Monday, 14 July 2014 09:00
Louisiana Religious Liberty case should proceed to US Supreme Court
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Supreme-court-coloredThe Louisiana Supreme Court’s decision regarding a civil matter may end in a monumental First Amendment decision setting a landmark for future jurisprudence in the area.


At issue is the court’s ruling in case #2013-C-2879, which orders a Catholic priest to answer questions potentially about the content of information he heard from a then-minor female five years ago. The girl allegedly was abused sexually, told the priest in confession, who then it is argued did not follow the law. This is relevant to a suit filed by the girl’s family against the family and business of the reputed abuser and, later added as plaintiffs, the Diocese of Baton Rouge and the priest; the alleged abuser died not long after the reputed confessional sessions took place.

Louisiana law generally grants an exception to its mandatory reporting law to clergy when the communication of possible abuse of a minor or other crime comes as part of confidential communication relevant to the performance of a professional duty; in this instance, the sacrament of confession. However, the law (Code of Evidence) also states that the receiver of the communication “shall encourage that person to report the allegations to the appropriate authorities.” Also (Children's Code) stated is that "Notwithstanding any claim of privileged communication, any mandatory reporter who has cause to believe that a child's physical or mental health or welfare is endangered" by alleged conduct has a duty to report.

The suit seeks to discover whether that advice was given and if the priest thought there was endangerment, being that this at best is a judgment call and it's entirely possible the way it was communicated he did not think so. The Court says these may be discovered because it interprets the law to put the locus on what is treated as such communication in the hands of the sender of that communication, and the girl has made public what she said was communicated by both parties in a series of confessional sessions.

Contrary to what some states do, Louisiana law does not unambiguously envelop both the sender’s and receiver’s intent as to when a communication falls under this kind of confidentiality (saying only that a receiver may speak on behalf of the sender). In other words, with privilege assumed only to be that of the sender as the Court ruled, the sender may invalidate that confidential nature of the communication without agreement or consent by the receiver of it, thereby in the eyes of the law forcing the receiver to give information about it.

Unfortunately, that runs directly afoul of Church canon law. Canon 983.1 of the Code of Canon Law states, "... [i]t is a crime for a confessor in any way to betray a penitent by word or in any other manner or for any reason” – not even to save a life including his own or others’. So perhaps while the Church would hope that secular law reflects canon law, in Louisiana on this matter it does not because that secular law does not explicitly note that even if the sender of the communication reveals his version of that, the receiver of it cannot be compelled legally to reveal his version.

Louisiana’s Preservation of Religious Freedom Act does not seem to apply here, as it is based upon the Free Exercise Clause of the First Amendment and the federal level version of the law does not apply to state laws. But that this exemption regardless of the sender’s action exists is implicit within the Establishment Clause does seem very plausible; to disallow the ability of a long-standing religion in America to protect an integral part of the practice of its faith, applying the sacramental seal to every instance of confession, restrains insufficiently government power that can control the practice of that religion to make it act as an appendage of government (in this instance, collecting evidence relevant to its arbitration of civil relations, where that evidence may never have existed unless the sacramental seal of penance was in effect).

In an unusual public response to the matter, the Diocese asserts that it will pursue legal action that would have to demonstrate that the Louisiana Supreme Court, even if following state law, violated the U.S. Constitution with that ruling because of its interpretation of the law that does not clearly extend privilege to both parties. As well it should, for such a ruling clearly erodes religious liberty in the U.S. If that happens, then the U.S. Supreme Court can use this case to affirm that such privilege exists in both parties as a result of the Establishment Clause, clarifying a matter of law and entering the case into the jurisprudential history books.

While a legislative solution to clarify is desirable and should be pursued, that cannot and does not help now and would apply only to Louisiana. To help protect religious freedom both in state and across the country, the Diocese should proceed with its legal challenge forthwith.

Jeffrey Sadow

Jeffrey Sadow is an associate professor of political science at Louisiana State University in Shreveport.   He writes a daily conservative blog called Between The Lines

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