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Louisiana May Jail A Catholic Priest For Refusing To Break The Seal Of Confession

Sacrament of Reconciliation

There are very few testimonial privileges that are allowed under American law and permit a witness or party to a case to block testimony on certain subject matters. As I have noted before, the law generally disfavors such privileges in favor of the idea that triers of fact should have access to as much relevant information as possible. Many of these privileges, the spousal privilege, the attorney-client privilege, and the doctor-patient privilege, have exceptions that permit or even otherwise privileged information to be revealed under oath. One of the strongest of the limited number of  privileges the law does recognize, though, has been the so-called “Priest-Penitent” privilege, which generally prevents a priest or minister from revealing information that they learned in the course of providing ministry to a penitent, most especially as part of an act of confession or act of penance. This privilege is one of the broadest of any that exist in American law but, as we are learning from a case out of Louisiana in which a Baton Rouge Priest faces the choice of either being held in jail for contempt of court or being defrocked as a Catholic Priest:

The state high court’s decision, rendered in May of this year, demands that a hearing be held in 19th Judicial District Court in Baton Rouge, where the suit originated, to determine whether or not a confession was made. It reverses an earlier decision by the Louisiana First Circuit Court of Appeals dismissing the original lawsuit filed against Bayhi and the diocese.

The case stems from a claim by parents of a minor that their daughter confessed to Bayhi during the sacrament of reconciliation that she engaged in inappropriate sexual behavior with grown man who also attended their church. Court documents indicate the child was 12 years old at the time of the alleged sexual abuse.

A criminal investigation by East Feliciana Sheriff’s Office into the alleged sexual abuse was ongoing when the accused church member died suddenly in February 2009 of a heart attack.

The civil lawsuit in question, filed five months later in July 2009, names the late sexual abuse suspect, as well as Bayhi and the Baton Rouge diocese, as defendants. The suit seeks damages suffered as a result of the sexual abuse, noting that abuse continued following the alleged confessions.

The petitioners claimed Bayhi was negligent in advising the minor regarding the alleged abuse and failed his duty as a mandatory reporter in compliance with the Louisiana Children’s Code. It also holds the diocese liable for failing to properly train the priest regarding mandatory reporting of sexual abuse of minors. Defendants claimed, in addition to other points of law, that only the sexual abuse suspect was liable for the suffering the minor endured.

(…)

The sexual abuse was alleged to have occurred in 2008. Both the girl and the alleged abuser were members of Our Lady of the Assumption Catholic Church in Clinton, where Bayhi was a pastor. The petition alleged that on three separate dates in July 2008, the child told Bayhi a church member had inappropriately touched her, kissed her and told her “he wanted to make love to her.” Court documents also say the alleged abuser communicated excessively with the girl over email and asked that she keep their relationship private.

The child testified during deposition that Bayhi’s advice to her was to handle the issue herself because “too many people would be hurt.” Court documents also say she testified, “He just said, this is your problem. Sweep it under the floor.”

The appeals court found that because the confession was “clearly” made during the sacrament of reconciliation, it was considered confidential communication; therefore the priest was not a mandatory reporter. It also found that District Court Judge Michael Caldwell erred in denying the diocese a motion to prevent the minor from testifying about the confession.

The Louisiana Supreme Court said in its ruling that the priest’s confidentiality can only be claimed “on behalf of” the confessor, so the priest can’t claim confidentiality to protect himself since the girl waived her privilege. It maintains that the confession, then, wasn’t “privileged communication,” so he should possibly be subjected to mandatory reporting laws.

Not surprisingly, this has led to a strong condemnation from the Diocese of Baton Rouge, which characterizes the ruling as a direct attack on a central tenant of Catholic teaching:

“A foundational doctrine of the Roman Catholic Church for thousands of years mandates that the seal of confession is absolute and inviolable,” the statement says. “The position of the Diocese of Baton Rouge and Fr. Bayhi is that the Supreme Court of Louisiana has run afoul of the constitutional rights of both the Church and the priest, more particularly, has violated the Establishment Clause and the separation of Church and State under the first amendment.”

(…)

Bayhi acted appropriately in refusing to testify, the statement says, and the nature of “sacred communications” received during confession are confidential and legally exempt from mandatory reporting.

“This is not a gray area in the doctrines of the Roman Catholic Church,” it says, noting a priest or confessor who violates the seal of confession is automatically excommunicated, barring action from the Pope. The statement also says the church is willing to take the issue to the U.S. Supreme Court.

“For a civil court to impinge upon the freedom of religion is a clear violation and the matter will be taken to the highest court in the land by the Church in order to protect its free exercise of religion.”

As a matter of law, it does appear that the Louisiana Supreme Court’s decision that the privilege does not apply here and that the testimony can be permitted to go forward. While it is generally the case that the basis for the Priest-Penitent Privilege can be found in the First Amendment’s protections for the Free Exercise of Religion, the terms of a testimonial privilege are always defined by state law. In this particular case, there appears to be something of a split among the states regarding where the privilege lies and who may assert it. In many states, for example, the privilege can be asserted by either the Clergyman or by the member of his congregation; meaning that unless both of them agree that the testimony should be permitted it would be blocked as long as the Court found that it fell within the definition of what is covered by the privilege. Louisiana, though, is one of those states that says that the privilege rests exclusively with the penitent, which means that if the person who confessed reveals what was said as part of the act of confession then the priest or minister can be compelled to do so as well. So, while I am no expert on Louisiana evidence law, I suspect that the Supreme Court got the matter right when it ruled that, because the penitent had waived the privilege, the Priest has no basis under the privilege statute to refuse to testify.

As Ed Morrissey notes, though, the matter does not end there as far as the Catholic Church is concerned:

There is nothing in church doctrine that requires a penitent to keep quiet about what transpires in the confessional, but the canon law is clear on this point. Can. 983 states that “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” The punishment for breaking the seal is explicitly noted in Can. 1388: “A confessor who directly violates the sacramental seal incurs a latae sententiae [by the commission of the act] excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.”

In this case, the trap is even more complex. The court wants the priest to corroborate the girl’s testimony about the confession. Assuming the priest recalls the confession at all — it was five or more years ago, and priests hear a lot of confessions, and most of them anonymously — he’d have to violate canon law just by talking about it. Plus, if he testifies that the witness is not telling the truth about the confession, he’d be violating the seal of the confessional even more profoundly. Either way, the court would in essence force the priest into betraying his faith and violating his oath or face prison time for contempt of court.

In this sense, an issue like this raises significantly more important issues when dealing with a Catholic Priest or a minister in any other church that has the notion of a “seal of confession,” which as far as I have been able to determine also exists in some form in the Orthodox, Anglican, and Luthern Churches, than it would  a member of some other religion. In essence, what the Louisiana courts are potentially going to be asking this Priest to do is to either act direct contravention of his religious faith, and thus be defrocked as required by Canon Law, or go to jail for contempt for some indeterminate period of time. Given that choice, my suspicion is that the Priest will choose to go to jail, with the full support of the diocese, and then the courts will be faced with the question of how long they want to imprison someone for not testifying when it is obvious that they are never going to testify.

Rod Dreher argues that the court’s actions here are a direct threat to religious liberty:

 I take no position on whether or not the priest handled the particular situation in the parish wisely or justly, but let there be no mistake: the seal of the confessional must be inviolable. The relationship between a priest and a penitent can only take place in the security of confidentiality given two both parties.

(…)

Again, I’m eager to learn from lawyers who read this blog whether or not the priest here is likely to go to jail, or if he and the diocese are protected by the First Amendment. God help us all if he is not. Even if the plaintiff is telling the truth about the priest advising her in the confessional to sweep it all under the rug, which would make the priest is a scoundrel, the religious freedom principle at stake here is so important that even a scoundrel priest must be defended.

As a preliminary matter, it’s worth noting that there do not appear to have been any First Amendment issues raised in this case, at least not judging by either of the opinions that have been issued (You can read the Court of Appeals decision here, and the Supreme Court decision here.) Presumably, had the argument been made, it would have been addressed in the opinions.As to the issue itself, I tend to agree with Dreher, because there are two obvious infringements on the free exercise of religion that would occur if this Priest were compelled to testify about what was revealed during the Sacrament of Reconciliation. As noted above, the first infringement would be directed at the Priest himself, whose faith and the oath that the took when he became a Catholic Priest require him to take what is said in the Confessional to the grave under the threat of the gravest punishments the Church can hand out. The second, though, would be directed toward every Catholic in Louisiana, if not the nation, for whom the sanctity of the confessional is a central part of their faith and of one of the Church’s most important Sacraments. As Morrissey puts it, the interests of the Church, its Priests, and its Parishoners in protecting the ability to freely exercise this part of their faith is far more substantial than the governments interest in whatever it is that this Priest may be able to testify to in connection with a civil lawsuit. Admittedly, the subject matter of the suit hits a host of emotional touchstones, but one of the most important things about rights such as those protected by the First Amendment is that they exist independent of the emotional content of subjects such as this. In the end, it doesn’t matter if the Priest is being asked about something dealing with sexual abuse or something dealing with simple petty theft. The principles involved remain the same, and the interests involved in protecting the liberty of the church and its parishioners is far more important than whatever facts may be revealed by this testimony.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Anderson says:

    Well, after Hobby Lobby, this seems like a no-brainer.

    Like or Dislike: Thumb up 9 Thumb down 0

  2. Rick DeMent says:

    Makes sense… I mean after all the Priest isn’t a closely held corporation is he?

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 0

  3. OzarkHillbilly says:

    Irony is not dead, it just moved to Louisiana.

    Like or Dislike: Thumb up 4 Thumb down 0

  4. James in Silverdale, WA says:

    “The principles involved remain the same, and the interests involved in protecting the liberty of the church and its parishioners is far more important than whatever facts may be revealed by this testimony.”

    The “principle” involved seems to be utter exemption from any criminal prosecution simply because a magic-thinker chooses to invoke the powerless verb “I believe.”

    Fewer and fewer Americans are afraid that “seal” any longer. Like, by the hour.

    Produce Cardinal Law for trial in Boston, for instance.

    Like or Dislike: Thumb up 11 Thumb down 2

  5. Francis says:

    cool. Under Dreher’s and Mataconis’s view of the law, all you need to shelter a criminal conspiracy from subpoena is a priest in a religion that believes in confession.

    Pastafarianism is, as I write, developing confession. And anyone can be a priest! Just put a colander on your head and tell your buddy: “I’m listening.”

    Here’s a smarter view: Privileges exist to protect the confessor. This is true in atty-client privileges, marital privileges and religious privileges. Privileges do not exist in order to allow the recipient of the secret to use the knowledge to engage in criminal conduct. So once the confessor waives the privilege, it’s time to Tell the Truth.

    Frankly, if the priest abused his position, defrocking should be the least of his problems. Prison should be what he’s worried about.

    Hot debate. What do you think? Thumb up 18 Thumb down 4

  6. Mu says:

    Higher forces than the Louisiana Supreme Court have tried to overcome the seal of the confessional, often with lethal consequences for the priest. I’d be surprised if the priest in this case would have a major problem with his temporary assignment to the inmate mission.

    Like or Dislike: Thumb up 4 Thumb down 0

  7. EddieInCA says:

    Maybe if the Catholic Church hadn’t spent decades knowingly covering up child rape they’d be more credible in this case.

    As it stands, state law seems to be very clear.

    But no worries for the church. When the case gets to the Supreme Court, the five male Catholic judges will do some amazing rationalizing to side with the religious side of the argument – the law notwithstanding.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 3

  8. C. Clavin says:

    If you are going to start holding the Catholic Church responsible for protecting sexual predators…you’re gonna need a lot more more lawyers.
    Just sayin’….

    Like or Dislike: Thumb up 12 Thumb down 0

  9. gVOR08 says:

    @EddieInCA: The law does seem clear. Doug, Dreher, and the Supremes will argue the state must defer to the Church’s beliefs unless the state has a compelling interest. Preserving the plaintiff’s right to due process sounds to me like a compelling interest.

    Like or Dislike: Thumb up 11 Thumb down 0

  10. rudderpedals says:

    Morrissey and Drehrer both seem to think that religious garb should be some kind of magical cloak conferring invulnerability to fraud/crime privilege exceptions, never mind the fact that the only justification for the privilege in the first place is to protect the confessor – not the defendant-priest .

    Like or Dislike: Thumb up 11 Thumb down 1

  11. Jenos Idanian #13 says:

    The First Commandment of Liberalism:

    I am thy God The State. Thou shalt have no other gods — period.

    Poorly-rated. Helpful or Unhelpful: Thumb up 6 Thumb down 24

  12. anjin-san says:

    It’s an interesting issue, certainly one that merits serious discussion, not juvenile attempts by certain commenters to draw attention to themselves.

    Regardless of the legal issues, it’s sad and dismaying that the church did not put the well being of a 12 year old girl above all else. Given the church’s track record, it’s not really a surprise though.

    Like or Dislike: Thumb up 12 Thumb down 2

  13. Given that this is a civil case, it seems to me the Church has the power to make this go away whenever it likes. It just has to think of a sufficiently high number.

    So I don’t really feel to bad about their self-inflicted moral dilemma.

    Like or Dislike: Thumb up 11 Thumb down 1

  14. Jenos Idanian #13 says:

    @rudderpedals: Morrissey and Drehrer both seem to think that religious garb should be some kind of magical cloak conferring invulnerability to fraud/crime privilege exceptions, never mind the fact that the only justification for the privilege in the first place is to protect the confessor – not the defendant-priest .

    The principle in play here is that the priest is acting as the direct representative of God here — the act of Confession is a one-on-one meeting between the penitent and the Supreme Being. The priest has very binding oaths to both parties that what happens when he is acting in God’s place as completely sacrosanct.

    And you can’t argue that the only point of confession is to protect the penitent, and exclude the priest. It’s to protect the relationship between the penitent and God, through God’s anointed representative.

    And what about the separation of church and state? If the Church can’t get too involved in the affairs of the State, then the State has to keep its hands off, too.

    Hot debate. What do you think? Thumb up 4 Thumb down 18

  15. @Jenos Idanian #13:

    I happen to worship the Aztec sun god Tonatiuh who, as you are probably aware, requires an annual sacrifice of 20,000 people in order to keep the sun moving. Should I be exempted from the laws against murder in order to protect the principle that the state has to keep its hands off the church?

    Hot debate. What do you think? Thumb up 17 Thumb down 3

  16. C. Clavin says:

    @Stormy Dragon:
    Again…because you must have missed it…The SCOTUS has ruled that Christianity is now our Nat ‘l superstition.

    Like or Dislike: Thumb up 7 Thumb down 3

  17. R.Dave says:

    “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”

    By its own words, it seems like the point of the Canon law is to protect the penitent, not the Priest, but presumably the Catholic Church that enacted that law disagrees, so I’ll defer to them on that point.

    As for secular US law and the Constitution, corroborating testimony/evidence given in court is clearly a “compelling state interest” and given that the priest is the only witness who can do that, requiring his testimony would seem to be the “least restrictive means” available for achieving that interest, so I think both the Constitution and RFRA would be satisfied here.

    Like or Dislike: Thumb up 6 Thumb down 1

  18. Jenos Idanian #13 says:

    @Stormy Dragon: Tell you what, Stormy: if you can come up with some proof that you’ve held those beliefs for a significant length of time, you have a bunch of other people who profess the same belief, AND you provide a list of the 20,000 people you want to sacrifice who are willing to be sacrificed, AND you provide a suitable environmental impact plan to show that you are going to sacrifice those 20,000 people in a sanitary and humane fashion… then we’ll talk.

    Like or Dislike: Thumb up 2 Thumb down 12

  19. beth says:

    So what happens next week if another 12 year old confesses to being abused by an adult? Does the church keep quiet about that too?

    Like or Dislike: Thumb up 7 Thumb down 1

  20. James in Silverdale, WA says:

    “The principle in play here is that the priest is acting as the direct representative of God here ”

    This belief is not required for citizenship. It is not required to own property. It is not required to enter into contracts, public or private.

    It certainly is not required when it interferes with he due process of another person, especially a minor.

    It makes your “god” out to be very creepy and not at all to be trusted. What of you?

    Like or Dislike: Thumb up 9 Thumb down 2

  21. KM says:

    @Jenos:

    And you can’t argue that the only point of confession is to protect the penitent, and exclude the priest. It’s to protect the relationship between the penitent and God, through God’s anointed representative.

    All of which sounds lovely and in an ideal and faithful world, would be a most laudable task…

    Quoting Canon 983.1 of the Code of Canon Law, the Catechism states, “…It is a crime for a confessor in any way to betray a penitent by word or in any other manner or for any reason” (No. 2490). A priest, therefore, cannot break the seal to save his own life, to protect his good name, to refute a false accusation, to save the life of another, to aid the course of justice (like reporting a crime), or to avert a public calamity.

    …except for the sections I highlighted above that happen in the here and now. These instances run completely counter to a Catholic understanding of life and justice. How can one hope to stand before one’s Maker and say they willingly let someone die before talking to the police? How can one hope for one’s soul when they know they willing did nothing in order to keep a promise when they could have helped the innocent? If someone confessed they were about to set off a nuke in Denver, should the priest keep quiet and think it’s godly?

    This is dogma before faith – a set of rules with self-reinforcing logic that loses the bigger picture in its minutia. Christians were warned about the letter of the Law instead of the spirit. Confession is good for the soul – it is not a get out of jail free card nor was it ever intended to be. Somehow I can’t see Jesus approving of keeping your lips shut in times like this….

    Like or Dislike: Thumb up 13 Thumb down 1

  22. beth says:

    @KM: The problem lies with the priest. He could have asked the girl to repeat her claims outside of the confessional or made a great effort to convince her to speak to her parents or another adult about the abuse. Breaking the seal of confession was not the only option available to him. As usual the Catholic Church position on child abuse is seriously lacking in common sense and compassion. At this point I suggest they pay her a sh**load of money and defrock that idiot priest anyway.

    Like or Dislike: Thumb up 7 Thumb down 1

  23. Another Mike says:

    @anjin-san:

    It’s an interesting issue, certainly one that merits serious discussion, not juvenile attempts by certain commenters to draw attention to themselves.

    Excellent observation.

    Like or Dislike: Thumb up 1 Thumb down 0

  24. Another Mike says:

    @beth:

    He could have asked the girl to repeat her claims outside of the confessional or made a great effort to convince her to speak to her parents or another adult about the abuse.

    How do you know he didn’t do that?

    Like or Dislike: Thumb up 3 Thumb down 4

  25. anjin-san says:

    @ KM

    A line I always liked from Hanna and Her Sisters comes to mind:

    If Jesus came back and saw what’s going on in his name, he’d never stop throwing up.

    Like or Dislike: Thumb up 7 Thumb down 0

  26. Pinky says:

    @Mu: Exactly. This isn’t even an “if”. The courts have decisions to make; the priest does not.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. beth says:

    @Another Mike: the story says the girl claims he told her to handle it herself and sweep it under the rug. If she had repeated the accusations outside the confessional he could have told someone.

    Like or Dislike: Thumb up 8 Thumb down 0

  28. KM says:

    @Beth:

    He could have asked the girl to repeat her claims outside of the confessional or made a great effort to convince her to speak to her parents or another adult about the abuse.

    I cannot imagine being 12, mistreated so horribly, screwing up my tattered courage and reaching out to a man of the cloth for help…. only to be told I have to do it again in front of the proper authorities. Because God won’t let him talk due to some Rule. He can’t help you, sorry, but he can point you to someone who can.

    What must that do you? Your faith and your faith in humanity? Why trust another adult when this one has failed you? Why trust at all?

    Like or Dislike: Thumb up 9 Thumb down 0

  29. beth says:

    @KM: There are conversations that are not considered confessions (or at least there were when I was a Catholic) where he could have then reported it. At some point the girl would have to speak to the authorities.

    Like or Dislike: Thumb up 4 Thumb down 2

  30. Pinky says:

    @KM:

    These instances run completely counter to a Catholic understanding of life and justice.

    Justice is found in giving to each person what is due to them. There are often – usually even – cases where justice cannot be served perfectly, so it is our duty to provide as much justice as we can. The priest’s greatest responsibility in a case like this is to give the penitent what is due to them, the guarantee of confidence.

    Like or Dislike: Thumb up 0 Thumb down 8

  31. Donald Sensing says:

    Here in Tennessee, state law specifically excludes excludes reports, including in the confessional, from privilege if they are of child abuse or child sexual abuse. By law, the confessor is required to report them.

    That is not to say that the RCC or other denominations agree with the law or require their clerics to obey it.

    Like or Dislike: Thumb up 8 Thumb down 0

  32. James Joyner says:

    IANAL but this isn’t exactly a new issue, right? We’ve generally allowed clergy immunity from being compelled to testify because we’ve held, as a society, that there’s real value in confession and counseling and that the chilling effect on that widespread practice from knowing it could be made public would be enormous. At the same time, however, we’ve never held that these privileges are absolute. Clergy knowing of a crime that’s about to be committed, for example, have a duty to let authorities know so that it can be prevented. In the case of ongoing sexual abuse, I’d think the priest would have a higher duty than the secrecy of confessional.

    (And, again, I’m not only an atheist but an anti-theist. But I have no problem either acknowledging that cultural tradition or even accepting that there’s something to it even if the belief system behind it is magical.)

    Like or Dislike: Thumb up 9 Thumb down 0

  33. anjin-san says:

    It’s kind of difficult to have this discussion without feeling the thumbs of five Supreme Court justices upon the scales of justice. Just one more of the many wrong turns America has taken in the 21st century.

    Like or Dislike: Thumb up 7 Thumb down 1

  34. James Joyner says:

    @anjin-san: SCOTUS has had its thumbs on the scales since, what, 1803? Sometimes, they’ve saved us from ourselves. Other times, they’ve prevented things the public rightly wanted done. Which is which is hardly a matter of consensus, save on a handful of issues.

    Like or Dislike: Thumb up 1 Thumb down 3

  35. KM says:

    @Beth:

    At some point the girl would have to speak to the authorities.

    Yes, after someone believed her. Took her seriously. Listened to her and then took action. Not shuffled her down the bureaucracy line – passed the buck.

    Have you ever worked with abused people? Trust is not in abundance, mostly because of this sort of malarkey. It takes courage to try and escape, courage that falters when what should be a safe haven is denied. They may not have the courage to try again when their first attempt was so unfruitful. To reach out again after having your hand slapped away is a lot to ask a 12yr to bear on top of what’s already being done.

    Its been a quite a while since I’ve been to Mass but I know that the Monseigneur would have risked the wrath of the diocese rather then risk the wrath of God for sending a child away so. Then again, he tried his damnedest to be a man of conscious, not a man of rules. This priest appears to be neither.

    Like or Dislike: Thumb up 11 Thumb down 1

  36. anjin-san says:

    @ James Joyner

    SCOTUS has had its thumbs on the scales since, what, 1803?

    The Hobby Lobby decision broke new ground, IMO. Hobby Lobby now enjoys special rights courtesy of five justices that share their religious views. They changed the game.

    Like or Dislike: Thumb up 5 Thumb down 3

  37. anjin-san says:

    @ KM

    The Catholic Church my wife attends more or less ignores church doctrine when it conflicts with their core values of charity and compassion.

    Like or Dislike: Thumb up 7 Thumb down 1

  38. Mu says:

    @beth: So what happens next week if another 12 year old confesses to being abused by an adult? Does the church keep quiet about that too?
    You missed the whole concept of confession, did you?

    Like or Dislike: Thumb up 4 Thumb down 3

  39. @Jenos Idanian #13:

    you provide a list of the 20,000 people you want to sacrifice who are willing to be sacrificed

    Oh no, they can’t volunteer. They’re required to be captured in battle, so we’ll just be going around clunking random people on the head and dragging them back to the temple.

    The principle in play here is that the sacrifice is acting as the direct embodiment of the god here — the act of Sacrifice is a one-on-one meeting between the worshippers and the Supreme Being. The priest has very binding oaths to both parties that what happens when he is performing the ritual is completely sacrosanct.

    Like or Dislike: Thumb up 11 Thumb down 1

  40. grumpy realist says:

    @Jenos Idanian #13: And so? Just because someone claims he’s the High-Muckety-Muck of God and doesn’t have to obey laws doesn’t mean we have to listen to him.

    I wonder if you would be so obsequious to the self-proclaimed voices of God if what had been concealed had a higher death rate–say, plans for a terrorist attack.

    Like or Dislike: Thumb up 7 Thumb down 1

  41. Another Mike says:

    @beth:

    the story says the girl claims he told her to handle it herself and sweep it under the rug.

    A story is just a story. We will never know what guidance the priest gave her. We do not even know that she made a confession of this to the priest.

    Like or Dislike: Thumb up 2 Thumb down 3

  42. Xon says:

    @KM:

    KM, you’re only focusing on the possible tragedy that can happen one side of the ledger, but not the other side. If the confessional is not treated as absolute, then many who derive comfort from it will not make use of it. If you force confessors to reveal the really really bad things they hear, then you won’t end up with a bunch of confessors helping solve a bunch of cases; you’ll end up with confessors not hearing really really bad things like they used to. You’re cutting off the branch you’re sitting on.

    Certainly, obviously, and indubitably, a sex abuse victim would suffer immensely from being improperly “handled” by the adults in whom she confided, and if that happened here then it is terrible. But sometimes good legal rules have to be followed even if the result is distasteful in certain cases.

    And of course, everyone right now is assuming that the plaintiff’s contentions are true. For legal purposes, they have not yet been shown to be true. And the priest, as Doug pointed out in this article, is kept from testifying in a way that would *corroborate* her testimony AND in a way that would “contradict* it. For all we know, the priest could speak in this case and help his case rather than hurt it. But his religious duty is to decline to speak no matter what (and, like Pete Rose saying he never bet on Reds games, you can’t tell him to only speak when it would help the victim, b/c then any time he didn’t speak his silence would still tell you all you needed to know).

    People here are proceeding as though the girl is obviously going to win this case and that things happened more or less as she alleges they did (which, to be clear, may very well be the case, but we don’t know that and the legal system has to treat it as an unsettled question). So his invoking the privilege here cannot justly be read in the worst possible light as him just not wanting to help this poor girl, as so many of you are doing. He may very well be hurting himself legally by not testifying. But hey this is the internet, so if you’re just ranting to make yourselves feel better, please continue.

    Like or Dislike: Thumb up 5 Thumb down 3

  43. Xon says:

    @Stormy Dragon:

    This is stupid. No person has argued (please cite them if they have, including the Supreme Court members) that any religious objection to any law must be honored. Do you actually not understand that, or are you doing something else here besides trying to have a constructive conversation about legal principles?

    Like or Dislike: Thumb up 3 Thumb down 5

  44. Xon says:

    @grumpy realist:

    And so? Just because someone claims he’s the High-Muckety-Muck of God and doesn’t have to obey laws doesn’t mean we have to listen to him.

    I wonder if you would be so obsequious to the self-proclaimed voices of God if what had been concealed had a higher death rate–say, plans for a terrorist attack.

    Well, actually the LAW itself says that we do. It’s a law (RFRA, and to some extent the 1st Amendment Free Exercise Clause) that you have to listen to him. Unless that is there is a compelling governmental interest that cannot be accomplished by a less restrictive means than forcing him to violate his conscience.

    And then of course, when trying to act like you have the moral high ground, it always makes sense to use utilitarian arguments based on doomsday hypotheticals. Well played.

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  45. @Xon:

    So what’s the principle that separates valid religious objections to invalid ones? The Catholic Church seems to think objecting to child rape laws is valid, so I don’t see murder as going that much further.

    Like or Dislike: Thumb up 6 Thumb down 2

  46. @Xon:

    If the confessional is not treated as absolute, then many who derive comfort from it will not make use of it.

    So your worst case for not respecting the seal of confession is that if we don’t, some people who got away with a crime may end up feeling bad about it?

    THE HORROR.

    Like or Dislike: Thumb up 6 Thumb down 2

  47. Xon says:

    @Stormy Dragon: Really? That’s what the Catholic Church “seems to think,” Stormy Dragon? You have put your mind to this issue, thought about what the different sides are trying to say, and this is your honest assessment of the Catholic Church’s position? I’ll bet most people you argue with do a better job of interpreting you.

    They object to a law (or policy) that would force them to disclose a confession. This particular case happens to involve a possible confession that possibly reveals information about a child rape. Objecting to being forced to discuss the confession is in no way an objection to there being a law against child rape. That surely doesn’t even need to be stated to be understood, but certainly now that it has been stated it is obvious to everyone.

    As for what principle separates “valid” religious objections from invalid ones, we’re talking about the law here, and the law is that all sincere religious objections are “valid” in that they are going to be taken seriously as something the government cannot just burden willy-nilly. But if the government has a compelling interest that cannot be accomplished without burdening the religious belief, then the objector will lose under the law. For instance, if a neo-Aztec attempted to get an exemption from the laws against murder.

    Like or Dislike: Thumb up 4 Thumb down 5

  48. rudderpedals says:

    @Jenos Idanian #13: Actually I would argue that the only sensible way to apply the privilege is when the penitent invokes it to suppress his or her priest’s testimony. I’m open to argument that it should be also be invokable by the priest but not in this case, on the info available.

    I’m more concerned that the establishment clause is violated by the religious privilege doctrine than by entanglement with enforcing civil law matters. I suppose disagreement on this isn’t out of line but goes back to the adoption of the 1st amendment and the knotty political compromises they made back then.

    Like or Dislike: Thumb up 2 Thumb down 0

  49. Xon says:

    @Stormy Dragon:

    So your worst case for not respecting the seal of confession is that if we don’t, some people who got away with a crime may end up feeling bad about it?

    THE HORROR.

    Again, is that your honest reading of what I said?

    Are the only people who derive comfort from religion (or from a rite of confession in particular) people who commit crimes? Hmmm. As for those who are indeed terrible people who have done awful things, if they know their priest will be forced to reveal whatever they say, then will they still say it?

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  50. @Xon:

    Really? That’s what the Catholic Church “seems to think,” Stormy Dragon? You have put your mind to this issue, thought about what the different sides are trying to say, and this is your honest assessment of the Catholic Church’s position? I’ll bet most people you argue with do a better job of interpreting you.

    I’m sorry, let me be more explicit: the Catholic Church is a criminal organization that has deliberately engaged in a longstanding conspiracy to facilitate the rape of children. If it was any organization other than the Catholic Church it would have long since ceased to exist and its leadership would all be in prison or international fugitives.

    Like or Dislike: Thumb up 15 Thumb down 1

  51. Xon says:

    @Stormy Dragon: Oh.

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  52. KM says:

    @Xon:

    KM, you’re only focusing on the possible tragedy that can happen one side of the ledger, but not the other side. If the confessional is not treated as absolute, then many who derive comfort from it will not make use of it. If you force confessors to reveal the really really bad things they hear, then you won’t end up with a bunch of confessors helping solve a bunch of cases; you’ll end up with confessors not hearing really really bad things like they used to. You’re cutting off the branch you’re sitting on.

    A valid point.

    I would however point out that a confessor that knows something and does nothing (a null action) is the same as nobody outside the perpetrator knowing anything. If a tree falls in the woods, is there a sound? If you know a crime has been committed and say nothing, what is the point is having that knowledge other then to torment your soul?

    I do not even a confessor – it is a heavy burden. But the point of confession is to listen, let go and be reminded that God forgives. It never (and never should) make any illusions as to whether man or society will. We are told to give Ceasar his due – God might forgive you but the penal system still wants to have a word.

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  53. Vast Variety says:

    I vaguely remember reading somewhere that after the child sex abuse scandals that the Church agreed that it would always report abuse to local authorities.

    https://www.childwelfare.gov/systemwide/laws_policies/statutes/clergymandated.pdf

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  54. Vast Variety says:

    According to this… Unless it’s changed since 2013… it would seem the Priest can’t be made to testify.

    Louisiana
    La. Children’s Code Art. 603(17)(b)-(c)
    ‘Mental health/social service practitioner’ is any individual who provides mental health or social service diagnosis, assessment, counseling, or treatment, including a psychiatrist, psychologist, marriage or family counselor, social worker, member of the clergy, aide, or other individual who provides counseling services to a child or his or her family. ‘Member of the clergy’ is any priest, rabbi, duly ordained deacon or minister, Christian Science practitioner, or other similarly situated
    functionary of a religious organization. A member of the clergy is not required to report a confidential communication, as defined in Code of Evidence article 511(A)(2), from a person to a member of the clergy who in the course of the discipline or practice of that church, denomination, or organization is authorized and accustomed to hearing confidential communication and, under the discipline or tenets of that church, denomination, or organization, has a duty to keep such communication confidential. In that instance, the member of the clergy shall encourage that
    person to report the allegations to the appropriate authorities

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  55. grumpy realist says:

    @Xon: Let me put it this way. If we ever have another successful terrorist attack in the U.S. and it is then discovered that the planners (for whatever reason) let their plans be known beforehand to a religious entity who didn’t let a peep out because [CONFESSIONAL]–it’s not going to make a bloody bit of difference how much you natter on about “religious freedom.” There will be a storm of outrage. That religious “freedom” is going to be toast.

    And said religious entity will probably be charged with conspiracy.

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  56. wr says:

    @Jenos Idanian #13: “The First Commandment of Liberalism:”

    Because Louisiana is such a hotbed of liberalism.

    Putz.

    Like or Dislike: Thumb up 10 Thumb down 1

  57. Just Another Ex-Republican says:

    @Stormy Dragon
    I’m sorry, let me be more explicit: the Catholic Church is a criminal organization that has deliberately engaged in a longstanding conspiracy to facilitate the rape of children. If it was any organization other than the Catholic Church it would have long since ceased to exist and its leadership would all be in prison or international fugitives.
    :

    So since some Catholics committed truly evil acts, the entire church should be dismantled and it’s leadership punished? Does this mean that when government employees conspire in illegal acts (such as, I don’t know, letting weapons go to Mexico that end up involved in murders) that the President and/or Attorney General should be put in prison and the US government abolished? Or perhaps when members of a political party engage in illegal behavior the whole party should be punished and party leadership placed in prison (I seem to recall members of Congress from both parties being convicted of illegal acts in my lifetime, including taking bribes related to their jobs).

    Your position is preposterous. Punish the guilty, most certainly, including several high-ranking members of the church (it amazes me the disdain most Catholics I know have for some of the current American archbishops). I’m not a practicing Catholic any more myself (stopped quite a while before the child abuse scandal became public), but I still know a great many Catholics. ALL of them think what happened was horrible, that the guilty should be defrocked and punished to the full extent of the law, and that the church owes reparations and needs serious reforms. The vast majority, also through their Catholic faith, donate time and/or money to a great deal of charitable acts sponsored by the church that do good, and in your (justifiable) outrage about the abuse, you (unjustifiably) ignore the great deal of good the Catholic church has accomplished. As usual, the good things simply get relatively little press, mostly because they are more mundane and constant (like soup kitchens).

    As for this case, it seems more complicated to me than you want to make it. First, it is still only –alleged– abuse (and not by any priest, a few commentators here seemed to have missed that), and the alleged abuser is now dead and unable to defend himself. Second, it is only an alleged confession as well. The family states the girl confessed as part of their lawsuit against the church, but there’s no proof (duh, how could there be?). So what would happen if they forced him to testify? He could deny the girl confessed (breaking his vows and hurting the family’s case against the alleged abuser). He could say he doesn’t remember (unlikely I agree, but possible). He could say he remembers hearing a confession (or even more than one) that involved allegations of abuse, but he does not know who the person was on the other side of the screen and cannot confirm or deny it’s the girl (and that would be completely legit–confessionals are blind by design–and also breaking his vows). You clearly expect him to confirm the girl’s account, yet given that the lawsuit is aimed at the church as well as the alleged abuser, his alleged advice was shitty, and as there may be criminal consequences for not reporting abuse, he could also invoke his 5th Amendment rights.

    I’m not really sure what the plaintiffs are trying to gain by forcing the priest to testify. It’s a civil case–let the girl testify that she told the priest, let the priest invoke confessional privacy, and let the judge/jury decide if they believe the girl (as well as any other evidence presented), and if the abuse happened and the abuser’s estate and the church should be held liable. After all, if you hold the priest and church in such disdain, why would you expect them to tell the truth? Wouldn’t such horrible people deny the confession happened anyway if forced to testify?

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  58. sam says:

    @Xon:

    Well, actually the LAW itself says that we do. It’s a law (RFRA, and to some extent the 1st Amendment Free Exercise Clause) that you have to listen to him.

    Just to be clear, the federal RFRA is not enforceable against the states (see, City of Boerne v. Flores, 521 U.S. 507 (1997)). Louisiana has its own RFRA, but from what I’ve seen, this had no bearing on the Lousiana Supreme Court’s ruling.

    One thing that gives me pause in this case is that the Diocese petitioned the court, in the first instance, for a motion to prevent the young girl from testifying about the confession. Think about that for a moment. The Diocese tried to enlist the police power of the state to muzzle to the victim of the abuse and prevent her from giving testimony — testimony that she has a right to give — that the Church would find embarrasing (at the least). That can’t be good.

    Like or Dislike: Thumb up 10 Thumb down 1

  59. @Just Another Ex-Republican:

    So since some Catholics committed truly evil acts, the entire church should be dismantled and it’s leadership punished?

    When the church leadership deliberately conspired to coverup the crimes and assist the perpetrators in continuing them? Yes.

    Does this mean that when government employees conspire in illegal acts (such as, I don’t know, letting weapons go to Mexico that end up involved in murders) that the President and/or Attorney General should be put in prison and the US government abolished?

    When the president and attorney general deliberately conspired to coverup the crimes and assist the perpetrators in continuing them? Yes.

    Or perhaps when members of a political party engage in illegal behavior the whole party should be punished and party leadership placed in prison (I seem to recall members of Congress from both parties being convicted of illegal acts in my lifetime, including taking bribes related to their jobs).

    When the president and attorney general deliberately conspired to coverup the crimes and assist the perpetrators in continuing them? Yes.

    The non-guilty Catholic clergy and laity are free to establish a new Catholic Church at their leisure, but given the ample evidence of complicity throughout the Catholic hierarchy, up to and including multiple popes, I have no problem saying that the church as a corporate entity is guilty as well and deserves to be held responsible.

    Like or Dislike: Thumb up 6 Thumb down 4

  60. Eric Florack says:

    sigh.
    I suppose it should be no shock that the usual big government supporters agree with jailing the preist. The only thing that suprises me anymore is that they dont bother couching their religious bigotry.

    Like or Dislike: Thumb up 2 Thumb down 11

  61. Just Another Ex-Republican says:

    @Stormy Dragon

    The non-guilty Catholic clergy and laity are free to establish a new Catholic Church at their leisure:

    You clearly don’t understand the foundations of the church, and we are dealing with people’s beliefs here. The leadership of the church is human and fallible (as they have disgustingly proved many times over the centuries), the church is eternal (to practicing Catholics).

    @Stormy Dragon

    given the ample evidence of complicity throughout the Catholic hierarchy, up to and including multiple popes, I have no problem saying that the church as a corporate entity is guilty as well and deserves to be held responsible. :

    Yet you seem to define “held responsible” as equal to being disbanded in this case. Doesn’t reparations represent some degree of responsibility? Killing off entire organizations for the actions of a relative few (the Catholic church has several hundred thousand priests, and the number of employees is is in the millions) isn’t harmless, and if you think it could easily be re-established by others you are delusional. Do you know how many hospitals are run by Catholic charities? Do you think they could just be shut down one day and restarted the next? Are you seeking justice, or revenge?

    We probably agree on more than we disagree in general. I think the Hobby Lobby decision was terrible, for example. Organizations of all types gain limited liability, but that comes with limited rights. I just don’t see in this case what the plaintiffs hope to gain by attacking long-established confessional privacy laws (as I detailed above, the options of what he might say are not necessarily helpful to their cause), and I disagree with organizational death penalties that will inevitably hurt a whole lot of innocent people. Better to punish the guilty than destroy everything.

    @sam

    One thing that gives me pause in this case is that the Diocese petitioned the court, in the first instance, for a motion to prevent the young girl from testifying about the confession. Think about that for a moment. The Diocese tried to enlist the police power of the state to muzzle to the victim of the abuse and prevent her from giving testimony — testimony that she has a right to give — that the Church would find embarrasing (at the least). That can’t be good. :

    I don’t have to think about it for a moment. It’s utterly ridiculous and the lawyers (and church heirarchy) behind it should be ashamed of themselves, publicly ridiculed, and (in the case of the church–no one can do anything about the lawyers :) ) removed from positions of authority. I hope that petition got thrown out with scorn.

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  62. Grewgills says:

    @beth:
    and that is the reason he is refusing to testify. It is about refusing to admit to the terrible and should be criminal advice he gave her. If he admits to that then he and the church become liable and it opens up a potential criminal can of worms. Given that, he will stay in jail as long as it takes.

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  63. Grewgills says:

    @Another Mike:
    She testified that he did not. She says that he in fact told her to do the opposite.

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  64. Grewgills says:

    @Pinky:

    The priest’s greatest responsibility in a case like this is to give the penitent what is due to them, the guarantee of confidence.

    When the penitent does not want that confidence it ceases to be his greatest responsibility.

    Like or Dislike: Thumb up 7 Thumb down 0

  65. Grewgills says:

    @Xon:
    This case involves the penitent willingly giving up her privilege and asking the priest to tell the court about their conversation. This is not about forcing priest and penitent to give up the privilege of confession. If the girl did not want the seal broken there would not be any legal claim in this case for the court to demand it.
    “People here are proceeding as though the girl is obviously going to win this case”
    If she were obviously going to win her case then they would not need him to testify and this wouldn’t be such an issue.

    Like or Dislike: Thumb up 7 Thumb down 0

  66. Grewgills says:

    @Xon:

    But if the government has a compelling interest that cannot be accomplished without burdening the religious belief, then the objector will lose under the law.

    So, what by your thinking is the other way to accomplish the state’s objective in this case?
    @Xon:

    As for those who are indeed terrible people who have done awful things, if they know their priest will be forced to reveal whatever they say, then will they still say it?

    Frankly, I don’t much care.

    Like or Dislike: Thumb up 2 Thumb down 0

  67. Grewgills says:

    @Just Another Ex-Republican:
    I fully agree with the first half of that comment. The second half, not so much.

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  68. James in Silverdale, WA says:

    @Stormy Dragon: “The non-guilty Catholic clergy and laity are free to establish a new Catholic Church at their leisure, but given the ample evidence of complicity throughout the Catholic hierarchy, up to and including multiple popes, I have no problem saying that the church as a corporate entity is guilty as well and deserves to be held responsible.”

    This. Add the laity, through the tithe, now pays a great deal to lawyers to defend that which cannot be defended. Wherever there is a whiff of abuse, bankruptcy of the diocese is not far behind. The scandal is only going to deepen as less litigious states than the U.S. find the same going on pretty much everywhere. To think it’s stopped in the present is the height of naivete.

    Produce Cardinal Law for trial in Boston, or quit. Throwing good money after bad only prolongs the inevitable collapse from lack of an authority that can never, ever be recovered.

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  69. DrDaveT says:

    @Jenos Idanian #13:

    The principle in play here is that the priest is acting as the direct representative of God here

    God molests 12-year-olds? You worship a weird god, J.

    Like or Dislike: Thumb up 7 Thumb down 2

  70. DrDaveT says:

    @Eric Florack:

    The only thing that suprises me anymore is that they dont bother couching their religious bigotry.

    Awesome! Now we learn that wanting to arrest and punish criminals hiding behind religious vestments is “Bigotry”! Eric, you are the gift that keeps on giving…

    Remember, boys and girls — the Republicans here are the “Law and Order” party…

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  71. Andre Kenji says:

    The problem is that If you break the seal of the confession, then, there is no confession at all.

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  72. KM says:

    The only thing that suprises me anymore is that they dont bother couching their religious bigotry.

    Eric, you do realize that several commentators on this thread, pro and con, are practicing or lapsed Catholics, right? Nice to know I’m bigoted by discussing some of the more problematic parts of my faith in an honest but less then flattering manner with others online- I never knew that about myself! I’d tell Monseigneur in confession but he’d probably laugh me right out of the booth.

    No real Catholic, ne?

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  73. Pinky says:

    Hey resident lawyers –

    Louisiana used to have a weird reputation, allegedly because their state law derived a lot more from the French than the English. Is that still the case?

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  74. Pinky says:

    @KM: Do you really think that ex-Catholics can’t be bigoted against the faith?

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  75. Mu says:

    In retrospect I like the idea. If the state can determine that sacraments are reversible by a one-sided declaration I can finally get a catholic divorce. Of course, a church subject to state edicts in religious matters sounds a little bit like Stalin’s wet dreams. Bah, we have to take that, for the children.

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  76. anjin-san says:

    @ Florack

    their religious bigotry

    Instead of judging others, you might be better served by studying the teachings of Jesus, and trying to apply them in your own life. You spew hatred, and you are badly lacking in compassion. Go back and read what Jesus said about the sick and the poor. It was not “sick and poor people suck and they deserve to suffer.”

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  77. anjin-san says:

    @ KM

    Indeed. My wife is a practicing Catholic, I am reasonably sure I am not an anti-Catholic bigot. She is quite frank about the problems the church is experiencing, and I am very, very sure she is not an anti-Catholic bigot.

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  78. KM says:

    @pinky:

    Do you really think that ex-Catholics can’t be bigoted against the faith?

    Anybody can be bigoted about anything, true. I just find it interesting that the immediate assumption made was it was “bigots attacking the faith!”, not “possible people of the faith discussing it” even though its pretty clear from this thread you have representatives on both sides. It’s almost like the automatic assumption was made that if you were faithful, you wouldn’t be making anti-inviolate arguments beacuse you’d be in lockstep. Therefore, those who are trying to point out the ethics of the integrity of the seal vs human life and dignity must not be religious or they would be defending the priest. Somewhat rude and presumptuous – you know what they say about assuming….

    Like or Dislike: Thumb up 4 Thumb down 1

  79. Xon says:

    @sam:

    Just to be clear, the federal RFRA is not enforceable against the states (see, City of Boerne v. Flores, 521 U.S. 507 (1997)). Louisiana has its own RFRA, but from what I’ve seen, this had no bearing on the Lousiana Supreme Court’s ruling.

    Right, and fair. But I was simply responding to the claim that “some wackadoo believing God doesn’t want him to obey a law doesn’t mean we should listen to him”. This current case isn’t RFRA related exactly (state version, not federal version, correct), but the basic response to someone who says “we shouldn’t care what objections to laws religious people have” is that, actually, if the law is subject to a RFRA — which is itself a law — then yes actually we do.

    In this case, we are talking about a privilege not to divulge certain information in court. Privileges are evidentiary rules that are propagated by state governments (and the feds) to one degree or another, so since they are covered by their own law there is no real reason to tie them in to RFRA. Which is why RFRA doesn’t come up in penitent-confessor privilege cases. (But if the government of a state or the feds tried to get rid of the confessor privilege, then a RFRA claim might very well come in to play to try to get it back.)

    And I agree completely that trying to muzzle the girl from testifying is bad juju. But claiming the privilege to keep the priest from being forced to testify in addition to whatever testimony the girl has given is what the Catholic Church ought to do in this situation, notwithstanding whatever jackassery they may also have engaged in (I don’t care about defending the Catholic Church per se at all).

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  80. KM says:

    @anjin-san:

    Culturally Catholic, lapsed. Actually studied at a convent before I realized I had far too many qualms about dogma (and authority issues) to ever be true to my vows and keep my faith. I favor the Spirit rather then the Letter of the Law. But I still go to the Motherhouse frequently to speak with the Sisters and Monseigneur – Apologetics was my interest and we have the most interesting talks. People call me an Pointsetta-’n-Lilly then are stunned when they find out.

    So I think it’s hilarious to get the bigot card pointed at me. I was almost an official part of the institution they claim I hate!

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  81. Xon says:

    @Grewgills:

    But if the government has a compelling interest that cannot be accomplished without burdening the religious belief, then the objector will lose under the law.

    So, what by your thinking is the other way to accomplish the state’s objective in this case?

    Wait, though. I wasn’t bringing up the least restrictive means as an argument in favor of keeping the privilege in this case. I was responding to someone who had said that the logic of allowing religious objections to certain laws meant that you had to let a neo-Aztec engage in human sacrifice. I was responding to that particularly absurd claim by bringing in the three-prong RFRA analysis made infamous by the Hobby Lobby case last week to point out that no, actually there is a pretty principled way to distinguish between religious objections that have to be accomodated and those that do not.

    But in this case, this RFRA analysis stuff takes us a bit off topic. The real issue is the evidentiary rule privileging religious confessions from disclosure. This is simply a longstanding principle in evidence law, that even the desire to get at the truth must be overridden in certain situations. One of those is when a client speaks with their attorney, because the integrity of the legal system is thought to depend on that confidence being protected. But another situation that deserves to be privileged is when a religious penitent speaks to their confessor, because that relationship also goes to the heart of the integrity of that religious institution *and we happen in this country to have legal principles that say the government is not allowed to hinder the free exercise of such institutions*. So I think that good ol’ evidentiary principle is the best argument the Catholic Church has in this case, and I think the Louisiana Supreme Court dismissed it too easily. To the extent that this ruling amounts to a denial of the traditional confessional privilege, I think that the Catholic Church has a free exercise claim under the 1st Amendment. The Free Exercise Clause does not generally let you disobey “generally applicable” laws just because you have a religious objection, but it does forbid the government from directly prohibiting or regulating religious ceremonial practices. The government can’t keep Seventh Day Adventists from worshipping on Saturdays — no ordinary kind of law would ever provide a “compelling” interest in doing so (enforcing a temporary curfew in the face of some emergency situation would). Similarly, we are talking here about a religious practice done as part of the actual practicing of the Catholic faith — the ability to go to your church and confess to a priest in complete confidence. This kind of religious exercise continues to get special protection under the 1st Amendment, and I think the Louisiana Supreme Court dismissed this concern too easily.

    To answer your question, though, there is no other way for the state to get information about a conversation but to compel the participant(s) to testify about it. But certain things are more important than getting at the truth in every circumstance. That’s why we have privileges in our rules of evidence in the first place, and it’s why historically religious confessionals have been one such location of privilege. The government *does not have a compelling interest* in getting to the truth in ALL situations. When the cost of getting to the truth is making religious people violate their consciences regarding confession, then that’s a bridge too far. So the reason I think the privilege has to be granted here is not b/c the govt has other ways of getting to the truth, but b/c the govt does not have a compelling enough interest to get to the truth (damn the torpedoes) in the first place.

    @Xon:

    As for those who are indeed terrible people who have done awful things, if they know their priest will be forced to reveal whatever they say, then will they still say it?

    Frankly, I don’t much care.

    That’s too bad because it undermines the whole moral thrust for wanting to make the priest violate the privilege. In a world where the confidence of the confessional can be compelled to be broken by a court, then the confessionals a court is likely to want to know about will probably not happen in the first place. So all you’re really doing by breaking the confessional privilege is hindering the religious exercise of the Catholic Church (or whoever) without actually getting to the truth any better in the long run.

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  82. rudderpedals says:

    So the trial court follows the statute Vast Variety found and holds that the priest declined to testify, can’t be compelled to testify, and the priest therefore voluntarily unavailable. Everyone cool with the factfinder inferring the truth of the girl’s claim in that that a reasonable person would want to clear his name? It’s a win-win: The priest doesn’t have to testify and the young lady proves her claim.

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  83. Tyrell says:

    Lutheran churches do not have private confessions, but is done corporately in the worship service. However, pastoral counseling sessions are considered confidential.
    But what about this situation: a person tells a priest about a plan that they plan to commit. Is that still covered?

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  84. Eric Florack says:

    @DrDaveT:
    So, there’s no higher power than government, huh?

    Like or Dislike: Thumb up 2 Thumb down 1

  85. rudderpedals says:

    @Tyrell:

    But what about this situation: a person tells a priest about a plan that they plan to commit. Is that still covered?

    Yes. It’s touted as an all-encompassing, plenary privilege.

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  86. Pinky says:

    @Tyrell:

    a person tells a priest about a plan that they plan to commit. Is that still covered?

    It’s arguable whether that is a confession. I don’t know of any such case, but if a person leaned into a confessional and told a priest “I, Tom, am about to stab my wife Janice”, I don’t see how there could be sacramental privilege. If a person confesses to a priest that they’re struggling with a particular sin, debating whether to commit it, well, that’s different from telling a priest that you’ve got a plan. I don’t know. I’ve never thought about it.

    (In case that isn’t clear, one confesses sins that one has already committed, and repents of. One may talk to a priest about an ongoing struggle or a life situation, but one would not tell a priest about a plan to sin and expect forgiveness.)

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  87. Grewgills says:

    @Xon:

    Wait, though. I wasn’t bringing up the least restrictive means as an argument in favor of keeping the privilege in this case. I was responding to someone who had said that the logic of allowing religious objections to certain laws meant that you had to let a neo-Aztec engage in human sacrifice.

    The reason that reductio ad absurdum was used was to point out the flaw in your argument. You acknowledge that the rights of the people as represented by the state can override religious freedoms. You have also acknowledged that the state has no other recourse in this case. That leaves the burden test. By the Catholic Church’s own policy statement referenced a few times above, the purpose of the seal of confession is to protect the penitent. If the penitent does not want and in fact pleads with the church to break that seal, that rather vitiates the argument that maintaining the seal has a greater value than helping a girl who may have been raped.

    One of those is when a client speaks with their attorney, because the integrity of the legal system is thought to depend on that confidence being protected. But another situation that deserves to be privileged is when a religious penitent speaks to their confessor

    If a client wants to waive attorney client privilege he/she can and once he/she does that privilege no longer exists. The same should be true of the penitent and is in LA.

    Similarly, we are talking here about a religious practice done as part of the actual practicing of the Catholic faith — the ability to go to your church and confess to a priest in complete confidence.

    1) If the Church wants to grow, protecting child molesters and the priests that tell little girls to figure it out on their own when molested is a fantastically poor way to go about it.
    2) The confidence given to the penitent in the confessional is not under attack here. You should quit pretending it is. The priest and the diocese here are trying to shield themselves from the consequences of the priest’s alleged staggeringly poor advice to a little girl who was hurting. They are invoking the seal of confession to protect themselves legally, not to protect the penitents. That is not a recipe for growing the faith.

    That’s too bad because it undermines the whole moral thrust for wanting to make the priest violate the privilege. In a world where the confidence of the confessional can be compelled to be broken by a court, then the confessionals a court is likely to want to know about will probably not happen in the first place.

    If bad men think that this ruling will cause their confessions to be accessible to the court without their consent then they are also idiots and I don’t much care that their wrong interpretation of this prevents them from going to confession until after they are convicted. Your argument holds no water.

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  88. Grewgills says:

    @Pinky:
    By that logic, the girl was not confessing a sin and so is in counseling rather than confession when speaking about the alleged molester and what to do. It is not a sin to be sexually harassed or molested. She was in the confessional seeking help and guidance, not to confess her sin. She may or may not have confessed sins in that same session, just as the man planning to murder his wife may confess to adultery then admit to planning murder or worse.
    Seeking help or counseling from her priest should be covered by privilege to protect her. Seeking to invoke the privilege of the confessional when the conversation in question was not a sin to be forgiven and when the penitent doesn’t want the conversation to be privileged stinks of self protection by the priest and the diocese more than preserving of religious liberty.

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  89. Pinky says:

    @Grewgills: I see the point that you’re making. And I’m definitely not saying that the girl was sinful in her actions in this regard. I have no idea what she confessed to. I don’t know her thinking, the priest’s thinking, or the diocese’s thinking.

    Can you see the point of what I’m saying? If you told a priest in confession that you were planning to kill your wife, I don’t see that as being part of a valid confession (assuming the priest mentioned to you that killing your wife was a sin). If you told a priest in confession that you thought about killing your wife, I think it would be the same as if you said that to a therapist – if the hearer is sure, he has to advise the authorities, but if he’s not, then he doesn’t. At least that makes sense to me. I could be off-base on this one.

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  90. Grewgills says:

    @Pinky:
    If the therapist in that situation didn’t think that the patient was going to go through with the act, then there is some ambiguity in what the reporting requirements would be. If the person commits the murder after leaving the therapists office and later at trial calls the therapist to testify what happened in that last therapy session and waives the right to doctor patient privilege, then my understanding is that the therapist could not use doctor patient privilege to forgo testifying. I think that is the relevant analogue. Apparently LA law agrees. We’ll see where it goes from here as I doubt this is the end of it.

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  91. KansasMom says:

    @Pinky: Speaking as a long ago lapsed Catholic, I fully cop to hating the church. I love many individual Catholics, both family and friends, and still find the mass beautiful in so many ways. I allow my children to attend mass when they are with my mom. Does despising an institution whose actions have grievously harmed millions over centuries make me a bigot?

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  92. Pinky says:

    @KansasMom: I don’t know if you’re a bigot. Based on this thread and the Hobby Lobby thread, I think there’s a lot of disproportionate hostility.

    There have always been bad people in the Catholic Church (myself among them). There always will be. That can’t be news to you. You’re not responsible for their actions, but you are responsible for your own. C.S. Lewis told a story about a bus that went from Hell to Heaven. The former residents of Hell got off and looked around. They saw people they recognized in Heaven and said, “He’s here? She’s here? That can’t be right. They don’t deserve it. There’s no way I’m going to spend eternity in Heaven with them.” And one by one, they got back on the bus, and demanded to be taken back to Hell….Don’t let the presence of others drive you from the Church. I made a comment earlier about justice: justice is found in giving others what they deserve. Think of the worship that God deserves and return to Mass. If you think that others are falling short, then worship God even more.

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  93. DrDaveT says:

    @Eric Florack:

    So, there’s no higher power than government, huh?

    I would be vastly entertained to see a step-by-step description of how you got from what I actually said to that ‘summary’.

    Assuming there is one, that is. I suppose it’s more likely that this was the conversational equivalent of “Hey, look — a monkey!”.

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  94. DrDaveT says:

    @Pinky:

    I think there’s a lot of disproportionate hostility.

    Imagine for a moment that the organization that perpetrated the Crusades, the Inquisition, the counter-reformation, the witch-hunts of the late Middle Ages, the systematic facilitation of massive-scale child molesting, and various other minor crimes over the last 1000 years was some secular organization in some other part of the world. How much hostility do you think would be appropriate?

    Why is this different?

    There have always been bad people in the Catholic Church

    We’re not talking about bad people in the Church. We’re talking about the Church itself — the institution, the leaders, the ethos, the deliberate plans and programmes — doing evil. For centuries.

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  95. Eric Florack says:

    @DrDaveT: Its one step, Dave. and, Pinky seems to be doing a fair job of demonstarting that point for me.

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  96. Annie says:

    Wow! Talk about lousy reporting, this article takes the cake. According to the Louisiana Court’s own ruling: “Subsequent to these three alleged confessions, the abusive acts continued. According to the allegations in the petitions and the deposition testimony in the records, subsequent meetings were had – one between the priest and Mr. and Mrs. Charlet (the alleged abuser and his wife), and another between the Charlets and the minor child’s parents . . . concerning the ‘obsessive number of emails and phone’ calls between Mr. Charlet and the minor child and the seemingly inappropriate closeness between the two that had been observed by various parishioners.”

    These attempts by Fr. Bayhi to protect the girl through meetings with both the Charlets AND the girl’s parents totally contradict the child’s assertion that the priest told her to “handle the problem” herself and to “sweep it under the rug”. This Court case is in reality just another attack on the Catholic Church for opposing the dictates of the Democratic Party of Death. The goal of our increasingly Fascist State is to bring the CC, which opposes its inhuman policies, to heel under its boot. Sorry, but It ain’t going to happen. We have a long history of choosing the lions over Caesar.

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  97. Grewgills says:

    @Annie:
    1) Louisiana is both very Catholic and conservative so your rant about Democrats is entirely off base.
    2) I have read the national, local, and Catholic reporting on this and none of them mention these alleged facts you have brought up. Do you have a cite or are you just making things up?

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  98. Annie says:

    @Grewgills:

    Apologize for your rudeness, ask me politely, and I just may provide you with the citation you request :)

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  99. Grewgills says:

    @Annie:
    You call Democrats the ‘party of death’, and inhumane fascists trying to bring Catholics under their boot and call me rude? Seriously?

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  100. DrDaveT says:

    @Eric Florack:

    Its one step, Dave.

    OK, I’ll call you on that. Let’s look at the conversation.

    I said:

    wanting to arrest and punish criminals hiding behind religious vestments is “Bigotry”?

    and you replied

    So, there’s no higher power than government, huh?

    If that’s one step, what must it be?

    Premise: It is not ‘bigotry’ to want to arrest and punish criminals who are clerics.
    Conclusion: There is no higher power than government.

    Sorry, Eric — doesn’t look like one step to me. It looks like there must be a number of intermediate principles of the form “All clerics are sincere” and “Clerics should have a separate status under the law” and “Applying the law to clerics is tantamount to claiming that there is no God” and “God would rather protect clerics than see justice done”. You can probably think of a few more. It ain’t one step. It ain’t defensible, for that matter.

    The God I believe in is not interested in protecting child molesters from justice in His name.

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