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.