We’re familiar with politicians who would bend over backwards to protect television and newspaper reporters from having to disclose to law enforcement agents, judges, other officials, or, indeed, anyone, who leaked classified documents to them.
That’s the case even when such leaks are on-going, and the intelligence and military actions that they are exposing may also be on-going.
Most Americans have a general idea that there are rules that protect certain people from having to disclose information that is imparted to them because such “privileges” generally serve valid and important legal and community purposes.
Privileges Protect Valuable Relationships
Thus, besides the “reporter’s privilege,” there is the “attorney-client” privilege that shields information that one confides to one’s lawyer; the “spousal privilege” that shields information that one confides to one’s spouse; and a number of others.
All of these privileges have one thing in common: A general recognition that the integrity of the relationship being protected (such as that between client and lawyer, husband and wife, patient and doctor) is of far greater value to humanity than would be the information pried out of it.
Many of these privileges are very old, dating back centuries, and were known at the common law that Americans inherited from England. Thus, some of them are inherent in the principles of “due process of law” that were safeguarded in our Federal and State constitutions.
One of the very oldest of these privileges is the “seal of the confessional,” or the “priest-penitent” or “clergy” privilege.
What one tells one’s rabbi, priest, or minister as part of a religious process aimed at accounting for one’s sins and “getting right with God” has long been insulated from coerced disclosure by police and government officials.
Indeed, many denominations enforce silence on the cleric: Disclosure is not permitted with or without a court or government order. Catholic canon law, for example, automatically excommunicates a priest who violates the seal of the confessional. That is, a priest who discloses what a penitent confesses is not only deprived of his right to communion with his church; he stops being a priest.
Fr. John Nepomucene, Rabbi Judah Loewe
The Catholic Church historically celebrates priests who valiantly preserve secrets confessed to them.
A classic case in point was that of Father John Nepomuk, also known as John Nepomucene, a Catholic priest in Bohemia (now part of the Czech Republic) who once heard the confession of the Queen of Bohemia. Her husband, the then-reigning King Wenceslas IV (decidedly not the “Good King Wenceslas” of song and legend), called Fr. John before him and demanded to know what his wife had said in the confessional. Fr. John refused to answer. The king ordered Fr. John drowned in the Vlatava River in Prague if he would not relent and disclose what the queen had said. Fr. John continued to insist that the seal of the confessional was inviolable. The king sent Fr. John in chains to the river. All the man had to do to go free was say what the queen had said to him in the confessional. Fr. John refused. The king’s men drowned him. Fr. John was murdered in 1393 and was canonized as St. John Nepomucene in 1729 as “the patron saint of the confessional” (and also of drowning persons).
The case of John Nepomucene was well known to the framers of the U.S. Constitution in 1787 and the Bill of Rights in 1789.
One of history’s most famous rabbis, Rabbi Judah Loewe, a 16th-century religious leader coincidentally also from Prague, also defended the seal of the confessional. At the same time Rabbi Judah taught that among the things a good confessor should sometimes do in privacy is to urge the penitent, when necessary and appropriate, to make public disclosure of his sin and to atone publicly for it. But, he pointed out, these are conversations that a minister could never have with penitents if they were not private and privileged in the first place.
Washington State Seeks to Dissolve the Seal
A surfeit of good intentions recently led the legislature of Washington State to pass legislation that would dissolve the seal of the confessional.
They justify this burden upon religion on the theory that it will make it easier for government to deal with cases of “neglect or abuse of a child” if clergy must report any evidence they obtain of such problems, even if they learn of it in the context of private confessions of sin undertaken for expressly religious and sacramental purposes.
The horribles that the well-intentioned legislators spoke most often about were cases of sexual abuse.
But laws against neglect or abuse of children also include failure properly to care for them. Thus, when a parent tells a priest in the confessional that she sinned at times in her life when her poverty may have made her incapable of feeding or clothing her child as she would have wanted, she may also be admitting to “child abuse”.
Rather than give that parent prayerful guidance, or even practical assistance (such as making a referral to a food pantry or a social service agency), the Washington legislature wants that priest to leave the confessional and call the police (or a child protective service).
“Mandatory reporting” laws already direct people in certain professions, such as police officers, licensed psychologists, probation officers, and others to report if they see evidence that a child is being abused or neglected. Such obligations can be imposed upon members of the clergy in their interactions with people outside the confessional.
Indeed, the laws of most States — and the canon law of the Catholic Church itself — will protect the priest who discloses information that he has learned in the course of a confession if disclosure will lead to the prevention of an act that would lead to the death or bodily harm of anyone. If a person confesses to a priest, for example, that he plans to commit a rape, a murder, or suicide, the priest does not have to remain silent if by speaking up he can prevent the act.
But that is far different from adopting legislation that dissolves the seal of the confessional and that allows police to compel clergy to disclose anything and everything they learn that could be characterized as an admission of child abuse or neglect.
Interestingly, when offered the possibilities of expanding this statute to dissolve such privileges as the attorney-client privilege, the doctor-patient privilege, or the reporter’s privilege — for the same benevolent ends — the Washington legislature declined to do so. Its target remains exclusively the clergy.
Clergy in the crosshairs: A sign of our times.
If unchallenged, the Washington State law will go into effect before the end of July.
Lawsuit Aims to Defend Religious Liberty
A lawsuit was brought on May 29, 2025, by the Catholic Archbishop of Seattle, Paul D. Etienne, and several other Catholic bishops and priests in Washington State, against Robert W. Ferguson, the Governor of Washington, and other Washington State officials, challenging the statute as an unconstitutional burden on the Free Exercise of Religion, prohibited by the First and Fourteenth Amendments of the United States Constitution.
Their counsel include William Crowley of Seattle; Matthew Martens and other lawyers from the Washington, D.C., and other offices of Wilmer, Cutler, Pickering, Hale and Dorr; and Mark Rienzi and other lawyers from the Becket Fund for Religious Liberty.
Mr. Martens served under President George W. Bush as the Chief of Staff of the Criminal Division at the U.S. Department of Justice.
A copy of their complaint is here.
Last week U.S. Attorney General Pam Bondi and Assistant Attorney General Harmeet Dhillon, the head of the Civil Rights Division of the U.S. Department of Justice, intervened in the lawsuit on the side of the clergy.
A copy of their complaint is here.
During the time that I was Assistant Attorney General under Attorney General Edwin Meese (during the Presidency of Ronald Reagan), Mr. Meese undertook systematic reviews of the guidance and instructions that were given to lawyers representing the United States, including in prosecuting criminal cases. I saw the intense and meticulous attention that he paid to such matters. Although Mr. Meese was justly reputed to be a tough “crime-fighter,” he always insisted that Government lawyers meticulously respect constitutional and common law privileges, including the attorney-client privilege and the seal of the confessional.
It is heartening to see Attorney General Bondi and today’s Justice Department also rising in defense of religious liberty.