I have no doubt that Steve is accurately reporting his own experience, but I still don't see why it should add up to a confidentiality privilege.
sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, December 05, 2013 9:38 PM To: Law Religion & Law List Subject: Re: The clergy-penitent privilege and burdens on third parties I disagree with Eugene on this - as a non-religious athiest, I have met many ministers and priests with whom I have had excellent conversations, some even "confessional" or at least very candid and have been given advice, even by priests, which was insightful and helpful and respectful of me. They did not try to get me to do "hail Marys" or whatevers and did not speak to me in "religious" speech. I have dealt with others whose only aim was indeed to convert me. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "The aim of education must be the training of independently acting and thinking individuals who, however, see in the service to the community their highest life achievement." Albert Einstein On Dec 5, 2013, at 5:16 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: My sense is that I (as someone who is irreligious) would get relatively little solace or even wise counsel from speaking to an average Catholic priest about my troubles and misdeeds, at least unless I was at least contemplating converting to Catholicism. Unsurprisingly, the priest would respond in a way that fits well the beliefs of Catholics, but not my own. (There might be some priests who are inclined to speak to the secular in secular philosophical terms, but I assume they aren't the norm.) Religious people, then, have the ability to speak confidentially to those moral advisors whose belief systems they share. Secular people do not. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz Sent: Thursday, December 05, 2013 9:33 AM To: Law & Religion issues for Law Academics Subject: Re: The clergy-penitent privilege and burdens on third parties Is that accurate? It may vary, but I thought the privilege could be claimed for any confidential communication made to a clergy member in his/her professional capacity as a spiritual advisor. The person seeking that counsel need not necessarily be a co-communicant. I don't think this is just hair-splitting. It's not analogous to a statement that men as well as women can seek medical care for pregnancy. On Dec 4, 2013, at 10:56 PM, "Levinson, Sanford V" <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: Free speech doctrine, for better or worse, presumably protects (almost) everyone. What is distinctive about the "clergy-penitent privilege" is that it protects only a particular subset of people, i.e., those who claim some religious identity, as against secularists who have the same desire to unburden themselves to sympathetic listeners but can't assume that it is protected in the same way. Aren't we back to the conundra involving "conscientious objection" and the Seeger and Welch cases. There the Court could adopt Paul Tillich and say that secularists, too, have "ultimate concerns" equivalent to religious commitments. Can one imagine a similar move with regard to clergy privileges? I support such cases as Rosenberger (assuming, at least, one version of the facts in that case, which may or may not be entirely correct) and Widmar v. Vincent on "equality" grounds, i.e., those who are religious should not be selected out for worse treatment than those who are secular. If I can use a facility for meetings of my philosophy club, then I think that others should be free to use the facility for meetings of the "Good News Club." But it is telling that we're talking about a "privilege" that is denied to each and every secular person (unless they can afford a shrink, though even there the privilege is significantly more constrained than is the case with a priest), and "equality" arguments go by the boards. sandy From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, December 04, 2013 11:35 PM To: Law & Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties Much of free speech law involves protecting speech that burdens third parties; for example, the victims of hate speech suffer emotional distress as do the mourners at funerals tormented by the Westboro Church, and speech that does not quite violate Brandenburg can incite violence. Further, the cost to the public in protecting speech can be extraordinarily high. cities incurred tens of thousands of dollars in police and other costs while trying to maintain order during Operation Rescue protests. Criminal procedure rights can make it more difficult to apprehend and punish people who commit crimes. Property rights can make it more difficult to protect the environment. Rights have always been expensive politcal goods. It is true that the Establishment Clause imposes some constitutional constraints on the costs government may incur or impose on third parties in protecting religious liberty. Arguing that free exercise rights or statutory religious liberty rights should only be protected in situations in which doing so imposes virtually no costs on either the public or third parties, however, would treat religious liberty differently than almost all other rights and dramatically undermine their utility for people attempting to exercise such rights. ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Christopher Lund [l...@wayne.edu<mailto:l...@wayne.edu>] Sent: Wednesday, December 04, 2013 5:53 PM To: 'Law & Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties I think Marc's point is solid and underappreciated. Following up on it, does anyone know of any literature that tries to think about "burdens on third parties" across constitutional rights? We accept such burdens as a matter of course with defamation law, as Marc notes. Yet we also accept them in other contexts. Guns would be one obvious example. But also think of, for example, busing during the Civil Rights Era. White suburban families had to accept busing of their kids to distant and sometimes difficult schools, because desegregation was that important. Or think about abortion: I think the Court was right to hold spousal consent and notification laws unconstitutional, but there are real issues of third-party harms there too. Best, Chris _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, seehttp://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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
_______________________________________________ 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.
