A few days ago Rick wrote about the reports from Ireland that may lead to Irish legislation which would mandate priests to break the seal of the confessional. He also invited a response. We know that other jurisdictions have also been contemplating similar changes in their laws as well. Well, I suppose what Caesar gives, Caesar can claim return. That is positive law-making pure and simple. In the context of American law, the priest-penitent privilege traces its heritage to the 1813 case in which Mr. and Mrs. Phillips were charged with the receiving stolen goods belonging to Mr. James Cating. Phillips had received Cating’s property from sources tied to the Reverend Father Anthony Kohlmann, S.J. It seems that Father Kohlmann had received the stolen goods during the administration of the sacrament of confession/reconciliation. It was the intent that the stolen property would be returned to its rightful owners.
Father Kohlmann was summoned to testify in the judicial proceedings concerning his knowledge about the source of the stolen property that had come into his possession. He could not answer citing the Canon Law norm regulating the secrecy of the confessional. Canons 983 and 984 of the present Code of Canon Law preserve the inviolability of the seal of the confessional. It is a crime for the priest to disclose what he knows from the administration of the sacrament; moreover, the confessor is absolutely forbidden to use the knowledge received from a confession that in any way that might prejudice the penitent.
Under the civil law, this and all other evidentiary privileges (e.g., spousal privilege; lawyer-client privilege; doctor-patient privilege; and the privilege of news reporters) are creatures of the positive law. Spouses, lawyers, doctors, and reporters have been held in contempt for not disclosing what they may have known about another that was arguably protected by the privileged communication they claimed. Others have been prosecuted for their refusal to testify. The fundamental justification for these privileges is that they are important to society and the law that governs it. While it is a fact that a witness is typically obliged to disclose all that he or she knows about the subject to which he or she has been called to testify, privileged communications that emerge from certain relationships are to remain in confidence and protected from disclosure.
Clearly those who confess sins which may also be great offenses against their neighbor are in trouble not only with the civil authorities but also with the law of God. But unlike the person who commits a crime and does not also take it to confession, the penitent is in a different case. He or she has already expressed contrition before God. Might this also lead to a parallel expression before the neighbor who has been wronged? In exercising his canonical office, the priest has a role in exhorting the penitent to reconcile with the neighbor who has been wronged. Those who do not confess will not have the benefit of this exhortation. Would it not make sense to see that preservation of the priest-penitent privilege may very well lead to greater justice?
When legislatures contemplate modifying or repealing the priest-penitent privilege, they should take stock of this. The New York court which heard the case involving Father Kohlmann came to realize this and upheld the seal of the confessional. (More can be learned about the case of Father Kohlmann by reading the essay “Privileged Communications to Clergymen” at 1 Catholic Lawyer 199, 1955.)
I pray that the legislatures contemplating modifying or abolishing the evidentiary privilege will preserve it. While it may not seem to be this, the seal of the confessional can be a means of furthering justice rather than its nemesis. As one who happens to be both lawyer and confessor, I think the position has great merit that advances the common good.
RJA sj
Steve Schneck writes, at the National Catholic Reporter, in defense of conscience-protection regarding "medical procedures that must be covered by new insurance policies offered under the health care reform law." He writes as someone who was a Catholic supporter of Kathleen Sebelius (despite her bad record on abortion) and of President Obama:
Those of us who supported Sebelius’ nomination argued forcefully that she should not be penalized because her conscience reached different conclusions on contentious issues from those reached by the leaders of the Catholic church. But it would be a tragic irony if, in adopting the new rules, Sebelius declined to afford to Catholic church organizations the same conscience rights we invoked when defending her nomination. Those of us who joined “Catholics for Sebelius” did not do so to see our conscience rights eviscerated.
Now, in my view, this is not quite the right way to put it. Even assuming that it was / is "conscience" that has animated Sebelius's abortion-related actions and positions, the issue is not merely her disagreement on "contentious issues" with conclusions on reached by "leaders" of the Catholic Church, but rather her active support for policies that, the Church authoritatively teaches, are unjust. In any event, I hope that the President, and Sec. Sebelius, listen to the voices of people like Mr. Schneck. At the same time, I do not believe, with all due respect, that it should come as a surprise if they do not.
Thursday, July 28, 2011
And while we are on the subject of Pope Leo XIII, Evangelical Catholicism, and church-state relations, well understood, it is well worth reading John Courtney Murray's paper, "Leo XIII: Separation of Church and State":
Leo XIII developed the theory and practice of Church-State relationships amid the conditions created by the peculiar nineteenth-century plight of the so-called Catholic nations of Europe and Latin America. The major feature of the situation consisted in the efforts of an activist ideological sect to effect, through the control and use of governmental power, the politico-social change known as "separation of Church and state." This current phrase was pregnant both of an ideology and of a political and social program. It meant, first, the alteration of the Christian structure of politics, which had been characterized by the traditional duality of Church and state, in the direction of a juridical and social monism. It meant, secondly, the evacuation of the Christian substance of society through the establishment of a surrogate political religion which went by the name of "laicism." The first subject of the present article is separation of Church and state in this pregnant sense, which is the sense in which Leo XIII understood the thing. . . .
Here is a George Weigel essay, "Benedict XVI and the Future of the West," which I read recently and liked very much. A taste:
year ago, my subject would probably have struck some as counter-intuitive, implausible, even absurd: why would an octogenarian German theologian with little practical experience of political and economic life have anything interesting or important to say about "the future of the West"? Pope Benedict XVI's Westminster Hall address last September ought to have put paid to at least some of that cynicism. For as many Britons conceded after last September's papal visit, the elderly German theologian had indeed given the United Kingdom, and the rest of the West, a lot to think about in his reflections on the relationship between the health of a culture, and the health of the democratic institutions that culture must sustain. . . .
Evangelical Catholicism, in the line of development that runs from Leo XIII through Benedict XVI, . . . takes a rather different stance toward public life than the Catholicism of Christendom (whose conception of Church and State—or, more broadly, Church and Society—long outlasted the 16th-century fracturing of Christendom). Evangelical Catholicism declines the embrace of state power as incompatible with the proclamation of the Gospel: the Gospel is its own warrant, and the power of that warrant is blunted when coercive state power is put behind it, however mildly. Evangelical Catholicism is also wary of a direct role by the Church, as institution, in the affairs of the state. There may be moments when a robustly evangelical Church must speak truth to power, directly and through its ordained episcopal leadership, bringing the full weight of their unique form of authority to bear on a matter in public dispute. But the normal mode of the Church's engagement with public life will not be that of another lobbying group. Rather, Evangelical Catholicism takes its lead from the Second Vatican Council's Decree on the Laity (Apostolicam Actuositatem), and from Blessed John Paul II's teaching in the encyclicals Redemptoris Missio and Centesimus Annus and the post-synodal apostolic exhortation Christifideles Laici: it seeks to form the men and women who will, in turn, shape the culture that creates a politics capable of recognising the transcendent moral norms that should guide society's deliberations about the common good. . . .
I'd welcome, in particular, Patrick Brennan's thoughts about the essay, given that he knows so much more about (inter alia) Pope Leo XIII's writings and thought than I do.
Here is a link to the chapter, which I contributed to a volume of First Amendment Stories (edited by Andy Koppelman and me), on the Court's decision in Kedroff v. St. Nicholas Cathedral.
This chapter, from Foundation Press’s forthcoming volume First Amendment Stories, examines closely the background, context, and implications of the Supreme Court’s underappreciated but highly significant decision in Kedroff v. St. Nicholas Cathedral. It is suggested that Kedroff – like the Steel Seizure case, which was argued and decided during the same year – reminds us of the importance of the structural devices employed in our Constitution to protect liberties and enhance democracy. These devices include, of course, the separation of powers and federalism, as well as the pluralistic principle of church-state separation, correctly understood. As Mark DeWolfe Howe observed, in a short essay published in the Harvard Law Review soon after the Kedroff decision, the Court in that case, by affirming the constitutional basis of church autonomy, engaged “a classic problem of political theory,” that is, the “pluralistic thesis . . . that government must recognize that it is not the sole possessor of sovereignty,” or, as another writer put it, that “Caesar . . . is only Caesar, [and so should] forswear any attempt to demand what is God’s.”
(My fellow MOJ-er, Tom Berg, also did a chapter, on the school-prayer cases.) Keep your eyes open for the volume, which (if I say so myself) has a lot of really good pieces in it, by smart and interesting people. It's winding its way toward publication in the Fall of 2011. Go ahead and pre-order yours!
In this New York trial court decision, People v. Louis, the court held that a defendant's abusive, vulgar, and (in my opinion) threatening phone messages to an assistant district attorney in Nassau County constitute protected speech under the First Amendment. Over a two-month period, the defendant left screaming expletive-laden phone messages directed specifically at the ADA that included these statements: ""I will rain hell on your office and make sure heads roll"; "I'm coming at you with fury" (but really, check out the case -- I'm not doing it justice). The defendant was charged with Aggravated Harassment in the Second Degree. The court ruled that this series of messages did not rise to the level of a true threat (e.g., Chaplinsky) against the ADA, and held further that the harassment statute was unconstitutionally vague and overbroad.
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Wednesday, July 27, 2011
The former chair of the board of Catholic Relief Services, Archbishop Timothy Dolan, once summed up its work by saying: "“At Catholic Relief Services, we don’t just help people who are Catholic; we help people because we are Catholic.” When Jesus taught the disciples about the Kingdom of Heaven, the very first virtue that He ascribes to the blessed was that "I was hungry and you gave me something to eat." Matthew 25:34.
Millions are at risk in Somalia from the famine, especially the children. In the Minneapolis Star-Tribune yesterday, a photograph of a small Somali boy taken by Schalk Van Zuydam of the Associated Press is printed at this link. It is hard to look at this image, but please do look and do not go on with your day without taking some step to help these children.
The causes of the tragedy unfolding in Somalia are multiple; the blame falls on many for this catastrophe, beyond the weather; the long-term solution in an area of anarchy is hard to envision. But the need of the moment is dire. Take a moment to contribute to immediate relief for the starving; and clicking here is one easy way to do it.
