Priest-Penitent Privilege in the United States

The Underlying Constitutional Basis for the Minister/Parishioner Privilege in the United States and Its Application to the Practices of Scientology

BY ERIC LIEBERMAN
The United States Constitution provides two interrelated protections for religious freedom, the Establishment Clause and the Free Exercise Clause. Yet, due to accidents of history, the privilege protecting secret communications between parishioners and ministers has rarely been analyzed in terms of constitutional protection. Rather, the privilege has been recognized, in various forms, as a matter of common law. This has led to different treatment of the privilege in the states and the federal courts, often with constitutionally suspect results. Analysis of modern doctrinal developments, however, compels the conclusion that the privilege must be accorded constitutional protection, including protection for those religious practices of some churches that provide that privileged communications may be heard by more than one minister and that provide doctrinal protection to a minister hearing a communication as well as to the communicant. The doctrines of the Church of Scientology precisely demonstrate the need for these requirements.

The United States’ experience with religious freedom is historically unique. The original colonists included adherents of various denominations who left their native lands to escape religious persecution by the dominant churches and their church dominated states. Once in their new homes, however, such settlers often resorted to the same kinds of exclusion and persecution as that from which they had fled. But gradually the original colonies became more accepting of differences and dissenters in their midst, such as Rhode Island under Roger Williams, Pennsylvania under William Penn, and Maryland, where Lord Baltimore established a colony that welcomed Catholics.

By the time of and following the Revolution, the various colonies were populated by numerous formerly persecuted denominations and sects. If the new nation was going to survive as united states, it would need to protect against the imposition of religious persecution by one group over others. As summarized by the Supreme Court of the United States in a seminal opinion on religious liberty:

The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views.

The need to ensure religious liberty to protect the new nation against sectarian conflict was urgently recognized by Madison, who was charged with drafting the Bill of Rights. The resulting First Amendment thus not only prohibited the establishment of a religion by the government, but also provided a shield against government interference with the free exercise of religion.

The First Amendment has a dual aspect. It not only ‘forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship’ but also ‘safeguards the free exercise of the chosen form of religion.’… It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove…. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.

The Free Exercise Clause was an original American concept and invention unlike anything previously known. The concept of religious liberty embodied in the First Amendment provided a continuing inspiration to oppressed peoples throughout the world and was essential to the expansion of the nation through immigration. It also was fertile ground for new and vital religious communities to arise within the country. Many such religions established varying practices of religious counseling, including but not limited to confessions, and accorded strict confidential protections against disclosure of such communications. State courts and eventually federal courts in the United States, fairly consistently, have honored such confidences despite the different form and structure of the practices in various congregations, as discussed in Part III below.

Before engaging in a fuller exposition of the application of the ministerial privilege by courts in the United States, we first set forth a discussion of the relevant beliefs and practices of the Scientology religion because it presents an opportunity to analyze how the vision of the framers as set out by the Supreme Court in Ballard works out in practice. Scientology provides a unique example of a modern expanding religion whose central practices rely upon highly confidential communications between parishioners and clergy. The structure of the confidential communications in Scientology carries out the principles and beliefs of the religion and its community. Indeed, the Scientology Church’s ability to practice its beliefs relies on the confidentiality of the communications between its parishioners and ministers. These are described below in Part II of this essay. The communications are protected by the ministerial privilege in the United States as mandated by the Free Exercise Clause of the First Amendment to the Constitution, as addressed in the cases discussed below.

Indeed, while there are no officially “reported” cases involving the application of the privilege to Scientology ministerial communications with parishioners, several federal and state courts have recognized and applied it and found that ministerial communications come within the ambit of the religious confession privilege.

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Name: Eric Lieberman Email: info@standleague.org Job Title: Media Relations

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