Protecting Confessions

David Skeel writes in the Wall Street Journal about an emerging conundrum in the law: How to separate the confession of sins from the confession of crimes, especially when that act takes place in a non-traditional or ambiguously religious context. Taking the case of a recently-apprehended murderer who evaded capture for decades but evidently revealed his crime to a charismatic Catholic group in the 1970s, Skeel notes that:

When he confessed he was in the Catholic Church but not of it, as part of a group of Christians who believe that the Holy Spirit gives special powers to every believer. Are confessions in this more decentralized context protected?

The answer seems to be no. In 1990, a federal appeals court held that the privilege may apply even if third parties are present, but only if the third parties are “essential to and in furtherance of the communication” between the confessor and the clergy member. [ . . . ]

Decentralized religious organizations often seem to fall through the cracks when it comes to religious protections in the law. In disputes between a denomination and a local church over ownership of church property, for example, courts have long shown more deference to hierarchical religions than to their less hierarchical peers.

Perhaps Americans should be thankful our bureaucrats have more respect for penitent/clergy privacy than their counterparts in Ireland, where government ministers have publicly toyed with the idea of stripping the Catholic sacrament of confession of any legal shield—in other words, making priests responsible for reporting certain crimes regardless of how they hear about it. Carrying that out, of course, would mean violating one of the most sacred obligations a priest has. Were such a law to be enforced, it’d set up a classic conflict between rival claims of loyalty, and present a definitive choice between the state and the ordinances of God.

But there’s a murkier, unresolved legal issue in the U.S.: Who qualifies as a “minister”? The umbrella of exemption was definitively expanded in the recent Hosanna-Tabor case, but remains, at least for now, fairly open-ended, encompassing the ‘actually ordained’ (priests, reverends, rabbis) then running through religious education teachers, parish employees, part-time volunteers, and ending somewhere around the local chapter of a twelve-step group. And for faiths and Christian communities without as clearly-established an ordination process as the Catholic Church (and there are many such denominations in our democratic land), articulating the boundary becomes messy business for a court.