Is that accurate? It may vary, but I thought the privilege could be claimed for
any confidential communication made to a clergy member in his/her professional
capacity as a spiritual advisor. The person seeking that counsel need not
necessarily be a co-communicant. I don't think this is just hair-splitting.
It's not analogous to a statement that men as well as women can seek medical
care for pregnancy.
> On Dec 4, 2013, at 10:56 PM, "Levinson, Sanford V" <slevin...@law.utexas.edu>
> wrote:
>
> Free speech doctrine, for better or worse, presumably protects (almost)
> everyone. What is distinctive about the “clergy-penitent privilege” is that
> it protects only a particular subset of people, i.e., those who claim some
> religious identity, as against secularists who have the same desire to
> unburden themselves to sympathetic listeners but can’t assume that it is
> protected in the same way. Aren’t we back to the conundra involving
> “conscientious objection” and the Seeger and Welch cases. There the Court
> could adopt Paul Tillich and say that secularists, too, have “ultimate
> concerns” equivalent to religious commitments. Can one imagine a similar
> move with regard to clergy privileges? I support such cases as Rosenberger
> (assuming, at least, one version of the facts in that case, which may or may
> not be entirely correct) and Widmar v. Vincent on “equality” grounds, i.e.,
> those who are religious should not be selected out for worse treatment than
> those who are secular. If I can use a facility for meetings of my philosophy
> club, then I think that others should be free to use the facility for
> meetings of the “Good News Club.” But it is telling that we’re talking about
> a “privilege” that is denied to each and every secular person (unless they
> can afford a shrink, though even there the privilege is significantly more
> constrained than is the case with a priest), and “equality” arguments go by
> the boards.
>
> sandy
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
> Sent: Wednesday, December 04, 2013 11:35 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: The clergy-penitent privilege and burdens on third parties
>
> Much of free speech law involves protecting speech that burdens third
> parties; for example, the victims of hate speech suffer emotional distress as
> do the mourners at funerals tormented by the Westboro Church, and speech that
> does not quite violate Brandenburg can incite violence. Further, the cost to
> the public in protecting speech can be extraordinarily high. cities incurred
> tens of thousands of dollars in police and other costs while trying to
> maintain order during Operation Rescue protests. Criminal procedure rights
> can make it more difficult to apprehend and punish people who commit crimes.
> Property rights can make it more difficult to protect the environment. Rights
> have always been expensive politcal goods.
>
> It is true that the Establishment Clause imposes some constitutional
> constraints on the costs government may incur or impose on third parties in
> protecting religious liberty. Arguing that free exercise rights or statutory
> religious liberty rights should only be protected in situations in which
> doing so imposes virtually no costs on either the public or third parties,
> however, would treat religious liberty differently than almost all other
> rights and dramatically undermine their utility for people attempting to
> exercise such rights.
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of Christopher Lund [l...@wayne.edu]
> Sent: Wednesday, December 04, 2013 5:53 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: The clergy-penitent privilege and burdens on third parties
>
> 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
>
>
>
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