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
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
I much appreciate Marci's comments. From the point of view of the free
exercise of religion, the question for the believer, in my view, is what
the effect of the revelation of confidential information is on the soul of
the penitent, not what the legal consequences might be. Obviously the
state
In my view, there should be no privilege for criminal acts.
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Dec 7, 2013, at 12:12 PM, Richard Dougherty dou...@udallas.edu wrote:
I much appreciate Marci's comments. From
I am certainly drawn to be protective of religious acts essential to their
faith. The problem, of course, comes with the radical pluralism of American
religious life, and our (perhaps admirable) propensity to allow each individual
more-or-less carte blanche (unless it involves smoking
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SUMMARY:RE: The clergy-penitent privilege and burdens on third parties
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Apologies to all for the invitation that my (not-so-)Smartphone somehow just
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Levinson, Sanford V slevin...@law.utexas.edu wrote:
I am certainly drawn to be protective of religious acts “essential to
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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
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
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
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,
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
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
It depends on the state actually. But generally the confession must be for
spiritual/salvation purposes
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Dec 5, 2013, at 12:32 PM, Paul Horwitz phorw...@hotmail.com wrote:
Is
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
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
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
I have no doubt that Steve is accurately reporting his own experience, but I
still don't see why it should add up to a confidentiality privilege.
sandy
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, December 05,
Sandy and Marci,
I agree my conversations were not and should not have been privileged. But it
is not the case that non-believers cannot be helped by priests either in a
priest/pentitent setting or less formally.
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
No question. They can be helped just as believers might not be! But that is
separate from whether, as a legal matter, a privilege attaches.
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)
I’m genuinely curious: Do we have any idea which denominations impose a duty
on their clergy to preserve confidentiality? Every Sunday I read in the Style
section of the Times of couples who are married by someone who has been
licensed by the Universal Church (I think it’s called) to perform
Many reasons can be offered for the venerable privilege that originated as the
priest-penitent privilege, including as Doug notes that the penitent having the
confidence that confession is sacrosanct will be willing to share that which he
or she withholds from all others and thereby be in a
Much of free speech law involves protecting speech that burdens third parties;
for example, the victims of hate speech suffer emotional distress as do the
mourners at funerals tormented by the Westboro Church, and speech that does not
quite violate Brandenburg can incite violence. Further, the
Greg’s argument is obviously quite eloquent. But I think it is telling that it
is really predicated on Catholic theology, including the “sacramental” nature
of confession and the joint duty of the penitent/sinner to confess and of the
priest to keep the confession confidential. And, of
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
This is an excellent hypothetical. My own inclination is that the only
justification for a clergy-penitent privilege is a) if there is a duty to
confess to a member of the clergy; and b) if the clergy in question believes
that God will punish disclosure of the confession. (It shouldn't be
Eugene's hypothetical presumably describes some of the cases, from the least
sophisticated or most desperate penitents. But it probably doesn't describe
very many; most penitents rely on the privilege, and few would confess to their
priest if priests were routinely testifying against folks who
I strongly suspect that Doug is right. Still, I do wonder how often cases do
arise beyond the Catholic Church (which probably fulfills my conditions for the
privilege).
sandy
-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu]
Sent: Tuesday, December 03, 2013
And the clergy-penitent privilege is one of many such privileges --
doctor-patient, lawyer-client, spousal privilege, etc. They are designed
to encourage communication within relationships the law values. So this
example is like Walz -- it does not involve special treatment for religion.
It is
Well, people do talk incautiously in contexts where no privilege is
available, and their statements are used as a result. Some people might not
talk if they knew a privilege was unavailable, but others still might,
especially if they feel they need to unburden themselves, and even more
I don't think that's right. First, recall that the employer
mandate exemption is supposed to be one of at least a few such exemptions
(grandfathered plans and under-50-person plans being the other ones); fewer
than the privileges, but not by that much.
Second,
I once wrote an article, Testimonial Privileges and the Preferences of
Friendship, 1984 DUKE LAW JOURNAL 631-662 (1984), the general thesis of which
is that there is no truly plausible general theory of such privileges. (The
title, incidentally, comes from Rousseau, who wrote that the
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