Overreach in Louisiana

National Review
July 15, 2014

http://www.nationalreview.com/article/382734/overreach-louisiana-editors

When in 2008 Father Jeff Bayhi, a priest then at Our Lady of the Assumption Catholic Church in Clinton, La., heard the troubling confession of a twelve-year-old parishioner, he likely did not imagine that his sacramental duty would land him in prison. But given a recent ruling by the Louisiana Supreme Court, Father Bayhi is in the position of choosing between prison and excommunication.

Per the Supreme Court’s ruling, Bayhi must appear before the 19th Judicial District Court in Baton Rouge, which will determine whether what he heard – a civil action by the girl’s parents contends that it involved allegations of sexual abuse by a 64-year-old parishioner — constituted a “confession” or instead some other non-confidential statement that invoked Bayhi’s duty to report abuse under Louisiana’s Children’s Code. Under the law, members of the clergy are “mandatory reporters” except when they have a duty to keep private “confidential communications” shared “in the course of the discipline or practice of that church” by “the discipline or tenets of the church” (CHC 603.17.c).

If what Bayhi heard was in fact a confession, that provision would seem to exempt him, except that under Louisiana law, priest–penitent privilege attaches to the client, not the priest. If the client chooses to make the contents of a confession public, the priest can be called to confirm or deny the testimony. However, Church teaching makes no provisions for the statutes of Louisiana: “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” (Code of Canon Law 983.1). Priests who make known directly or indirectly to a third party the contents of a confession are automatically excommunicated, subject to reversal by the pope alone. The inviolability of sacramental confession has been formally communicated since the Fourth Council of the Lateran in 1215, though its origins predate that.

There is an apparent conflict between the ages-old laws of the Catholic Church and Louisiana legislation passed in 1991, but it is not the role of the state’s supreme court to adjudicate between the two. The First Amendment and historical precedent clearly shield Father Bayhi from having to testify in violation of his vocation.

Insofar as the First Amendment intended any “separation between church and state,” it was to protect the church from the state, not vice versa. The notion of a judge having the ability to determine what is or is not a confession should be deeply disturbing. To make the secrecy of the confession booth subject to the judiciary would effectively destroy the sacrament of Penance, which is facilitated by the penitent’s knowledge that he can confess any action to the priest without fearing legal consequences. Making the sacrament a vehicle of the law pressures Catholics to forgo confession in order to avoid the possibility of state punishment, in which case the state would be coercing the consciences of Catholics and restricting their constitutional right to freely exercise their religion. Additionally, requiring priests to report confessions increases the likelihood that priests would refuse to hear them for fear of making themselves subject to legal action. This would be an obvious violation of the First Amendment rights of Catholic clergy.

American law has long understood this. As early as 1813, American courts recognized a priest’s ability to refuse to testify in court about conversations in the confession booth. Five years later, a separate court made the same decision. No precedent exists in American jurisprudence for compelling a priest to testify to confidential communications, and most states have expressly privileged particular communications with clergy.

It is worth noting that there is a question of whether the priest fulfilled his clerical obligations in response to the allegations. While troubling, that is not at issue here. He may roundly deserve discipline from the Church. But failures of vocational ethics do not exclude one from the protections of the First Amendment. The constitutional principle at stake here is fundamental to the religious liberty of millions of Americans and the clergy who serve them. Father Bayhi should be subject to the disciplinary powers of his ecclesial authorities, but he cannot be allowed to be subject to the coercive powers of the state.