Re: The clergy-penitent privilege and burdens on third parties
Richard's point is fair so let me provide some more context that perhaps would be helpful. Privileges are concoctions of positive law dealing w what information can be excluded in the judicial process. The confessional privilege is no different than the attorney client privilege or the spousal privilege on that score. Every faith invokes it or tries to to avoid disclosing legally damaging evidence in the judicial process. The RCC and LDS are the most active in lobbying to expand it in the state legislatures. It is always invoked in clergy sex abuse cases and to avoid mandatory reporting of child sex abuse. Courts have had to struggle w the distinction between counseling and confession for salvation purposes, because when laws are violated, the exclusion of relevant evidence is to be avoided. The privilege, depending on the state, belongs to the confessor or confessee and always can be waived but how differs state to state. It is routinely waived if the content is disclosed outside the one-on-one confession. It is also routinely invoked to conceal information that was obtained outside the confessional. It is my view that there should be an exception to it that parallels the attorney client exception for future crimes or fraud. And that it should not be an exception to mandatory reporting of child sex abuse. The privilege is a permissive accommodation that we have learned has a corrosive effect on children, families, churches, and society. Under Smith it is not required and under a RFRA analysis it should not overcome the needs of the judicial process or mandatory reporting laws. I offer these examples to contextualize the discussion. It only matters when it is alleged a law has been broken so that law should be the starting point for discourse. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 6, 2013, at 11:18 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: As I’ve said earlier, I’m sympathetic to Richard’s argument inasmuch as confession is in fact part of a complex (required) sacramental process. But the point is that (I think) that’s relatively unusual, certainly not present, so far as I am aware, in Judaism, for example. Am I correct in believing that the ingestion of peyote was in fact a sacramental aspect of the Native American church? sandy From: religionlaw-bounces+slevinson=law.utexas@lists.ucla.edu [mailto:religionlaw-bounces+slevinson=law.utexas@lists.ucla.edu] On Behalf Of Richard Dougherty Sent: Friday, December 06, 2013 6:09 PM To: Law Religion issues for Law Academics Subject: Re: The clergy-penitent privilege and burdens on third parties I will confess to not having read the state cases, or at least not most of them. But isn't the question whether the privilege is constitutionally required? (Perhaps the fact that it is referred to as a privilege muddies the waters.) If free exercise of religion includes receiving a sacrament, then why is compelling violation of the privilege not a constitutional issue? Indeed, I wonder why a recent discussion suggested stronger free speech claims than free exercise claims; does the First Amendment make that distinction? I have no doubt courts have read it that way, but that's partly why we get distortions of free exercise claims masquerading as free speech claims. Richard Dougherty University of Dallas On Fri, Dec 6, 2013 at 1:17 PM, hamilto...@aol.com wrote: With all due respect to this entire thread, how many people have actually read the state cases involving the priest-penitent privilege? There is a level of abstraction to this discussion that indicates to me probably not. As someone who has actively been involved in arguing the issue in court in the last year, I'd suggest that the law is more reticulated and specific. state-by-state, than the speculation going on here. It is state law, which means 50 states plus DC law, and it is a privilege that is not constitutionally required, particularly when the issue is whether the religious confessor or confessee engaged in illegal behavior. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Christopher Lund l...@wayne.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Fri, Dec 6, 2013 10:06 am Subject: RE: The clergy-penitent privilege and burdens on third parties Again, I’m late—sorry about that. But honestly people, it’s shocking how many posts are written between the hours of 9 p.m. and 7 a.m. Who can keep up? So this may backtrack, but I’ve been thinking about the earlier posts in this thread. Say there are no secular analogies to the
RE: The clergy-penitent privilege and burdens on third parties
I think the history of the privilege is that it was first protected for Catholics, because of its sacramental nature and the very strong teaching, and then extended to other faiths by analogy and to avoid what looked to some like denominational discrimination. I'm pretty sure about that chronology; I'm inferring the causation without having done the historical work to verify it. The peyote service is the central act of worship in the Native American Church; I don't know if they use the word sacrament. But Smith and Black (the other plaintiff) were not members of the church; they were exploring. It is generally illusory to enact toleration, and say that religious minorities can live among you, if you then prosecute them for acts essential to their faith. The force of that point is weaker with respect to less important religious practices, although I think it never goes to zero. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, December 06, 2013 11:18 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties As I've said earlier, I'm sympathetic to Richard's argument inasmuch as confession is in fact part of a complex (required) sacramental process. But the point is that (I think) that's relatively unusual, certainly not present, so far as I am aware, in Judaism, for example. Am I correct in believing that the ingestion of peyote was in fact a sacramental aspect of the Native American church? sandy ___ 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.
Re: The clergy-penitent privilege and burdens on third parties
I much appreciate Marci's comments. From the point of view of the free exercise of religion, the question for the believer, in my view, is what the effect of the revelation of confidential information is on the soul of the penitent, not what the legal consequences might be. Obviously the state has other concerns, but they need not clash, except at the margins (though that's what really counts). I agree that the fall-out of the abuse crisis in the Catholic Church has seen some try to claim privilege where no legitimate claim of privilege seems to be at stake. The dangers of doing so are multiple -- most importantly, more people are put at risk of future abuse, but it also undermines legitimate claims of privilege, as those entrusted with making judgments about its legitimacy find it harder to distinguish the genuine from the spurious. I'm not convinced that discussions in diocesan chanceries about how to avoid losses in court are part of the free exercise of religion. The abuse crisis in contemporary America (not, of course, confined to the Catholic Church) is painful for what it has done to so many who have suffered, and it has been devastating for the Church. Almost all of what I have seen has nothing to do with Confession or free exercise of religion, though, and here I support Marci's strong view of holding responsible those who have enabled abusers; while this would likely prevent subsequent abuse -- the most important consequence -- it would have the side effect of calling Catholics to abide by their own beliefs. Richard Dougherty University of Dallas On Sat, Dec 7, 2013 at 7:45 AM, Marci Hamilton hamilto...@aol.com wrote: Richard's point is fair so let me provide some more context that perhaps would be helpful. Privileges are concoctions of positive law dealing w what information can be excluded in the judicial process. The confessional privilege is no different than the attorney client privilege or the spousal privilege on that score. Every faith invokes it or tries to to avoid disclosing legally damaging evidence in the judicial process. The RCC and LDS are the most active in lobbying to expand it in the state legislatures. It is always invoked in clergy sex abuse cases and to avoid mandatory reporting of child sex abuse. Courts have had to struggle w the distinction between counseling and confession for salvation purposes, because when laws are violated, the exclusion of relevant evidence is to be avoided. The privilege, depending on the state, belongs to the confessor or confessee and always can be waived but how differs state to state. It is routinely waived if the content is disclosed outside the one-on-one confession. It is also routinely invoked to conceal information that was obtained outside the confessional. It is my view that there should be an exception to it that parallels the attorney client exception for future crimes or fraud. And that it should not be an exception to mandatory reporting of child sex abuse. The privilege is a permissive accommodation that we have learned has a corrosive effect on children, families, churches, and society. Under Smith it is not required and under a RFRA analysis it should not overcome the needs of the judicial process or mandatory reporting laws. I offer these examples to contextualize the discussion. It only matters when it is alleged a law has been broken so that law should be the starting point for discourse. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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.
Re: The clergy-penitent privilege and burdens on third parties
In my view, there should be no privilege for criminal acts. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 7, 2013, at 12:12 PM, Richard Dougherty dou...@udallas.edu wrote: I much appreciate Marci's comments. From the point of view of the free exercise of religion, the question for the believer, in my view, is what the effect of the revelation of confidential information is on the soul of the penitent, not what the legal consequences might be. Obviously the state has other concerns, but they need not clash, except at the margins (though that's what really counts). I agree that the fall-out of the abuse crisis in the Catholic Church has seen some try to claim privilege where no legitimate claim of privilege seems to be at stake. The dangers of doing so are multiple -- most importantly, more people are put at risk of future abuse, but it also undermines legitimate claims of privilege, as those entrusted with making judgments about its legitimacy find it harder to distinguish the genuine from the spurious. I'm not convinced that discussions in diocesan chanceries about how to avoid losses in court are part of the free exercise of religion. The abuse crisis in contemporary America (not, of course, confined to the Catholic Church) is painful for what it has done to so many who have suffered, and it has been devastating for the Church. Almost all of what I have seen has nothing to do with Confession or free exercise of religion, though, and here I support Marci's strong view of holding responsible those who have enabled abusers; while this would likely prevent subsequent abuse -- the most important consequence -- it would have the side effect of calling Catholics to abide by their own beliefs. Richard Dougherty University of Dallas On Sat, Dec 7, 2013 at 7:45 AM, Marci Hamilton hamilto...@aol.com wrote: Richard's point is fair so let me provide some more context that perhaps would be helpful. Privileges are concoctions of positive law dealing w what information can be excluded in the judicial process. The confessional privilege is no different than the attorney client privilege or the spousal privilege on that score. Every faith invokes it or tries to to avoid disclosing legally damaging evidence in the judicial process. The RCC and LDS are the most active in lobbying to expand it in the state legislatures. It is always invoked in clergy sex abuse cases and to avoid mandatory reporting of child sex abuse. Courts have had to struggle w the distinction between counseling and confession for salvation purposes, because when laws are violated, the exclusion of relevant evidence is to be avoided. The privilege, depending on the state, belongs to the confessor or confessee and always can be waived but how differs state to state. It is routinely waived if the content is disclosed outside the one-on-one confession. It is also routinely invoked to conceal information that was obtained outside the confessional. It is my view that there should be an exception to it that parallels the attorney client exception for future crimes or fraud. And that it should not be an exception to mandatory reporting of child sex abuse. The privilege is a permissive accommodation that we have learned has a corrosive effect on children, families, churches, and society. Under Smith it is not required and under a RFRA analysis it should not overcome the needs of the judicial process or mandatory reporting laws. I offer these examples to contextualize the discussion. It only matters when it is alleged a law has been broken so that law should be the starting point for discourse. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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. ___ 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.
RE: The clergy-penitent privilege and burdens on third parties
I am certainly drawn to be protective of religious acts essential to their faith. The problem, of course, comes with the radical pluralism of American religious life, and our (perhaps admirable) propensity to allow each individual more-or-less carte blanche (unless it involves smoking marijuana) as to what those essentials are. And, of course, one still has to explain why claims of conscience that are essential to one's own notion living with integrity are not protected. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Saturday, December 07, 2013 10:53 AM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties I think the history of the privilege is that it was first protected for Catholics, because of its sacramental nature and the very strong teaching, and then extended to other faiths by analogy and to avoid what looked to some like denominational discrimination. I'm pretty sure about that chronology; I'm inferring the causation without having done the historical work to verify it. The peyote service is the central act of worship in the Native American Church; I don't know if they use the word sacrament. But Smith and Black (the other plaintiff) were not members of the church; they were exploring. It is generally illusory to enact toleration, and say that religious minorities can live among you, if you then prosecute them for acts essential to their faith. The force of that point is weaker with respect to less important religious practices, although I think it never goes to zero. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, December 06, 2013 11:18 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties As I've said earlier, I'm sympathetic to Richard's argument inasmuch as confession is in fact part of a complex (required) sacramental process. But the point is that (I think) that's relatively unusual, certainly not present, so far as I am aware, in Judaism, for example. Am I correct in believing that the ingestion of peyote was in fact a sacramental aspect of the Native American church? sandy ___ 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.
RE: The clergy-penitent privilege and burdens on third parties
BEGIN:VCALENDAR METHOD:REQUEST PRODID:AndroidEmail VERSION:2.0 BEGIN:VEVENT UID:c9fafb38-77b1-4e73-ac29-684411eed353 DTSTAMP:20131208T001712Z DTSTART:20131208T003000Z DTEND:20131208T013000Z SUMMARY:RE: The clergy-penitent privilege and burdens on third parties DESCRIPTION:When: 7:30pm â 8:30pm\, December 7\n-- -\nI am certainly drawn to be protective of religious acts âessential to their faith.â The problem\, of course\, comes with th e radical pluralism of American religious life\, and our (perhaps admir able) propensity to allow each individual more-or-less cart X-MICROSOFT-CDO-ALLDAYEVENT:FALSE ATTENDEE;ROLE=REQ-PARTICIPANT;PARTSTAT=NEEDS-ACTION;RSVP=TRUE;CN=SLevin s...@law.utexas.edu:MAILTO:slevin...@law.utexas.edu ATTENDEE;ROLE=REQ-PARTICIPANT;PARTSTAT=NEEDS-ACTION;RSVP=TRUE;CN=religi on...@lists.ucla.edu:MAILTO:religionlaw@lists.ucla.edu ORGANIZER:MAILTO:folt...@ajc.org CLASS:PUBLIC STATUS:CONFIRMED TRANSP:OPAQUE PRIORITY:5 SEQUENCE:0 BEGIN:VALARM TRIGGER:-PT10M ACTION:DISPLAY DESCRIPTION:Reminder END:VALARM END:VEVENT END:VCALENDAR ___ 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.
Re: The clergy-penitent privilege and burdens on third parties
Apologies to all for the invitation that my (not-so-)Smartphone somehow just sent to the listserve for a non-existent event. Sent from my Verizon Wireless 4G LTE DROID Levinson, Sanford V slevin...@law.utexas.edu wrote: I am certainly drawn to be protective of religious acts “essential to their faith.” The problem, of course, comes with the radical pluralism of American religious life, and our (perhaps admirable) propensity to allow each individual more-or-less carte blanche (unless it involves smoking marijuana) as to what those “essentials are.” And, of course, one still has to explain why claims of conscience that are “essential to one’s own notion living with integrity” are not protected. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Saturday, December 07, 2013 10:53 AM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties I think the history of the privilege is that it was first protected for Catholics, because of its sacramental nature and the very strong teaching, and then extended to other faiths by analogy and to avoid what looked to some like denominational discrimination. I’m pretty sure about that chronology; I’m inferring the causation without having done the historical work to verify it. The peyote service is the central act of worship in the Native American Church; I don’t know if they use the word sacrament. But Smith and Black (the other plaintiff) were not members of the church; they were exploring. It is generally illusory to enact toleration, and say that religious minorities can live among you, if you then prosecute them for acts essential to their faith. The force of that point is weaker with respect to less important religious practices, although I think it never goes to zero. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, December 06, 2013 11:18 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties As I’ve said earlier, I’m sympathetic to Richard’s argument inasmuch as confession is in fact part of a complex (required) sacramental process. But the point is that (I think) that’s relatively unusual, certainly not present, so far as I am aware, in Judaism, for example. Am I correct in believing that the ingestion of peyote was in fact a sacramental aspect of the Native American church? sandy ___ 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.
Canceled: RE: The clergy-penitent privilege and burdens on third parties
BEGIN:VCALENDAR METHOD:CANCEL PRODID:AndroidEmail VERSION:2.0 BEGIN:VEVENT UID:c9fafb38-77b1-4e73-ac29-684411eed353 DTSTAMP:20131208T003217Z DTSTART:20131208T003000Z DTEND:20131208T013000Z SUMMARY:RE: The clergy-penitent privilege and burdens on third parties DESCRIPTION:When: 7:30pm â 8:30pm\, December 7\n-- -\nI am certainly drawn to be protective of religious acts âessential to their faith.â The problem\, of course\, comes with th e radical pluralism of American religious life\, and our (perhaps admir able) propensity to allow each individual more-or-less cart X-MICROSOFT-CDO-ALLDAYEVENT:FALSE ATTENDEE;ROLE=REQ-PARTICIPANT;CN=slevin...@law.utexas.edu:MAILTO:SLevi n...@law.utexas.edu ATTENDEE;ROLE=REQ-PARTICIPANT;CN=religionlaw@lists.ucla.edu:MAILTO:rel igion...@lists.ucla.edu ORGANIZER:MAILTO:folt...@ajc.org CLASS:PUBLIC STATUS:CANCELLED TRANSP:OPAQUE PRIORITY:5 SEQUENCE:0 END:VEVENT END:VCALENDAR ___ 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.
RE: The clergy-penitent privilege and burdens on third parties
I don't have much of a dog in this fight, but let me add three things: 1) I appreciate Marci's response. It's clear the privilege has indeed been interpreted in a confined manner in many jurisdictions, even where the statute itself is fairly broad. Too confined, perhaps, in my view. But I take the law as it is for present purposes. 2) I would treat the existence and scope of the privilege separately from the religious aspects of the privilege. I don't find convincing the idea that something about the privilege makes it uniquely troubling from the perspective of the realm of testimonial privileges generally. In identifying privileged communications, we start by asking, among other things, whether there are particular relationships which, in society's view, ought to be fostered and/or for which confidentiality is an important element. In doing so, we don't, in my view, start strictly from a position of liberal neutrality; rather, we begin with existing relationships in our actual society and at least take into account traditional reliance upon or approval of those relationships. (I appreciate, however, Sandy Levinson's interesting 1984 Duke Law Journal article on the subject.) From that perspective, and whether or not everyone can avail himself or herself of a particular relationship or privilege, I don't think it's per se unreasonable to include priest-penitent relationships among those that society values for various reasons. But any and every privilege, this one included, is subject to both reexamination on the question of whether it should exist, and reexamination on its scope and exceptions. 3) I do, however, tend to agree more with Greg than with Eugene on the potential value and nature of the counseling that might be offered in a priest-communicant relationship. Many clergy are extensively trained in counseling, and although that counseling may have a spiritual component, it also includes all the other qualities, skills, and advice that are relevant to any person serving a counseling role. Of course there are going to be ministers who are lousy counselors, just as there are psychotherapists and doctors who are lousy counselors. But others--I think many--can and will give advice that is tailored not so much to a particular religious worldview but to the role of counselor in general. And I don't think it's far-fetched, at least from my personal experience, to think of such a person as serving a role to more people than just their own parishioners. Leaving aside potential converts or communicants, whose communications are analogous to communications by potential clients, in many smaller communities or neighborhoods a minister can serve an important role as a community leader and friend and counselor to its residents. Again, nothing in this paragraph prevents us from reexamining whether the privilege should exist at all, or whether it should be subject to particular reporting exceptions etc. From: vol...@law.ucla.edu To: religionlaw@lists.ucla.edu Date: Thu, 5 Dec 2013 14:44:54 -0800 Subject: RE: The clergy-penitent privilege and burdens on third parties I’m sure there are some such situations, perhaps even quite a few. But I imagine there are quite a few situations where the priest would quite rightly not give me the advice that works for me given my philosophical worldview. The benefit of the clergy-penitent privilege to the religious is that they can generally get such advice, tailored to the particular religious belief system they follow. The irreligious, I think, don’t have that benefit, though they might get some second-best option for those situations where their worldview overlaps with a clergyman’s. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C. Sent: Thursday, December 05, 2013 2:31 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties Actually, I think non-Catholics mostly would be pleasantly surprised, both on the receptivity of the priest-confessor and the wisdom of the response. To be sure, there are some misdeeds that are shared in confession that are understood to be such solely from the perspective of the Catholic believer (e.g., failed to attend mass, took the Lord’s name in vain, etc.), but most of what is shared with a priest are the kinds of faults to which all of us are prone and which all (or nearly all) of us regard as faults. And, following the confession, a good priest (which is to say, most priests) responds both in religious terms by pronouncing absolution and reconciliation with God, but also speaking about reconciliation with one’s neighbors and future personal growth. Indeed, in my own experience – and I do not go to confession nearly as often as I should (one more thing to confess, I guess) – is that the priest usually engages me
RE: The clergy-penitent privilege and burdens on third parties
Again, I’m late—sorry about that. But honestly people, it’s shocking how many posts are written between the hours of 9 p.m. and 7 a.m. Who can keep up? So this may backtrack, but I’ve been thinking about the earlier posts in this thread. Say there are no secular analogies to the priest-penitent privilege. Does that, in itself, justify the conclusion that it is favoritism for religion? I don’t think so, or at least I’m not convinced of that right now. Some people are religious; some people are not. Some people feel a need to confess and receive absolution in return; others do not. The priest-penitent privilege only helps those in the former group. But that need not be favoritism. Sure, it’s differential treatment, but it might be justified because the people aren’t similarly situated in the first place. (And here this ties in to Greg Sisk’s earlier posts.) I think it helps that there are secular analogues, but I think it’s a mistake to require the secular analogues to match up perfectly with the religious one. I think it’s a mistake because it denies the reasons why we want to accommodate religion in the first place: Religion is different than other human needs. It may be analogous to them, but it’s never perfectly analogous; it inevitably differs in ways that require tailored treatment. The equality approach means that religious activities never get protection when there’s no exact secular parallel to them. If there’s no exact secular parallel to confession—and of course there isn’t!—then confession doesn’t get protected. More generally, I take this to be the central weakness of Smith (even for those who think Smith rightly decided). It is also why—to pick up Sandy’s train of thought below—Widmar ends up turning into Bronx Household. In Trammel, the Court goes through all the privileges in a sensible and attractive way. The attorney-client privilege helps you secure legal help; the physician privilege helps you secure medical help; later on, the psychotherapist privilege will help you secure emotional help; the clergy privilege helps you secure spiritual help. True enough that some don’t believe in spiritual help, because they think it’s bs. But some think psychotherapy is bs. If the priest-penitent privilege is conceptualized the way Sandy phrases it—as a “desire [of people] to unburden themselves to sympathetic listeners”—then the priest-penitent privilege looks terribly underinclusive. But that phrases the priest-penitent privilege at a high level of generality. And at that level of generality, all the other privileges become terribly underinclusive as well. The spousal privilege discriminates against the unmarried and against me if I confide in my best friend more than my wife. The psychotherapist privilege discriminates against sympathetic mothers, fathers, siblings, and bartenders. (This is one way Justice Scalia goes after the privilege in Redmond.) There’s also the spectre of discrimination against religion arising if, say, psychotherapists got a privilege and clergy didn’t. But I really think we might be better off not always thinking about this in terms of discrimination. Religion seems sui generis, and unique things must be treated in unique ways. Best, Chris From: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, December 05, 2013 5:17 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties 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: mailto:religionlaw-boun...@lists.ucla.edu 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
Re: The clergy-penitent privilege and burdens on third parties
With all due respect to this entire thread, how many people have actually read the state cases involving the priest-penitent privilege? There is a level of abstraction to this discussion that indicates to me probably not. As someone who has actively been involved in arguing the issue in court in the last year, I'd suggest that the law is more reticulated and specific. state-by-state, than the speculation going on here. It is state law, which means 50 states plus DC law, and it is a privilege that is not constitutionally required, particularly when the issue is whether the religious confessor or confessee engaged in illegal behavior. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Christopher Lund l...@wayne.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Fri, Dec 6, 2013 10:06 am Subject: RE: The clergy-penitent privilege and burdens on third parties Again, I’m late—sorry about that. But honestly people, it’s shocking how many posts are written between the hours of 9 p.m. and 7 a.m. Who can keep up? So this may backtrack, but I’ve been thinking about the earlier posts in this thread. Say there are no secular analogies to the priest-penitent privilege. Does that, in itself, justify the conclusion that it is favoritism for religion? I don’t think so, or at least I’m not convinced of that right now. Some people are religious; some people are not. Some people feel a need to confess and receive absolution in return; others do not. The priest-penitent privilege only helps those in the former group. But that need not be favoritism. Sure, it’s differential treatment, but it might be justified because the people aren’t similarly situated in the first place. (And here this ties in to Greg Sisk’s earlier posts.) I think it helps that there are secular analogues, but I think it’s a mistake to require the secular analogues to match up perfectly with the religious one. I think it’s a mistake because it denies the reasons why we want to accommodate religion in the first place: Religion is different than other human needs. It may be analogous to them, but it’s never perfectly analogous; it inevitably differs in ways that require tailored treatment. The equality approach means that religious activities never get protection when there’s no exact secular parallel to them. If there’s no exact secular parallel to confession—and of course there isn’t!—then confession doesn’t get protected. More generally, I take this to be the central weakness of Smith (even for those who think Smith rightly decided). It is also why—to pick up Sandy’s train of thought below—Widmar ends up turning into Bronx Household. In Trammel, the Court goes through all the privileges in a sensible and attractive way. The attorney-client privilege helps you secure legal help; the physician privilege helps you secure medical help; later on, the psychotherapist privilege will help you secure emotional help; the clergy privilege helps you secure spiritual help. True enough that some don’t believe in spiritual help, because they think it’s bs. But some think psychotherapy is bs. If the priest-penitent privilege is conceptualized the way Sandy phrases it—as a “desire [of people] to unburden themselves to sympathetic listeners”—then the priest-penitent privilege looks terribly underinclusive. But that phrases the priest-penitent privilege at a high level of generality. And at that level of generality, all the other privileges become terribly underinclusive as well. The spousal privilege discriminates against the unmarried and against me if I confide in my best friend more than my wife. The psychotherapist privilege discriminates against sympathetic mothers, fathers, siblings, and bartenders. (This is one way Justice Scalia goes after the privilege in Redmond.) There’s also the spectre of discrimination against religion arising if, say, psychotherapists got a privilege and clergy didn’t. But I really think we might be better off not always thinking about this in terms of discrimination. Religion seems sui generis, and unique things must be treated in unique ways. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, December 05, 2013 5:17 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties 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
Re: The clergy-penitent privilege and burdens on third parties
I will confess to not having read the state cases, or at least not most of them. But isn't the question *whether* the privilege is constitutionally required? (Perhaps the fact that it is referred to as a privilege muddies the waters.) If free exercise of religion includes receiving a sacrament, then why is compelling violation of the privilege not a constitutional issue? Indeed, I wonder why a recent discussion suggested stronger free speech claims than free exercise claims; does the First Amendment make that distinction? I have no doubt courts have read it that way, but that's partly why we get distortions of free exercise claims masquerading as free speech claims. Richard Dougherty University of Dallas On Fri, Dec 6, 2013 at 1:17 PM, hamilto...@aol.com wrote: With all due respect to this entire thread, how many people have actually read the state cases involving the priest-penitent privilege? There is a level of abstraction to this discussion that indicates to me probably not. As someone who has actively been involved in arguing the issue in court in the last year, I'd suggest that the law is more reticulated and specific. state-by-state, than the speculation going on here. It is state law, which means 50 states plus DC law, and it is a privilege that is not constitutionally required, particularly when the issue is whether the religious confessor or confessee engaged in illegal behavior. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Christopher Lund l...@wayne.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Fri, Dec 6, 2013 10:06 am Subject: RE: The clergy-penitent privilege and burdens on third parties Again, I’m late—sorry about that. But honestly people, it’s shocking how many posts are written between the hours of 9 p.m. and 7 a.m. Who can keep up? So this may backtrack, but I’ve been thinking about the earlier posts in this thread. Say there are no secular analogies to the priest-penitent privilege. Does that, in itself, justify the conclusion that it is favoritism for religion? ___ 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.
RE: The clergy-penitent privilege and burdens on third parties
As I've said earlier, I'm sympathetic to Richard's argument inasmuch as confession is in fact part of a complex (required) sacramental process. But the point is that (I think) that's relatively unusual, certainly not present, so far as I am aware, in Judaism, for example. Am I correct in believing that the ingestion of peyote was in fact a sacramental aspect of the Native American church? sandy From: religionlaw-bounces+slevinson=law.utexas@lists.ucla.edu [mailto:religionlaw-bounces+slevinson=law.utexas@lists.ucla.edu] On Behalf Of Richard Dougherty Sent: Friday, December 06, 2013 6:09 PM To: Law Religion issues for Law Academics Subject: Re: The clergy-penitent privilege and burdens on third parties I will confess to not having read the state cases, or at least not most of them. But isn't the question whether the privilege is constitutionally required? (Perhaps the fact that it is referred to as a privilege muddies the waters.) If free exercise of religion includes receiving a sacrament, then why is compelling violation of the privilege not a constitutional issue? Indeed, I wonder why a recent discussion suggested stronger free speech claims than free exercise claims; does the First Amendment make that distinction? I have no doubt courts have read it that way, but that's partly why we get distortions of free exercise claims masquerading as free speech claims. Richard Dougherty University of Dallas On Fri, Dec 6, 2013 at 1:17 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: With all due respect to this entire thread, how many people have actually read the state cases involving the priest-penitent privilege? There is a level of abstraction to this discussion that indicates to me probably not. As someone who has actively been involved in arguing the issue in court in the last year, I'd suggest that the law is more reticulated and specific. state-by-state, than the speculation going on here. It is state law, which means 50 states plus DC law, and it is a privilege that is not constitutionally required, particularly when the issue is whether the religious confessor or confessee engaged in illegal behavior. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Christopher Lund l...@wayne.edumailto:l...@wayne.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Fri, Dec 6, 2013 10:06 am Subject: RE: The clergy-penitent privilege and burdens on third parties Again, I'm late-sorry about that. But honestly people, it's shocking how many posts are written between the hours of 9 p.m. and 7 a.m. Who can keep up? So this may backtrack, but I've been thinking about the earlier posts in this thread. Say there are no secular analogies to the priest-penitent privilege. Does that, in itself, justify the conclusion that it is favoritism for religion? ___ 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.
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 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] 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 [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [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 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
Re: The clergy-penitent privilege and burdens on third parties
It depends on the state actually. But generally the confession must be for spiritual/salvation purposes Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 5, 2013, at 12:32 PM, Paul Horwitz phorw...@hotmail.com wrote: 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 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] 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 [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [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
RE: The clergy-penitent privilege and burdens on third parties
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] 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.edumailto: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.edumailto: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.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edumailto: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
RE: The clergy-penitent privilege and burdens on third parties
Actually, I think non-Catholics mostly would be pleasantly surprised, both on the receptivity of the priest-confessor and the wisdom of the response. To be sure, there are some misdeeds that are shared in confession that are understood to be such solely from the perspective of the Catholic believer (e.g., failed to attend mass, took the Lord’s name in vain, etc.), but most of what is shared with a priest are the kinds of faults to which all of us are prone and which all (or nearly all) of us regard as faults. And, following the confession, a good priest (which is to say, most priests) responds both in religious terms by pronouncing absolution and reconciliation with God, but also speaking about reconciliation with one’s neighbors and future personal growth. Indeed, in my own experience – and I do not go to confession nearly as often as I should (one more thing to confess, I guess) – is that the priest usually engages me in a common-sense and real-world dialogue about why I have fallen short, what are the obstacles in my path, and what steps I should take to overcome those obstacles. Penance may include prayer (the traditional, “say, ten ‘Our Father’s) but more and more often will include steps to compensate for harm to others, efforts to assist others in a similar situation, charitable activities, etc. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, December 05, 2013 4:17 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties 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.edumailto: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. ___ 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.
RE: The clergy-penitent privilege and burdens on third parties
I’m sure there are some such situations, perhaps even quite a few. But I imagine there are quite a few situations where the priest would quite rightly not give me the advice that works for me given my philosophical worldview. The benefit of the clergy-penitent privilege to the religious is that they can generally get such advice, tailored to the particular religious belief system they follow. The irreligious, I think, don’t have that benefit, though they might get some second-best option for those situations where their worldview overlaps with a clergyman’s. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C. Sent: Thursday, December 05, 2013 2:31 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties Actually, I think non-Catholics mostly would be pleasantly surprised, both on the receptivity of the priest-confessor and the wisdom of the response. To be sure, there are some misdeeds that are shared in confession that are understood to be such solely from the perspective of the Catholic believer (e.g., failed to attend mass, took the Lord’s name in vain, etc.), but most of what is shared with a priest are the kinds of faults to which all of us are prone and which all (or nearly all) of us regard as faults. And, following the confession, a good priest (which is to say, most priests) responds both in religious terms by pronouncing absolution and reconciliation with God, but also speaking about reconciliation with one’s neighbors and future personal growth. Indeed, in my own experience – and I do not go to confession nearly as often as I should (one more thing to confess, I guess) – is that the priest usually engages me in a common-sense and real-world dialogue about why I have fallen short, what are the obstacles in my path, and what steps I should take to overcome those obstacles. Penance may include prayer (the traditional, “say, ten ‘Our Father’s) but more and more often will include steps to compensate for harm to others, efforts to assist others in a similar situation, charitable activities, etc. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edumailto:gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, December 05, 2013 4:17 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties 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.edumailto: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. ___ 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.
RE: The clergy-penitent privilege and burdens on third parties
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.edumailto: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.edumailto: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.edumailto: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.edumailto: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
Re: The clergy-penitent privilege and burdens on third parties
Sandy and Marci, I agree my conversations were not and should not have been privileged. But it is not the case that non-believers cannot be helped by priests either in a priest/pentitent setting or less formally. Steve -- 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/ “There are no wrong notes in jazz: only notes in the wrong places.” Miles Davis On Dec 5, 2013, at 5:44 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I’m sure there are some such situations, perhaps even quite a few. But I imagine there are quite a few situations where the priest would quite rightly not give me the advice that works for me given my philosophical worldview. The benefit of the clergy-penitent privilege to the religious is that they can generally get such advice, tailored to the particular religious belief system they follow. The irreligious, I think, don’t have that benefit, though they might get some second-best option for those situations where their worldview overlaps with a clergyman’s. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfSisk, Gregory C. Sent: Thursday, December 05, 2013 2:31 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties Actually, I think non-Catholics mostly would be pleasantly surprised, both on the receptivity of the priest-confessor and the wisdom of the response. To be sure, there are some misdeeds that are shared in confession that are understood to be such solely from the perspective of the Catholic believer (e.g., failed to attend mass, took the Lord’s name in vain, etc.), but most of what is shared with a priest are the kinds of faults to which all of us are prone and which all (or nearly all) of us regard as faults. And, following the confession, a good priest (which is to say, most priests) responds both in religious terms by pronouncing absolution and reconciliation with God, but also speaking about reconciliation with one’s neighbors and future personal growth. Indeed, in my own experience – and I do not go to confession nearly as often as I should (one more thing to confess, I guess) – is that the priest usually engages me in a common-sense and real-world dialogue about why I have fallen short, what are the obstacles in my path, and what steps I should take to overcome those obstacles. Penance may include prayer (the traditional, “say, ten ‘Our Father’s) but more and more often will include steps to compensate for harm to others, efforts to assist others in a similar situation, charitable activities, etc. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfVolokh, Eugene Sent: Thursday, December 05, 2013 4:17 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties 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] On Behalf OfPaul 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. ___ To post, send message to
Re: The clergy-penitent privilege and burdens on third parties
No question. They can be helped just as believers might not be! But that is separate from whether, as a legal matter, a privilege attaches. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Steven Jamar stevenja...@gmail.com To: Law Religion Law List religionlaw@lists.ucla.edu Sent: Thu, Dec 5, 2013 10:09 pm Subject: Re: The clergy-penitent privilege and burdens on third parties Sandy and Marci, I agree my conversations were not and should not have been privileged. But it is not the case that non-believers cannot be helped by priests either in a priest/pentitent setting or less formally. Steve -- 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/ “There are no wrong notes in jazz: only notes in the wrong places.” Miles Davis On Dec 5, 2013, at 5:44 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I’m sure there are some such situations, perhaps even quite a few. But I imagine there are quite a few situations where the priest would quite rightly not give me the advice that works for me given my philosophical worldview. The benefit of the clergy-penitent privilege to the religious is that they can generally get such advice, tailored to the particular religious belief system they follow. The irreligious, I think, don’t have that benefit, though they might get some second-best option for those situations where their worldview overlaps with a clergyman’s. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfSisk, Gregory C. Sent: Thursday, December 05, 2013 2:31 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties Actually, I think non-Catholics mostly would be pleasantly surprised, both on the receptivity of the priest-confessor and the wisdom of the response. To be sure, there are some misdeeds that are shared in confession that are understood to be such solely from the perspective of the Catholic believer (e.g., failed to attend mass, took the Lord’s name in vain, etc.), but most of what is shared with a priest are the kinds of faults to which all of us are prone and which all (or nearly all) of us regard as faults. And, following the confession, a good priest (which is to say, most priests) responds both in religious terms by pronouncing absolution and reconciliation with God, but also speaking about reconciliation with one’s neighbors and future personal growth. Indeed, in my own experience – and I do not go to confession nearly as often as I should (one more thing to confess, I guess) – is that the priest usually engages me in a common-sense and real-world dialogue about why I have fallen short, what are the obstacles in my path, and what steps I should take to overcome those obstacles. Penance may include prayer (the traditional, “say, ten ‘Our Father’s) but more and more often will include steps to compensate for harm to others, efforts to assist others in a similar situation, charitable activities, etc. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfVolokh, Eugene Sent: Thursday, December 05, 2013 4:17 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties 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] On Behalf OfPaul 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
RE: The clergy-penitent privilege and burdens on third parties
I’m genuinely curious: Do we have any idea which denominations impose a duty on their clergy to preserve confidentiality? Every Sunday I read in the Style section of the Times of couples who are married by someone who has been licensed by the Universal Church (I think it’s called) to perform weddings. Often, of course, the officiant is a close friend of one or both of the couple being married. Would we/should we take seriously an internet declaration by the Universal Church that it requires its “clergy” to keep confidential whatever the bride(s), groom(s), members of the wedding party, etc., might have said in the run-up to tying the knot? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, December 05, 2013 10:15 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The clergy-penitent privilege and burdens on third parties I don’t know how it is in other states, but Cal. Evid Code 1030-1034 absolutely covers any “communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.” So the question isn’t whether it’s “for salvation or other religious goal” as such; rather, it’s whether the clergy member “has a duty to keep those communications secret” under his religious denomination’s tenets. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Thursday, December 05, 2013 6:59 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: The clergy-penitent privilege and burdens on third parties Steve-- That may be true in your experience, but it doesn't make those discussions confessional for purposes of the clergy-penitent privilege. It typically requires a showing that the discussion was not counseling, therapy, or simply an exchange of information. Rather, it must be for salvation or other religious goal. Even discussions between co-religionists, however, may not qualify as confessions for purposes of the privilege. For example, a conversation between a bishop and a pedophile priest about his abuse of children and his next placement is not a confession, despite the elements of counseling involved. No privilege attaches to such conversations. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 ___ 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.
RE: The clergy-penitent privilege and burdens on third parties
Many reasons can be offered for the venerable privilege that originated as the priest-penitent privilege, including as Doug notes that the penitent having the confidence that confession is sacrosanct will be willing to share that which he or she withholds from all others and thereby be in a position to receive moral instruction and a direction for reconciliation from a priest that benefits all in society (much as does a lawyer for a client who confesses to past wrongdoing). But another reason for this kind of religious accommodation of something so central to a faith is to consider what kind of a society we would be without it. To tell someone that a basic sacrament or what is directly related to the sacramental nature of the church – whether it be use of an intoxicating substance in communion, confession to a priest to be reconciled to God, selection of ministers by apostolic succession – is forbidden or subject to the intrusive examination and regulation of the government should be most disturbing of all. Without an accommodation to Catholic churches on use of wine during prohibition or in a dry county, without protection of the confidentiality of the confessional through a privilege, without selection of priests by apostolic succession free of the kind of government rules and judicial monitoring that are imposed by anti-discrimination statutes, the Catholic faith simply could not be observed in this country – other than by resort to underground groups and dissident activities. (And, I recognize, other less mainstream faiths would be even more likely to suffer such governmental invasion, as witness the plight of Native American religions and others). To be sure, there are and have been governments that require clergy to serve an informants on the people – not just to what they have witnessed as wrongdoing but what they hear through confession by the people. And we have seen governments that demand a role in selecting or approving bishops and other ministers. The China of today and the Poland of the communist era come most readily to mind. That is not the kind of government that we Americans claim to have. Those of us of faith appreciate that on many things we may be forced on a regular basis to balance that which is a demand of or influence from our faith against our civic duties and the strictures of the secular order. I believe strongly that accommodation on many of these matters is appropriate, but appreciate that reasonable people will be of differing viewpoints in application in many instances. Governmental control over sacraments, though, is quite another thing, ratcheting up the violation of religious freedom to a much higher level. When worship itself is subjected to governmental monitoring and regulation, religious freedom becomes a hollow pledge. I am not given to hyperbole. I am more likely to be saddened than outraged when I see religious rights violated in this country. And, as noted, I frequently can appreciate, if not be persuaded by, the opposing viewpoint. I recoil from those, on both left and right, who exaggerate a dispute of the moment and contemplate an apocalyptic outcome justifying an extreme response. And I roll my eyes when some self-important celebrity or commentator threatens to leave the country if this or that policy is enacted or this or that politician is elected (and wish they would carry through on the threat afterward). But a government that overreaches so far as to deny me the sacrament of confession, for example, would be a society to which I could no longer give my loyalty as a citizen. Fortunately, despite some worrying remarks here and there, now and then, I remain confident that my fellow citizens will not bring us to that sad state of affairs. Greg Sisk Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 ___ 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.
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 [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [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 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.
RE: The clergy-penitent privilege and burdens on third parties
Greg’s argument is obviously quite eloquent. But I think it is telling that it is really predicated on Catholic theology, including the “sacramental” nature of confession and the joint duty of the penitent/sinner to confess and of the priest to keep the confession confidential. And, of course, there is rarely any difficulty in identifying who counts as a “priest.” There is an almost 2000-year-old institution one of whose main functions is ordaining a special group of people who can engage in certain sacramental roles. I’ve already indicated that I’m inclined to be sympathetic to such claims because of the theology they’re connected with (whether or not, of course, I subscribe to it myself). But I’m not clear why this just justify the broader privilege. It’s telling as well, isn’t it, that we refer to it a privilege attaching to the “clergy” rather than simply to priests, and it’s not clear what it means to call non-Catholics “penitents.” If there’s a) no religious duty to confess; b) no religious duty to preserve confidences; and c) a belief that breach of either duty will generate some kind of divine sanction (including in the afterlife), then I continue not to see the difference between, say, a rabbi and a truly empathetic hairdresser. Indeed, as suggested earlier, I find it difficult to distinguish as well between a legally-recognized spouse and, say, a “work-spouse,” let alone, of course, in those states that don’t recognize same-sex marriage, a member of a “civil union.” (I assume, for example, that Texas does not recognize a “spousal privilege” of a legally-married same-sex couple from Massachusetts who have been transferred to Texas to serve military duty. Am I wrong?) I share Greg’s fear of the totalitarian state that calls on us to inform on one another, but that is precisely the state we live in today, save for those very few people lucky enough to be able to claim a strong testimonial privilege. But, as in all “equal protection” cases, there are millions of others who are similarly situated. Is the solution to give millions more people such privileges or to pare down the existing privileges to those that can survive intellectual challenge? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C. Sent: Wednesday, December 04, 2013 10:27 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties Many reasons can be offered for the venerable privilege that originated as the priest-penitent privilege, including as Doug notes that the penitent having the confidence that confession is sacrosanct will be willing to share that which he or she withholds from all others and thereby be in a position to receive moral instruction and a direction for reconciliation from a priest that benefits all in society (much as does a lawyer for a client who confesses to past wrongdoing). But another reason for this kind of religious accommodation of something so central to a faith is to consider what kind of a society we would be without it. To tell someone that a basic sacrament or what is directly related to the sacramental nature of the church – whether it be use of an intoxicating substance in communion, confession to a priest to be reconciled to God, selection of ministers by apostolic succession – is forbidden or subject to the intrusive examination and regulation of the government should be most disturbing of all. Without an accommodation to Catholic churches on use of wine during prohibition or in a dry county, without protection of the confidentiality of the confessional through a privilege, without selection of priests by apostolic succession free of the kind of government rules and judicial monitoring that are imposed by anti-discrimination statutes, the Catholic faith simply could not be observed in this country – other than by resort to underground groups and dissident activities. (And, I recognize, other less mainstream faiths would be even more likely to suffer such governmental invasion, as witness the plight of Native American religions and others). To be sure, there are and have been governments that require clergy to serve an informants on the people – not just to what they have witnessed as wrongdoing but what they hear through confession by the people. And we have seen governments that demand a role in selecting or approving bishops and other ministers. The China of today and the Poland of the communist era come most readily to mind. That is not the kind of government that we Americans claim to have. Those of us of faith appreciate that on many things we may be forced on a regular basis to balance that which is a demand of or influence from our faith against our civic duties and the strictures of the secular order. I believe strongly that accommodation on many of these matters is
RE: The clergy-penitent privilege and burdens on third parties
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] 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.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [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 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.
RE: The clergy-penitent privilege and burdens on third parties
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 ___ 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.
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 + 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
RE: The clergy-penitent privilege and burdens on third parties
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 + 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
Re: The clergy-penitent privilege and burdens on third parties
And the clergy-penitent privilege is one of many such privileges -- doctor-patient, lawyer-client, spousal privilege, etc. They are designed to encourage communication within relationships the law values. So this example is like Walz -- it does not involve special treatment for religion. It is that kind of special treatment that triggers the concern for third party harms (Estate of Thornton v. Caldor). On Tue, Dec 3, 2013 at 10:05 PM, Douglas Laycock dlayc...@virginia.eduwrote: 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 + 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
RE: The clergy-penitent privilege and burdens on third parties
Well, people do talk incautiously in contexts where no privilege is available, and their statements are used as a result. Some people might not talk if they knew a privilege was unavailable, but others still might, especially if they feel they need to unburden themselves, and even more especially if they feel that such confession is a religious necessity. (As I understand it, for instance, many psychiatrists' patients do say things to the psychiatrists that alert the psychiatrists to a danger to third parties, even though there is an exception to the privilege and to professional ethics in such situations, and even though under Tarasoff psychiatrists sometimes have a duty to disclose such threats. Not a perfect analogy, I realize, but I hope a helpful one.) So the consequence is that some litigants would not have benefited from the absence of a clergy-penitent privilege, since the penitent wouldn't have confessed. But others would have, and I would think that there would be a considerable number of such others. Under the Establishment Clause burden on nonbeneficiaries argument, why should it be necessary that the $500,000 loss to Barbara be guaranteed, as opposed to simply happening with some regularity to people in Barbara's shoes? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Tuesday, December 03, 2013 7:40 PM To: Douglas Laycock; Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties 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 + 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
RE: The clergy-penitent privilege and burdens on third parties
I don't think that's right. First, recall that the employer mandate exemption is supposed to be one of at least a few such exemptions (grandfathered plans and under-50-person plans being the other ones); fewer than the privileges, but not by that much. Second, as I mentioned, the clergy-penitent privilege is unusually strong -- in California, as I understand it, it has no exemptions, while the others have some pretty big ones (e.g., the doctor-patient privilege doesn't apply at all to criminal cases, Cal. Evid. Code 998, and there are many exceptions to the spousal privilege and the lawyer-client privilege). It is also unusually easy to get: Unlike with doctors, lawyers, psychotherapists, there is no requirement of government licensure or extended professional training (though of course some but not all religions do require extended training as a matter of their own practice). Perhaps because of this, for many people a clergyman is the only person whose sympathetic ear and helpful counsel they can get for free, which doubtless makes it easier for the clergy to spread their own messages as part of such counsel. In that sense, the closer analogy isn't Walz but, I would think, Texas Monthly. There too there were doubtless many products that were exempt from sales tax (most food items being the classic example in most states). But this wasn't enough: The fact that Texas grants other sales tax exemptions (e. g., for sales of food, agricultural items, and property used in the manufacture of articles for ultimate sale) for different purposes does not rescue the exemption for religious periodicals from invalidation. What is crucial is that any subsidy afforded religious organizations be warranted by some overarching secular purpose that justifies like benefits for nonreligious groups. There is no evidence in the record, and Texas does not argue in its brief to this Court, that the exemption for religious periodicals was grounded in some secular legislative policy that motivated similar tax breaks for nonreligious activities. It certainly appears that the exemption was intended to benefit religion alone. Likewise, the purpose of the clergy-penitent privilege is quite different from that of the spousal privilege, the lawyer-client privilege, and the doctor-patient privilege, and I think different even from the psychotherapist-patient privilege (where the resemblance is stronger but still on balance quite distant). This isn't to say that Texas Monthly necessarily invalidates the clergy-penitent privilege -- the privilege does lift a government-imposed substantial burden on religious practice, and it isn't as clearly a preference for propagation of religious ideas (which is what the concurrences stressed). I just don't think that the clergy-penitent privilege can be saved on the grounds that it does not involve special treatment for religion. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, December 03, 2013 7:39 PM To: Law Religion issues for Law Academics Subject: Re: The clergy-penitent privilege and burdens on third parties And the clergy-penitent privilege is one of many such privileges -- doctor-patient, lawyer-client, spousal privilege, etc. They are designed to encourage communication within relationships the law values. So this example is like Walz -- it does not involve special treatment for religion. It is that kind of special treatment that triggers the concern for third party harms (Estate of Thornton v. Caldor). On Tue, Dec 3, 2013 at 10:05 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: 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 + Levinson, Sanford V slevin...@law.utexas.edumailto: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
RE: The clergy-penitent privilege and burdens on third parties
I once wrote an article, Testimonial Privileges and the Preferences of Friendship, 1984 DUKE LAW JOURNAL 631-662 (1984), the general thesis of which is that there is no truly plausible general theory of such privileges. (The title, incidentally, comes from Rousseau, who wrote that the preferences of friendship are thefts committed against the fatherland. All men are our brothers; all should be our friends. No doubt there's something scary in that notion, but it also captures the often-arbitrary partiality in allowing a small subset of individuals to refuse to offer evidence of criminal (or even tortious) behavior. But if one does defend such partialities and loyalties, then why must one be married, for example (especially in the modern world) to get an intimacy privilege, and why, exactly, do family members (other than spouses) have no privileges? Well-off people can go to psychiatrists, while less well-off talk to their bartenders and hairdressers (or, simply, best friends or workmates, none of whom are covered. Are nurse-practitioners (who will play an increasingly important role in the delivery of medical services) covered (a genuine, not a rhetorical, question, since I don't know what the answer is, and if it varies state by state, do we really expect ordinary people to realize whether they are protected or not)? In that article, I offered the thought-experiment of privilege tickets, a limited number of which we would get when we turned 18 and could distribute throughout our lifetimes to those we wished to immunize from state inquiries. Maybe the real question is what is contained within Chip's etc. If there are literally dozens of privileges, then one can engage in a gestalt switch and say that it is discriminating against the clergy to deny them what A-Y get. But if we're really talking about a small subset of people (none of whom get the kind of absolute privilege that the clergy apparently get), then I must say it looks an awful lot like Establishment to me, and I find Eugene's reference to the Texas Monthly case very persuasive. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, December 03, 2013 10:39 PM To: Law Religion issues for Law Academics Subject: Re: The clergy-penitent privilege and burdens on third parties And the clergy-penitent privilege is one of many such privileges -- doctor-patient, lawyer-client, spousal privilege, etc. They are designed to encourage communication within relationships the law values. So this example is like Walz -- it does not involve special treatment for religion. It is that kind of special treatment that triggers the concern for third party harms (Estate of Thornton v. Caldor). On Tue, Dec 3, 2013 at 10:05 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: 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 + Levinson, Sanford V slevin...@law.utexas.edumailto: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:
