First Amendment Religion Clauses Prohibit Court from Resolving Confidential Communications Claim

Key point 3-08.09. Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.

A Louisiana appeals court ruled that the First Amendment religion clauses prevented the civil courts from resolving a parishioner’s claim that a priest improperly disclosed his confidential communications without permission.

A parishioner (the “plaintiff”) learned that a priest had disclosed to others the fact that he had visited the priest for confession, as well as the substance of what was said. The plaintiff sued the priest for invasion of privacy. His lawsuit made the following assertions:

A foundation doctrine in the Roman Catholic Church for thousands of years mandates that the seal of confession is absolute and inviolable.

Pursuant to his oath to the Church, a priest is compelled never to break that seal.

Neither is a priest allowed to admit that someone went to confession to him.

This is not a gray area in the doctrine of the Roman Catholic Church and a priest who violates the seal of Confession incurs an automatic excommunication.

The standard of secrecy protecting a confession outweighs any form of professional confidentiality or secrecy. When a person unburdens his soul and confesses his sins to a priest in the Sacrament of Penance, a very sacred trust is formed. The priest must maintain absolute secrecy about anything that a person confesses.

The plaintiff claimed that the priest violated his First Amendment rights and invaded his privacy when he “disregarded the sacramental seal and informed other individuals without express permission” that the plaintiff had visited him for confession. The plaintiff also sued the local bishop, claiming that he contributed to the priest’s wrongful behavior by failing to remedy his conduct “after he learned of the violation of the sacramental seal of confession.” The plaintiff sued the diocese arguing that it was vicariously responsible for the wrongful acts of its priest.

The defendants asked the court to dismiss all of the plaintiff’s claims on the ground that the First Amendment guaranty of religious freedom barred civil court interference with a foundational religious doctrine. The plaintiff countered by asserting that the court could address his claims since the priest’s actions “went beyond the scope of an internal religious matter and, therefore, outside the scope of the First Amendment’s protections.”

The court agreed with the church defendants and dismissed the case. It observed:

Plaintiff’s claims fall within the scope of internal religious affairs as they are predicated on: (1) the breach of the sacramental seal of confession, as defined by the Roman Catholic Church; and (2) the bishop’s failure to remedy the breach in accordance with church doctrine. In order to discern whether plaintiff has asserted meritorious claims against the church defendants, the court would have to interpret church doctrine relating to the sacrament of confession and otherwise encroach upon the internal affairs of the Roman Catholic Church. Application of long-standing First Amendment jurisprudence, therefore, mandates that this court refrain from considering plaintiff’s claims.

What this means for churches

This case is important because the court’s decision represents one of the few times that a court has addressed the liability of a church or pastor for the pastor’s disclosure of confidential information shared in a conversation protected by the clergy-penitent privilege. The court declined to hold the priest or church liable for the priest’s unauthorized disclosure of a penitential communication. The other cases are summarized in Table 1. Sonnier v. Diocese, 2017 WL 778153 (La. App. 2017).

Cases Addressing the Liability of a Church or Pastor for
the Pastor’s Disclosure Of Confidential Information

State	Case	Liable?
Arizona	A woman sought out a pastor for counseling. Confided highly personal and private matters including the fact that her father had sexually molested her and her sister. The sister later married the pastor’s son and accused him of infidelity. In an attempt to defend his son, the pastor told the board and congregation that the sister could not be believed because her family was “incestuous” and “dysfunctional.” The sister sued the pastor and the church for invasion of privacy, defamation, malpractice, and breach of fiduciary duty. An Arizona court concluded that the pastor offered “no good reason for insulating a counselor from liability for betraying clients’ confidences to their detriment merely because the counselor is a clergy member.” Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).	Yes
California	Pastor confessed to denominational officers about inappropriate conduct; assurance of confidentiality. Denominational officers shared a minister’s confession with a church’s pastoral search committee. The court acknowledged that it could find no previous case in which “a counselee or communicant has sought to hold a religious officer liable in tort for [an unauthorized disclosure of confidential communications]. It saw no reason why clergy and church leaders should not be held legally accountable for injuries they inflict when they disclose confidential information to others without consent. Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 1989).	Yes
Kansas	The Kansas Supreme Court ruled that a pastor and his employing church were not liable for the pastor’s disclosure of confidential information obtained during marital counseling. The court concluded that to the extent the plaintiff’s claims were based on the pastor’s providing spiritual counseling, “we decline to find a fiduciary relationship based on the spiritual nature of the relationship alone.” Further, the court concurred with cases “which hold that a minister’s duty of confidentiality is a moral, not a legal, obligation.” Horosko v. Jones, 2004 WL 2926665 (Kan. 2004).	No
Louisiana	An adult male (the “plaintiff”) received counseling from the pastor of his church “regarding resolution of conflict between himself and his sisters resulting from physical and sexual abuse conducted by their father.” The pastor told church leaders that the plaintiff could not serve on a church committee because he “is messed up because he has been sexually abused by his father.” The plaintiff sued his pastor and church on the basis of malpractice, infliction of emotional distress, and violation of the clergy privilege. A Louisiana court dismissed the lawsuit. It noted that the clergy privilege is a rule of evidence and “does not create causes of action or other substantive rights.” Therefore, the plaintiff was not entitled to monetary damages as a result of the pastor’s disclosure of confidential information he acquired during a conversation protected by the privilege. Lann v. Davis, 793 So.2d 463 (La. App. 2001).	No
Michigan	A Michigan court ruled that a minister could not be sued for breaching a “duty of confidentiality” by disclosing to the congregation information that was communicated to him by a member in the course of a confidential counseling session. A church member confessed to his pastor that he had previously committed adultery with prostitutes. The pastor decided to communicate this information to the entire congregation, including the member’s wife, family, and friends. The member sued his pastor and church, alleging that the pastor’s disclosure amounted to a breach of the duty of confidentiality. He insisted that the clergy-penitent privilege imposes upon clergy a “duty of confidentiality,” and that clergy who disclose confidences without permission may be sued for breaching this duty. The court disagreed, noting that the clergy-penitent privilege is a “rule of evidence that did not create a cause of action for disclosure of private or privileged communications.” Smith v. Calvary Christian Church, 592 N.W.2d 713 (Mich. App. 1998).	No
New York	A New York court ruled that two rabbis could not be sued for breaching a “duty of confidentiality” as a result of their disclosure of confidential information shared with them by a counselee since there was a third person present during the counseling sessions. Further, the court ruled that the clergy-penitent privilege does not impose a “fiduciary duty of confidentiality” upon clergy. Lightman v. Flaum, 717 N.Y.S.2d 617 (2000).	No
Ohio	A church member (the “plaintiff”) met with his pastor for marital counseling. He confessed to having been involved in several affairs during his marriage, and that he was currently having an affair. The minister disclosed these confessions to plaintiff’s wife and suggested that she obtain a restraining order and seek a divorce. An Ohio court allowed the plaintiff to sue his pastor for negligence. It observed: “Public policy supports an action for breach of confidentiality by a minister. There is a public policy in favor of encouraging a person to seek religious counseling. People expect their disclosures to clergy members to be kept confidential.” Alexander v. Culp, 705 N.E.2d 378 (Ohio App. 1993).	Yes
Texas	The Texas Supreme Court ruled that the First Amendment guaranty of religious liberty prevented it from resolving a dismissed church member’s claim that her pastor committed “professional negligence” by using information she shared with him in confidence as the basis for disciplining her. The court concluded: “The secular confidentiality interest the plaintiff’s professional negligence claim advances fails to override the strong constitutional presumption that favors preserving the church’s interest in managing its affairs. She voluntarily became a member of the church body and agreed to abide by the church constitution; indeed, she expressed that she did so willingly. That constitution outlined the disciplinary process that would be followed if a member engaged in conduct that the church considered inappropriate. The pastor … assumed an obligation to the plaintiff and to the congregation to follow the church’s constitution. Although the plaintiff contends pastoral counseling is not at issue because she did not receive marital counseling from the pastor in his capacity as a member of the clergy, the publication about which she complains was made in the course of the church disciplinary process and communicated by the pastor pursuant to the requirements of that process.” Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).	No