It's been several years since I commented here, but this thread called to mind an everyday example of current federal policy protecting communications made by both religious and secular persons to "clergy" of many different faiths in one particular setting.
While this example surely raises myriad other issues at the intersection of church and state (!!!), I mention it because it's a broader "privilege" than any other described so far -- and because it is highlighted in the current issues of both Navy Times ( http://www.navytimes.com/article/20131204/NEWS/312090003/Chaplains-provide-confidentiality-discussing-sex-assault) and Marine Corps Times ( http://www.marinecorpstimes.com/apps/pbcs.dll/article?AID=2013312090003). What the journalist in the article loosely refers to as "federal confidentiality laws" in the article are both the familiar clergy-penitent privilege in the Military Rules of Evidence and the Navy policy on confidential communications to chaplains as described in Secretary of the Navy Instruction (SECNAVINST) 1730.9, "Confidential Communications to Chaplains" (available at http://doni.daps.dla.mil/Directives/01000%20Military%20Personnel%20Support/01-700%20Morale,%20Community%20and%20Religious%20Services/1730.9.pdf). Recent (Nov 8, 2013) military media releases have highlighted this policy, particularly in the context of caring for victims of sexual assault in the military (see, for example, http://www.dvidshub.net/news/116844/chaplains-find-value-three-day-training-course#.UqFPvvRDuts, describing Navy chaplains attending "a three-day professional development training course . . . that focuses on pastoral care and the importance of confidentiality when dealing with service members and their families, particularly when involving sexual assault" and referring to "an official campaign to help educate service members, families and leadership on the importance of confidential communications with a chaplain."). While the other military service chaplaincies are likely governed by similar policies, the Navy policy includes the following, rather broad, language: The unconstrained ability to discuss personal matters in complete privacy encourages full and complete disclosure by personnel and family members seeking chaplain assistance. Such disclosure establishes a sacred trust, facilitates increased morale and mission readiness, and benefits both the individual and the institution. The Department of the Navy (DON) benefits from having personnel and family members who trust chaplains. The institution profits from the pastoral care given to its people. Pastoral care can only be done properly under the protection of confidential communications. * * * The term "confidential communications" includes the legal recognition of the clergy-penitent privilege, all communications between Navy chaplains and those who confide in them as an act of religion, a matter of conscience, or in their role as spiritual advisors. Commanders and chaplains are required to honor the confidential relationship between service personnel and chaplains. This protection extends to all authorized personnel and this obligation extends to all Navy chaplains. * * * The unique role of Navy chaplains includes a sacred trust of maintaining absolute confidentiality. Therefore, chaplains are bound by this inviolable trust. Neither the holding of additional professional credentials, nor requirements imposed by state law, relieve the chaplain of this responsibility. Any person authorized to use chaplain services is covered by this policy. Although they may be out there, I'm not aware of any formal challenge to the policy on the grounds that communications to chaplains by members of other faiths or non-religious persons shouldn't be protected. -- Bill Wildhack Teaching Elder, Presbyterian Church (U.S.A.); Navy Chaplain; Member of the Florida Bar *Needs updating, but for some earlier thoughts I had on some of the other issues in this particular part of the intersection: * Wildhack, William A, Navy Chaplains at the Crossroads: Navigating the Intersection of Free Speech, Free Exercise, Establishment, and Equal Protection. Naval Law Review, Vol. 51, p. 217, 2005. Available at SSRN: http://ssrn.com/abstract=918901 On Thu, Dec 5, 2013 at 9:26 PM, <hamilto...@aol.com> wrote: > No question. They can be helped just as believers might not be! But > that is separate from whether, as a legal matter, a privilege attaches. > > > 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 > <https://www.facebook.com/professormarciahamilton?fref=ts> > <https://twitter.com/marci_hamilton> > > > > -----Original Message----- > From: Steven Jamar <stevenja...@gmail.com> > To: Law Religion & Law List <religionlaw@lists.ucla.edu> > Sent: Thu, Dec 5, 2013 10:09 pm > Subject: Re: The clergy-penitent privilege and burdens on third parties > > Sandy and Marci, > > I agree my conversations were not and should not have been privileged. > But it is not the case that non-believers cannot be helped by priests > either in a priest/pentitent setting or less formally. > > Steve > > -- > Prof. Steven D. Jamar vox: 202-806-8017 > Director of International Programs, Institute for Intellectual Property > and Social Justice http://iipsj.org > Howard University School of Law fax: 202-806-8567 > http://iipsj.com/SDJ/ > > “There are no wrong notes in jazz: only notes in the wrong places.” > Miles Davis > > On Dec 5, 2013, at 5:44 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > > I’m sure there are some such situations, perhaps even > quite a few. But I imagine there are quite a few situations where the > priest would quite rightly not give me the advice that works for me given > *my* philosophical worldview. The benefit of the clergy-penitent > privilege to the religious is that they can generally get such advice, > tailored to the particular religious belief system they follow. The > irreligious, I think, don’t have that benefit, though they might get some > second-best option for those situations where their worldview overlaps with > a clergyman’s. > > Eugene > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu> > ] *On Behalf Of*Sisk, Gregory C. > *Sent:* Thursday, December 05, 2013 2:31 PM > *To:* 'Law & Religion issues for Law Academics' > *Subject:* RE: The clergy-penitent privilege and burdens on third parties > > Actually, I think non-Catholics mostly would be pleasantly surprised, both > on the receptivity of the priest-confessor and the wisdom of the response. > To be sure, there are some misdeeds that are shared in confession that are > understood to be such solely from the perspective of the Catholic believer > (e.g., failed to attend mass, took the Lord’s name in vain, etc.), but most > of what is shared with a priest are the kinds of faults to which all of us > are prone and which all (or nearly all) of us regard as faults. And, > following the confession, a good priest (which is to say, most priests) > responds both in religious terms by pronouncing absolution and > reconciliation with God, but also speaking about reconciliation with one’s > neighbors and future personal growth. Indeed, in my own experience – and I > do not go to confession nearly as often as I should (one more thing to > confess, I guess) – is that the priest usually engages me in a common-sense > and real-world dialogue about why I have fallen short, what are the > obstacles in my path, and what steps I should take to overcome those > obstacles. Penance may include prayer (the traditional, “say, ten ‘Our > Father’s) but more and more often will include steps to compensate for harm > to others, efforts to assist others in a similar situation, charitable > activities, etc. > > 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 > http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> > Publications: http://ssrn.com/author=44545 > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu> > ] *On Behalf Of*Volokh, Eugene > *Sent:* Thursday, December 05, 2013 4:17 PM > *To:* Law & Religion issues for Law Academics > *Subject:* RE: The clergy-penitent privilege and burdens on third parties > > My sense is that I (as someone who is irreligious) would > get relatively little solace or even wise counsel from speaking to an > average Catholic priest about my troubles and misdeeds, at least unless I > was at least contemplating converting to Catholicism. Unsurprisingly, the > priest would respond in a way that fits well the beliefs of Catholics, but > not my own. (There might be some priests who are inclined to speak to the > secular in secular philosophical terms, but I assume they aren’t the norm.) > > Religious people, then, have the ability to speak > confidentially to those moral advisors whose belief systems they share. > Secular people do not. > > Eugene > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu> > ] *On Behalf Of*Paul Horwitz > *Sent:* Thursday, December 05, 2013 9:33 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The clergy-penitent privilege and burdens on third parties > > 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. > > _______________________________________________ > 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. > > > _______________________________________________ > 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.
