Ministerial Exception Part III
While I was corresponding with Gritsforbreakfast on the post below, I was troubled by an aspect of our conversation that bothered me but that I couldn’t frame adequately. Today it clicked. An issue that I think is being overlooked in the discussion of the ministerial exception is the religious freedom of the minister.
The difference between a non-confessional religion and a confessional religion is not just a difference in practice. It is a real, substantial difference in doctrine that directly implicates the Establishment Clause. The implication of this fact is that a minister cannot, as a matter of law, be forced to hear a confession if it violates the tenants of their religious faith or runs counter to their religious practice. When Grits writes, “There will never be a case involving a Protestant where the church has a secret confession, so by saying it can be a factor, it ensures there will be a viable argument mitigating against privilege in EVERY single case involving a Protestant communicant” he is correct and that is exactly the way it needs to be. It needs to be this way not for the protection of the penitent but for the protection of the minister. If it weren’t that way, then the minister’s profession of faith in his or her non-confessional religion would be meaningless. The statue would, as a de facto matter, establish the practice of confessions as a state function. This clearly violates the Establishment Clause. The statue to be constitutional can only allow confessions, not require them.
The consequence of this fact is that when the words “intended to be confidential” are used it is not sufficient to merely look at the intention of the penitent. Looking only to the penitent for intention would completely exclude the ability of the minister to practice his religion. The state has no constitutional basis to force a minister to hear a confession (and thus to carry the moral and spiritual burden of that confession) when the minister doesn’t want to, when his own faith militates against it. In order to protect the religious freedom of the minister, we need to look at his or her intention in receiving the penitent’s communication.
In some situations, of course, the intentions of both parties will be obvious because they will verbally declare those intentions. But in some cases, the intentions of the respective parties will not be clear; they may even conflict. In this case, it would not only be a good thing but a requirement to look at the doctrine and historical practices of the religion as the court attempts to determine the intentions of the parties post hoc.
In conclusion, it is important to remember that when a court rules a communication privileged under the ministerial exception, it is not merely giving force to the legal right of the penitent; it is equally placing a moral and spiritual burden on the minister. Before the court rules in favor of the penitent, it must be certain that such a ruling does not conflict with the ministers own freedom of religion.