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Pastor, Church & LawMember access only

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

Constitutionality of the Privilege

§ 3.08.07
Key point 3-08.07. The clergy-penitent privilege is not required by the First Amendment guaranty of religious freedom.

In some cases, a communication made to a minister will fail one or more of the requirements for a valid privilege, yet the minister or the penitent making the communication will claim that the First Amendment's guaranty of religious freedom 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 the nun's claim, observed that "this case calls for a balancing of interests-that of the state in enforcing the power of the grand jury to inquire into the commission of a crime, and that of [the nun] who claims she responds to a call of conscience. ...

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