Constitutionality of the Privilege
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. In the particular circumstances of this case the latter must give way to the former." In re Murtha, 279 A.2d 889, 894 (N.J. 1971).
Another court, in rejecting a priest's claim that requiring a bishop to disclose unprivileged records relating to the priest violated the First Amendment, observed: (1) disclosure of the documents pertaining to the priest would not interfere with the bishop's "right to believe as he chooses and to engage in the religious observances of his faith"; (2) no impermissible "entanglement" between church and state would result; (3) information in the possession of a church "has always been subject to civil process"; and (4) there would be no need for the clergy-penitent privilege if the First Amendment's "free exercise of religion" clause protected information in the possession of a church from civil process. Pagano v. Hadley, 100 F.R.D. 758 (D. Del. 1984).