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. _______________________________________________ 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.