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On 28 March, 1606, Fr. Henry Garnet, an English Jesuit, went on trial in London. He was accused of involvement in the famous “Gunpowder Plot” the previous year in which Guy Fawkes and his co-conspirators attempted to blow up the Houses of Parliament and assassinate King James I.

A central plank of Garnet’s legal defense was that, although he was made aware of the Gunpowder Plot beforehand, he could not have done anything to stop it because he learnt about it only during the sacrament of confession. Given the near-total hysteria surrounding Catholicism in England at the time, one would expect the court to dismiss Garnet’s defense as popish nonsense and send him straight to the gallows.

That did not happen. Garnet was indeed convicted and was martyred on 3 May, 1606 (his cause for canonization is pending). But the trial records show that his defense was taken seriously. The prosecution argued not that the seal of confession was irrelevant, but either that Garnet must have heard of the plot outside of the confessional, or that the confession was not sacramental because the plotters lacked true contrition for what they were planning to do.

The state of Louisiana may be about to go where even rabidly anti-Catholic England in the seventeenth century dared not. The Louisiana Supreme Court is seeking to compel Fr. Jeff Bayhi, a priest of the Diocese of Baton Rouge, to testify about what he heard in the confessional concerning a case of child abuse. If subpoenaed to testify and asked about what he heard during confession, the court will effectively be asking Fr. Bayhi to choose between being sent to prison and committing what Catholics consider to be such a serious offense against the sacrament that not even the Pope himself can dispense from the law’s requirements in this area. As an indication of the seriousness of the matter, the Fourth Lateran Council in 1215 decreed that violators of the seal of confession should be “deposed from the priestly office” and then “consigned to a closed monastery for perpetual penance.”

If the evidence offered so far in the case is accurate, then there are serious questions surrounding Fr. Bayhi’s fitness for priestly ministry. A deposition heard by the court alleges that when a 14-year-old girl asked the priest for advice on how to fend off inappropriate advances from a 64-year-old parishioner, he simply told her, “this is your problem; sweep it under the floor and get rid of it.” If this allegation is true (and here we must remember that Fr. Bayhi has absolutely no way of defending himself against it even if he wants to), then what happened was an appalling dereliction of duty on the priest’s part for which he would have to answer to God.

But the fact that there may be bad confessors who fail to care properly for their penitents does not mean that the government has the power to regulate the worship of the Catholic Church. We are not even talking, in this case, about the role of the Church in the “public square,” but about the Church’s internal sacramental life. The secrecy of the confessional seal is an integral part of the Catholic faith concerning this sacrament, and, regardless of the small number of Catholics who actually confess these days, the celebration of this sacrament goes right to the heart of the Christian religion. As the Catechism of the Catholic Church reminds us, “the Gospel is the revelation in Jesus Christ of God’s mercy to sinners,” and for many Catholics over the centuries the sacrament of confession has been the means through which God’s mercy is most viscerally conveyed to them at the moments during their lives when they are the most vulnerable.

Other courts in the United States have recognized these facts. In obiter dicta remarks in Trammel v. United States (1980), Chief Justice Warren Burger placed confessions in the same category of privileged communications that apply to those between attorneys and their clients:

The privileges between priest and penitent, attorney and client, and physician and patient . . . are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.

The state of New York recognized, in the landmark religious liberty case People v. Phillips (1813), that compelling a priest to testify about matters heard during confession would be a fundamental violation of Catholics’ religious liberty:

It is essential to the free exercise of a religion, that its ordinances should be administered. . . . Secrecy is of the essence of penance. . . . To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance; and this important branch of the Roman Catholic religion would be thus annihilated.

As the late legal historian Kermit Hall notes, the court in this case “did not believe it was granting Catholics a benefit to which persons of other beliefs are not entitled.” Rather, it simply made, in the particular matter of confession, a rather obvious inference from the basic principle of religious freedom.

Catholics do not care only about mercy and penitence, of course, but also about justice. “God judgeth the righteous, and God is angry with the wicked every day,” we read in the Psalms. The vast majority of lay Catholics are as anxious as the rest of society that sex offenders and other criminals should be detected, apprehended, and then subjected to the severe rigors of the law.

From a purely utilitarian standpoint, however, the failure of the state to respect the integrity of the confessional seal is a foolish blunder. Very few criminals are likely to be either stupid enough or pious enough to confess their sins to a priest if they think there is any risk that the priest will report them. Riding roughshod over the seal of confession is likely to have little effect apart from making society slightly less safe for everyone, since those criminals who evade police detection will also avoid having a priest exhort them to make amends for their crimes. Compelling Catholic priests to violate the confessional is not only bad for the Catholic Church, but bad for America.

Aaron Taylor, a Ph.D. student in ethics at Boston College, holds degrees from the University of Oxford and from Heythrop College, University of London.

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