We previously discussed the legislation passed by Washington State democrats that requires priests to violate the sanctity of the confessional to report child abuse. I described the law as “blatantly unconstitutional” in eviscerating the right to the free exercise of religion. The state is moving to create an effective system of sacramental snitches and the Catholic Church is declaring “enough.” It has announced that any priest who complies with the law will be promptly excommunicated.
We previously discussed the proposed legislation that would target priests who learn of any “reasonable” basis to believe that a child “has suffered abuse or neglect.” Despite objections from many of us that the law is unconstitutional and a denial of religious liberty, Democrat Gov. Bob Ferguson signed it into law last week.
The legislation amended the state law that currently applies to law enforcement, teachers, medical professionals or child care providers to report cases of child abuse or neglect. Clergy was added to the list. The sponsors also exempted clergy from the exception afforded to lawyers and others who obtain information “solely as a result of a privileged communication.”
The law applies to any “ordained minister, priest, rabbi, imam, elder, or similarly situated religious or spiritual leader of any church, religious denomination, religious body, spiritual community, or sect, or person performing official duties that are recognized as the duties of a member of the clergy.”
The government and Democratic sponsors were told that canon law imposes a “sacramental seal” over the confessional. Under Canon 983.1, “it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”
In 1813 in New York, the clergy-penitent privilege faced an early challenge in People v. Philips. In that case, Fr. Anthony Kohlmann learned in the confessional about two people who had stolen jewelry and convinced them to turn over stolen goods to him. He then returned the goods to the victims. However, after the thieves were later arrested, state prosecutors sought to force Fr. Kohlmann to testify. The court, however, ruled that he was constitutionally exempt.
Putting aside the unconstitutionality, it is a law ripe for abuse. The state would be using the church as an agent to compel confessions on the threat of damnation and then turn over the evidence to the police. Worse yet, if the priest does not give a type of ministerial Miranda, the confessant may not realize the danger. However, it is rather hard for a priest to say that a person must confess their sin while reminding them of the right to remain silent.
The Catholic Church announced that priests will be excommunicated if they follow a new law. They must choose between their faith and the risk of being criminally charged:
“Catholic clergy may not violate the seal of confession — or they will be excommunicated from the Church. All Catholics must know and be assured that their confessions remain sacred, secure, confidential and protected by the law of the Church.”
The Democrats effectively declared war on religion, and particularly the Catholic faith, with this abusive law. The matter is now set for a showdown in the federal courts and, hopefully, an expedited process for judicial review and appeals.
Washington has been one of the most aggressive states in litigating against religious rights, including its long litigation in the Masterpiece Cake Shop case.
In Washington, the governor and the Democrats have added to the four stages of the confession. Examination, confession, absolution, and penance may now be followed by incarceration.
The bill will go into effect on July 26 and make Washington just one of a relatively small number states that do not offer exemptions on such reporting for the confessional.
John Paul II stated that “Confession is an act of honesty and courage – an act of entrusting ourselves, beyond sin, to the mercy of a loving and forgiving God.” It now appears that it will demand greater courage in Washington where both priest and penitent are expected to submit to the authority of the state.
In the synoptic gospels, Jesus declared “render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” This is not one of those things to be rendered to the modern demigods of Olympia.
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Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
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