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.
Invitation: RE: The clergy-penitent privilege and burdens on third pa... @ Sat Dec 7, 2013 7:30pm - 8:30pm (Beth's calendar)
BEGIN:VCALENDAR PRODID:-//Google Inc//Google Calendar 70.9054//EN VERSION:2.0 CALSCALE:GREGORIAN METHOD:REQUEST BEGIN:VEVENT DTSTART:20131208T003000Z DTEND:20131208T013000Z DTSTAMP:20131208T003452Z ORGANIZER;CN=zbyo...@gmail.com:mailto:zbyo...@gmail.com UID:c9fafb38-77b1-4e73-ac29-684411eed353 ATTENDEE;CUTYPE=INDIVIDUAL;ROLE=REQ-PARTICIPANT;PARTSTAT=NEEDS-ACTION;RSVP= TRUE;CN=religionlaw@lists.ucla.edu;X-NUM-GUESTS=0:mailto:religionlaw@lists. ucla.edu ATTENDEE;CUTYPE=INDIVIDUAL;ROLE=REQ-PARTICIPANT;PARTSTAT=NEEDS-ACTION;RSVP= TRUE;CN=slevin...@law.utexas.edu;X-NUM-GUESTS=0:mailto:slevinson@law.utexas .edu CREATED:20131208T003451Z DESCRIPTION:View your event at http://www.google.com/calendar/event?action= VIEWeid=X2Njc21jb2I2YzhwamdiOW42dGgzMmI5a2Nrcmo2YmIxY2NwM2liOW03MHEzOGM5aG NsaW04Y3BsNmMgcmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHUtok=MTcjemJ5b3VuZ0BnbWFpb C5jb20zODM3ODFiM2E2MDg3YzMwYTc3MmRlYjQ4NDVhNGJiZTZjZTk2MDRjctz=America/New _Yorkhl=en. LAST-MODIFIED:20131208T003451Z LOCATION: SEQUENCE:0 STATUS:CONFIRMED SUMMARY:RE: The clergy-penitent privilege and burdens on third parties TRANSP:OPAQUE BEGIN:VALARM ACTION:DISPLAY DESCRIPTION:This is an event reminder TRIGGER:P0D END:VALARM END:VEVENT END:VCALENDAR invite.ics Description: application/ics ___ 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.
