The Diocese of Baton Rouge and the attack on the priest-penitent privilege

Washington D.C., Jan 21, 2015 / 05:03 pm (CNA/EWTN News).- The U.S. Supreme Court has declined to hear a petition from a Louisiana Catholic diocese that fears a civil lawsuit could force a priest to violate the seal of confession or go to jail.

The Diocese of Baton Rouge and diocesan priest Father Jeff Bayhi were disappointed by the decision, which the diocese said has “significant ramifications for religious freedom in Louisiana and beyond.”

“The diocese and Fr. Bayhi will continue their efforts to protect the guarantees of religious freedom set forth in our state and federal constitutions, and are confident that those efforts will, in due course, be successful,” the diocese said in a Jan. 20 statement.

The diocese and the priest are considering “a number of options” for other constitutional challenges in the case.

The U.S. Supreme Court has let stand the Louisiana Supreme Court’s May 2014 ruling that a court hearing is necessary to determine whether state law protects a priest’s conversation during confession with a minor about an alleged sexual abuser in the parish.

Catholic priests are bound to observe the seal of confession and cannot not reveal to anyone the contents of a confession or whether a confession took place. Priests who violate the seal are automatically excommunicated.

At issue is a civil lawsuit involving a woman who said that in 2008, when she was a minor, she told Fr. Bayhi that she was being abused by a parishioner. The alleged conversation with the priest took place during the Sacrament of Confession. The woman is now in her early 20s.

The young woman's family is now suing the priest and the diocese for damages, saying they were negligent in allowing the abuse to continue, The Times-Picayune newspaper reports. The estate of the man who allegedly molested the woman is also named in the suit. The accused man died in 2009.

A trial court had denied the diocese's motion to prevent any plaintiffs from testifying about any confessions that may have taken place between the then-minor and the priest. However, a state appeals court had ruled that the alleged confession was legally confidential and that the priest was not a mandatory reporter.

Later, the Louisiana Supreme Court overturned the appeals court. It said that a fact finding hearing should determine whether the priest had the duty to report alleged abuse under the state's mandatory reporting law. It noted that Louisiana law requires any mandatory reporter to report suspected abuse “notwithstanding any claim of privileged communication.”

The Louisiana Supreme Court also ruled that under state law the priest-penitent privilege belongs to the penitent, not to the priest, and if the penitent waives the privilege then the priest “cannot raise it to protect himself.”

In September 2014, the diocese characterized the legal issue as something that “attacks the seal of confession” and an “attempt by the plaintiffs to have the court compel testimony from the priest.”
Thomas McKenna, the president of the San Diego-based group Catholic Action for Faith and Family, also expressed disappointment that the U.S. Supreme Court declined to give a hearing to the question.

“We had hoped that the Supreme Court would clarify the issue once and for all,” said McKenna, whose organization joined several other groups in filing legal briefs in support of the Baton Rouge diocese and the priest.

He suggested that the plaintiff attorneys modified their position in response to the briefs and began to voice uncertainty about whether they would call the priest to testify about anything he allegedly heard in confession.

“That’s a success,” McKenna said. “Because all these briefs were filed, they changed their tone, and that’s probably why the Supreme Court didn’t accept hearing the case right now.”

If the plaintiff attorneys do call the priest to testify, he said, “we would revisit the case again.”

However, McKenna warned that the case threatens to advance a significant change in American culture when respect for religious freedom is already on the wane.

“This is unprecedented in the history of our country,” he said, saying that a state supreme court has never before ruled that a priest would have to violate the seal of confession.

“We have a civil court calling a priest and disregarding his religious perspective, saying that this is a civil matter and we don’t care what your religion says. You have to tell us.”

“The state has no right to demand from him that he break his vow. That’s what’s very concerning and scary,” McKenna continued. “What you have is the state telling the religion that they have to re-structure and re-order its religion.”

McKenna encouraged Catholics to pray for Fr. Bayhi.

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This is extremely disturbing and has implications across the country.  The priest-penitent privilege has a long history in American jurisprudence, stretching back more than 200 years.

The earliest and most influential case acknowledging the priest-penitent privilege was People v. Phillips, where the Court of General Sessions of the City of New York refused to compel a priest to testify or face criminal punishment.

The Court rightfully asserted that, "It is essential to the free exercise of a religion, that its ordinances should be administered - that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance..."

Attacks against the priest-penitent privilege have multiplied in recent years as the State seeks to encroach on religious freedom.  The Termite Nations seek to punish clerics who refuse to commit the crime of violating the seal of the confessional.

Canon 983: "The sacramental seal is inviolable; therefore, it is a crime for a confessor in any way to betray a penitent by word or in any other manner or for any reason."

Any law which seeks to violate the seal of confession is no law at all.  The doctrine on the necessary conformity of civil law with the moral law is in continuity with the whole tradition of the Church. This is clear for example from the teaching of Pope John XXIII who said that,  "Authority is a postulate of the moral order and derives from God. Consequently, laws and decrees enacted in contravention of the moral order, and hence of the divine will, can have no binding force in conscience...; indeed, the passing of such laws undermines the very nature of authority and results in shameful abuse".

This is the clear teaching of Saint Thomas Aquinas, who writes that "human law is law inasmuch as it is in conformity with right reason and thus derives from the eternal law. But when a law is contrary to reason, it is called an unjust law; but in this case it ceases to be a law and becomes instead an act of violence". And again: "Every law made by man can be called a law insofar as it derives from the natural law. But if it is somehow opposed to the natural law, then it is not really a law but rather a corruption of the law".