THE PRIEST-PENITENT PRIVILEGE: ITS CONSTITUTIONALITY AND DOCTRINE LennardK Whittaker* "If you will, be guilty of dishonoring laws which the gods have established in honor."' Eternal laws sometimes clash with their temporal counterparts. This struggle between church and state can be said to be the most formative conflict of Western civilization. Antigone refused to obey Creon.! Thomas More would not bow to Henry VIII.' Harriet Tubman assisted escaped slaves despite the law.' An echo of this church-state, eternal-temporal tension can be found in the priest-penitent privilege.' The Supreme Court has never directly addressed the privilege's constitutionality. The doctrine supporting the privilege has not yet been definitively settled. This article espouses that the priest-penitent privilege's existence is better than its non-existence, that it is constitutional, and that it enjoys the support of many doctrines. A brief history of the privilege precedes an analysis of its current state. Attention will be given to the constitutional controversy and the possible doctrines supporting the privilege. Shareholder, Garza & Whittaker, P.C., Roma, Starr County, Texas. B.A., St. John's College, Annapolis, 1993; J.D., Regent University School of Law, 1998. I thank the following for their assistance: Prof. James J. Duane, Kristen Fecteau, Prof. Barbara Massie, Xochitl Saenz, and Paul Schemel. I especially thank Prof. Samuel P. Menefee for his infinite assistance and Rolando Garza, fellow shareholder, for his will to give publication value as part of our legal enterprise. Specific thanks go to E. Todd Wilkowski: without him this article would be a note. I SOPHOCLES, Antigone, in THE COMPLETE PLAYS OF SOPHOCLES 119 (Moses Hadas ed. & Sir Richard Claverhouse Jebb trans. 1967) (Antigone to Ismene). Antigone had decided to bury her brother in accordance with the laws of the gods despite an edict by King Creon, her uncle, that the rebellious nephew was to be left unburied; the punishment for burying him was to be death. See SOPHOCLES, Antigone, in THE OEDIPUS PLAYS OF SOPHOCLES 192 (Paul Roche ed. & trans., 1996). The effect of leaving the body unburied would be that the soul could not cross to the land of the dead. See id. 2 See id. at 201. 3 See ALsTAIR FOX, THOMAS MORE: HISTORY AND PROVIDENCE 179 (1983). 4 See HENIR=rA BUCKMASTER, LET MY PEOPLE GO 213-16 (Univ. of S.C. Press 1992) (1941). 5 For the purposes of this article, the priest-penitent privilege shall be referred to in its historical name since this name appears to be the most widely used. The privilege is called by several other names in order to either better describe the participants or keep from offending the ideologies and sensibilities of others. HeinOnline -- 13 Regent U. L. Rev. 145 2000-2001 REGENT UNIVERSITY LAW REVIEW [Vol. 13:145 I. HISTORY' Most commentators grant the priest-penitent privilege's existence in the common law prior to the Reformation.! Lord Coke, writing in the early 1600s, opined that there was a priest-penitent privilege in the Articuli Cleri with an exception for treason.8 Law and religion were closely knit when the bishops and clerics staffed the English courts.' The history of the sacrament of confession is such that no one knows when it became a confidential act." It is known, though, that confession remains confidential in the eyes of the Catholic Church in its 1983 Code of Canon Law by which a priest may not reveal the contents of one's confession upon pain of excommunication." It seems unknown, as well, when the privilege as a legal concept appeared in England." While commonly accepted that the privilege existed in Catholic England, there is some disagreement as to how the priest-penitent privilege disappeared." Understandably the privilege waned as the Anglican Church and other Protestant movements, which did not require auricular confessions, rose to prominence in England. Wigmore espouses that without question, after the restoration of the monarchy, no priest-penitent privilege existed at common law." The common law, as understood by the American a Since there is a nearly definitive thesis on the topic of the history of the priest- penitent privilege, see Jacob M. Yellin, The History and CurrentStatus of the Clergy-Penitent Privilege,23 SANTA CLARA L. REV. 95 (1983), and a historical account by Wright & Graham, see 26 CHARLES A. WRIGHT & KENNETH A. GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5612 (1992), this article will confine itself to a summary of the major points. 7 See 8 JOHN H. WIGMORE, WIGMORE ON EVIDENCE § 2394 (John T. McNaughton rev. 1961); Yellin, supra note 6, at 96. For a more complex view, see 26 WRIGHT & GRAHAM, supra note 6, § 5612. 8 See 2 EDWARD COKE, INSTITuTES 629 (1628) (discussing Articuli Cleri, 1315,9 Edw. 2, ch. 10, § 9 (Eng.)). 9 See Yellin, supra note 6, at 97 (citing Edward A Hogan, Jr., A Modern Problem on the Privilegeof the Confessional, 6 LOY. L. REV. 1, 8 (1951)). 'o A Papal letter by Leo I, in the fifth century, reveals confidentiality of confession as a long-held practice. See JOHN C. BUSH & WILLIAM H. TrEMANN, THE RIGHT TO SILENCE: PRIVILEGED CLERGY COMMUNICATION AND THE LAW 42 (3d ed. 1989). 1 See 1983 CODE c.1388, § 1 ("A confessor who directly violates the seal of the confession incurs an automatic latae sententiae excommunication reserved to the Apostolic See; if he does so only indirectly, he is to be punished in accord with the seriousness of the offense."). Only five excommunications are reserved to the Holy See. See Teresa S. Collett, Sacred Secrets or SanctimoniousSilence, 29 LOY. L. A. L. REV. 1747, 1753 n.19 (1996). 12 See 26 WRIGHT & GRAHAM, supra note 6, § 5612, at 35-41. 13 See 26 id at 41 (noting that the issue of the priest-penitent privilege "has never been decided in England" (citing STEPHENS, A DIGEST OF THE LAW OF EVIDENCE 171 (1876))). 1" See Yellin, supra note 6, at 102-03 n.35. HeinOnline -- 13 Regent U. L. Rev. 146 2000-2001 20001 THE PRIEST-PENITENTPRIVILEGE colonists, makes no mention of the privilege, perhaps based on the great esteem in which Blackstone was held on this side of the Atlantic. The first published American case on the topic was People v. Phillips." In that case, publicized by an attorney arguing for the privilege,"6 the judge based the privilege in free exercise of religion.' While the First Amendment of the U.S. Constitution could not apply to the states, 8 the court found the communication protected in New York's version of the Free Exercise Clause." The judge particularly noted the importance of the sacraments in the Catholic Church" and the damage that would have been done to the free exercise of religion if the priest were to disclose confidential communication." The judge's conclusion was remarkable for the very modern manner in which he weighed the effects of accepting the privilege versus its absence." It appeared that the judge was concerned, as well, with differentiating American law from that of Mother England." Four years later, another New York court denied the privilege to an Anglican priest based on the lack of a confessional requirement in the Anglican Church.' Due in part to this decision, New York passed the first priest-penitent statute in 1828." This statute influenced the passage of priest-penitent statutes in other states." In Totten v. United States," the U.S. Supreme Court in dicta stated that suits would not be maintained that required disclosure of the N.Y. Ct. of Gen. Sess. (1813), reprintedin PrivilegedCommunications to Clergyman, 1 CATH. LAw. 199 (1955) (holding that a priest cannot be compelled to disclose to a court that which has been confessed to him in the administration of the sacrament of penance). '8 See Michael J. Callahan, HistoricalInquiry into the Priest-PenitentPrivilege, 36 THE JURIST 328 (1976), for an account of the lawyer involved in the case. The story is one of self- promotion and nationalism feeding on anti-monarchist sentiment. The attorney, who published the case from his notes, appeared amicus curiae in favor of the privilege. One may read the decision as published by the attorney in Privileged Communicationsto Clergyman, supra note 15, at 199. " See Phillips,supra note 15, at 207. is See Engel v. Vitale, 370 U.S. 421 (1962) (incorporating the First Amendment to apply to the several states as well as the federal government). '9 See N.Y. CONST. art. XXXVIII (1771). 20 For a more modern rendition of the sacrament's place in the Church, see CATECHISM OF THE CATHOLIC CHURCH Nos. 1117-21, at 33-41 (1994). 2' See Phillips,supra note 15, at 207. " See id. 21 See id. at 206. 24 See Yellin, supra note 6, at 106 n.54 (citing People v. Smith, N.Y. City Hall Rec. 77 (1817), reprinted in 1 CATH. LAW. 198 (1955)). See N.Y. REV. STAT. pt. 3, ch. 7, tit. 3, § 72 (1828). 2o See Yellin, supra note 6, at 106-07. 2 92 U.S. 105 (1875). HeinOnline -- 13 Regent U. L. Rev. 147 2000-2001 REGENT UNIVERSITYLAWREVIEW [Vol. 13:145 confidences of the confessional." Since that case, the Court has approved Proposed Federal Rule of Evidence 506, which is the current state of the federal common law on the priest-penitent privilege." It is noteworthy that similar dicta exists in other federal cases." While commentators have often repeated that there is no common law privilege, Wright & Graham state, "Perhaps it would be more accurate to say that the common law created something like a de facto privilege.' II.