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
Hobby Lobby/Conestoga Wood scheduling
The Court did not realign any of the parties (somewhat to my surprise), but consolidated amici briefing. Therefore: -- SG brief in HL, and CW brief in CW, are due Friday, Jan. 10 *-- All amici, supporting any side, due Tuesday, Jan. 28* [shades of green on color of briefs TBD, perhaps sometime today] -- SG brief in CW, and HL brief in HL, due Monday, Feb. 10 -- SG reply in HL, and CW reply in CW, due Wednesday, March 12 ___ 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
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.
