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.edu<mailto: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 +0000 "Levinson, Sanford V" <slevin...@law.utexas.edu<mailto: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> >[mailto: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<mailto: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<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
