had knowingly received stolen goods.4 Following the tenets of the Roman Catholic Church, Phillips confessed to Father Kohlman. Determined to right the wrong, Phillips later delivered the goods to Father Kohlman who then returned them to the original owner. Apprised of these events by the original owner, the state subpoenaed Father Kohlman to testify regarding Phillips before a grand jury. To prevent Father Kohlman from being forced to choose between an obligation to God and an obligation to the state, the Phillips court ruled that "[t]he only course is, for the court to declare that he shall not testify or act at all."5 This conflict IMAGE FORMULA2 between the state's coercive power to collect evidence and the right to maintain confidential certain religious communications lies at the center of every challenge to the clergy-penitent privilege. The holding in People v. Phillips is significant because it reflects an important early understanding of the phrase "free exercise of religion." The essential aspect of this understanding was that the First Amendment guaranteed state accommodation of religious behavior that may not conform to generally applicable law.6 A second legal basis that the Phillips court could have relied on is also important. If understood as a structural restraint on governmental power, the Establishment Clause also could have required the Phillips court to prevent state interference with Father Kohlman's confidential communications.7 Although Phillips represents a triumphant early moment for religious freedom in America, its influence has been limited. The Supreme Court has not decided whether either of the First Amendment religion clauses requires maintenance of the clergy-penitent privilege. Still, confidential communications with clergy have generally been protected under state law, much like the attorney-client privilege.8 However, as all fifty states have enacted mandatory abuse-- reporting laws,9 the status of such privileges has been called into question. The seriousness of a single incident of child abuse is unquestionable; national child abuse rates10 are therefore a cause for great concern. Unfortunately, concern over child abuse has fueled an attempt to undermine the clergy-penitent privilege. To justify their assault on a basic religious freedom, those who advocate abrogation of the clergy-penitent privilege imply that policy-makers must choose either to uphold the clergy-penitent privilege or effectively combat IMAGE FORMULA4 child abuse.11 Framing the issue in such terms is an attempt to leverage the appropriate emotional response to a vile crime like child abuse against a religious liberty interest that may seem less urgent. Still, one can fully condemn child abuse while defending the clergy-penitent privilege. However persuasive it may be, the binary approach suggesting that one must either choose between the privilege or child abuse prevention is simplistic and ultimately flawed. First, such an approach implies that, compared to the state, clergy are unconcerned when it comes to child abuse prevention. Contrary to this implication-and despite the rare case involving an abusive clergy member"-it seems reasonable to assume that both clergy and the state are deeply concerned about the well-being of children. Second, this approach proposes a probable non-solution: abrogation of the clergy-penitent privilege is not likely to diminish child abuse.13 Third, adopting this approach ignores the fact that alternative means, such as traditional law enforcement methods and less controversial reporting requirements, remain intact to enforce child abuse laws. …