Richard's point is fair so let me provide some more context that perhaps would be helpful.
Privileges are concoctions of positive law dealing w what information can be excluded in the judicial process. The confessional privilege is no different than the attorney client privilege or the spousal privilege on that score. Every faith invokes it or tries to to avoid disclosing legally damaging evidence in the judicial process. The RCC and LDS are the most active in lobbying to expand it in the state legislatures. It is always invoked in clergy sex abuse cases and to avoid mandatory reporting of child sex abuse. Courts have had to struggle w the distinction between counseling and confession for salvation purposes, because when laws are violated, the exclusion of relevant evidence is to be avoided. The privilege, depending on the state, belongs to the confessor or confessee and always can be waived but how differs state to state. It is routinely waived if the content is disclosed outside the one-on-one confession. It is also routinely invoked to conceal information that was obtained outside the confessional. It is my view that there should be an exception to it that parallels the attorney client exception for future crimes or fraud. And that it should not be an exception to mandatory reporting of child sex abuse. The privilege is a permissive accommodation that we have learned has a corrosive effect on children, families, churches, and society. Under Smith it is not required and under a RFRA analysis it should not overcome the needs of the judicial process or mandatory reporting laws. I offer these examples to contextualize the discussion. It only matters when it is alleged a law has been broken so that law should be the starting point for discourse. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 6, 2013, at 11:18 PM, "Levinson, Sanford V" <slevin...@law.utexas.edu> wrote: > As I’ve said earlier, I’m sympathetic to Richard’s argument inasmuch as > confession is in fact part of a complex (required) sacramental process. But > the point is that (I think) that’s relatively unusual, certainly not present, > so far as I am aware, in Judaism, for example. Am I correct in believing > that the ingestion of peyote was in fact a sacramental aspect of the Native > American church? > > sandy > > From: religionlaw-bounces+slevinson=law.utexas....@lists.ucla.edu > [mailto:religionlaw-bounces+slevinson=law.utexas....@lists.ucla.edu] On > Behalf Of Richard Dougherty > Sent: Friday, December 06, 2013 6:09 PM > To: Law & Religion issues for Law Academics > Subject: Re: The clergy-penitent privilege and burdens on third parties > > I will confess to not having read the state cases, or at least not most of > them. But isn't the question whether the privilege is constitutionally > required? (Perhaps the fact that it is referred to as a privilege muddies > the waters.) If free exercise of religion includes receiving a sacrament, > then why is compelling violation of the privilege not a constitutional issue? > Indeed, I wonder why a recent discussion suggested stronger free speech > claims than free exercise claims; does the First Amendment make that > distinction? I have no doubt courts have read it that way, but that's partly > why we get distortions of free exercise claims masquerading as free speech > claims. > > Richard Dougherty > University of Dallas > > > On Fri, Dec 6, 2013 at 1:17 PM, <hamilto...@aol.com> wrote: > With all due respect to this entire thread, how many people have actually > read the state cases involving the priest-penitent privilege? There is a > level of abstraction > to this discussion that indicates to me probably not. As someone who has > actively been involved in arguing the issue in court in the last year, I'd > suggest that the law is > more reticulated and specific. state-by-state, than the speculation going on > here. It is state law, which means 50 states plus DC law, and it is a > privilege that is not constitutionally required, > particularly when the issue is whether the religious confessor or confessee > engaged in illegal behavior. > > > 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 > > -----Original Message----- > From: Christopher Lund <l...@wayne.edu> > To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu> > Sent: Fri, Dec 6, 2013 10:06 am > Subject: RE: The clergy-penitent privilege and burdens on third parties > > 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? > > _______________________________________________ > 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.
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