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We’re approaching the zenith of tax season, but while accountants are poring through returns, legislators in Washington State, Vermont, and Delaware are focused on another so-called “loophole”: people’s ability to confess their sins to their priests in confidence.  

Legislators in these states point to an Associated Press report from last fall urging legislatures to “fix the clergy loophole” by making it illegal for clergy to keep penitential communications private. Though many faiths have practices that fall under the clergy-penitent privilege, debates over the privilege center on the Catholic Church, where priests vow never to repeat what they hear in the confessional.

As the AP article notes, since the Boston Globe’s 2002 Spotlight report, dozens of bills have been introduced to try to remove the clergy-penitent privilege in the context of mandatory reporter laws. But none have passed. Last week Auxiliary Bishop Schuster of the Archdiocese of Seattle and I presented testimony against the Washington State bill, but on Friday it passed the Human Services, Youth & Early Learning committee, and will now go before the rest of the state House. This is the closest any bill that attacks the sacrament of confession has come to passing since California nearly enacted a similar law in 2019.

In recent weeks I have submitted detailed public comments in Washington, Vermont, and Delaware arguing that invading the confessional is unwise, unnecessary, and unconstitutional. But you don’t have to make your way through a detailed memo to understand why trying to force priests to violate their religious vows is a bad idea.

The AP report and the bills it has inspired make three fundamental mistakes. First, they incorrectly presume government could coerce clergy into reporting what people confess. Second, they presume—against all evidence—that destroying the clergy-penitent privilege will make children safer. Third, they discriminate against religion by failing to target comparable secular privileges. These flaws make these bills impractical, discriminatory, and unconstitutional.

In the Catholic faith, the seal of the confessional—the promise that a priest will never repeat what he hears in confession—is rooted in God’s promises. Psalm 103 says, “as far as the east is from the west, so far has he removed our sins from us.” The prophet Ezekiel promises, “if the wicked man turns away from all the sins he committed . . . none of the crimes he committed shall be remembered against him.” Catholic priests proclaim the Word of God not just by repeating these words, but by living them out, most centrally when sinners unburden themselves in confession.

The Church’s canon law puts violating the seal of the confessional in the highest category of crimes, on par with physically assaulting the pope. Priests who violate this solemn obligation are automatically excommunicated from the Church. Kings and military dictators have learned over the centuries that you can’t coerce priests into breaking the seal of the confessional. They’ll be martyrs, not state witnesses, if you try.

The confessional’s confidential nature does not, however, prevent priests from using the sacrament to advance the Church’s commitment to justice and child safety. Many Catholic dioceses already train their seminarians that, if they hear of abuse during a confession, the priest should encourage the penitent to repeat this information to him later outside of confession, so the priest can make a report to civil authorities and connect victims with resources to help them heal.

If a perpetrator admits abuse as part of his confession, a priest can withhold absolution (the proclamation that God forgives the penitent) if the priest suspects that a confession is insincere or that the sinner is unwilling to reform. Notre Dame law professor and canon lawyer Fr. John Paul Kimes explains, “I can say, ‘I can’t forgive your sins until you show me a sign that there’s a genuine conversion of heart. The best way to manifest that is for you to go to the police and tell them what you did. Regardless of the consequences, if you were concerned about the salvation of your soul, this is the way you show it.’”

Second, while the bills overestimate the law’s ability to coerce priests, they underestimate what their efforts will do to Catholics in the pews. If people doubt that the confessional is a safe place to lay bare their souls, they won’t come. Perpetrators would not come to a priest to confess their abuse; abused children might not confess if they are unsure of how priests will respond. These secrets would stay locked away: Priests would lose the opportunities they now have to persuade victims to let them help, and abusers would lose opportunities to make amends.

Third, the pending bills in Washington, Vermont, and Delaware focus on puncturing the clergy-penitent privilege, while leaving the analogous attorney-client privilege intact. Both privileges, the U.S. Supreme Court recognizes, are “rooted in the imperative need for confidence and trust.” The bills suggest that it’s good for lawyers to keep confessions confidential for secular reasons, but it’s bad for priests to keep confessions secret for religious reasons. Nothing in the AP report or in these bills acknowledges, let alone justifies, this obvious religious discrimination.  

The closer one gets to the details, the clearer it is that the clergy-penitent privilege is not a “loophole,” and that efforts to invade the confessional are unconstitutional and counterproductive. These bills would do nothing but turn faithful priests into outlaws and scare broken people away from a chance to find healing, resources, and justice.

As Boston Globe columnist Jeff Jacoby wrote in a recent Sunday column, “Protecting children is a matter of crucial importance. Protecting religious faith is too. It isn’t the job of lawmakers to privilege one of those worthy aims over the other. It is to strive, with care and respect, to do both.”

States should leave the Catholic Church’s sacraments alone and focus on other, more productive ways of protecting children.

Eric Kniffin is a fellow at the Ethics and Public Policy Center. 

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Photos by Wilfredor licensed via Creative Commons. Image cropped. 

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