Ronald J. Colombo*

The "clergy-penitent privilege" is an evidentiary rule derived from the common law that protects a penitent’s 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 privilege’s 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 privilege’s 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 else’s; 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 purview.

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 cleric’s 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 clergy’s 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 privilege—maintaining that he had confessed nothing inculpatory, wanting the priest to corroborate this—and 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 cleric’s 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).

1. See Employment Division, Dep’t 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).
2. Smith, 494 U.S. at 886, n.3.
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. 1992) ("McCormick").
4. 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 by principle")
5. Jaffee, 116 S. Ct. at 1928 (quoting Trammel, 445 U.S. at 51).
6. 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 witness’s privacy interest would be balanced against society’s interest in compelling disclosure to ascertain the truth. Such an approach essentially reduces the analysis to a cost-benefit test, and readily folds into Wigmore’s traditional approach, and the approach taken by the Supreme Court in Trammel. Id.
7. See Trammel, 445 U.S. at 51; see also United States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir. 1985).
8. Jeremy Bentham, 4 Rationale of Judicial Evidence 589-91 (1827).
9. 445 N.E.2d 598 (Mass. 1983).
10. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987).
11. 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 VII’s 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).
12. 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).
13. Kiryas Joel, 114 S. Ct. at 2495 (1994) (O’Connor, J., concurring).
14. 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 Court’s current direction and the framers’ intent. See id. at 562 (noting Supreme Court’s retreat from "a definition of religion that encompasses a nonbeliever’s responses to quintessentially religious questions).