Again, I’m late—sorry about that. But honestly people, it’s shocking how many posts are written between the hours of 9 p.m. and 7 a.m. Who can keep up?
So this may backtrack, but I’ve been thinking about the earlier posts in this thread. Say there are no secular analogies to the priest-penitent privilege. Does that, in itself, justify the conclusion that it is favoritism for religion? I don’t think so, or at least I’m not convinced of that right now. Some people are religious; some people are not. Some people feel a need to confess and receive absolution in return; others do not. The priest-penitent privilege only helps those in the former group. But that need not be favoritism. Sure, it’s differential treatment, but it might be justified because the people aren’t similarly situated in the first place. (And here this ties in to Greg Sisk’s earlier posts.) I think it helps that there are secular analogues, but I think it’s a mistake to require the secular analogues to match up perfectly with the religious one. I think it’s a mistake because it denies the reasons why we want to accommodate religion in the first place: Religion is different than other human needs. It may be analogous to them, but it’s never perfectly analogous; it inevitably differs in ways that require tailored treatment. The equality approach means that religious activities never get protection when there’s no exact secular parallel to them. If there’s no exact secular parallel to confession—and of course there isn’t!—then confession doesn’t get protected. More generally, I take this to be the central weakness of Smith (even for those who think Smith rightly decided). It is also why—to pick up Sandy’s train of thought below—Widmar ends up turning into Bronx Household. In Trammel, the Court goes through all the privileges in a sensible and attractive way. The attorney-client privilege helps you secure legal help; the physician privilege helps you secure medical help; later on, the psychotherapist privilege will help you secure emotional help; the clergy privilege helps you secure spiritual help. True enough that some don’t believe in spiritual help, because they think it’s bs. But some think psychotherapy is bs. If the priest-penitent privilege is conceptualized the way Sandy phrases it—as a “desire [of people] to unburden themselves to sympathetic listeners”—then the priest-penitent privilege looks terribly underinclusive. But that phrases the priest-penitent privilege at a high level of generality. And at that level of generality, all the other privileges become terribly underinclusive as well. The spousal privilege discriminates against the unmarried and against me if I confide in my best friend more than my wife. The psychotherapist privilege discriminates against sympathetic mothers, fathers, siblings, and bartenders. (This is one way Justice Scalia goes after the privilege in Redmond.) There’s also the spectre of discrimination against religion arising if, say, psychotherapists got a privilege and clergy didn’t. But I really think we might be better off not always thinking about this in terms of discrimination. Religion seems sui generis, and unique things must be treated in unique ways. Best, Chris From: <mailto:religionlaw-boun...@lists.ucla.edu> religionlaw-boun...@lists.ucla.edu [ <mailto:religionlaw-boun...@lists.ucla.edu> mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, December 05, 2013 5:17 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: <mailto:religionlaw-boun...@lists.ucla.edu> religionlaw-boun...@lists.ucla.edu [ <mailto: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. 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
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