I don't think that's right. First, recall that the employer
mandate exemption is supposed to be one of at least a few such exemptions
(grandfathered plans and under-50-person plans being the other ones); fewer
than the privileges, but not by that much.
Second, as I mentioned, the clergy-penitent privilege is
unusually strong -- in California, as I understand it, it has no exemptions,
while the others have some pretty big ones (e.g., the doctor-patient privilege
doesn't apply at all to criminal cases, Cal. Evid. Code 998, and there are many
exceptions to the spousal privilege and the lawyer-client privilege). It is
also unusually easy to get: Unlike with doctors, lawyers, psychotherapists,
there is no requirement of government licensure or extended professional
training (though of course some but not all religions do require extended
training as a matter of their own practice). Perhaps because of this, for many
people a clergyman is the only person whose sympathetic ear and helpful counsel
they can get for free, which doubtless makes it easier for the clergy to spread
their own messages as part of such counsel.
In that sense, the closer analogy isn't Walz but, I would
think, Texas Monthly. There too there were doubtless many products that were
exempt from sales tax (most food items being the classic example in most
states). But this wasn't enough: "The fact that Texas grants other sales tax
exemptions (e. g., for sales of food, agricultural items, and property used in
the manufacture of articles for ultimate sale) for different purposes does not
rescue the exemption for religious periodicals from invalidation. What is
crucial is that any subsidy afforded religious organizations be warranted by
some overarching secular purpose that justifies like benefits for nonreligious
groups. There is no evidence in the record, and Texas does not argue in its
brief to this Court, that the exemption for religious periodicals was grounded
in some secular legislative policy that motivated similar tax breaks for
nonreligious activities. It certainly appears that the exemption was intended
to benefit religion alone." Likewise, the purpose of the clergy-penitent
privilege is quite different from that of the spousal privilege, the
lawyer-client privilege, and the doctor-patient privilege, and I think
different even from the psychotherapist-patient privilege (where the
resemblance is stronger but still on balance quite distant).
This isn't to say that Texas Monthly necessarily invalidates the
clergy-penitent privilege -- the privilege does lift a government-imposed
substantial burden on religious practice, and it isn't as clearly a preference
for propagation of religious ideas (which is what the concurrences stressed).
I just don't think that the clergy-penitent privilege can be saved on the
grounds that it "does not involve special treatment for religion."
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, December 03, 2013 7:39 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
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--
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
_______________________________________________
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