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Pastor, Church & Law

written by Richard R. Hammar, J.D., LL.M., CPA

Constitutionality of the Privilege

Volume 1 . Chapter 3 . § 3-08.7
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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