I wonder if one factor that distinguishes the clergy-penitent privilege from some other accommodations of religion that go too far and violate the Establishment Clause is that the burden created by this accommodation will be shared by persons who are of the same faith as the penitent and the member of the clergy to whom he is confiding information. For example, Catholics are as likely to be burdened by a Priest's refusal to testify in a court case as are members of other faiths or non-religious persons. If one of the concerns about accommodations burdening third parties is that the accommodated religion gets the full benefit of the accommodation without having to share any of its costs (which are borne entirely by third parties), the clergy-penitent privilege does not fall into that category. Conversely, the accommodation for Sabbath observers in Thornton benefitted members of religions observing the Sabbath who would not bear any of the cost of the accommodation. (Presumably, an employer who observed the Sabbath would close his or her business and would not be burdened by the challenged statute.)
I don't suggest that this is a controlling factor. But it might be relevant to the analysis of these cases. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, December 03, 2013 8:11 PM To: Law & Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties 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> [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.
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