THE FIRST AMENDMENT BASIS FOR THE CLERGYMAN-COMMUNICANT PRIVILEGE

1. INTRODUCTION




Communications between clergyman and parishioners frequently are personal and sensitive. All fifty U.S. states have adopted statutes providing that at least some of these communications are privileged. Today, the so-called clergyman-communicant privilege, priest-penitent privilege, or the like most frequently arises in the context of divorce proceedings and criminal (primarily child abuse) and ministerial misconduct cases. The applicability of the privilege is complicated when the minister is a trained psychologist or secularly licensed counselor required by state law to report child abuse.¹ Many of these issues are beyond the scope of this white paper, which addresses solely the grounding of the clergyman-communicant privilege in church autonomy principles.

2. DISCUSSION



1. The Most Fundamental Basis of the Clergyman-Communicant Privilege is the Church Autonomy Doctrine.




Although modern courts do not recognize it, the clergyman-communicant privilege is best understood as grounded in church autonomy principles. The church autonomy doctrine recognizes that the church, with respect to ecclesiastical matters, possesses a sphere of authority into which the state may not intrude.² The earliest and most influential case acknowledging the clergyman-communicant privilege was People v. Phillips,³ where the Court of General Sessions of the City of New York refused to compel a priest to testify or face criminal punishment. The Court opined:

It is essential to the free exercise of a religion, that its ordinances should be administered-that its ceremonies as well as its essentials should be protected. The sacraments of a religion are its most important elements. We have but two in the Protestant Church-Baptism and the Lord's Supper-and they are considered the seals of the covenant of grace. Suppose that a decision of this court, or a law of the state should prevent the administration of one or both of these sacraments, would not the constitution be violated, and the freedom of religion be infringed? . . . Will not the same result follow, if we deprive the Roman catholic [sic] of one of these ordinances? Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance; and this important branch of the Roman catholic [sic] religion would be thus annihilated.⁴

More recently, the U.S. Supreme Court stated in dicta that the evidentiary privileges protecting private communications between a "priest and penitent, attorney and client, and physician and patient . . . are rooted in the imperative need for confidence and trust."⁵ In particular, "[t]he priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return."⁶ Although true, the jurisprudential basis for the privilege is anchored more deeply in the First Amendment.⁷

Disagreement persists over whether the doctrine of church autonomy derives from the Establishment Clause, the Free Exercise Clause, or both Religion Clauses;⁸ however, the better reasoned position is that it stems from the Establishment Clause, because the latter acts not to confer rights, but rather to restrain governmental power.⁹ Carl Esbeck put it this way:

An important consequence of attributing structural characteristics to the Establishment Clause is that it acknowledges the existence of a competency centered in religion that is on a plane with that of the civil government. Stated differently, the Establishment Clause presupposes a constitutional model consisting of two spheres of competence: government and religion. The subject matters that the Clause sets apart from the sphere of civil government-and thereby leaves to the sphere of religion-are those topics "respecting an establishment of religion," e.g., ecclesiastical governance, the resolution of doctrine, the composing of prayers, and the teaching of religion.¹⁰

Thomas Jefferson made similar observations:

I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, and exercise. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government.

. . . Every religious society has a right to determine for itself the times for [it religious] exercises, & the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the constitution has deposited it.¹¹




As alluded to in Phillips, a number of hierarchical churches impose an absolute clerical vow of silence concerning confessional communications, sometimes unaffected by waiver of the penitent himself.¹² Other churches not subject to canon law also require that communications be kept confidential. The church autonomy doctrine dictates in both of these scenarios, but especially in the former, that courts not interfere with the disciplines of the church.¹³

2. Statutory Enactments of the Clergyman-Communicant Privilege




A debate exists about whether the clergyman-communicant privilege existed at common law prior to the Reformation.¹⁴ Phillips established this privilege prior to any statutory enactment in the United States. The first statute to codify the clergyman-communicant privilege was New York's in 1828.¹⁵ By 1904, 25 states had enacted a statutory privilege.¹⁶ Today, all fifty states and the District of Columbia have enacted a statutory privilege,¹⁷ recognized under federal law through Fed.R.Civ.P. 501.¹⁸ The scope of the statutory privilege varies widely along three primary axes: (1) who statutes define as a member of the clergy, (2) who statutes allow holds the privilege, and (3) when statutes acknowledge the privilege applies.¹⁹ Good advocacy seeks to broaden the applicability of the statutory enactments in light of church autonomy principles and other law.

1. Most State Statutes Do Not Identify Who Qualifies as a "Member of the Clergy."




Although a few statutes attempt to list by title those clergy included in the privilege,²⁰ state legislatures generally have left to the courts the task of identifying whom qualifies as a clergyman.²¹ Ministers performing sacerdotal functions nearly always qualify,²² whereas a split of opinion exists on, for example, elders²³ and nuns.²⁴ Some statutory privileges apply solely to ordained ministers.²⁵ To our knowledge, the clergyman-communicant privilege had not been applied until the 1980s to a cleric for a non-Western religion,²⁶ even though the same principles ought to apply to all clerics.

2. Most State Statutes Do Not Specify Who Holds the Privilege.




In twenty-five states, the clergyman-communicant statutory privilege does not clearly indicate who holds the privilege.²⁷ In seventeen states, the penitent's right to hold the privilege is clearly stated.²⁸ In only six states, both a penitent and a member of the clergy are expressly allowed by the statute to hold the privilege.²⁹

Doctrinally, this is backwards. In these circumstances and others where the clergyman is required as a matter of religious law to maintain confidentiality,³⁰ the privilege directly affects a religious obligation of the one giving and receiving the communication, as opposed to merely the client in the attorney-client relationship and patient in the doctor-patient relationship.³¹

Cardinal Bevilacqua, the Catholic archbishop of Philadelphia, explained that "although the good of the penitent is the 'obvious' purpose of sacramental confession, '[t]he other, more fundamental, purpose of the sacramental seal is the protection of the Sacrament of Penance itself.'"³² Accordingly, the privilege should belong either exclusively to the clergyman or to both the clergyman and communicant in a fashion requiring their concurrent agreement to render any waiver of the privilege effective.

To our knowledge, no court has directly found thus based solely on the First Amendment. Two courts declined to reach the question.³³ One court stated that its common law analysis finding communications made by or to a member of the clergy in his or her religious capacity privileged from disclosure (whether the disclosure was sought from the clergyperson or communicant) heavily influenced by the First Amendment.³⁴ The Supreme Court of New Jersey found that its statutory clergyman-communicant privilege was held solely by the clergyperson, because legislative history revealed a deep desire "to protect the clergyperson's free exercise of religion" and "curb the potential manipulations of a penitent who, through wavier, could compel a clergyperson to reveal communications that were given purposely to mislead."³⁵ Two other courts refused to find that disclosing information not received in a confessional setting interfered with the religious observance of a nun and bishop.³⁶

Pagano v. Hadley distinguished the applicability of church autonomy principles asserted by a bishop in opposition to the disclosure of a priest's personnel file on the grounds that church autonomy principles merely prevent courts from deciding intrachurch disputes or "intervene on behalf of groups espousing particular doctrinal beliefs."³⁷ Ironically, the underlying action was a civil rights-defamation proceeding by a priest against his bishop.³⁸ Interference with the confessional and other confidential communications certainly qualifies as intermeddling with intrachurch doctrine and practice.

3. The Clergyman-Communicant Privilege Applies Whenever the Clergyman is Acting in His Professional Capacity.

   A few years after Phillips was decided, People v. Smith distinguished the case on the grounds that the defendant had approached the minister as a "friend or adviser," not in his capacity as a professional or spiritual advisor.³⁹ As with most privileges, a debate still exists about the circumstances under which the clergyman-communicant privilege applies. The capacity in which the clergyman is acting at the time of the communication is relevant in many jurisdictions.⁴⁰ Few jurisdictions inquire whether the nature of the communication was penitential,⁴¹ but courts often expect the advice to be generally spiritual in character.⁴² In some jurisdictions, communications relating to "counseling" are also expressly protected.⁴³

   According to the Court of Appeals of New York, "The common thread in these cases [finding some types of clergy-communicant communication not privileged] is that the privilege may not be invoked to enshroud conversations with wholly secular purposes solely because one of the parties to the conversation happened to be a religious minister."⁴⁴ Another court said, the test to determine which non-penitential communications are privileged is whether, according to the practices of a particular church, the clergyman is expected to keep confidential communications from the members of the church.⁴⁵




3. Additional Grounds for Challenging State-Mandated Disclosure of Clergy-Communicant Communications Exist

   Additional grounds for challenging state-mandated disclosure of clergy-communicant communications beyond the church autonomy doctrine exist including, where applicable, federal RFRA, state RFRA, RLUIPA, hybrid rights, ^Sherbert exemption, and state constitutional claims. In Mockaitis v. Harcleroad, the Ninth Circuit held that the act of tape recording a confession substantially burdened the rights of a priest and archbishop to freely exercise the Roman Catholic religion under the Religious Freedom Restoration Act (RFRA), and rejected the State's argument that the taping was in furtherance of a compelling governmental interest pursued in the least restrictive means.⁴⁶ The Court said, "[T]he ordinary means of proving a case by good police work were 'the least restrictive means' of furthering the prosecutor's desirable goal."⁴⁷

   As applied to federal law (not state law), federal RFRA remains constitutional.⁴⁸ State RFRAs have also been passed in many jurisdictions and apply to state and local laws. At least in those situations where the communicant wants to claim the clergyman-communicant privilege, the Religious Land Use and Institutionalized Persons Act (RLUIPA) also requires the government to prove that a substantial burden imposed on the religious exercise of an institutionalized person furthers a compelling interest pursued in the least restrictive means.⁴⁹

   In addition, Employment Div. v. Smith⁵⁰ preserved the applicability of the compelling interest test in so-called hybrid rights situations where a Free Exercise right and other constitutional right are concurrently infringed and, less clearly, under the Sherbert v. Verner⁵¹ line of cases involving a number of exemptions to a generally applicable law. A number of circuits have upheld hybrid rights theory;⁵² however, the impact has been negligible when the hybrid right was free speech and free expression.⁵³ Some state equivalents of the Free Exercise Clause also have been interpreted to require the state to showing a compelling interest pursued in the least restrictive means to infringe religious expression.

   In Mockaitis, the Ninth Circuit also found that the priest and archbishop had a well-established reasonable expectation of privacy, based on Oregon's clergyman-communicant privilege and the "history of the nation" revealing "uniform respect for the character of sacramental confession."⁵⁴ Other courts have rejected the applicability of the right to privacy outside of the marital relationship.⁵⁵ Grounding the clergyman-communicant privilege in church autonomy principles is a much stronger approach.




3. CONCLUSION




A remarkable number of cases have forced clergyman to choose between violating a religiously compelled rule of confidence or violating secular judicial process. The First Amendment was intended to enable clergymen to avoid these conflicts and prevent the courts from dictating religious duties. Church autonomy principles are the most solid doctrinal basis for reaching this result; however, courts have never recognized that the privilege belongs to clergy on strictly constitutional grounds. Good advocacy should include this claim and, where applicable, assert additional bases for the privilege, such as federal RFRA, state RFRA, RLUIPA, hybrid rights, Sherbert exemption, and state constitutional claims.

¹ See, e.g., People v. Burnidge, 664 N.E.2d 656 (Ill.App. 1996), aff'd, 687 NE 2d 813 (Ill. 1997); Scott v. Hammock, 133 F.R.D. 610 (D. Utah 1990); J. Michael Keel (Comment), Law and Religion Collide Again: The Priest-Penitent Privilege in Child Abuse Reporting Cases, 28 CUMB. L. REV. 681 (1997-98).

² See Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA L. REV. 1 (1998).

³ The case was not officially reported, but set forth by one of the attorneys who participated as amicus curiae and reprinted in WILLIAM SAMPSON, THE CATHOLIC QUESTION IN AMERICA (1813). The case was reprinted again in Privileged Communications to Clergymen, 1 CATH. LAW. 199 (1955) [hereinafter Privileged Communications].

⁴ Privileged Communications, supra note 3, at 207. This case and Commonwealth v. Cronin, 1 Q. L. J. 128 (Va. Richmond Cir. Ct. 1856), hinged on interpretation of the state constitutional equivalent of the Free Exercise Clause and interpreted their provisions as protecting religious claimants from the operation of generally applicable law. See also Totten v. United States, 92 U.S. 105 (1875) (stating in dicta prior to statutory enactments of the clergyman-communicant privilege, "[S]uits cannot be maintained which would require a disclosure of the confidences of the confessional. . . ."). Two other cases rejected this interpretation, concluding that requests for religious accommodation raise "considerations of policy" that should be addressed to the legislature. See Commonwealth v. Drake, 15 Mass. 161 (1818) (rejecting claim for free exercise exemption on the facts) (discussed in Michael W. McConnell, The Problem of Singling Out Religion, 50 DEPAUL L. REV. 1, 1-2 (2000)).

⁵ Trammel v. United States, 445 U.S. 40, 51 (1980).

⁶ Id.

⁷ See 1 MCCORMICK ON EVIDENCE § 76.2 (4th ed.) ("A firmer ground" than Wigmore's utilitarian reasons for recognizing the clergyman-communicant privilege "appears available in the inherent offensiveness of the secular power attempting to coerce an act violative of religious conscience."). Accord 2 MUELLER & KIRKPATRICK, FEDERAL EVIDENCE (2d ed.) § 211. Both are quoted in Rosado v. Bridgeport Roman Catholic Diocesan Corp., 1995 WL 348181, *14 (Conn.Super. 1995). See also State v. Szemple, 640 A.2d 817, 830 (N.J. 1994) ("The principle underlying both the seal of confession and the statutory privilege was not concern for the penitent but rather concern that the clergyperson would be compelled in violation of his or her religious vows to disclose such confidences."), superseded by statute as recognized in Corsie v. Campanalonga, 721 A.2d 733 (NJ.Super. 2000).

⁸ See, e.g., Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in North America, 344 U.S. 94, 107 (1952) (church autonomy doctrine is a Free Exercise value); Meek v. Pittenger, 421 U.S. 349 (1975) (church autonomy doctrine is a non-establishment value), Presbyterian Church in U.S. v. Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969) (church autonomy doctrine is a value which springs both from the Free Exercise Clause and anti-entanglement prong of Establishment Clause jurisprudence).

⁹ Esbeck, supra note 2, at 8-10.

¹⁰ Id. at 10. Accord Commonwealth v. Drake, 15 Mass. 161 (1818) (rejecting claim for free exercise exemption on the facts).

¹¹ Thomas Jefferson Letter to Rev. Samuel Miller (1808) from THOMAS JEFFERSON: WRITINGS, 1186-87 (Merrill D. Peterson ed. 1984).

¹² Church of Jesus Christ of Latter-Day Saints v. Superior Court In and For Maricopa County, 159 Ariz. 24, 32, 764 P.2d 759 (Ariz.App. 1988) (discussing the Catholic Church's Codex Juris Canonici, §§ 889, 890, and 2369 and Episcopal Church's Sacrament of Penance)). The American Lutheran Church also "adopted a resolution that the pastor hold inviolate and disclose to no one the confessions and communications made to him as a pastor without the specific consent of the person making the communication." (cited in Szemple, 640 A.2d. at 826). "Similarly, the Presbyterian Church in the U.S., the United Presbyterian Church, and the American Baptist Convention have adopted policy statements strongly affirming the inviolability of religious confidentiality." (Id.)

¹³ At least one commentator argues that the clergyman-communicant privilege violates the Establishment Clause under the Lemon test because the privilege lacks a secular legislative purpose and demonstrates favoritism toward religion. See Chad Horner (Note), Beyond the Confines of the Confessional: The Priest-Penitent Privilege in a Diverse Society, 45 DRAKE L. REV. 697, 723-24 (1997). Under this line of reasoning, whenever legislatures exempt religion from generally applicable laws, they would unconstitutionally establish religion. This position has been categorically rejected by appellate courts including the U.S. Supreme Court in a wide variety of circumstances. See, e.g., Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) (exemption for religious organizations from Title VII constitutional; court stated that it "´has long recognized that the government may . . . accommodate religious practices . . . without violating the Establishment Clause'"). Accord McConnell, supra note 4.

¹⁴ Michael J. Mazza (Comment), Should Clergy Hold the Priest-Penitent Privilege? 82 MARQ. L. REV. 171 n.175-77 (1998) ("[P]erhaps the most accurate conclusion one can draw is that whether the privilege existed under English common law 'has never been solemnly decide.'").

¹⁵ 26 CHARLES A. WRIGHT & KENNETH A. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5612, 46-47 n.152 (1992) (New York's 1828 statute provided: "No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.")

¹⁶ Id. § 5612, at 47.

¹⁷ For a list of the statutes, see Mazza, supra note 14 at n.75 -

¹⁸ Concerning application of the privilege under federal common law, see, e.g., In re Grand Jury Investigation, 918 F.2d 374 (3rd Cir. 1990) (privilege should apply to protect communications made to clergyperson in his or her spiritual and professional capacity with reasonable expectation of confidentiality); United States v. Dube, 820 F.2d 886, 890 (7th Cir. 1987) (acknowledging privilege, but holding that it did not apply to communications made to clergyman to obtain assistance in avoiding tax obligations); United States v. Gordon, 655 F.2d 478 (2d Cir. 1981) (acknowledging privilege, but finding it inapplicable to business communications to priest); Mullen v. United States, 263 F.2d 275, 280 (D.C. Cir. 1958) ("Sound policy-reason and experience-concedes to religious liberty a rule of evidence that a clergyman shall not disclose on a trial the secrets of a penitent's confidential confession to him, at least absent the penitent's consent."); Eckman v. Board of Educ., 106 F.R.D. 70, 72 (E.D. Mo. 1985) (claiming that the privilege has "clearly been recognized by federal courts"); In re Verplank, 329 F.Supp. 433 (C.D. Cal. 1971) (draft counseling services when rendered by a clergyman were performed with the course of his function as a clergyman and were privileged; privilege extended to counseling staff members who were not ordained ministers). Cf. Seidman v. Fishburn-Hudgins Educational Found., 724 F.2d 413 (4th Cir. 1984) (relative could not invoke privilege on decedent's behalf and observing that privilege "has no firm foundation in common law").

¹⁹ See Mazza, supra note 14; Who is 'Clergyman' of the Like Entitled to Assert Privilege Attaching to Communications to Clergymen or Spiritual Advisers, 49 A.L.R.3d 1205 (1973).

²⁰ See, e.g., Ga. Code Ann. 24-9-22 (1995) (extending privilege to Protestant ministers, Roman Catholic or Greek Orthodox priests, Jewish rabbis, and Christian or Jewish ministers "by whatever name called'); N.Y. C.P.L.R. 4505 (Consol. 1978) (defining a "member of the clergy" as a "clergyman or other minister of any religion or duly accredited Christian Science practitioner"); Tenn. Code Ann 24-1-206 (Supp. 1997) (providing that "no minister of the gospel, no priest of the Catholic Church, no rector of the Episcopal Church, no ordained rabbi, and no regular minister of religion of any religious organization or denomination usually referred to as a church" be allowed or required to testify under certain conditions; an imposing criminal penalties on violators of this ban); Wis. Stat. 905.06(1)(a) (1995-96) (defining a "member of the clergy" as "a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting the individual.").

²¹ See Mazza, supra note 14, at 183-84. An enumeration of eligible clergymen would itself raise first amendment concerns. See In re Grand Jury Investigation, 918 F.2d at n.14; State v. MacKinnon, 957 P.2d 23 (1998) (to minimize the risk that the clergyman-communicant privilege might be discriminatorily applied because of differing judicial perceptions of a given church's practice or religious doctrine, the court decided upon a broad interpretation of the clergy-penitent privilege)

²² Proposed Fed. R. Evid. 506(a)(1), still deemed "a useful reference point" in "defining the existence and scope of evidentiary privileges in the federal courts," In re Grand Jury Investigation, 918 F.2d at 380, provided that a "clergyman" is a "minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him." (quoted by Id. at n.13).

²³ Compare Reutkemeier v. Nolte, 179 Iowa 342, 161 N.W. 290 (1917) (elders of a Presbyterian church were ministers of the gospel within the meaning of the privilege statute) with Knight v. Lee, 80 Ind. 201 (1881) (clergyman-communicant privilege was not applicable to an individual who was an elder and deacon of the Christian Church).

²⁴ Compare In re Murtha, 279 A.2d 889 (N.J. Super. Ct. App. Div. 1971) (holding Catholic nun in contempt of court for refusing to testify about a communication to her; privilege did not apply to her on two grounds: (1) Catholic doctrine and practice concerning the nun's activities and (2) the legislative history surrounding the expansion of the New Jersey privilege) with Eckmann v. Board of Educ. of Hawthorn School Dist. No. 17, 106 F.R.D. 70, 72-73 (E.D. Mo. 1985) (communication to a nun was privileged because she was acting in her capacity as a spiritual advisor); Masquat v. Maguire, 638 P.2d 1105, 1106 (Okla. 1981) (nun qualified as a "clergyman" under the state's privilege statute).

²⁵ See, e.g., State v. Martin, 975 P.2d 1020, 1025 (Wash. 1999) (en banc).

²⁶ People v. Johnson, 497 N.Y.S.2d 539, 539 (App.Div. 1985) (refusing to extend the privilege to communications between a defendant and members of his Muslim mosque on the grounds that the defendant was not seeking religious counsel, but acknowledging that the priest-penitent privilege may exist between a Muslim and an advisor of the Muslim faith under certain circumstances).

²⁷ See Ariz. Rev. Stat. Ann. § 13-4062 (West 1989); Conn. Gen. Stat. Ann. § 52-146b (West 1991); Ga. Code Ann. § 24-9-22 (1995); Idaho Code § 9-203(3) (Supp. 1997); 735 Ill. Comp. Stat. 5/8-803 (West 1992); Ind. Code. Ann. § 9-111 (1989); Mass. Gen. Laws ch. 233, § 20A (1986); Mich. Comp. Laws Ann. § 600.2156 (West 1986); Minn. Stat. Ann. § 595.02(1)(c) (West Supp. 1998); Mo. Ann. Stat. § 491.060(4) (West 1996); Mont. Code Ann. §26-1-804 (1997); Nev. Rev. Stat. Ann. § 49.255 (Michie 1996); N.H. Rev. Stat. Ann. § 516:35 (1997); N.Y. C.P.L.R. 4505 (Consol. 1978); N.C. Gen. Stat. § 8-53.2 (1996); Or. Rev. Stat. § 40.260 (1997); R.I. Gen. Laws § 9-17-23 (1997); S.C. Code Ann. § 19-11-90 (Law Co-op. 1985); Tenn. Code Ann. § 24-1-206 (Supp. 1997); Utah Code Ann. § 78-24-8(3)(1997); Vt. Stat. Ann. Titl. 12, § 1607 (1973); Va. Code Ann. § 8.01-400 (Michie Supp. 1997); Wash Rev. Code Ann. § 5.60.060(3) (West Supp. 1998); W.Va. Code § 57-3-9 (1997); Wyo. Stat. Ann. § 1-12-101(a)(ii) (Michie 1997).

²⁸ See Alaska R. Evid. 506; Ark. R. Evid. 505; Del. R. Evid. 505; Fla. Stat. Ann. § 90.505 (West Supp. 1998); Haw. R. Evid. 506; Kan. Stat. Ann. § 60-429 (1994); Ky. R. Evid. 505; La. Code Evid. Ann. Art. 511 (West 1995); Me. R. Evid. 505; Miss. Code Ann. § 13-1-22 (Supp. 1997); Neb. Rev. Stat. § 27-506 (1995); N.M. R. Evid. 11-506; N.D. R. Evid. 505; Okla. Stat. Ann. Tit 12, § 2505 (west 1993); S.D. Codified Laws § 19-13-18 (Michie 1995); Tex. R. Evid. 505; Wis. Stat. § 905.06 (1995-96).

²⁹ Alabama recognizes the right of both parties to hold the privilege (see Ala. R. Evid. 505); California has separate statutes recognizing the right of both parties to hold the privilege (see Cal. Evid. Code § 103 (West 1995), § 1034 (West 1995); Colorado recently expanded to include the clergy as well as penitent as as a privilege holder (see Colo. Rev. Stat. Ann. § 13-90-107(1)(c) (West 1997)); in response to Szemple, 640 A.2d at 422-23 (as recognized by Corsie v. Campanalonga, 721 A.2d 733 (N.J.Super. 2000)), New Jersey recently expanded the privilege to include the penitent as a privilege holder (see N.J. Stat. Ann. § 2A:84-23 (West Supp. 1998)); Ohio prohibits testimony from clergy regarding confidential matters (see Ohio Rev. Code Ann. § 2317.02(C) (Anderson Supp. 1998); Pennsylvania protects clergy from being compelled to testify on certain confidential communications (see 42 Pa. Cons. Stat. Ann. § 5943 (West 1982)).

³⁰ The first explicit papal order aimed at violators of the seal of the confessional provided at the end of the ninth century that "whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office, but that he shall also be sent into the confinement of a monastery to do perpetual penance." See Mazza, supra note 14, at 174-75.

³¹ Mazza, supra note 14, at 186.

³² Id. at 193.

³³ Church of Jesus Christ of Latter-Day Saints v. Superior Court In and For Maricopa County, 764 P.2d 759, 767-68 (Ariz.App. 1988) (declining to decide whether a clergyman has constitutional grounds to assert a privilege independent of the penitent's, where the record allegedly did not reveal that breaking confidence would violate the religious obligations of Mormon church officials); State v. Martin, 975 P.2d 1020, 1027 (Wash. 1999) (en banc) (declining to address clergyman's constitutional challenge where issue was resolved in his favor based on statutory construction).

³⁴ Rosado v. Bridgeport Roman Catholic Diocesan Corp., 1995 WL 348181, *13 (1995) (although not construing the First Amendment as dispositive of a communicant's right to assert the clergy-communicant privilege because it was not raised as such, "neither can judges in divining the common law be blind to constitutional mandates which politically and otherwise continue to define us as a people. 'The Free Exercise Clause commits government itself to religious tolerance. . . .'"). See also Cimijotti v. Paulsen, 230 F.Supp. 39 (N.D. Iowa 1964) ("[B]ased upon the common law as explained in the previous ruling and on the First Amendment the [allegedly slanderous] statements made by the defendants [to priests of the Catholic Church] . . . are absolutely privileged against an action for defamation.")

³⁵ Szemple, 640 A.2d at 827.

³⁶ In re Murtha, 279 A.2d 889, 893 (N.J. App. 1971) (rejecting nun's First Amendment challenge to giving grand jury testimony on the ground that she showed no Catholic teaching prohibiting her disclosure); Pagano v. Hadley, 100 F.R.D. 758 (D. Del. 1984) (producing unprivileged documents in Father Pagano's personnel file will not interfere with the Bishop's right to believe as he chooses and to engage in the religious observances of his faith). See also Com. v. Stewart, 690 A.2d 195 (1997) (although compelling production of documents in violation of canon law substantially burdened the diocese's religious liberty under the First Amendment, an in camera proceeding and order limiting discovery to relevant, non-privileged documents advanced a compelling governmental interest in the least restrictive way); Rhinehart v. Seattle Times Co., 754 P.2d 1243 (Wash.App. 1988), cert den'd, 490 U.S. 1015 (1989) (First Amendment rights of organization and members were not violated by order compelling discovery of videotapes, some of which were broadcast on television; names and address of organization donors did not fall within scope of priest-penitent privilege and a protective order prohibited the non-litigation use of this information).

³⁷ Pagano, 100 F.R.D. at 761.

³⁸ Id. at 759.

³⁹ 2 City Hall Recorder (Rogers) 77 (N.Y. 1817), reprinted in Privileged Communications, supra note 3, at 209-13.

⁴⁰ See, e.g., United States v. Gordon, 655 F.2d 478 (2d Cir. 1981) (defendant's business communications to priest he employed in a nonreligious capacity were not protected by priest-penitent privilege); Martin, 975 P.2d at 1025 (statements must have been made "in the course of discipline enjoined by the church"); People v. Police, 651 P.2d 430, 431 (Colo.Ct. App. 1982) (concluding that the defendant's confession to the victim's minister father who visited the defendant in jail was not barred by the privilege when the penitent was not dealing with the minister in his professional capacity); Keenan v. Gigante, 47 N.Y.2d 160, 166, 390 N.E.2d 1151 (1979) (priest forced to testify before grand jury about discussions with the defendant about the conditions of his incarceration; "The priest-penitent privilege arises not because statements are made to a clergyman. Rather . . . [t]here must be 'reason to believe the information sought required the disclosure of information under the cloak of the confessional or was in any way confidential' for it is only confidential communications made to a clergyman in his spiritual capacity which the law endeavors to protect."); Angleton v. Angleton, 370 P.2d 788, 797 (Idaho 1962) (concluding that statements by a priest regarding conversations during a friendly meeting and when the party was not a member of the Catholic Church were not barred by the privilege).

⁴¹ Wright & Graham, supra note 15, § 5612, 27-28 (stating that the privilege is no longer limited to priests and the communication itself does not have to be of a strictly penitential nature). The Advisory Committee's note to Proposed Fed. R. Evid. 506 stated, "The choice between a privilege narrowly restricted to doctrinally required confessions and a privilege broadly applicable to all confidential communications with a clergyman in his professional character as a spiritual adviser has been exercised in favor of the latter." In Martin, 975 P.2d at 1026, the Supreme Court of Washington held that the definition of a "confession" is to be made by the church of the clergy member.

⁴² See, e.g., United States v. Dube, 820 F.2d 886 (7th Cir. 1987) (privilege did not apply to communications made to clergyman to obtain assistance in avoiding tax obligations, not spiritual relief).

⁴³ For example, both Alabama and Florida extend the privilege to communications based on the giving of "spiritual advice," Ala. Code § 12-21-166(b) (1995); Fla. Stat. Ann. Ch. 90.505(1)(b) (Harrison 1996), but Florida also extends the privilege to "counseling" and Alabama extends it to "marital counseling." Fla. Stat. Ann Ch. 90.505(1)(b) (Harrison 1996); Ala. Code § 12-21-166(b) (1995).

⁴⁴ People v. Carmona, 82 N.Y.2d 603, 627 N.E.2d 959, 962 (1993).

⁴⁵ Scott, 133 F.R.D. at 613.

⁴⁶ 104 F.3d 1522, 1530 (9th Cir. 1997). Accord Keel, supra note 1, at 701-05; Lennard K. Whittaker, The Priest-Penitent Privilege: Its Constitutionality and Doctrine, 13 REGENT U. L. REV. 145, 159-62 (2000-01). Cf. Com. v. Stewart, 690 A.2d 195 (1997) (although compelling production of documents in violation of canon law substantially burdened the diocese's religious freedom under RFRA, an in camera proceeding and order limiting discovery to relevant, non-privileged documents advanced a compelling governmental interest in the least restrictive way).

⁴⁷ Id.

⁴⁸ See Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001); Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001), as modified by 2001 WL 1152999 (D.C. Cir. 2001); In re Young, 141 F.3d 854, 858-59 (8th Cir. 1998), cert. den'd, 525 U.S. 811 (1998). Under the present amended definition of "exercise of religion" under RFRA, it applies to "any exercise of religion, whether or not compelled by, or central to a system of religious belief." Kikumura, 242 F.3d at 960; Henderson, 2001 WL at *1.

⁴⁹ 42 U.S.C. 2000cc-1.

⁵⁰ 494 U.S. 872 (1990).

⁵¹ 374 U.S. 398 (1963) (involving denial of unemployment compensation benefits)

⁵² See, e.g., Swanson v. Guthrie Ind. Sch. Dist. No. 1-L, 135 F.3d 694, 699 (10th Cir. 1998).

⁵³See, e.g., Axson-Flynn v. Johnson, 151 F.Supp.2d 1326 (D. Utah 2001) (requirement that student speak obscenities and take the Lord's name in vein did not violate the student's free exercise-free speech hybrid rights); Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) (plaintiffs challenging National Park Service regulation banning sales of message-bearing t-shirts did not state hybrid rights claim; the combination of two untenable claims (free exercise and free speech) does not equal a tenable one); Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134 (9th Cir. 2000), rev'g, 165 F.3d 692 (9th Cir. 1999) (owners' claim that statutes preventing landlords from discriminating against homosexuals was unconstitutional was a "hybrid-rights" claim subject to strict scrutiny; statutes constituted substantial burden on owners' observation of a central religious belief or practice; burden was not justified by compelling governmental interest).

⁵⁴ Id. at 1531-34. See also Mazza, supra note 14, at 191-92 ("Some have argued that the 'right to privacy' found emanating from the penumbras of the Constitution in Griswold v. Connecticut provides a constitutional basis for protecting certain confidential communications. . . . The firmer ground is the Free Exercise Clause of the First Amendment).

⁵⁵ See, e.g., In the Matter of Verplank, 329 F.Supp. at 439.