Greg’s argument is obviously quite eloquent. But I think it is telling that it is really predicated on Catholic theology, including the “sacramental” nature of confession and the joint duty of the penitent/sinner to confess and of the priest to keep the confession confidential. And, of course, there is rarely any difficulty in identifying who counts as a “priest.” There is an almost 2000-year-old institution one of whose main functions is ordaining a special group of people who can engage in certain sacramental roles. I’ve already indicated that I’m inclined to be sympathetic to such claims because of the theology they’re connected with (whether or not, of course, I subscribe to it myself). But I’m not clear why this just justify the broader privilege. It’s telling as well, isn’t it, that we refer to it a privilege attaching to the “clergy” rather than simply to priests, and it’s not clear what it means to call non-Catholics “penitents.” If there’s a) no religious duty to confess; b) no religious duty to preserve confidences; and c) a belief that breach of either duty will generate some kind of divine sanction (including in the afterlife), then I continue not to see the difference between, say, a rabbi and a truly empathetic hairdresser. Indeed, as suggested earlier, I find it difficult to distinguish as well between a legally-recognized spouse and, say, a “work-spouse,” let alone, of course, in those states that don’t recognize same-sex marriage, a member of a “civil union.” (I assume, for example, that Texas does not recognize a “spousal privilege” of a legally-married same-sex couple from Massachusetts who have been transferred to Texas to serve military duty. Am I wrong?)
I share Greg’s fear of the totalitarian state that calls on us to inform on one another, but that is precisely the state we live in today, save for those very few people lucky enough to be able to claim a strong testimonial privilege. But, as in all “equal protection” cases, there are millions of others who are similarly situated. Is the solution to give millions more people such privileges or to pare down the existing privileges to those that can survive intellectual challenge? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C. Sent: Wednesday, December 04, 2013 10:27 PM To: 'Law & Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties Many reasons can be offered for the venerable privilege that originated as the priest-penitent privilege, including as Doug notes that the penitent having the confidence that confession is sacrosanct will be willing to share that which he or she withholds from all others and thereby be in a position to receive moral instruction and a direction for reconciliation from a priest that benefits all in society (much as does a lawyer for a client who confesses to past wrongdoing). But another reason for this kind of religious accommodation of something so central to a faith is to consider what kind of a society we would be without it. To tell someone that a basic sacrament or what is directly related to the sacramental nature of the church – whether it be use of an intoxicating substance in communion, confession to a priest to be reconciled to God, selection of ministers by apostolic succession – is forbidden or subject to the intrusive examination and regulation of the government should be most disturbing of all. Without an accommodation to Catholic churches on use of wine during prohibition or in a dry county, without protection of the confidentiality of the confessional through a privilege, without selection of priests by apostolic succession free of the kind of government rules and judicial monitoring that are imposed by anti-discrimination statutes, the Catholic faith simply could not be observed in this country – other than by resort to underground groups and dissident activities. (And, I recognize, other less mainstream faiths would be even more likely to suffer such governmental invasion, as witness the plight of Native American religions and others). To be sure, there are and have been governments that require clergy to serve an informants on the people – not just to what they have witnessed as wrongdoing but what they hear through confession by the people. And we have seen governments that demand a role in selecting or approving bishops and other ministers. The China of today and the Poland of the communist era come most readily to mind. That is not the kind of government that we Americans claim to have. Those of us of faith appreciate that on many things we may be forced on a regular basis to balance that which is a demand of or influence from our faith against our civic duties and the strictures of the secular order. I believe strongly that accommodation on many of these matters is appropriate, but appreciate that reasonable people will be of differing viewpoints in application in many instances. Governmental control over sacraments, though, is quite another thing, ratcheting up the violation of religious freedom to a much higher level. When worship itself is subjected to governmental monitoring and regulation, religious freedom becomes a hollow pledge. I am not given to hyperbole. I am more likely to be saddened than outraged when I see religious rights violated in this country. And, as noted, I frequently can appreciate, if not be persuaded by, the opposing viewpoint. I recoil from those, on both left and right, who exaggerate a dispute of the moment and contemplate an apocalyptic outcome justifying an extreme response. And I roll my eyes when some self-important celebrity or commentator threatens to leave the country if this or that policy is enacted or this or that politician is elected (and wish they would carry through on the threat afterward). But a government that overreaches so far as to deny me the sacrament of confession, for example, would be a society to which I could no longer give my loyalty as a citizen. Fortunately, despite some worrying remarks here and there, now and then, I remain confident that my fellow citizens will not bring us to that sad state of affairs. Greg Sisk Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu<mailto:gcs...@stthomas.edu> http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545
_______________________________________________ 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.
