Many observers misunderstood the Hobby Lobby dispute and others like it as a First Amendment case, but it wasn’t. It primarily related to the Religious Freedom Restoration Act (RFRA), with an indirect reference to the constitutional freedom of religious expression. A case in Louisiana may be the real McCoy, though. The Louisiana Supreme Court has ruled that a priest must testify in a case about what he heard in a confessional — an order that would result in automatic excommunication and damnation, according to the doctrine and canon law of the Catholic Church:

The state high court’s decision, rendered in May of this year, demands that a hearing be held in 19th Judicial District Court in Baton Rouge, where the suit originated, to determine whether or not a confession was made. It reverses an earlier decision by the Louisiana First Circuit Court of Appeals dismissing the original lawsuit filed against Bayhi and the diocese.

The case stems from a claim by parents of a minor that their daughter confessed to Bayhi during the sacrament of reconciliation that she engaged in inappropriate sexual behavior with grown man who also attended their church. Court documents indicate the child was 12 years old at the time of the alleged sexual abuse.

A criminal investigation by East Feliciana Sheriff’s Office into the alleged sexual abuse was ongoing when the accused church member died suddenly in February 2009 of a heart attack.

The civil lawsuit in question, filed five months later in July 2009, names the late sexual abuse suspect, as well as Bayhi and the Baton Rouge diocese, as defendants. The suit seeks damages suffered as a result of the sexual abuse, noting that abuse continued following the alleged confessions.

The petitioners claimed Bayhi was negligent in advising the minor regarding the alleged abuse and failed his duty as a mandatory reporter in compliance with the Louisiana Children’s Code. It also holds the diocese liable for failing to properly train the priest regarding mandatory reporting of sexual abuse of minors. Defendants claimed, in addition to other points of law, that only the sexual abuse suspect was liable for the suffering the minor endured.

This case gets complicated for a couple of reasons. While the common perception has been that priests cannot be forced to testify about confessions in the US because of ministerial privilege and the First Amendment, that privilege gets defined by each state separately. In Louisiana, the privilege attaches to the person offering the confession and not the priest. Once the penitent has revealed what was said — or perhaps more to the specific point in this case, alleges to have revealed what was said — the state can subpoena the priest to confirm or deny the testimony. In that sense, it’s akin to the lawyer-client privilege, which can be broken by the client.

On the other hand, lawyers don’t face eternal disbarment for testifying once a client has waived the privilege. Priests do, and face automatic expulsion from the Catholic Church for complying. There is nothing in church doctrine that requires a penitent to keep quiet about what transpires in the confessional, but the canon law is clear on this point. Can. 983 states that “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” The punishment for breaking the seal is explicitly noted in Can. 1388: “A confessor who directly violates the sacramental seal incurs a latae sententiae [by the commission of the act] excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.”

In this case, the trap is even more complex. The court wants the priest to corroborate the girl’s testimony about the confession. Assuming the priest recalls the confession at all — it was five or more years ago, and priests hear a lot of confessions, and most of them anonymously — he’d have to violate canon law just by talking about it. Plus, if he testifies that the witness is not telling the truth about the confession, he’d be violating the seal of the confessional even more profoundly. Either way, the court would in essence force the priest into betraying his faith and violating his oath or face prison time for contempt of court.

Rod Dreher warns that this is a direct attack on religious freedom:

This is a very serious situation. I take no position on whether or not the priest handled the particular situation in the parish wisely or justly, but let there be no mistake: the seal of the confessional must be inviolable. The relationship between a priest and a penitent can only take place in the security of confidentiality given two both parties. …

Again, I’m eager to learn from lawyers who read this blog whether or not the priest here is likely to go to jail, or if he and the diocese are protected by the First Amendment. God help us all if he is not. Even if the plaintiff is telling the truth about the priest advising her in the confessional to sweep it all under the rug, which would make the priest is a scoundrel, the religious freedom principle at stake here is so important that even a scoundrel priest must be defended.

I agree. In order for Catholics to enjoy the free expression of their faith, they have to know that the confessional is inviolable no matter what issues may be at play. For that to happen, priests — who deserve the same freedom of religious expression as everyone else in the US — have to know that they do not risk jail time for the act of hearing confessions. The interest of the state in this civil lawsuit is far outweighed by the need to protect this freedom, and any restriction on privilege set up at the state level that fails to recognize this should be overturned by federal courts on the basis of the First Amendment.

Note: Hat-tip to Gabriel Malor for pointers on the issues of privilege and state law.

Update: A fair question from the comments asks a hypothetical about a priest who learns in confession about an upcoming commission of a crime. Note that this is not exactly what happened in Louisiana, but it’s still a fair hypothetical. Cathy Caridi, a canon lawyer, explains that while a priest has some options to warn the intended victims, he still cannot reveal what was said in confession:

So what does all this mean for the priest who hears the confession of a person who admits that he intends to kill somebody, or who sexually molests children and doesn’t indicate that he will stop? Priests are faced with such difficult situations more often than we laity might think! What are they permitted to do?

Firstly, of course, a confessor can latch onto the fact that if a would-be murderer or child molester has come to confession, he presumably regrets this action and wants to amend his life. The priest can talk this through with the penitent and try to get him to see what true amendment entails. At the very least, he can explain that he cannot impart absolution if the person does not firmly intend to stop committing the sort of sin that he has confessed. Depending on the situation, he may also be able to encourage the person to turn himself in to the authorities. The priest might even offer to accompany the penitent to the police station when he does this; but in such a case he would still be forbidden to repeat the contents of the person’s confession to others. If the penitent wanted him to do so, it would be necessary for him to repeat to the priest, outside the confessional, the things which he had told him in confession. In this way the priest could discuss the penitent’s situation, yet the seal of the confessional would remain inviolate.

If the penitent is not willing to cooperate, there are sometimes situations in which priests can find ways to help the authorities without revealing the content of a person’s confession. If a penitent has indicated, for example, that he fully intends to kill or harm Person X, a priest may be able to warn the police that Person X is in danger, but without fully explaining how he obtained this information. I personally know of a case in which police received a phone call from a priest, warning them that two teenaged sisters were in danger at that very moment. The police understood that the priest was not permitted to give them more specific information, and simply located the girls, notified their parents, and made sure they were protected. It is quite likely that some horrible crime was averted by this priest’s action, yet he did not violate the sacramental seal-in fact, nobody was really sure if he had learned the information in the confessional or in a confidential conversation outside of it. Once again, such collaboration between the authorities and the clergy happens more often than we may realize.

At the same time, however, a confessor is forbidden to go to the police with specific information about a penitent which he had learned during a confession. If, for example, a person confesses that he is the serial killer who is being sought by the authorities, and the priest recognizes his identity, he cannot contact the police and reveal it. This is true even if the person indicates that he intends to commit another crime. While he may strive to lead the criminal to turn himself in, or at least to change his plans, a priest is not allowed to take this information to the police of his own accord. No matter how difficult it may be, he must keep this to himself. We can incidentally see here one more excellent reason to pray for our priests, that they be given the strength to bear such weighty burdens!

This is akin to the “ticking time bomb” hypothetical that was used extensively in the debate over interrogations of terrorists captured after 9/11. Needless to say, it’s a difficult position for priests, but Caridi lays out the options for dealing with it.

Update, 7/10/14: I’ve updated the link to Caridi to direct it to her own site.