Four Orthodox churches and one Orthodox priest sued Washington State on Monday over a new “discriminatory” mandatory reporter law. The law requires priests to violate the seal of the confessional when they learn of child sex abuse during confession.
The law allegedly unfairly targets religion while respecting confidentiality in secular settings, like attorney-client privilege. The plaintiffs fear the law “would result in people refusing to confess, thus depriving themselves of God’s mercy” and would burden their religious exercise.
Legal Insurrection reported on a similar lawsuit brought last month by Catholic bishops in Washington State.
The Alliance Defending Freedom represents the plaintiff churches and priest in the action filed in federal court. A press release from the group alleges the law “targets priests by criminalizing their religious obligations to keep confession confidential.”
The law “burdens Plaintiffs’ religious exercise because each of the Plaintiff Church’s priests and [the plaintiff priest] must either violate his religious convictions or face criminal punishment and civil liability,” the complaint states.
Washington State’s law currently exempts clergy from mandatory reporting, along with attorneys who learn of child sex abuse from a client “in the course of professional employment.” The revised law, which takes effect on July 27, expressly removes the protection for clergy but not for attorneys.
The complaint notes the plaintiffs support reporting, except in the narrow case of when a penitent reveals incriminating information during confession.
“Plaintiffs do not object to alerting authorities when they have genuine concerns about children that they learn outside of Confession—indeed, Plaintiff Priest and other clergy are already required to make such reports under their own bishops’ policies,” according to the complaint.
The Antiochian Orthodox Christian Archdiocese of North America, for example, requires clergy to report suspected child sex abuse to law enforcement.
The complaint alleges the new law violates the First Amendment’s Free Exercise Clause and Free Speech Clause and the Fourteenth Amendment’s Equal Protection Clause.
The law allegedly violates the Free Exercise Clause by threatening church autonomy and “target[ing] Plaintiffs’ sincerely held religious convictions and duties by facially targeting religion, embodying animus towards religion, and treating other practices more favorably than religious ones.”
The law allegedly violates the Free Speech Clause by compelling speech because it “compels Plaintiffs to speak about what they heard during Confession—speech that their religion mandates must remain confidential.”
The law allegedly violates the Equal Protection Clause by requiring clergy to violate confidentiality while protecting confidentiality in secular settings.
The complaint frames Washington State’s new law as at odds with longstanding common law tradition.
“For 150 years, the United States Supreme Court has recognized the clergy-penitent privilege as part of the common law,” the complaint reads, citing Totten v. United States (1875).
“[P]ublic policy forbids . . . any suit . . . which would inevitably lead to the disclosure of matters which the law itself regards as confidential. . . . On this principle, suits cannot be maintained which would require a disclosure of the confidences of the confessional,” the Court stated in Totten.
The complaint requests injunctive relief preventing enforcement of the new law and a declaration that the new law “is unconstitutional under the First and Fourteenth Amendments.”
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