Catholic priests fight new state law that threatens confidentiality of confessions
Washington lawmakers expanded law on reporting of child-abuse cases
Catholic Church leaders are pushing back against a new Washington state law on reporting of child abuse that the church says could require its priests to violate the confidentiality of the seal of confession, subjecting them to immediate excommunication.
The law, Senate Bill 5375, was passed by the Legislature in April and is due to go in effect on July 27. The law would make clergy members — including people such as Catholic priests, Protestant pastors and Muslim imams — mandatory reporters under the state’s laws on child abuse and neglect. That means they would be required to report to law enforcement whenever they become aware of incidents of child abuse or neglect.
Unlike laws in some states, SB5375 makes no exception for Catholic confessions, which under Catholic canon law are considered to be highly confidential. The Catholic belief is that the priest is acting as a representative of God rather than in his own capacity, and the level of confidentially is so strong that a priest is not allowed to talk even to the penitent outside the confessional booth about the content of the confession. Priests who violate a confession’s confidentiality, regardless of the reason, even under threat of death, can be stripped of their church membership.
Paul Etienne, the Catholic archbishop of Seattle, and several other priests filed suit in the U.S. District Court of Western Washington against Washington Gov. Robert Ferguson and various local district attorneys soon after the law was passed, seeking an injunction to prevent the law from being enforced. Chief District Judge David Estudillo, a Joe Biden appointee, is scheduled to hold a hearing on the petition July 17.
The lawsuit claims, among other things, that SB5375 runs contrary to the First Amendment by preventing them from practicing their religion. The lawsuit also claims that the law discriminates against religious authorities because it does not require some other professionals, such as attorneys or certain sexual assault counselors, to report their confidential conversations regarding child abuse.
The lawsuit also claims that Catholic priests in Washington already report about incidents of child abuse when they learn about them outside of confessions even when they aren’t required by law to do so.
In the end, the lawsuit claims, the new law makes unconstitutional demands of Catholic priests in particular:
Without any basis in law or fact, Washington now puts Roman Catholic priests to an impossible choice: violate 2,000 years of Church teaching and incur automatic excommunication or refuse to comply with Washington law and be subject to imprisonment, fine, and civil liability. ... The object of this law is clear: subject Roman Catholic clergy to dictates of the state.
Putting clergy to the choice between temporal criminal punishment and eternal damnation, interfering with the internal governance and discipline of the Catholic Church, and targeting religion for the abrogation of all privileges, is a patent violation of both the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution, a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and a violation of Article I, Section 11 of the Washington Constitution.
Although the law applies to spiritual leaders outside of Catholicism, the doctrinal demands for confidentiality for Catholic priests are among the strongest of any religion. Among the other Christian denominations that also claim confidentiality for confessions to clergy members are The Church of Jesus Christ of Latter-day Saints and the Jehovah’s Witnesses, neither of which is a party to this lawsuit, although they presumably will be affected by the outcome.
SB5375 was approved by the Washington Legislature along mostly partisan lines, with Democratic support and Republican opposition. The bill’s supporters argued that requiring clergy members to report abuse cases would be an important tool for fighting child abuse, while its detractors cited religious-freedom concerns and argued that the proposal could prevent some abusers from seeking the spiritual help they need.
The bill’s prime sponsor, Sen. Noel Frame, said that her support for the law arose partly from personal experience:
Children need trusted adults. They need to know that if they tell somebody they’re being abused, like I told my teacher in the fifth grade that I was being abused, that they can trust that that person will make it stop.
She also said:
The state does not have to be complicit when religious communities who engage in the practice of covering up abuse and neglect choose to do so.
Trump administration sides with Catholics
In an unusual move at this stage of legal proceedings, the Civil Rights Division of the U.S. Department of Justice of the Donald Trump administration has inserted itself into the Etienne v. Ferguson lawsuit, filing a motion to intervene.
The federal government’s motion focuses on the law’s effect on Catholic priests, suggesting that the law discriminates specifically against Catholics.
The motion also argued that providing legal confidentiality can be beneficial for victims of abuse:
Preserving the sacramental seal of Confession does not inhibit a priest from promoting justice and safety. Confession is an opportunity for priests to encourage perpetrators to turn themselves in, and to counsel victims on finding a safe adult to whom to report. Confession may also allow priests to provide referrals or assistance to parents or caregivers who confess to circumstances amounting to “neglect” that arise from, for example, the lack of adequate child care, food, or medical assistance in the home. SB 5375 will therefore have a chilling effect on thousands of Catholic priests and parishioners alike, who may be uncertain as to whether administering and adhering to the mandatory Sacrament of Penance will subject them to criminal penalties, child welfare investigations, civil liability, or excommunication. Given these new risks, penitents will be less likely to express themselves during Confession, preventing them from securing assistance for their families.
Legality of priest-penitent privilege not fully tested
The United States’ legal system has long had a tradition of granting Catholic priests and, later, Protestant ministers a privilege to not divulge confidential conversations with their parishioners. But the issue of whether clergy members have First Amendment protection for such claims of confidentially has never come before the U.S. Supreme Court.
The early court case cited most often as a precedent for the priest-penitent privilege is People v. Philips, in which a unanimous New York Court of General Sessions, a municipal court, unanimously ruled in 1813 that a priest, Anthony Kohlmann, did not have to testify about what he learned during a confession allegedly related to a theft case. The opinion in that case was cited at least twice by the U.S. Supreme Court during the 1990s, although not in cases involving priest-penitent privilege.