State targets the confessional seal

His death made John Nepomucene, who was later canonized, the first "martyr of the confessional" — one of four priests venerated by the church for giving up their lives rather than betray the secrecy of confession.

Unlike the medieval Bavarian king, the state of Washington has not threatened to execute any priests. But under a new law signed by Governor Bob Ferguson and scheduled to take effect this month, priests and other clergy members will be obligated to share with law enforcement officials any information related to possible child abuse or neglect — even if that information was acquired during religious confession. If they fail to do so, they can be prosecuted and, if convicted, punished with up to 364 days in prison and a $5,000 fine.

In nearly every US jurisdiction, members of the clergy (like other professionals who come into contact with children, such as teachers, doctors, nurses, social workers, and school coaches) are "mandated reporters" who must alert authorities if they suspect a child is endangered. But in 43 states, the law specifically carves out an exception for what is called the clergy-penitent privilege — a longstanding rule of evidence that bars governments from compelling a priest, minister, rabbi, or other religious leader to disclose information communicated to them in confidence by a congregant. Like a handful of other time-honored relationships — that between doctor and patient, for example, or between attorney and client, or between spouses — the clergy-penitent relationship is deemed so important to society, and is so dependent on absolute trust, that the law has traditionally shielded it from governmental intrusion.

Washington state has long protected the confidentiality of such privileged communications. Thus, one spouse would not be forced to testify that the other spouse confessed to a serious crime; an attorney cannot be compelled to share information communicated by a client; and a therapist or mental health counselor may not disclose even voluntarily anything said by a patient during treatment.

For more than a century and a half, the clergy-penitent privilege has likewise been upheld in Washington state. In the words of the statute, a priest or other clergy member "shall not, without the consent of a person making the confession or sacred confidence, be examined as to any confession or sacred confidence made ... in the course of discipline enjoined by the church to which he or she belongs."

The Evergreen State's new law doesn't infringe on the other privileged relationships. But it explicitly strips away the protection for clergy-penitent communications. Priests, ministers, and other clerics will now be legally bound to report possible abuse, even if that knowledge arises during a confession made in strict religious confidence. Pastors will be forced to choose between fulfilling their sacred obligations and risking a prison sentence — or obeying the new law and thereby violating a fundamental religious command. That flies in the face of the First Amendment, which forbids the state to impede the "free exercise" of religion.

And by leaving the attorney-client and other nonreligious privileges intact, the new law also flies in the face of common sense. As Eric Kniffin of the Ethics and Public Policy Center observes, the premise of Washington state's new statutory language is that "it's good for lawyers to keep confessions confidential for secular reasons, but it's bad for priests to keep confessions secret for religious reasons."

The Catholic bishops of Washington state are challenging the new law in a federal lawsuit. They do not dispute that the public has an urgent interest in preventing crimes against children — indeed, church personnel at every level are now required by diocesan policy to promptly report any case of suspected abuse to law enforcement or child protection agencies. The one narrow exception is for information learned under the seal of the confessional. That may not be divulged — not even under threat of grave punishment.

Washington's lawmakers and the governor claim to be motivated by good intentions. But it is hard to square good intentions with exempting every privileged communication from mandated reporting rules — except the communication that happens to be religious. That the Constitution will not allow. The sooner the courts say so, the better.

Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission.

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