The bill would amend the state law that currently applies to law enforcement, teachers, medical professionals or child care providers to report cases of child abuse or neglect. Clergy would be added to the list. The sponsors would also exempt clergy from the exception afforded to lawyers and others who obtain information “solely as a result of a privileged communication.”
The law would apply to any “ordained minister, priest, rabbi, imam, elder, or similarly situated religious or spiritual leader of any church, religious denomination, religious body, spiritual community, or sect, or person performing official duties that are recognized as the duties of a member of the clergy.”
In my view, the law is facially unconstitutional as an attack on the free exercise of religion.
Canon law imposes a “sacramental seal” over the confessional that is treated as “inviolable.” Accordingly, under Canon 983.1, “it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”
In 1813 in New York, the clergy-penitent privilege faced an early challenge in People v. Philips. In that case, Fr. Anthony Kohlmann learned in the confessional about two people who had stolen jewelry and convinced them to turn over stolen goods to him. He then returned the goods to the victims. However, after the thieves were later arrested, state prosecutors sought to force Fr. Kohlmann to testify. The court, however, ruled that he was constitutionally exempt.
Putting aside the unconstitutionality, it is a law that is ripe for abuse. The state would be using the church as an agent to compel confessions on the threat of damnation and then turn over the evidence to the police. Worse yet, if the priest does not give a type of ministerial Miranda, the confessant may not realize the danger. However, it is rather hard for a priest to say that a person must confess their sin while reminding them of the right to remain silent.
Years ago, I represented Quenton Brown in the case of Brown v. Butler. The issue before the United States Court of Appeals for the Fifth Circuit was the use of a police psychiatrist to examine Brown, who had a 51 IQ. The doctor then testified against him. We prevailed in establishing that the doctor was an agent of the police and, as such, was required to give Miranda before any examination.
The danger in the Brown case was that the doctor was viewed by the defendants as a medical expert offering therapeutic services. The environment encouraged defendants to disregard their right to remain silent, even after an invocation with police.
This would be Brown on steroids. The priest is there to see to the faith and moral health of an individual. In an effort to avoid damnation, the confessant risks incrimination.
It is a chilling effort to convert priests into sacramental snitches. Even more chilling is that it is clearly part of a broader effort by Democrats with similar laws pushed in states like Montana.
The Supreme Court recognized in cases like Cantwell v. Connecticut (1940) that the government may not “unduly infringe” free exercise. This does not mean that religious figures are exempt from “[c]onduct [that] remains subject to regulation for the protection of society.” citing Reynolds as authority. However, even with a religiously neutral law, it cannot be applied without a “compelling” public purpose. Wisconsin v. Yoder (1972). That is a high standard but the Court rejected many exemptions and ultimately handed down Employment Division v. Smith in 1990, holding that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
That decision led Congress to pass the Religious Freedom Restoration Act (RFRA), which exempts persons from any law that imposes a substantial burden on sincere religious beliefs or actions unless the government can show that the law is the “least restrictive means” of furthering a “compelling governmental interest.”
In 1993, the Court ruled in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah that a local ordinance against the “unnecessary” killing of animals in a “ritual or ceremony” was unconstitutional.
The Court also later handed down Burwell v. Hobby Lobby Stores Inc. in 2014, allowing a commercial family-owned corporation to refuse to participate in the “contraception mandate.”
In my view, the Washington State law is a frontal attack on free exercise and would be struck down if enacted. The only question is why Democrats consider such legislation to be any more viable politically than it is constitutionally.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”