Key point 3-08.03. In most states, either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.
Key point 12-02.2. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court’s decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws .
A Florida appeals court ruled that a trial court’s ruling compelling a priest to disclose confidential information shared with him in the course of a confessional violated the state Religious Freedom Restoration Act.
In June 2017, an adult male (the “defendant”) was charged with committing sexual offenses against a minor. The charged offenses were alleged to have occurred when the alleged victim was 7 years old and when she was 13 years old. The criminal investigation of the defendant began after the alleged victim, then 17 years old, disclosed to her mother that she had been sexually abused by the defendant.
Prior to trial, the prosecutor informed a priest that he would be called as a witness to testify that the victim had disclosed to him, during confession, that the defendant had molested her. The priest filed a motion for a protective order protecting him from having to disclose confidential information shared with him by the victim in the course of a confession. The motion further alleged that:
- Requiring the priest to testify as to any aspect of a confession would violate the “sacred seal of the Catholic Sacrament of Reconciliation” and, as such, would violate the priest’s constitutional rights under the First Amendment guaranty of religious freedom.
- Any such communication would be privileged under the Florida clergy-penitent privilege statute, which provides that a person “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual advisor.”
- The coercion of his testimony would violate Florida’s Religious Freedom Restoration Act (FRFRA).
The trial court focused almost exclusively on the application of Florida’s clergy-penitent privilege to the priest. Specifically, the trial court determined that: (1) the communications between the priest and the victim were privileged, (2) the privilege could be asserted by both the priest and victim, and (3) the priest had partially waived the privilege during a conversation with the alleged victim’s mother and her friend to the extent that he disclosed the identity of the penitent and that “the subject of the disclosure was sexual abuse.” The court concluded that the priest could be questioned about “the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse.” However, the court granted the motion for protective order “as to the content of any other communications between the priest and the victim during the Sacrament of Reconciliation, and his impressions, actions or omissions as they relate to communications made during the Sacrament of Reconciliation.”
A state appeals court concluded that the case was controlled by the application of FRFRA:
FRFRA expressly provides that the government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. . . . A substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires.
The appeals court noted that if the priest complies with the State’s demand that he testify as to his communications with the victim during the Sacrament of Reconciliation, “he would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court’s order can only be upheld if the State establishes that coercing his testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.”
The court acknowledged that the State has “a compelling governmental interest in prosecuting sex offenses perpetrated against children. . . . However, we disagree with the State’s contention that coercing the priest to testify regarding communications that occurred during the Sacrament of Reconciliation, in contravention of his sincerely held religious beliefs, would be the least restrictive means to further its compelling governmental interest of prosecuting the defendant”:
First, as the State acknowledges, the testimony of the priest would, at most, be corroborative evidence. There is no allegation that he was a witness to any sexual abuse. Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events. Third . . . the State could seek to have the alleged victim testify as to her purported prior disclosure of sexual abuse to the priest.
The court quashed the trial court’s order to the extent that it required the priest to “respond to the subpoena and . . . be questioned about the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse.”
What this means for churches
About half the states have adopted Religious Freedom Restoration Acts (RFRA) extending the religious freedom protections of the federal RFRA to state and local governments. This case suggests that these Acts may also serve as an alternative basis, in addition to clergy-penitent privilege laws, for protecting confidential communications with clergy from involuntary disclosure. Ronchi v. State, 248 So. 3d 1265 (Fla. App. 2018).