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
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