Ronald J. Colombo*
The "clergy-penitent privilege" is an evidentiary rule
derived from the common law that protects a penitents communications
with his cleric from revelation in court. Today the privilege is
recognized in the United States via statutory enactment by all fifty
states and the federal government. To what extent, however, is the
common law clergy-penitent privilege abrogated or expanded by the
First Amendment? Under modern First Amendment jurisprudence, the
Free Exercise Clause prohibits the government from regulating one's
"right to believe and profess" one's religious convictions,
or specifically targeting and regulating one's right to engage in
religious activity.(1) Conversely, "generally applicable, religion-neutral
laws that have the effect of burdening a particular religious practice"
do not violate the Free Exercise Clause.(2) As the duty to testify
is a generally applicable, religion-neutral law, it does not violate
the Free Exercise Clause. Consequently, the clergy-penitent privilege
is not constitutionally mandated.
The Establishment Clause proscribes legislation which either favors
religion over nonreligion, or which favors one particular denomination
over another. An overly broad privilege or accommodation, protecting
religious communications generally, would run afoul the Establishment
Clause's mandate that the religious not be elevated to a preferred
position over the secular; an overly narrow privilege or accommodation,
protecting only those communications made to clergy of certain denominations,
would violate the Establishment Clause's mandate that no particular
denomination be elevated to a preferred position over other denominations.
Since the Establishment Clause prohibits the government from preferencing
religion over nonreligion, the guiding principle in Establishment
Clause analysis of the clergy-penitent privilege is that privileges
similarity with other recognized privileges, such as those protecting
attorney-client or physician-patient communications. That is, if
the clergy-penitent privilege merely offers religious adherents
protections similarly afforded to nonreligious individuals engaged
in analogous activity, the privilege should withstand constitutional
scrutiny. Conversely, if the privileges protections are out
of line with those protections offered by other evidentiary privileges,
the privilege can be expected to be held unconstitutional.
Privileges are exceptions to the general duty of witnesses to testify,
reflecting society's belief that some values are "sufficiently
important . . . to outweigh the need for probative evidence."(3)
Unlike other evidentiary rules, privileges do not facilitate fact-finding,
but rather pose an obstacle to the fact-finding process, justified
on public policy grounds. For this reason, experts generally agree
that privileges should be cautiously promulgated and narrowly construed,
in order to minimize the burdens they impose upon the adjudicatory
process.(4) As such, privilege recognition requires an "imperative
need for confidence and trust" between the communicants,(5)
and the promotion of "public ends."(6)
Once recognized, a privilege is defined by two variables: the parameters
of the communication covered by the privilege, and the identity
of the party who possesses or "holds" the privilege.(7)
A privilege vests in the person with the "interest or relationship
fostered by the particular privilege," and only the possessor
of a privilege can invoke the privilege to preclude testimony, either
his own or someone elses; the witnesses and parties to the
lawsuit themselves have no say in the matter.
With the above parameters in mind, a constitutional clergy-penitent
privilege statute would: 1) define "clergy" as those religious
functionaries who are obliged by their religion to maintain the
secrecy of confidential communications made to them; 2) be available
to all penitents, regardless of whether the penitent is under an
obligation to engage in such communication; 3) extend protection
only to confidential communication between a penitent and a cleric
made under a reasonable expectation of privacy; and 4) grant the
possession of the privilege to the penitent. Each of these factors
is addressed seriatim.
The clergy-penitent privilege should extend only to those communications
a person has with a bona fide cleric, to ensure that the privilege,
as all others, is construed as narrowly as possible to achieve its
purpose. That purpose, the "public end" of the clergy-penitent
privilege, was explained well by Jeremy Bentham: "Repentance,
and consequent abstinence from further misdeeds of the like nature."(8)
Communications with nonclergy do not satisfactorily advance these
aims, and such communication should not be within the privilege's
Penitient communication with clergy should not be mandatory for
the privilege to vest. It follows that the penitent need not be
of the same religion as the cleric in question, nor a religious
believer at all. One need not believe in the efficacy of psychotherapy
in order to invoke the psychotherapist privilege, nor the sanctity
of marriage to invoke the spousal privilege. The focus of evidentiary
privileges is on the reasonable expectations of the communicant
concerning the listener's ability to maintain confidentiality. The
clergy-penitent privilege embodies society's value judgment that
clergy are in a position to dispense beneficial advice that promotes
"public ends" when approached by the confessor of a wrongdoing.
Furthermore, limiting the clergy-penitent privilege to only communications
between religiously motivated practitioners and clergy would violate
the Establishment Clause.
Confidentiality is the first element justifying a privilege's recognition,
and the privilege could not attach to communication made in the
presence of third parties. Similarly, if the circumstances of the
communication indicate a lack of concern with maintaining confidentiality,
the privilege could be deemed waived. This confidentiality requirement
imposes further limits on the privilege: only that communication
which a cleric is prohibited by the dictates of his religion from
disclosing should be deemed privileged. In the absence of such an
obligation on the part of the cleric, the privilege's claimant (the
penitent) cannot argue that confidentiality was both truly expected
and necessary. For example, a promise by a physician, psychotherapist,
or attorney to keep one's communication confidential is more than
a mere personal promise, but rather a promise backed by unspoken,
but presumed, professional obligations enjoining such confidentiality.
(Of the widely recognized privileges, only the husband-wife privilege
does not explicitly contain this characteristic). Similarly, only
communications made where the clerics confidence is required
by the cleric's religion satisfies this requirement, and only those
communications ought to be considered privileged.
The clergy-penitent privilege should belong to the penitent, for
it is his communication that society wishes to encourage and protect.
For this same reason, the client holds the attorney-client privilege,
and the patient holds the physician-patient privilege.
While beneficial toward promoting religious liberty, the clergy-penitent
privilege is at the same time inadequate in the protection it provides
for clergys own religious duties. Commonwealth v. Kane(9)
exemplifies the problem with this situation. In Kane, a Roman Catholic
priest refused to testify to communications made to him by the defendant,
who had waived his rights to the privilegemaintaining that
he had confessed nothing inculpatory, wanting the priest to corroborate
thisand consented to the disclosure of the communications
in question. The court held that the right to assert the privilege
was defendant's only, and the priest was held in contempt for refusing
to violate the dictates of his religion, which forbade him from
revealing the confidences made to him.
While the Kane court correctly construed the clergy-penitent privilege
statute it was faced with, its decision makes clear the inadequacy
of the privilege alone. The solution lies in accommodating clergy
whose religions prevent them from testifying under certain circumstances,
via a "clergy testimonial accommodation" that would permit
clergy to refuse to testify to communications which their religions
bind them to keep silent.
While not constitutionally required, this recognition is constitutionally
permissible, and essential if we wish to remain faithful to the
principles underlying the First Amendment. The Supreme Court has
held that the government may legislate with "benevolent neutrality
which will permit religious exercise to exist without sponsorship
and without interference."(10) Such action is referred to as
the "accommodation" of religion. Only those accommodations
that remove a government-imposed burden that have adisproportionate
impact on the sincere practice of religion are constitutional.(11)
The distinction is between lifting a government imposed burden which
particularly impacts a specific religious group, versus conferring
on a particular religious group a special benefit to which all other
groups (religious or nonreligious) have an equal claim.(12) An example
of a legitimate accommodation would be permitting the religious
use of alcohol in a jurisdiction that otherwise prohibits the use
of alcohol.(13) While all who wish to consume alcohol would be affected
by the prohibition, those who wish to consume alcohol for religious
purposes would be disproportionately affected, and thus an accommodation
for such use does not preference religion, but rather recognizes
and seeks to correct this disproportionate impact. Such an accommodation,
by definition, does not violate the First Amendment.
Unlike the clergy-penitent privilege, a testimonial accommodation
would permit clergy to refuse to testify if their religions prevented
them from doing so, regardless of the intentions of their penitents.
This divergence results from the different interests involved: that
of accommodating the exercise of religion versus that of encouraging
potential witnesses to seek counseling. In the latter case, the
focus is on the penitent, and his ability to obtain effective counseling;
the personal interests of the particular counselor are irrelevant.
In the former case, the focus is on protecting the free exercise
of religion, an interest which does not depend upon one's role in
a particular conversation, but rather upon one's claim that the
state is interfering with the practice of religion. Therefore, unlike
the clergy-penitent privilege, the clergy may invoke the testimonial
accommodation, so long as clerics can show that testifying at trial
would violate the dictates of their religion. Proper clergy testimonial
accommodation would not violate the Establishment Clause because
it removes a government imposed burden that has a disproportionate
impact on the practice of particular religions. Accommodation of
these religious obligations, therefore, is not a preference of the
clerics interests, but rather addresses the disproportionately
burdensome application of the law upon his practice of religion.(14)
In sum, while the Constitution neither requires nor prohibits the
protection of clergy-penitent communication, it does address the
matter. Once protection is granted, it may be neither too generous
nor too parsimonious, for legislation which either unduly preferences
religion generally, or which picks and chooses specific denominational
practices for special favor, is unconstitutional. Furthermore, the
framers of the Constitution intended for generous accommodation
of religion, and therefore accommodation of clergy on the receiving
end of penitential communication would serve to fulfill the intent
of the Constitution.
*Ronald J. Colombo is a third-year law student at New York University
and a member of the Law Review. He will be clerking for Judge Jerry
E. Smith of the Fifth Circuit Court of Appeals next year. He is
a member of the Federalist Society Chapter at NYU, and one of the
organizers of the National Student Symposium of March 6-7. A full
treatment of this topic will appear in the April issue of the New
York University Law Review (Vol. 73, No. 1).
- See Employment Division, Dept of Human
Resources v. Smith, 494 U.S. 872, 877 (1990); see also Church
of Lukumi Babalu Aye, Inc., 508 U.S. at 531-32 (1993) (applying
Smith test in holding that ordinance directed at suppressing Santeria
religious activity was not neutral and therefore violated the
Free Exercise Clause).
- Smith, 494 U.S. at 886, n.3.
- Trammel v. United States, 445 U.S. 40, 51
(1980) (discussing recognition of privileges); see generally McCormick
on Evidence § 72 (John William Strong, gen. ed., 4th ed.
- See Trammel v. United States, 445 U.S. 40,
50-51 (1980); see also McCormick at § 74; 8 Wigmore on Evidence
§ 2192 (McNaughton rev. 1961) ("Wigmore") (privileges
"should be recognized only within the narrowest limits required
- Jaffee, 116 S. Ct. at 1928 (quoting Trammel,
445 U.S. at 51).
- See id. at 1929 (quoting Upjohn Co. v. United
States, 449 U.S. 383, 389 (1981)). The traditional expression
of the requirements needed for privilege recognition were set
forth in 8 Wigmore at § 2285. Privacy rationales have been
advanced to justify the recognition of evidentiary privileges.
See generally "Modes of Analysis: The Theories and Justifications
of Privileged Communications, in Developments in the Law -- Privileged
Communications," 98 Harv. L. Rev. 1471, 1481-83 (1985) (discussion
on "The Privacy Rationale"). Under the privacy rationale,
a witnesss privacy interest would be balanced against societys
interest in compelling disclosure to ascertain the truth. Such
an approach essentially reduces the analysis to a cost-benefit
test, and readily folds into Wigmores traditional approach,
and the approach taken by the Supreme Court in Trammel. Id.
- See Trammel, 445 U.S. at 51; see also United
States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir. 1985).
- Jeremy Bentham, 4 Rationale of Judicial Evidence
- 445 N.E.2d 598 (Mass. 1983).
- Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S.
327, 334 (1987).
- The Supreme Court has repeatedly declared
that the "limits of permissible state accommodation to religion
are by no means co-extensive with the noninterference mandated
by the Free Exercise Clause." Corporation of the Presiding
Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327, 334 (1987); see also Texas Monthly, Inc. v. Bullock,
489 U.S. 1, 18 n.8.. Therefore, although the Free Exercise Clause
is limited to forbidding legislation that intentionally regulates
religious practice or belief, and mandating exemptions from laws
which implicate the Free Exercise Clause "in conjunction
with other constitutional protections," Smith, 494 U.S. at
876-877, 881, religious accommodations reaching beyond these narrow
parameters are permissible. Court precedent, however, suggests
that such accommodations may not reach far beyond these parameters,
and are indeed linked to the very conduct protected by the Free
Exercise Clause. See, e.g., Corporation of the Presiding Bishop
of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483
U.S. 327 (1987) (upholding constitutionality of Section 702 of
the Civil Rights Act exempting religious organizations from Title
VIIs prohibition on employment discrimination); compare
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (striking down
sales tax exemption exclusively for religious periodicals unconstitutional);.
Thornton v. Caldor, Inc., 472 U.S. 703 (1985) (striking down statute
which "guaranteed employees the right not to work on the
Sabbath of their religious faith).
- See Board of Educ. of Kiryas Joel Village
Sch. Dist. v. Grumet, 114 S. Ct. 2481, 2492-93(1994) (holding
that "the Constitution allows the state to accommodate religious
needs by alleviating special burdens . . . [but does not allow]
an otherwise unconstitutional delegation of political power to
a religious group"); cf. Christopher L. Eisgruber & Lawrence
G. Sager, "The Vulnerability of Conscience: The Constitutional
Basis for Protecting Religious Conduct" 61 U. Chi. L. Rev.
1245, 1282-1301 (1994) (proffering an "equal regard"
approach to religious exemptions).
- Kiryas Joel, 114 S. Ct. at 2495 (1994) (OConnor,
- Many commentators insist that the First Amendment
should apply to both religious and secular conscience. See, e.g.,
Tom Stacy, "Death, Privacy, and the Free Exercise of Religion,"
77 Cornell L. Rev. 490, 562-565 (1992) (arguing that Free Exercise
Clause should apply to secularly-motivated action regarding "religious
questions" such as abortion and euthanasia). Under this formulation,
a burden upon religious practice would not be considered disproportionately
burdensome to that placed upon conduct motivated by deeply-held,
secularly-motivated values. Such an approach should be rejected,
for it is inconsistent with both the Supreme Courts current
direction and the framers intent. See id. at 562 (noting
Supreme Courts retreat from "a definition of religion
that encompasses a nonbelievers responses to quintessentially