* (c) 2003 Norman Abrams, Interim Dean and Professor of Law, UCLA School of Law. I am indebted to a number of people in connection with the preparation of this Article: Professor Robert Goldstein, UCLA, who commented on an earlier version of the Article; Professor Brenda D. Smith, SUNY, Albany, for ideas suggested in conversation that are reflected in the Article; participants in the Boston College Law School Symposium (where this Article was first presented), whose comments led to a different focus for the second half of the Article; and Matthew Schwoeffer Reynolds, UCLA Law, 2004, for careful research on the complex web of relevant state laws.
1 See infra notes 22–28 and accompanying text.
2 See infra notes 51–55 and accompanying text.
3 See infra notes 30–34, 51–55 and accompanying text.
4 See infra notes 55–56 and accompanying text.
5 See infra notes 52–54 and accompanying text.
6 See infra note 59.
7 See infra note 58.
8 See infra notes 15–28 and accompanying text.
9 See infra notes 29–50 and accompanying text.
10 See infra notes 51–57 and accompanying text.
11 See infra notes 58–67 and accompanying text.
12 See infra notes 68–86 and accompanying text.
13 See infra notes 87–112 and accompanying text.
14 See infra notes 113–136 and accompanying text.
15 This case was not officially reported, but the record and opinion were later reprinted in 1 W. L.J. 109 (1843).
16 Note, Privileged Communications to Clergymen, 1 Cath. Law. 199, 213 (1955) (quoting N.Y. Rev. Stat. tit. 3, � 72 (1828)). Four years after the decision in Phillips, a New York court in People v. Smith permitted a Protestant minister to testify to statements made to him by the defendant confessing the crime, where the minister had been visiting him in his capacity as a minister of the gospel. The minister when asked by the judge indicated that he did not object to testifying regarding the defendant’s statements. 2 N.Y. City-Hall Recorder 77 (1817).
17 John C. Bush & William Harold Tiemann, The Right to Silence 25–26, 60–61, 66–68 (3d ed. 1989).
18 Wigmore here cited and quoted thirty U.S. jurisdictions that provided for a confessional privilege. 5 John H. Wigmore, Wigmore on Evidence � 2395 (2d ed. 1923); see John H. Wigmore, A Students’ Textbook of the Law of Evidence 411–12 (1935); 8 John H. Wigmore, Wigmore on Evidence � 2395 (4th ed. 1961).
19 See Model Code of Evid. R. 219 (1942).
20 See Unif. R. Evid. 29.
21 Id. cmt.
22 See S.C. Code Ann. � 19-11-90 (Law. Co-op. 2002) for an example of a statute enacted before 1960. When the California Evidence Code was enacted in 1967, it, too, included a clergyman-penitent privilege. However, it slightly broadened the privilege—not specifying as a requirement that the penitential communication be a “confession.” While the significance of that change is debatable, it can be seen as not changing the confessional privilege in any basic way. The privilege in California was still restricted to such penitential communications as the clergyman is “in the course of the discipline or practice of the church . . . authorized or accustomed to hear.” Cal. Evid. Code � 1032 (West 2003). In his study on behalf of the California Law Revision Commission that led to the final version of the Evidence Code, Professor James H. Chadbourn explained, “The definition of ‘penitential communication’ has been revised so that it is no longer necessary to determine the content of the statement; a court need determine only that the communication was made in the presence of the priest only and that the priest has a duty to keep the communication secret.” Cal. Law Revision Comm’n, Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence 249 (1964).
23 Fed. R. Evid. 506, 56 F.R.D. 183, 247 (1972) (unenacted). Also, in 1974, the NCCUSL published a revised version of the Uniform Rules of Evidence that generally tracked the Federal Rules and, with slight word changes, adopted as Rule 505 the same privilege as proposed Federal Rule 506. Unif. R. Evid. 505, available at http://www.law. upenn.edu/bll/ulc/fnact99/ure88.htm.
24 See Fed. R. Evid. 506, 56 F.R.D. 183, 247 (1972) (unenacted).
25 Id. (unenacted).
26 Id. at 248 (advisory committee’s note) (unenacted).
27 See infra notes 29–36 and accompanying text.
28 We can only guess at the causes of this dramatic change. It may have reflected the coming of age in the country of a host of religious denominations, with different practices and doctrines. Or it may be that the argument that providing only a confessional privilege favored some religions over others and raised constitutional questions had begun to gain adherents. Possibly, judicial decisions relating to freedom of religion and establishment issues may have influenced the drafters. There is the related concern that providing a privilege that was available only to some religious denominations was not politically wise or acceptable. Finally, the switch in approaches may have reflected the particular views of the drafters of these codes. Whatever the explanation, the strong influence of the Federal Rules as a model, backed up by the similar approach in the new Uniform Rules, clearly helped to spread the new approach through much of the country.
29 In classifying the statutes according to these categories, I have ignored specific word differences among the statutes and focused only on the essential nature of the privilege described in the statutory language.
30 See infra notes 31–32.
31 See Alaska R. Evid. 506; Ark. R. Evid. 505; Del. R. Evid. 505; Fla. Stat. ch. 90.505 (2003); Ga. Code Ann. � 24-9-22 (2003); Haw. R. Evid. 506; Ky. R. Evid. 505; La. Code Evid. Ann. art. 511; Me. R. Evid. 505; Miss. Code Ann. � 13-1-22 (2003); Neb. Rev. Stat. � 27-506 (2002); N.M. R. Evid. 11-506; N.C. Gen. Stat. � 8-53.2 (2003); N.D. R. Evid. 505; S.D. Codified Laws � 19-13-17 (Michie 2003); Tenn. Code Ann. � 24-1-206 (2003); Tex. R. Evid. 505; Va. Code Ann. � 8.01-400 (Michie 2003); W. Va. Code � 48-1-301 (2003); Wis. Stat. � 905.06 (2003).
32 See Ala. Code � 12-21-166 (2003); 735 Ill. Comp. Stat. 5/8-803 (2003); Ind. Code � 34-46-3-1 (2002); Kan. Stat. Ann. � 60-429 (2002); Md. Code Ann., Cts. & Jud. Proc. � 9-111 (2003); Mass. Gen. Laws ch. 233, � 20A (2003); Minn. Stat. � 595.02(c) (2002); Mo. Rev. Stat. � 491.060(4) (2003); N.H. R. Evid. 505; N.J. Stat. Ann. � 2A:84A-23 (West 2003); N.Y. C.P.L.R. 4505 (Consol. 2003); Ohio Rev. Code. Ann. � 2317.02(C) (Anderson 2003); R.I. Gen. Laws � 9-17-23 (2002). Those statutes that have enacted a rule modeled after Federal Rule 506 do not, arguably, really differ in legal effect from those that adopt a side-by-side approach. A formulation cast in terms of confidential communications relating to spiritual advice is broad enough also to encompass the confessional, as a requirement of confessional observance necessarily also involves the seeking of spiritual advice and counsel.
33 See Colo. Rev. Stat. � 13-90-107 (2003); Conn. Gen. Stat. � 52-146b (2003); Iowa Code � 622.10 (2002); Okla. Stat. tit. 12, � 2505 (2002); Or. Rev. Stat. � 40.260 (2001); 42 Pa. Cons. Stat. � 5943 (2003); S.C. Code Ann. � 19-11-90 (Law. Co-op. 2002).
34 See Ariz. Rev. Stat. �� 12-2233, 13-4062 (2003); Cal. Evid. Code �� 1032, 1033; Idaho Code � 9-203 (Michie 2003); Mich. Comp. Laws � 600.2156 (2003); Mont. Code Ann. � 26-1-804 (2003); Nev. Rev. Stat. 49.255 (2002); Utah Code Ann. � 78-24-8 (2002); Vt. Stat. Ann. tit. 12, � 1607 (2002); Wash. Rev. Code � 5.60.060 (2003); Wyo. Stat. Ann. � 1-12-101 (Michie 2002). California is classified here as a confessional state, but that characterization is debatable. See supra note 22.
35 870 P.2d 947, 956 (Utah 1994). Scott has been cited and followed in a number of the confession states. See People v. Mackinnon, 957 P.2d 23, 27–28 (Mont. 1998) (concluding that “Utah’s broader interpretation of the clergy-penitent privilege as set forth in Scott . . . is the better view, and we adopt that approach”); State v. Martin, 975 P.2d 1020, 1026 & nn.65, 66, 69, 73 (Wash. 1999) (“determination of the definition of ‘confession’ referred to . . . is to be made by the church of the clergy member”). For an early broad reading of “confession” (but not as broad as Scott), see In re Swenson, 237 N.W. 589, 590 (Minn. 1931).
36 Scott, 870 P.2d at 951. The church involved in the Scott case was the Church of Jesus Christ of Latter-day Saints, and as an intervenor in the litigation, the Church argued
that whether or not formal penitential confessions are required by a denomination, the role of a cleric in providing spiritual guidance and counseling cannot properly be limited to formal confessions and the law ought to recognize that fact. . . . Indeed . . . according to its course of discipline, it is impossible to separate a specific “penitential confession” from the process of providing religious and spiritual counseling, guidance, and admonishment intended to persuade a church member to forsake and make amends for wrongful conduct.
Id.
The court invoked free exercise of religion concerns in support of its interpretation, and, most significantly, noted that “[a] broad construction of the clergy-penitent privilege is also consistent with the purpose of its secular analogue, the psychotherapist-patient privilege.” Id. at 954. The court also called attention to the fact that it had promulgated rules of evidence in 1992 under its rulemaking power which were not applicable to the Scott case but which were much broader than the clergy privilege provided by the statute. Id. at 950 n.2.
37 See supra note 32 and accompanying text.
38 See, e.g., Mass. Gen. Laws ch. 119, � 51A (2003) (limiting clergy members’ duty to report to confessions only).
39 See, e.g., Ariz. Rev. Stat. � 12-2233 (2003); Mont. Code Ann. � 26-1-804 (2003).
40 See supra notes 15–17 and accompanying text.
41 See, e.g., Alaska R. Evid. 506; Conn. Gen. Stat. � 52-146b (2003).
42 Iowa Code � 622.10 (2002).
43 See, e.g., D.C. Code Ann. � 14-309 (2003); Ind. Code � 34-46-3-1 (2002).
44 See, e.g., 735 Ill. Comp. Stat. 5/8-803 (2003).
45 See, e.g., S.D. Codified Laws 19-13-17 (Michie 2003).
46 See, e.g., Tenn Code Ann. � 24-1-206 (2003); Va. Code Ann. � 8.01-400 (Michie 2003).
47 975 P.2d at 1025–26; accord Scott, 870 P.2d at 955.
48 Cal. Evid. Code � 1032 (West 2003).
49 See supra notes 31–32 and accompanying text.
50 Thus in states that have confessional privilege statutes that have not been interpreted broadly, it may be necessary to determine the meaning of the “discipline” language. Similarly, under one feature of my proposal, it will be necessary to put content into this concept. See infra note 110 and accompanying text. Similarly, Professor Michael Cassidy found it necessary to put specific content into his proposed gloss on the clergy-communicant privilege. See R. Michael Cassidy, Sharing Sacred Secrets: Is It (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?, 44 Wm. & Mary L. Rev. 1627, 1697 (2003).
51 See infra notes 52–55.
52 See Ariz. Rev. Stat. � 13-3620 (2003); Cal. Penal Code � 11165.7 (West 2003); Colo. Rev. Stat. � 19-3-304 (2003); Conn. Gen. Stat. � 17a-101 (2003); 325 Ill. Comp. Stat. 5/4 (2003); La. Child. Code Ann. art. 603 (West 2002); Me. Rev. Stat. Ann. tit. 22, � 4011-A (West 2003); Mass. Gen. Laws ch. 119, � 51A (2003); Mich. Comp. Laws � 722.623 (2003); Minn. Stat. � 626.556 (2002); Miss. Code Ann. � 43-21-353 (2003); Mo. Rev. Stat. � 210.115 (2003); Mont. Code Ann. � 41-3-201 (2003); N.H. Rev. Stat. Ann. � 169-C:29 (2002); N.M. Stat. Ann. � 32A-4-3 (Michie 2003); N.D. Cent. Code � 50-25.1-03 (2003); 23 Pa. Cons. Stat. � 6311 (2002); Tex. Fam. Code Ann. � 261.101 (Vernon 2003); W. Va. Code � 49-6A-2 (2003).
53 See Del. Code Ann. tit. 16, � 903 (2003); Fla. Stat. ch. 39.201 (2003); Idaho Code � 16-1619 (Michie 2003); Ky. Rev. Stat. Ann. � 620.030 (Michie 2002); Neb. Rev. Stat. � 28-711 (2002); Okla. Stat. tit. 10, � 7103 (2002).
54 See Ind. Code � 31-33-5-1 (2002); Md. Code Ann., Fam. Law � 5-705 (2003); Nev. Rev. Stat. 202.882 (2002); N.J. Stat. Ann. � 9:6-8.10 (West 2003); N.C. Gen. Stat. � 7B-301 (2003); Or. Rev. Stat. � 419B.010 (2001); R.I. Gen. Laws � 40-11-3 (2002); Tenn. Code Ann. � 37-1-403 (2003); Utah Code Ann. � 62A-4a-403 (2002); Wyo. Stat. Ann. � 14-3-205 (Michie 2002).
55 See Ala. Code � 26-14-3 (2003); Alaska Stat. � 47.17.020 (Michie 2003); Ark. Code Ann. � 12-12-507 (Michie 2003); Ga. Code Ann. � 19-7-5 (2003); Haw. Rev. Stat. � 350-1.1 (2002); Iowa Code � 232.69 (2002); Kan. Stat. Ann. � 38-1522 (2002); N.Y. Soc. Serv. Law � 413 (Consol. 2003); Ohio Rev. Code Ann. � 2151.421 (Anderson 2003); S.C. Code Ann. � 20-7-510 (Law. Co-op. 2002); S.D. Codified Laws � 26-8A-3 (Michie 2003); Vt. Stat. Ann. tit. 33, � 4913 (2002); Va. Code Ann. � 63.2-1509 (Michie 2003); Wash. Rev. Code � 26-44.030 (2003); Wis. Stat. � 48.981 (2003).
56 See supra note 55.
57 See supra notes 52–54.
58 See Ariz. Rev. Stat. � 13-3620 (2003); Cal. Penal Code � 11166(c)(1) (West 2003); Colo. Rev. Stat. � 19-3-304(2)(aa)(II) (2003); Del. Code Ann. tit. 16, � 909 (2003); Fla. Stat. ch. 39.204 (2003); Idaho Code � 16-1619(c) (Michie 2003); 325 Ill. Comp. Stat. 5/4 (2003); Ky. Rev. Stat. Ann. � 620.050(3) (Michie 2002); La. Child. Code Ann. art. 603(13)(b) (West 2003); Md. Code Ann., Fam. Law � 5-705; Me. Rev. Stat. Ann. tit. 22, � 4011-A(1)(A)(27) (West 2003); Mass. Gen. Laws ch. 119, � 51A (2003); Mich. Comp. Laws � 722.631 (2003); Minn. Stat. � 626.556 subd. 3(a)(2) (2002); Mo. Rev. Stat. � 352.400 (2003); Mont. Code Ann. � 41-3-201(4)(b) (2003); Nev. Rev. Stat. 202.888 (2002); N.M. Stat. Ann. � 32A-4-3 (Michie 2003); N.D. Cent. Code � 50-25.1-03(1) (2003); Or. Rev. Stat. � 419B.010(1) (2001); 23 Pa. Cons. Stat. � 6311(a) (2002); Utah Code Ann. � 62A-4a-403(2).
59 N.H. Rev. Stat. Ann. � 169-C:32 (2002); N.C. Gen. Stat. � 7B-301 (2003); Okla. Stat. tit. 10, � 7103(A)(3) (2002); R.I. Gen. Laws � 40-11-11 (2002); Tex. Fam. Code Ann. � 261.101(c) (Vernon 2003); W. Va. Code � 49-6A-7 (2003).
60 Conn. Gen. Stat. � 17a-101 (2003); Ind. Code � 31-33-5-1 (2002); Miss. Code Ann. � 43-21-353 (2003); Neb. Rev. Stat. � 28-707(2) (2002); N.J. Stat. Ann. � 9:6-8.10 (West 2003); Tenn. Code Ann. � 37-1-411 (2003); Wyo. Stat. Ann. � 14-3-205 (Michie 2002).
61 Me. Rev. Stat. Ann. tit. 22, � 4011-A(1)(A)(27).
62 See, e.g., N.D. Cent. Code � 50-25.1-03(1). North Dakota has another provision that abrogates privileges in regard to the reporting requirement for privileges between any professional person and the person’s patient or client, with the exception of the attorney-client privilege.
63 It is true, of course, that there are not very many abrogation states. See supra note 59.
64 Wyoming, a confession jurisdiction, does not provide an exception for confessional communications. Wyo. Stat. Ann. � 14-3-205. Vermont and Washington, also confession states, do not provide an exception to the reporting requirement for confessional communications because the clergy are not covered by the obligation to report. Vt. Stat. Ann. tit. 33, � 4913 (2002); Wash. Rev. Code � 26-44.030 (2003).
65 But see infra note 98 and accompanying text.
66 Compare supra note 59, with supra notes 31–32. Of course, spiritual-advice and broader privileges also include by implication confessional communications within the coverage of the privilege. The result is that the abrogation statutes in the child abuse reporting context do have the legal effect of abrogating the application of the privilege to confessional communications as well as to spiritual-advice communications not involving the confessional, even though that effect is not highlighted in the statutory language.
67 See Del. Code Ann. tit. 16, � 909 (2003); La. Child. Code Ann. art. 603(13)(b) (West 2003); Mass. Gen. Laws ch. 119, � 51A (2003). The Massachusetts statutory scheme requires further description. The clergy privilege provision has two parts: any disclosure of confessional communications, without the consent of the communicant, is prohibited; there is a separate prohibition against testifying as to spiritual-advice communications. Mass. Gen. Laws ch. 233, � 20A. The reporting statute exempts confessional material or “similarly confidential communication in other religious faiths.” Id. ch. 119, � 51A. If the spiritual-advice provision, though framed in terms of testifying, applies to the reporting context, then it is abrogated while confessional communications are exempted. If the spiritual-advice privilege is not applicable in the reporting context, then there is anyway an obligation to report information communicated in the spiritual-advice context. As to the question of whether a privilege that is framed in terms of “testifying” or is applicable to “proceedings” or has some similar frame of reference applies at all in the reporting context, compare Mary Harter Mitchell, Must Clergy Tell? Child Abuse Reporting Versus the Clergy Privilege and Free Exercise of Religion, 71 Minn. L. Rev. 723, 786–89 (1987), with Robert P. Mosteller, Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 Duke L.J. 203, 224–26 (1992) (examining whether the attorney-client privilege applies to out-of-court disclosures).
68 See supra notes 58–60 and accompanying text.
69 See Cassidy, supra note 50, at 1672.
70 Compare supra note 58, with supra note 59.
71 See supra note 32 and accompanying text.
72 See supra notes 58–60 and accompanying text.
73 See supra notes 15–16 and accompanying text for a description of People v. Phillips.
74 This form of argument touches, of course, on First Amendment free exercise issues, but it can also be made independent of any constitutional claim. The California Supreme Court captured this justification for the religious doctrine-bound privilege in In re Lifschutz:
Realistically, the statutory privilege must be recognized as basically an explicit accommodation by the secular state to strongly held religious tenets of a large segment of its citizenry. . . . Wigmore, in his treatise, similarly relates the purpose of the privilege in a question and answer format: “Does the penitential relation deserve recognition and countenance? In a state where toleration of religion exists by law, and where a substantial part of the community professes a religion practising a confessional system, this question must be answered in the affirmative.”
85 Cal. Rptr. 829, 837 (1970).
75 For an elaboration of the First Amendment free exercise argument, see infra notes 102–110 and accompanying text. The First Amendment argument would apply equally where criminal sanctions are invoked against the clergy person who fails to fulfill the obligation to report.
76 Those privileges are commonly argued to be based on an instrumental justification. The application of an instrumental notion—that the privilege is needed to encourage individuals to be willing to communicate—makes little sense in a context where a parishioner is required by his or her religious beliefs to communicate about his or her sins. Where the communication is religiously compelled, we assume that religiously observant persons will communicate to the priest or minister whether or not an evidentiary privilege is applicable. In another article, I have criticized the instrumental justification as it works in practice and proposed a new approach to professional relationship evidentiary privileges, but still in reliance on the same general type of instrumental justification. Norman Abrams, Unpacking the Power of an Ante-Litigation Limitation on Advice/Treatment-client/Patient Evidentiary Privileges, 21 Quinnipiac L. Rev. 1089 (2003).
77 See supra notes 24–27 and accompanying text.
78 See, e.g., Mass. Gen. Laws ch. 119, � 51A (2003); Tex. Fam. Code Ann. � 261.101 (Vernon 2003).
79 See generally J. Michael Keel, Law and Religion Collide Again: The Priest-Penitent Privilege in Child Abuse Reporting Cases, 28 Cumb. L. Rev. 681 (1997), which addresses the constitutional issues raised by a state statutory scheme requiring child abuse to be reported by a psychotherapist but not by a member of the clergy engaged in a spiritual-advice counseling role.
80 See supra note 34.
81 See supra note 67.
82 The clergy privilege and child abuse reporting statutes in Arizona, California, Idaho, Michigan, Montana, Nevada and Utah have this relationship. Compare supra note 34, with supra note 58.
83 See supra note 67.
84 See supra notes 80–83 and accompanying text.
85 These states are Colorado, Florida, Illinois, Kentucky, Maryland, Maine, Minnesota, Missouri, New Mexico, North Dakota, Oregon and Pennsylvania. See supra note 58 and accompanying text.
86 The concerns reflected in the foregoing analysis may be the kind of concerns that the drafters of the original Uniform Rules of Evidence had in mind when they commented that a rule broader than the confessional privilege would “open the door to abuse and would clearly not be in the public interest.” See supra note 21 and accompanying text.
87 Among the many occupations that are required to report, there may be some others that have a similar peripatetic feature, but I have not identified any place where that feature is combined with privilege-reporting rules that vary so markedly.
88 For opinions in a case where a conflict of laws issue arose in a clergy-privilege setting, but not involving child abuse reporting differences between the states, see Gonzalez v. State, 45 S.W. 3d 101, 102–03 (Tex. Ct. App. 2001) and Gonzalez v. State, 21 S.W. 3d 595, 596–97 (Tex. Ct. App. 2000).
89 See supra note 59. Idaho, in what surely must be a result of legislative inattention, does not abrogate the clergy privilege in regard to reporting suspected child abuse but does abrogate with respect to judicial proceedings involving child abuse. Idaho Code � 16-1619 (Michie 2003).
90 See, e.g., Bordman v. State, 56 S.W. 3d 63, 67–68 (Tex. Ct. App. 2001) (applying Tex. Fam. Code Ann. � 261.202).
91 Wyoming is an interesting state in this respect. The Wyoming child abuse reporting statute does not address the clergy privilege issue, so it is unclear whether it is an abrogation or exemption state as to the reporting requirement. Wyo. Stat. Ann. � 14-3-205 (Michie 2002). Another provision, however, makes evidence “regarding a child in any judicial proceeding” subject to exclusion if it concerns “a confession made to [the clergy person] in his professional character if enjoined by the church to which he belongs.” Id. �� 1-12-101, 14-3-210. The Wyoming statute thus comes closest to being a statutory model for the form of partial abrogation being proposed here, but it is distinguishable because the statute does not provide that the clergy privilege is abrogated as to the child abuse reporting obligation.
92 Issues can be raised as to how far the privilege door would be closed in the criminal proceedings. These questions are addressed in Part IV.
93 It should be emphasized that what is being proposed is the recognition of the clergy privilege that would otherwise have been applicable in the criminal proceeding, if there had not been an abrogation of the privilege under the child abuse reporting statute. The proposal does not extend the clergy privilege so much as it prevents the child abuse reporting obligation from having the consequence of making the privilege inapplicable in the criminal proceeding.
94 See supra note 67. The result is that these states can be put in the exemption category (partial exemption), or in the abrogation category (partial abrogation), because the fact that only some otherwise-privileged communications are exempted by the privilege from having to be reported leaves other otherwise-privileged communications which must be reported.
95 Tex. Fam. Code Ann. � 261.101(c) (Vernon 2003); see supra notes 25–26. Also worthy of note is Washington, which provides that conduct involved in reporting is not to be deemed in violation of any privilege. Wash. Rev. Code � 26.44.060(3) (2003). The Washington clergy privilege applies only to confessional communications.
96 Tex. R. Evid. 505.
97 Tex. Fam. Code Ann. � 261.101(c).
98 Op. Tex. Att’y Gen. No. JM-342 (1985). See Shannon O’Malley, At All Costs: Mandatory Child Abuse Reporting Statutes and the Clergy-Communicant Privilege, 21 Rev. Litig. 701, 706–07 (2002).
99 Prosecutions are more likely to occur in nonconfessional and, of course, in unprivileged contexts. See, e.g., People v. Hodges, 13 Cal. Rptr. 2d 412, 414–16 (1992) (prosecution of protestant ministers for failing to report child abuse where information received from victim appeared not to have been received in a privileged context).
100 Thomas v. Review Board, 450 U.S. 707, 718 (1981); Sherbert v. Verner, 374 U.S. 398, 403 (1963).
101 City of Boerne v. Flores, 521 U.S. 507, 512–14, 536 (1997); Employment Division v. Smith, 494 U.S. 872, 884–90 (1990).
102 494 U.S. at 872–73.
103 Id. at 873.
104 Boerne, 521 U.S. at 507–08, 536.
105 See supra notes 102–104 and accompanying text.
106 There may be a question, however, whether the “neutral and generally applicable” standard is met where the reporting obligation is imposed on a list of named professions that includes the clergy profession. There may be a further question about the applicability of Smith and Boerne if another constitutional claim is raised. See Smith, 494 U.S. at 872–73 (“The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections.”). Compelled speech is involved here because legislation that abrogates the privilege for child abuse reporting purposes requires that reports be made in specified circumstances with criminal sanctions imposed for failing to report. Hence, there is at least some basis for raising a freedom of speech concern.
107 Of course, exempting religiously protected confessional communications or the like may pose an establishment issue. See infra notes 113–127 and accompanying text.
108 See, for example, Mass. Gen. Laws ch. 119, � 51A (2003), which provides for an exemption to the reporting requirement for “information gained solely in a confession or similarly confidential communication in other religious faiths”; see also the Maryland statutes which contain an additional ambiguity: through a combination of two provisions, the exemption applies to “any confession or communication made . . . in confidence by a person seeking . . . spiritual advice or consolation” where the “clergyman . . . is bound to maintain the confidentiality of that communication under canon law, church doctrine, or practice.” Md. Code Ann., Cts. & Jud. Proc. � 9-111 (2003); Md. Code Ann., Fam. Law � 5-705 (2003). This provision would seem to exempt from the reporting requirement confessional communications whose confidentiality is protected by religious obligation. Is the exemption similarly limited as to spiritual-advice communications? The answer would seem to be yes, unless the term “practice” is given a broad construction, which is a possibility.
109 The California approach may accomplish this result, but the language is not absolutely clear. See Cal. Evid. Code � 1032 (West 2003) (defining penitential communication as “a communication made in confidence . . . to a member of the clergy who . . . under the discipline or tenets of his or her church, denomination, or organization has a duty to keep those communications secret”). The problem is highlighted by the reference to the “discipline or tenets of his or her . . . organization.” Id. Might rules of the church group that do not have the force of religious doctrine be included in this category? If so, the obligation of confidentiality begins to look more like rules of professional ethics than religiously based rules. Perhaps the inclusion of the phrase “penitential communication” serves to restrict the category to religiously protected communications. Recall Professor Chadbourn’s explanation of the reason for the change from confession to penitential communication. See supra note 22.
110 See Mass. Gen. Laws ch. 119, � 51A. Still another approach is proposed by Professor Cassidy. He advocates abrogation of the clergy privilege where the clergy member has “reasonable cause to believe that the individual . . . intends to commit a future criminal act causing death or serious bodily injury,” but he would exempt from the abrogation a “penitential communication,” which he defines as a communication “made pursuant to the recognized sacraments of the church for the purposes of spiritual absolution or forgiveness, provided that the clergy member is authorized under Canon law or church doctrine to hear such communication and has a sacred duty under Canon law or church doctrine to keep it secret.” See Cassidy, supra note 50, at 1697–98. Although he is dealing with a different problem and set of issues, his purpose is clearly to provide an exemption tied to an obligation to maintain confidentiality based in religious doctrine, and for essentially the same reasons as under this proposal. Still, because he has tied it so explicitly to the religious requirements of one or two religious denominations, it would seem more likely to be vulnerable to constitutional challenge.
111 See supra notes 94–110 and accompanying text.
112 See supra notes 89–93 and accompanying text.
113 The Court stated:
[A] society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use. . . . But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts.
494 U.S. 872, 890 (1990). Of course, this was dictum and the Court was not necessarily opining generally on all such statutory exemptions.
114 In Corporation of Presiding Bishop v. Amos, the U.S. Supreme Court stated: “It is well-established . . . that ‘[t]he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.’ . . . There is ample room under the Establishment Clause for ‘benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.’ . . . At some point, accommodation may devolve into ‘an unlawful fostering of religion’” 483 U.S. 327, 334–35 (1987) (quoting Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 145 (1987); Walz v. Tax Comm’n, 397 U.S. 664, 669, 673 (1970)).
115 401 U.S. 437 (1971). Close in time to the Gillette decision, the U.S. Supreme Court decided Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), in which it articulated a three-part test for assessing constitutionality under the Establishment Clause. The Court has sometimes, but not always, used the Lemon test in subsequent Establishment Clause cases. The Lemon test involves a determination of whether the legislation has a secular purpose, has a primary effect that neither advances nor inhibits religion, and does not promote excessive governmental entanglement with religion. Lemon, 403 U.S. at 612–13. The entanglement issue in this context primarily involves the question whether, in being required to distinguish between clergy privileges that are religiously based and those which are not, the courts will be drawn into resolving religious questions in an impermissible way. The issues thus raised are discussed in section B of this Part. See infra notes 129–133 and accompanying text.
116 Gillette, 401 U.S. at 437.
117 Id. at 440–41.
118 Id. at 440.
119 Id. at 441.
120 It can be argued that the cases are distinguishable: Although the statutory exemption in Gillette was broader than the exemption the petitioners claimed—all wars versus particular wars—the exemption under this proposal arguably is the narrower one—exemption is provided for religious denominations that religiously require and protect confessional or similar communications, not for those which privilege all confidential spiritual-advice communications. This distinction, however, is not significant if there is a valid neutral nonreligious reason for providing the narrower exemption under the proposal.
121 See Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 25 (1989); Larson v. Valente, 456 U.S. 228, 255 (1982); Lemon, 403 U.S. at 624–25.
122 401 U.S. at 450–54.
123 Id. at 452.
124 Id. at 457.
125 See supra notes 95–99 and accompanying text.
126 Generally, a failure to report is a misdemeanor under the state child abuse reporting statutes. See, e.g., Cal. Penal Code � 11166(b) (West 2003).
127 See, e.g., Walz, 397 U.S. at 678 (“It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice of according the [tax] exemption to churches, openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside.”).
128 See supra note 34 and accompanying text.
129 United States v. Ballard, 322 U.S. 78, 85 (1944).
130 Presbyterian Church v. Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 440 (1969).
131 See, e.g., People v. Edwards, 248 Cal. Rptr. 53, 56–57 (Ct. App. 1988). In that case, extensive testimony was given by church officials as to the discipline and tenets of the Episcopal Church as bearing on the question whether the communications in question were penitential communications within the meaning of the California clergy privilege statute. Id. Often, too, the priest or minister’s own view of the nature of the communication will play a large role in the judicial determination of whether the privilege is applicable. See, e.g., Kos v. State, 15 S.W. 3d 633, 638–40 (Tex. Ct. App. 2000).
132 Thus in Amos, by statute, religious organizations were exempted from the provision of Title VII of the Civil Rights Act of 1964 prohibiting discrimination in employment based on religion. 483 U.S. at 329. The question was whether applying the exemption to the secular nonprofit activities of religious organizations violated the Establishment Clause. Id. at 329–30. In support of the Court’s conclusion that there was no constitutional violation, Justice William Brennan, concurring in the judgment, addressed the question whether a categorical exemption for nonprofit activities was justified and in that connection considered the appropriateness of a case by case determination of the character—religious or not—of a nonprofit organization, stating: “What makes the application of a religious-secular distinction difficult is that the character of an activity is not self-evident. As a result, determining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs.” Id. at 342 (Brennan, J., concurring).
By way of contrast, determining whether the tenets of a particular religious denomination religiously obligate the clergy to maintain secrecy is not the same kind of fact-intensive determination that was under consideration in the Amos case. Although determining whether a particular communication is covered by a religious obligation to maintain its confidentiality, or falls under the heading of spiritual advice, may turn on the facts and circumstances of the particular case, it would seem to be a rather straightforward inquiry and not run the same type of risks of entanglement referred to by Justice Brennan in Amos. See id. (Brennan, J., concurring).
133 Professor John Mansfield, also writing in this Symposium, may disagree with the conclusion reached here. See John H. Mansfield, Constitutional Limits on the Liability of Churches for Negligent Supervision and Breach of Fiduciary Duty, 44 B.C. L. Rev. 1167, 1179 (2003).
134 Oregon v. Elstad, 470 U.S. 298, 325 (1985) (Brennan, J., dissenting).
135 See Kastigar v. United States, 406 U.S. 441, 442, 462 (1972) (examining the constitutionality of compelling testimony by offering immunity in subsequent criminal proceedings); Murphy v. Waterfront Comm’n, 378 U.S. 52, 103 (1964) (White, J., concurring) (asserting that “[o]nce a defendant demonstrates that he has testified in a state proceeding in exchange for immunity to matters related to the federal prosecution, the government can be put to show that its evidence is not tainted by establishing that it had an independent, legitimate source for the disputed evidence”).
We refer to the use immunity-derivative use doctrine only by way of analogy to suggest the kind of derivative evidence doctrine that might be applied. Another arena that has some relevance by way of analogy is the poisonous fruit doctrine applied in connection with illegal searches or tainted confessions. See generally Wong Sun v. United States, 371 U.S. 471 (1963).
136 435 U.S. 268, 276 (1978).