Pastor, Church & Law
Constitutionality of the Privilege
Key point 3-08.07. The clergy-penitent privilege is not required by the First amendment guaranty of religious freedom.
Often, a communication made to a minister will fail one or more of the requirements for a valid privilege, yet the minister or the person making the communication will argue that the First amendment's guaranty of religiousfreedom prohibits compelled disclosure of the communication. To illustrate,in one case a Catholic nun who was not eligible for the privilege argued that the First amendment protected her from being compelled to testify regarding communications made to her by a murder suspect. The court, in rejecting thenun's claim, observed that "this case calls for a balancing of interests—that of the state in enforcing ...
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