I don't have much of a dog in this fight, but let me add three things:
1) I appreciate Marci's response. It's clear the privilege has indeed been
interpreted in a confined manner in many jurisdictions, even where the statute
itself is fairly broad. Too confined, perhaps, in my view. But I take the law
as it is for present purposes.
2) I would treat the existence and scope of the privilege separately from the
"religious" aspects of the privilege. I don't find convincing the idea that
something about the privilege makes it uniquely troubling from the perspective
of the realm of testimonial privileges generally. In identifying privileged
communications, we start by asking, among other things, whether there are
particular relationships which, in society's view, ought to be fostered and/or
for which confidentiality is an important element. In doing so, we don't, in my
view, start strictly from a position of liberal neutrality; rather, we begin
with existing relationships in our actual society and at least take into
account traditional reliance upon or approval of those relationships. (I
appreciate, however, Sandy Levinson's interesting 1984 Duke Law Journal article
on the subject.) From that perspective, and whether or not everyone can avail
himself or herself of a particular relationship or privilege, I don't think
it's per se unreasonable to include priest-penitent relationships among those
that society values for various reasons. But any and every privilege, this one
included, is subject to both reexamination on the question of whether it should
exist, and reexamination on its scope and exceptions.
3) I do, however, tend to agree more with Greg than with Eugene on the
potential value and nature of the counseling that might be offered in a
priest-communicant relationship. Many clergy are extensively trained in
counseling, and although that counseling may have a spiritual component, it
also includes all the other qualities, skills, and advice that are relevant to
any person serving a counseling role. Of course there are going to be ministers
who are lousy counselors, just as there are psychotherapists and doctors who
are lousy counselors. But others--I think many--can and will give advice that
is tailored not so much to a particular religious worldview but to the role of
counselor in general. And I don't think it's far-fetched, at least from my
personal experience, to think of such a person as serving a role to more people
than just their own parishioners. Leaving aside potential converts or
communicants, whose communications are analogous to communications by potential
clients, in many smaller communities or neighborhoods a minister can serve an
important role as a community leader and friend and counselor to its residents.
Again, nothing in this paragraph prevents us from reexamining whether the
privilege should exist at all, or whether it should be subject to particular
reporting exceptions etc.
From: vol...@law.ucla.edu
To: religionlaw@lists.ucla.edu
Date: Thu, 5 Dec 2013 14:44:54 -0800
Subject: RE: The clergy-penitent privilege and burdens on third parties
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]
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 SiskLaghi Distinguished Chair in LawUniversity of St. Thomas
School of Law (Minnesota)MSL 400, 1000 LaSalle AvenueMinneapolis, MN
55403-2005651-962-4923gcsisk@stthomas.eduhttp://personal.stthomas.edu/GCSISK/sisk.htmlPublications:
http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu
[mailto: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]
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.
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