I think Marc’s point is solid and underappreciated. Following up on it, does anyone know of any literature that tries to think about “burdens on third parties” across constitutional rights? We accept such burdens as a matter of course with defamation law, as Marc notes. Yet we also accept them in other contexts. Guns would be one obvious example. But also think of, for example, busing during the Civil Rights Era. White suburban families had to accept busing of their kids to distant and sometimes difficult schools, because desegregation was that important. Or think about abortion: I think the Court was right to hold spousal consent and notification laws unconstitutional, but there are real issues of third-party harms there too.
Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, December 04, 2013 8:05 PM To: religionlaw@lists.ucla.edu Subject: Re: The clergy-penitent privilege and burdens on third parties When a newspaper publishes falsehoods about a person but without malice, the constitution demands of the person whose reputation may have been irrevocably damaged to bear that burden in deference to the publisher's free speech or press rights. Why is that acceptable but not some burdens to protect the free exercise of religion,especially if no one else is asked to make an unwanted religious statement or engage in a religious act? Marc Stern From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Wednesday, December 04, 2013 07:37 PM To: religionlaw@lists.ucla.edu <religionlaw@lists.ucla.edu> Subject: Re: The clergy-penitent privilege and burdens on third parties I apologize for being MIA for this discussion, which interests me a great deal, but I am snowed with the last week of classes, a book proposal to be finished, and several cases at the same moment. All I can say for now is that the clergy-penitent privilege is not in fact required by the Free Exercise Clause and, therefore, is an accommodation the wisdom of which needs to be weighed by a rigorous public policy analysis. Also, it is quite different from state to state; some states have exemptions; and some states have relatively high barriers to invoking it (California actually); and some states don't recognize it at all. And it is very bad public policy when the issue involves serious crimes, e.g., murder and child sex abuse. Doug's pointing to the priest that solved the problem is the exception that proves the rule. Frankly, who cares if a penitent confesses his crimes to clergy, when what we need to protect the vulnerable is for clergy to report crimes to the authorities? It has been proven beyond dispute that keeping criminal behavior within a religious organization, whether through privileges or intentional secrecy, perpetuates the crimes and endangers society. Thus, I question his general defense of the privilege. I look forward to catching up with this thread once classes end on Friday. Marci 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 <http://sol-reform.com/> <https://www.facebook.com/professormarciahamilton?fref=ts> <https://twitter.com/marci_hamilton> -----Original Message----- From: Alan Brownstein <aebrownst...@ucdavis.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Wed, Dec 4, 2013 5:07 pm Subject: RE: The clergy-penitent privilege and burdens on third parties 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 <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] 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> 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. _______________________________________________ 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.
