Regular First Things readers know that the late Father Richard John Neuhaus never tired of arguing that the First Amendment contains not two religion clauses but one: “no establishment” and “free exercise” are not two free-floating provisions at occasional loggerheads with each other but one. Congress is banned from establishing a religion in order to foster the free exercise of religion. Neuhaus insisted that the muddle of First Amendment jurisprudence in which the Supreme Court often finds itself is in no small measure owing to its own separation (and contraposition) of “no establishment” and “free exercise.”

That dilemma was on display in late January in a Delaware Superior Court in connection with what is usually called the priest-penitent “privilege.” Many states recognize that a priest cannot be compelled to disclose what has been revealed within the Sacrament of Reconciliation. At the same time, many States—Delaware among them—have also enacted mandatory reporting requirements in connection with child abuse or neglect. Delaware requires reporting of child abuse/neglect except in instances involving an “attorney and client and . . . priest and penitent in a sacramental confession . . . .”

In January 2013, two elders of a Jehovah’s Witness congregation spoke with a minor member of that congregation about an abusive sexual relationship between the child and an adult member of the group. They subsequently also spoke with the adult. Disciplinary sanctions were later imposed on both the child and adult. The conversations were not reported. Delaware subsequently sought civil penalties against both the congregation and the individual elders. The defendants sought summary judgment against the charges on religious freedom and priest-penitent “privilege” grounds. In Delaware v. Laurel Congregation of Jehovah’s Witnesses et al., a Delaware Superior Court judge denied the motion.

What is concerning about the decision is how the court arrived at it. The decision is a perfect illustration of what happens when “no establishment” and “free exercise” are put at odds.

The Jehovah’s Witnesses claimed that, in dealing with their congregants, they were engaged in free exercise and also invoked the priest-penitent exemption in Delaware’s reporting law. But the Delaware statute actually uses the terms “priest,” “penitent,” and “sacramental confession.” Jehovah’s Witnesses have neither priests nor sacramental Penance.

That set the Delaware court off on a constitutionality chase. It first tried to deal with the “priest-penitent” issue on federal Constitutional terms, treating “no establishment” as a self-standing clause and then trotting out the three-part Lemon v. Kurtzman test to determine whether the wall of separation was under threat. Failing to resolve the issue decisively at the federal level, the court resorted to the religion provisions of the state constitution, which contains an explicit bar on laws favoring one religion at the expense of others.

By specifically writing “priest,” “penitent,” and “sacramental confession” into the reporting law, did the Delaware Legislature impermissibly benefit Catholics, Orthodox, and maybe a few Lutherans and Episcopalians at the cost of lower church polities? Taken literally, the Delaware court seemed to think so. But, absent clear indications as to why the Legislature wrote the law the way it did, the Delaware court decided to go on its own search for doctrinal analogies. What religious conversations—and with whom—might be equivalent to sacramental confession? Was a religious conversation with a Jehovah’s Witness elder, which led to continued membership or exclusion from the congregation, the functional equivalent of confession for a Catholic? Because the answers were not straightforward, the court denied summary judgment.

Oh, what a tangled web we weave when judges put asunder what the Founding Fathers joined in the First Amendment! The court’s line of reasoning is worrisome, for three reasons.

First, a robust understanding of “free exercise” should dispose of the federal Constitutional claim immediately: by its very nature, what Catholics, Orthodox, and a few others do in conjunction with sacramental confession is intrinsically part of what it means to exercise freely what being a member of those churches entails. It is, for example, inherently a part of Catholic doctrine: sacramental confession is as necessary for salvation following post-baptismal mortal sin as baptism itself originally was. To impede sacramental confession is thus to violate free exercise for Catholics, Orthodox, and others, irrespective of whether other denominations do or do not have fundamentally equivalent practices.

The Delaware court claimed that to apply the priest-penitent exemption strictly would involve it in “excessive entanglement,” in violation of the Lemon decision. But here is a perfect illustration of a Court-created test that, in the end, eviscerates the Constitutional principle of free exercise that should take precedence.

Second, the court’s fishing expedition for functional equivalencies is inherently dangerous, represents “excessive entanglement,” and, in my view, is itself unconstitutional. The court thought it was seeking ecumenical counterparts to rescue Delaware’s priest-penitent “privilege” from a finding of unconstitutionality. As I have argued, there was no need to find it void on federal Constitutional grounds. I defer to the locals regarding the vagaries of Delaware’s state constitutional jurisprudence, although I think a case can be made that the “all-or-nothing” approach to the Delaware no privileging provision in fact interferes with the federal free exercise rights of high church members.

But it is certainly not any court’s business to engage in searching for ecumenical counterparts or weighing theological equivalencies. Such efforts would inherently turn doctrinal matters into issues for civil litigation, an entanglement disaster that a long line of precedents excluding the courts from taking sides on questions arising from doctrinal issues should preclude.

Third, the entire paradigm out of which the court worked leads to the appearance that the only authority that matters is Caesar. Does the seal of confession, around for more than a millennium and a half before anybody even heard of something called “Delaware,” exist or not exist by the latter’s sufferance? And even if it suffers its existence, is that sufferance further subject to measurement on purely secular grounds by judges? The hubris of that claim should be striking but, given that the federal courts have already decided that they can extend or withdraw legal sufferance from an even older institution than confession—marriage—then I guess that tampering with the confessional would not be a bridge too far for unrestrained judges.

In light of the Catholic Church’s failures in the area of clerical sexual abuse, a defense of priest-penitent rights (I avoid the term “privilege” because it suggests that the sacramental relationship is merely a recognized civil law construct) will seem to some as special pleading. The Jehovah’s Witnesses, too, have been accused of covering up sexual abuse in their denomination. Getting beyond the headlines, however, should make us sensitive to the real threat to religious liberty posed precisely by our impoverished reading of the First Amendment’s free exercise guarantees.

Dr John M. Grondelski is former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. All views expressed herein are exclusively his own.

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