I think the history of the privilege is that it was first protected for
Catholics, because of its sacramental nature and the very strong teaching,
and then extended to other faiths by analogy and to avoid what looked to
some like denominational discrimination. I'm pretty sure about that
chronology; I'm inferring the causation without having done the historical
work to verify it.
The peyote service is the central act of worship in the Native American
Church; I don't know if they use the word sacrament. But Smith and Black
(the other plaintiff) were not members of the church; they were exploring.
It is generally illusory to enact toleration, and say that religious
minorities can live among you, if you then prosecute them for acts essential
to their faith. The force of that point is weaker with respect to less
important religious practices, although I think it never goes to zero.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, December 06, 2013 11:18 PM
To: Law & Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties
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
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