I strongly suspect that Doug is right. Still, I do wonder how often cases do arise beyond the Catholic Church (which probably fulfills my conditions for the privilege).
sandy -----Original Message----- From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Tuesday, December 03, 2013 10:06 PM To: Law & Religion issues for Law Academics; Levinson, Sanford V Subject: Re: The clergy-penitent privilege and burdens on third parties Eugene's hypothetical presumably describes some of the cases, from the least sophisticated or most desperate penitents. But it probably doesn't describe very many; most penitents rely on the privilege, and few would confess to their priest if priests were routinely testifying against folks who confessed. The word would obviously get around to perps that this is what priests do when you confess. So the plaintiff in Eugene's lawsuit really hasn't lost anything; the privilege deprives her only of evidence that would not exist but for the privilege. Meanwhile, the priest does some good, in at least some of the cases, toward encouraging reform or even restitution. In the original American case on the privilege, the priest had recovered the stolen goods and returned them to the owner. On Wed, 4 Dec 2013 02:37:42 +0000 "Levinson, Sanford V" <slevin...@law.utexas.edu> wrote: >This is an excellent hypothetical. My own inclination is that the only >justification for a clergy-penitent privilege is a) if there is a duty to >confess to a member of the clergy; and b) if the clergy in question believes >that God will punish disclosure of the confession. (It shouldn't be enough >that the doctrine of the religion prevents disclosure unless divine punishment >is thought to attend it.) I have argued for some years that the only defense >of religious privileges is the belief on the part of the claimant that >commission of the act in question will generate divine sanctions. This is >probably too strict, since I (still) support the critique of Smith, and I have >no reason to believe that the ingestion of peyote was a divine command >violation of which would generate some kind of punishment (including >punishment in the world to come). But Eugene's hypo makes very real the costs >to innocent third parties of treating any and all members of the clergy >differently from one's >best friends, fellow family members, or even, in most courts, reporters. > >sandy > >From: religionlaw-boun...@lists.ucla.edu >[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene >Sent: Tuesday, December 03, 2013 7:39 PM >To: Law & Religion issues for Law Academics >(religionlaw@lists.ucla.edu) >Subject: The clergy-penitent privilege and burdens on third parties > > One more question about the "unconstitutional burdens on third > parties" theory: The clergy-penitent privilege allows the clergy (and > penitents) to refuse to testify about penitential communications, even when > the result is that a litigant is deprived of potentially highly probative > evidence. > >What's more, this is a specifically identifiable litigant who is being >denied the benefit of applying the normal duty to testify. And, unlike >with the conscientious objector exemption, the clergy-penitent >exemption is indeed limited to religious communications, with no >secular philosophical analog. (The psychotherapist-patient privilege, >I think, is quite different, partly because it requires communications >to someone who is licensed by the state, requires a state-prescribed >course of training, and is usually quite expensive, and partly because >it tends to have fewer exceptions.) > >Say, then, there are two people. Anita works for an employer who (by >hypothesis) has been exempted from the usually applicable (with some secular >exemptions) employer mandate as a result of a statutory religious objector >exemption. As a result, she doesn't get, say, $500/year worth of >contraceptive benefits that she would have been legally entitled to but for >the employer mandate. > >Barbara is suing Don Defendant for $500,000. She has reason to think that Don >has confessed to Carl Clergyman that Don is indeed liable, so she wants Carl >to be ordered to testify about the communication. But Carl has been exempted >from the usually applicable (with some secular exemptions) duty to testify as >a result of a statutory clergy-congregant privilege. As a result, she doesn't >win the $500,000 that she would have been legally entitled to but for the >clergy-congregant privilege. > >Is the application of the clergy-congregant exemption from the duty to testify >in Barbara's case an Establishment Clause violation, on the grounds that it >imposes an excessive burden on Barbara? And if it isn't, then why would the >application of the hypothetical exemption from the employer mandate an >Establishment Clause violation in Anita's case? > >Eugene Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
