The following chapter of Religious Confession and Evidential Privilege in the 21st Century is republished here with gratitude to Connor Court Publishing. The chapter’s author, Eric Lieberman, a graduate of Dartmouth College and Harvard Law School, is a First Amendment and constitutional attorney who has successfully argued two landmark cases before the Supreme Court and has practiced law for over 50 years.
The United States Constitution provides two interrelated protections for religious freedom, the Establishment Clause and the Free Exercise Clause. Yet, due to accidents of history, the privilege protecting secret communications between parishioners and ministers has rarely been analyzed in terms of constitutional protection. Rather, the privilege has been recognized, in various forms, as a matter of common law. This has led to different treatment of the privilege in the states and the federal courts, often with constitutionally suspect results. Analysis of modern doctrinal developments, however, compels the conclusion that the privilege must be accorded constitutional protection, including protection for those religious practices of some churches that provide that privileged communications may be heard by more than one minister and that provide doctrinal protection to a minister hearing a communication as well as to the communicant. The doctrines of the Church of Scientology precisely demonstrate the need for these requirements.
The United States’ experience with religious freedom is historically unique. The original colonists included adherents of various denominations who left their native lands to escape religious persecution by the dominant churches and their church dominated states. Once in their new homes, however, such settlers often resorted to the same kinds of exclusion and persecution as that from which they had fled. But gradually the original colonies became more accepting of differences and dissenters in their midst, such as Rhode Island under Roger Williams, Pennsylvania under William Penn, and Maryland, where Lord Baltimore established a colony that welcomed Catholics.
By the time of and following the Revolution, the various colonies were populated by numerous formerly persecuted denominations and sects. If the new nation was going to survive as united states, it would need to protect against the imposition of religious persecution by one group over others. As summarized by the Supreme Court of the United States in a seminal opinion on religious liberty:
The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views.1
The need to ensure religious liberty to protect the new nation against sectarian conflict was urgently recognized by Madison, who was charged with drafting the Bill of Rights.2 The resulting First Amendment thus not only prohibited the establishment of a religion by the government, but also provided a shield against government interference with the free exercise of religion.3
The First Amendment has a dual aspect. It not only ‘forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship’ but also ‘safeguards the free exercise of the chosen form of religion.’… It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove…. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.4
The Free Exercise Clause was an original American concept and invention unlike anything previously known.5 The concept of religious liberty embodied in the First Amendment provided a continuing inspiration to oppressed peoples throughout the world and was essential to the expansion of the nation through immigration. It also was fertile ground for new and vital religious communities to arise within the country. Many such religions established varying practices of religious counseling, including but not limited to confessions, and accorded strict confidential protections against disclosure of such communications. State courts and eventually federal courts in the United States, fairly consistently, have honored such confidences despite the different form and structure of the practices in various congregations, as discussed in Part III below.
Before engaging in a fuller exposition of the application of the ministerial privilege by courts in the United States, we first set forth a discussion of the relevant beliefs and practices of the Scientology religion because it presents an opportunity to analyze how the vision of the framers as set out by the Supreme Court in Ballard works out in practice. Scientology provides a unique example of a modern expanding religion whose central practices rely upon highly confidential communications between parishioners and clergy. The structure of the confidential communications in Scientology carries out the principles and beliefs of the religion and its community. Indeed, the Scientology Church’s ability to practice its beliefs relies on the confidentiality of the communications between its parishioners and ministers. These are described below in Part II of this essay. The communications are protected by the ministerial privilege in the United States as mandated by the Free Exercise Clause of the First Amendment to the Constitution, as addressed in the cases discussed below.
Indeed, while there are no officially “reported” cases involving the application of the privilege to Scientology ministerial communications with parishioners, several federal and state courts have recognized and applied it and found that ministerial communications come within the ambit of the religious confession privilege.6
While Scientology is a relatively new religion with confidentiality practices that do not fit traditional Christian patterns precisely, the purpose of this part is to address whether they are protected by the principles which have been erected under the umbrella of religious freedom established in the United States Constitution. As has been true with most new and emerging religions, Scientology churches have been called upon to establish time and again that Scientology is a bona fide religious practice. They have done so in country after country, demonstrating that its central beliefs and practices are categorically consistent with universal standards defining religion.7
Scientology religious practices derive from certain fundamental beliefs as set forth in its Scripture, consisting of the writings and recorded spoken words of L. Ron Hubbard, who is the sole source of all the doctrines, tenets, philosophy, practices and rituals of the religion. Prime among these are: that each individual is an immortal spiritual being; that one’s experience extends beyond a single lifetime; and that one’s capabilities are unlimited, even if not presently realized. Its Scripture sets forth a precise path leading to certain understanding of one’s true spiritual nature and one’s relationship to what Scientology posits as the Eight Dynamics: self, family, groups, Mankind, all life forms, the material universe, the spiritual universe and the Supreme Being.
Scientology doctrine posits that the individual is basically good; that the individual is seeking to survive; and that one’s survival depends upon oneself and one’s fellows and one’s attainment of brotherhood with the universe. But a Scientologist is not asked to accept anything on faith alone. Rather, one discovers for oneself that the principles of Scientology are true by applying its principles, engaging in the central practices and observing or experiencing the results thereof.
The essential practice of the Scientology religion is a unique form of spiritual counseling called “auditing” from the Latin root audire, “to listen.” The term aptly describes the central function of a specially trained Scientology minister, called an “auditor,” who performs the spiritual counseling.8 All auditors are Scientology clergy. During an auditing session, the minister uses specific “processes,” consisting of exact sets of questions asked or directions given by the auditor to help a parishioner locate areas of spiritual distress, discover things about himself or herself and improve their condition. In Scientology, the State of “Clear” is sought by members. Before achieving that state, the parishioner receiving auditing is often referred to as a “preclear” and his ministerial files of his auditing sessions are referred to as his “Preclear” or “pc” folders. The minister enters notes from the auditing session, which are placed in a folder called a Preclear (pc) folder or auditing folder. As discussed below, these folders are highly confidential. The auditor’s notes are not a record of everything said by a parishioner, but are his notes of the ministerial communication, applying Scientology procedures that can only reasonably be understood by trained Scientology ministers.
Many different auditing processes exist and each one, performed in scripturally prescribed gradients, is designed and intended to (1) help individuals rid themselves of spiritual disabilities and (2) increase an individual’s abilities. There are hundreds of different auditing processes. Scientology pursues the salvation of man and his spiritual liberation and freedom as the religion’s objective for the individual. Personal responsibility is a main road through which Scientologists seek their spiritual freedom; responsibility which requires bettering one’s life and that of others. Auditing processes are designed to effectuate all of these goals.
When the specific objective of any one auditing process is attained, the process is ended and another can then be applied to address a different part of the parishioner’s life. Questions from the auditor guide the parishioner to inspect a certain part of his life and existence. What is found will naturally vary from person to person, since everyone’s experiences are different. However, the individual is assisted in locating not only areas of spiritual upset or difficulty in his or her life, but in locating the source of the upset.
Scientology auditors thus perform the traditional role of ministers, priests and religious functionaries of other faiths—applying the doctrines of the faith through communication with the parishioner to relieve him or her of spiritual travail and to aid in the practical application of the religion to solve the problems of life.
Scientology posits that when a person has committed harmful acts against himself or others, he tends to “withhold” or withdraw himself from activity and from communication about the overt acts or omissions.
In Scientology religious doctrine, the deleterious spiritual consequence of a person having attention on the unspoken and unrevealed overt acts (called in Scientology, “withholds”) substantially interferes with or prevents one’s spiritual progress. Indeed, at the beginning of an auditing session, an auditor determines whether the person may have withholds; if so, confession of the withholds is one of the specific “rudiments” to be resolved at the outset of an auditing session, before proceeding with the next auditing process.
So important is confessional doctrine and procedure in Scientology, Mr. Hubbard held Congresses for thousands of Scientology auditors in Melbourne in November 1959, a “State of Man Congress” in Washington D.C. in January of 1960 and a “Clean Hands Congress” in Washington D.C. in December of 1961, giving lectures regarding the importance of “clean hands” and the auditing procedures to help parishioners to achieve that state. These recorded lectures have been reproduced, distributed and listened to by hundreds of thousands of Scientologists in the 60 years since these early convocations of Scientology ministers.
Thus, while there are hundreds of Scientology auditing processes to increase parishioners’ ability in many ways, some Scientology processing actions are primarily directed to providing relief from withholds. Scientology Marriage Counseling, for example, is a precise confessional procedure for alleviating marital difficulties. Based on Scientology Scripture, it addresses the root of all such difficulties: transgressions against the couple’s previously agreed-upon moral code that now inhibit their communication to bring about a resurgence of the “affinity and reality” that go with it. Both spouses are present with the minister during the Scientology marriage counseling confessional procedure, taking turns revealing withheld acts to each other and to their minister, secure in the understanding that their communications will remain absolutely secure and will not be disclosed, as set forth in the Scripture of the Church.
There are many other specific confessional auditing procedures in Scientology, including overt acts against oneself, one’s family, one’s group, Mankind and others. Confessional practice is a ministerial procedure applied within the Scientology doctrine for assisting parishioners in all aspects of their lives.
In Scientology doctrine and practice, the auditor is part of a necessary team of ministers,9 who facilitate the auditing procedure and the maintenance of confidentiality of ministerial notes of parishioner statements. Each auditor is overseen and supervised by a senior minister denominated a “Case Supervisor.” The term “case” is a general term for the summation of an individual’s difficulties, past events and acts preventing him from reaching his full spiritual potential and abilities. It is a person’s “case” which is addressed in Scientology auditing. The Case Supervisor is highly trained in Scientology auditing “technology” often spending many years studying, auditing and drilling Scientology theory and auditing procedure. The Case Supervisor assures that each auditor is providing 100% standard Scientology practice in accordance with written scriptural materials and lectures.
The Case Supervisor never communicates directly with the parishioner, but operates in what is known as an Ivory Tower, participating through a review of the ministerial notes of the session located in the parishioner’s “Preclear Folder.” If there are any scriptural deviations in the procedures employed by the auditor, the Case Supervisor is obligated to instruct the auditor in the scriptural materials to correct them, and to program the auditing sessions to assure maximum, standard application of what is known in Scientology as Standard Technology—that is, standard, exactly orthodox application of Scientology Scripture in the auditing.
The Case Supervisor’s instructions to the auditor are in writing and placed in the Preclear Folder.
Another member of the ministerial team is the Ethics Officer. In Scientology, ethics is defined as “reason and the contemplation of optimum survival.” Through the study and application of Scientology ethics principles, aided by the Ethics Officer, parishioners enhance and ensure their own survival, and their survival through the other “dynamics” through which each person survives: the family, their group, Mankind, the physical universe, all other life, the spiritual universe and the Supreme Being. As ministers of other religions might instruct or guide parishioners in the scriptures of their faith to resolve ethical issues, in Scientology this role is performed by a minister trained in Scientology Ethics—the Ethics Officer.
Accordingly, Scientology auditing must be conducted within a framework of the parishioner’s complete trust of the ministers involved. In the course of auditing, the parishioner may disclose information of a highly personal and confidential nature. In other words, a parishioner may tell his minister secrets known to no other. Such information could reveal immoral or unethical acts, or fall within the full gambit of unwanted emotions, events, considerations and histories. Scientology ministers maintain and practice a code of conduct known as the Auditor’s Code. It provides exact ethical standards to ensure that all auditing is ministered in an orthodox and ethical manner and that clergy-penitent communications are, and remain, forever, strictly confidential.
The Auditor’s Code, by which all auditors and other ministers are bound, requires that a minister may never reveal the secrets and confidences divulged by a parishioner in an auditing session. Such information, given in trust during an auditing session by parishioners to their ministers, is considered sacrosanct by the auditors, the Case Supervisor and by their Churches. Never may that promise of confidentiality be breached. It is strictly forbidden.
It would be an ecclesiastical crime of the highest order for an auditor to reveal parishioner confidences or to permit the disclosure of a parishioner’s PC Folder, leading to dismissal from church staff and possibly expulsion from the Church for the offender.
Each parishioner is well aware of the relationship between his minister and his Case Supervisor and of the Auditor’s Code, and can thereby be assured of strict confidentiality by his own auditor. So there can be no dispute regarding these important issues, parishioners are required to acknowledge the doctrinal issues giving rise to the confidentiality of their communications with their minister and of the PC Folders. Each parishioner signs a document recognizing these matters as a condition to receiving auditing in a Church of Scientology, which states in part:
It is of paramount importance to me that the Church will forever be able to preserve and protect the confidentiality of all folders containing notations of the spiritual progress I attain as a result of participating in Scientology religious services, including, but not limited to, a “Preclear Folder” or “PC Folder” and temporary recordings of sessions and interviews, as well as all other religious files containing notations regarding my spiritual progress (for purposes of convenience, these folders, files and recordings, as defined below, shall be referred to collectively as the “Folders”). The sole purpose of the Folders is to track the progress of my spiritual salvation in Scientology religious terms; they are incomprehensible to anyone who lacks the appropriate religious training for interpreting them and the ecclesiastical authority to review them, as sanctioned by Church of Scientology International (“CSI”).
Maintaining the confidentiality of the Folders is an issue of very great concern to me since, as a matter of fundamental Scientology religious belief, the disclosure of any of the contents of any of the Folders to me or to anyone lacking appropriate Scientology ecclesiastical authority would be spiritually damaging to me, not only in this lifetime, but in future lifetimes as well. In addition, I am aware that I will be guided on my spiritual path by a minister known as a Case Supervisor who reviews records of my sessions and determines which religious services are appropriate for my spiritual growth at that particular time.
Within Scientology practice, the individual parishioner’s folders of session notes are accordingly maintained under high security, each folder stamped “clergy/penitent privilege” and maintained under lock and key for the use of the auditor and Case Supervisor. It may be that in months, years or decades, an auditor may need to refer to prior auditing sessions to assist with the current auditing program. Thus, Scientology doctrine holds these past folders to be priceless, and absolutely necessary to assure the spiritual freedom of each parishioner.
Indeed, Scientologists hold that every individual is an immortal spiritual being who has lived before and will live many successive future mortal lives. Upon the death of a parishioner, his or her PC Folders are bound and stored for his return in the next lifetime to continue this spiritual journey.
In sum, the Auditor’s Code and considerable scriptural doctrine and religious law requires a Scientology minister to maintain as privileged the secrets divulged by a parishioner in an auditing session. The information given in trust during an auditing session by a parishioner to a minister is considered sacrosanct by the Church and Church ministers and is maintained inviolate. All such information is kept strictly confidential and privileged by a Scientology minister and the Church now, and forever.
In a country in which the role of judicially created constitutional law is so prevalent, it is more than surprising that the Supreme Court of the United States has never addressed the question of whether and to what extent the Constitution requires and protects a privilege of silence with respect to confidential communications between members of a religion and their ecclesiastical leaders or ministers. Instead, the privilege, in various forms, has been enacted by every state and also is recognized by a series of federal “common law” decisions.10 Nevertheless, as set forth in this essay, it is the Constitution that underlies and compels those statutes and decisions and that ultimately must govern how they are applied.
In fact, the first reported case recognizing the privilege in the United States rested upon the Free Exercise clause. In People v. Phillips (N.Y.Ct. Gen.Sess. 1813), the Court addressed whether a Catholic priest could be compelled to testify regarding the contents of a confession. In ringing language, the Court held:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In this country there is no alliance between church and state; no established religion; no tolerated religion—for toleration results from establishment—but religious freedom guaranteed by the constitution, and consecrated by the social compact. 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. The sacraments of a religion are its most important elements. We have but two in the Protestant Church—Baptism and the Lord’s Supper—and they are considered the seals of the covenant of grace. Suppose that a decision of this court, or a law of the state should prevent the administration of one or both of these sacraments, would not the constitution be violated, and the freedom of religion be infringed? Every man who hears me will answer in the affirmative. Will not the same result follow, if we deprive the Roman catholic of one of his ordinances? 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; and this important branch of the Roman catholic religion would be thus annihilated.11
The Phillips Court thus applied the principles embodied in the First Amendment Religion Clauses despite the fact that the Amendment was addressed to the power of the federal Congress. Despite the Phillips decision, New York and other states proceeded down different paths in protecting the privilege, chiefly by enacting state statutes of varying scope and breadth. The Supreme Court in dicta recognized the privilege under federal common law as early as 1875:
It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated. On this principle, suits cannot be maintained which would require a disclosure of the confidences of the confessional.12
Nevertheless, the question does not appear to have been the subject of a holding in the federal courts until 1959, when the District of Columbia Circuit upheld the privilege as a matter of common law, even while recognizing that English common law rejected it.13 The Supreme Court has since acknowledged the centrality of the privilege to the legal system: It is “rooted in the imperative need for confidence and trust,”14 and “recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be the flawed acts or thoughts and to receive priestly consolation and guidance in return.”15 “In addition to preventing testimony concerning privileged communications, the privilege also [encompasses] the right to exclude documentary evidence of such communications and to quash a summons seeking production of such documents.”16
Perhaps the leading opinion on the importance and contours of the privilege in the United States was rendered by the United States Court of Appeals for the Third Circuit. After reviewing the history, literature and policy issues relevant, the Court concluded:
We are satisfied, moreover, that American common law…compels the recognition of a clergy-communicant privilege. Both state and federal decisions have long recognized the privilege. The Supreme Court Rules Committee [i.e., the Judicial Conference of the United States Rules Committee17] also recognized the privilege. That is doubtless because the clergy-communicant relationship is so important, indeed so fundamental to the western tradition, that it must be sedulously fostered. Confidence is obviously essential to maintaining the clergy-communicant relationship. Although there are countervailing considerations, we have no doubt that the need for protecting the relationship outweighs them.18
While Mullen and subsequent federal cases refer to the privilege as a common law rule, the opinion and its consequences inevitably mandate recognition of the privilege as constitutionally based. Not only does Mullen concede that it is overruling the common law, but it does so on the basis that the privilege is “so fundamental to the western tradition” and thus a matter necessarily within the due process protections of the Fifth and Fourteenth Amendments. Further, it rests its rationale on religious liberty, a source found in the Constitution and not the Rules of Civil Procedure. Moreover, Mullen, as well as the various state law provisions, defines the scope and breadth of the privilege in non-uniform ways, typically but by no means exclusively based on the Catholic model. But once the government undertakes to legislate or rule make in the area of religious rights and liberties, i.e., create an exemption from the generally applicable duty to provide evidence, it may not choose to extend the religious privilege only to some denominations and not to others by drawing lines common to some practices but not to others. The Constitution imposes guarantees that disallow much of such line drawing.
When a state adopts a statute or rule that specifically addresses a religious practice and relieves a burden on the exercise of the religious practices of some religions while not exempting others from that burden, its actions violate the Free Exercise Clause of the First Amendment, unless justified by the most compelling of government interests and achieved by the narrowest means available.19 In applying its free exercise review, “The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.”20
The fact that every state and the federal courts have adopted ministerial privilege rules potentially subjects all such rules to strict scrutiny to the extent that they define the privilege and its application in ways that do not apply to all faiths and practices. And given the universal existence of the privilege in some form, there can be no rational argument that government has a compelling interest in applying that privilege only to certain denominations or practices and not to others, based on their confessional doctrines and practices.21 Such an interest not only would not be compelling, it would be illegitimate: “To give exemption to some denominations and not to all offends the equality with which all men enter society.”22
The requirement of governmental denominational neutrality also lies at the core of the Establishment Clause. “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government … can pass laws which aid one religion…or prefer one religion over another.”23 Madison’s Memorial and Remonstrance, which formed the basis for the adoption of the religion clauses in the First Amendment, emphasized that denominational neutrality was essential to the concept of religious freedom.
Madison’s vision—freedom for all religion being guaranteed by free competition between religions—naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs. But such equality would be impossible in an atmosphere of official denominational preference.24
“The First Amendment mandates governmental neutrality between religion and religion…. The State may not adopt programs or practices…which ‘aid or oppose’ any religion…. This prohibition is absolute.”;25“Neither [a State nor the Federal Government] can constitutionally pass laws or impose requirements which aid… those religions based on a belief in the existence of God as against those religions founded on different beliefs.”26
Application of the Establishment Clause’s prohibition of denominational preferences is not limited to cases where the government has explicitly discriminated among denominations. Rather, even where the government action has been expressed in terms that might appear facially neutral, courts have not hesitated to strike down statutes or other government action when the effect upon religious practices is to further such preferences. Thus, in Larson, the Court found unconstitutional on its face a solicitation statute that required churches to disclose the use of donated funds, but exempted those churches that received over 50% of their donations from members. The Court rejected the argument that because the 50% rule on its face did not single out any denomination for unfavorable treatment and utilized “secular criteria,” it did not create a denominational preference:
the provision effectively distinguishes between “well-established churches” that have “achieved strong but not total financial support from their members,” on the one hand, and “churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members,” on the other hand.27
Similarly, in Fowler v. Rhode Island,28 the Court held unconstitutional a facially neutral statute providing, “No person shall address any political or religious meeting in any public park,” which had been applied to arrest a Jehovah’s Witnesses minister. The State of Rhode Island conceded that the ordinance did not prohibit religious services in the park, but only speeches of the kind Fowler gave, which the State maintained was not a religious service. The Court held that the State’s attempt to distinguish among denominations as to what was a religious service violated both the Establishment and Free Exercise Clauses.29 The Court explained, “Appellant’s sect has conventions that are different from the practices of other religious groups,”30 but that “it is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment. Nor is it in the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control” religious practices, which would be “merely an indirect way of preferring one religion over another.”31
As Larson teaches, state imposition of a denominational preference is subject to strict scrutiny, and can only be upheld where the preference is in furtherance of a state interest of the highest order and achieves that end by the least restrictive means.32 There can be no defensible reason, compelling or otherwise, for example, to extend the privilege for communications made to a single clergy person, but to refuse to do so for communications made to two or three clergy or to confidential communications that one clergy person discloses to another according to the discipline and doctrine of the faith. The state cannot establish an interest of the highest order to justify denying a religious exemption to one practice where it already has granted a religious exemption to another: “It is established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the ‘highest order’… when it leaves appreciable damage to that supposedly vital interest unprohibited.”33
As reported cases demonstrate, numerous denominations (as well as Scientology, as discussed above) provide for confidential communicant-clergy communications where the privileged disclosure either is made to more than one clergy person and/or is disclosed by the clergy person receiving the confidence to senior clergy persons, all in furtherance of the discipline and practice of that particular denomination. In each case, such communication was deemed consistent with and did not destroy the privilege. Indeed, as discussed below, the leading federal decision as well as the highest and intermediate appellate courts of at least several states have held that ministerial privilege statutes must be construed to avoid discrimination among denominations. The rich history of such cases makes clear that it is the Constitution that ultimately must govern the application of the privilege.
The United States Court of Appeals for the Third Circuit specifically held as a general matter that “the presence of third parties, if essential to and in furtherance of the communication, should not void the privilege. This statement of the contours of the privilege…tracks the evolving common law.”34 The Court continued that “recognition of the clergy-communicant privilege in this circumstance depends upon whether the third party’s presence is essential to and in furtherance of a communication to a member of the clergy.”35 We note that this legal standard fully protects clergy-communicant communications in Scientology auditing and ethics confessionals, where the limited third parties to whom the communications may be referred are acting in a manner essential to Scientology doctrine and in furtherance of the underlying communication to an auditor or Ethics Officer.
Numerous other cases are in accord, and have been for over a century. In Reutkemeier v. Nolte,36 one of the earliest privilege cases, a member of a Presbyterian congregation made confidential communications, including confession of sin, to her pastor and three ruling elders of the congregation, pursuant to the “Confession of Faith” of the Presbyterian Church, “as well as other standard booklets setting forth the doctrine and policy of that denomination.”37 The Iowa Supreme Court upheld the claim of privilege, holding that the communication was confidential and the elders were “ministers of the gospel.”38
The Church of Jesus Christ of Latter-day Saints likewise provides for confidential communications to one or more clergy, as well as transmission of such communications to senior clergy in furtherance of the purpose of the communication. In Scott v. Hammock,39 a member of that church made a non-confessional communication to a single Church Bishop to obtain “ecclesiastical guidance,” which was considered confidential within the doctrines of the Church. The Bishop thereupon “apparently transmitted the information to a ‘Stake’ bishop’s court [Stake High Council Court]” which had ecclesiastical authority to review the communication.40 Warning that a construction of the statute to apply only to traditional confessions “would raise a distinct concern about respecting an establishment of religion by advancing one religion and inhibiting another,”41 the Court not only held that the original communication from the congregant to the bishop was confidential and privileged, but further held that the bishop’s subsequent communication to the High Council Court likewise remained privileged:
In this case, the communication was passed vertically from one religious authority up to another within the Church hierarchy. Such communication was necessary as a part of the Church sanction process and in carrying out church discipline. The need for the privilege to follow the communication in such circumstances is obvious and appropriate. Otherwise the privilege would be destroyed and the confidence abridged. Therefore, the repeating of the defendant’s statement and its communication to superior religious authorities must be deemed cloaked with confidentiality and privileged from forced disclosure.42
The District Court certified the questions to the Supreme Court of Utah, which likewise concluded that the communications were privileged.43 A subsequent case provides greater detail in which confidential communications are transmitted from one clergy person to others. In Doe v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints,44 a penitent confessed his sins first to a bishop and then to the Stake High Council Court. The Court explained that under church doctrine, the penitent must repeat his communication to the Stake Court to achieve salvation. The Stake Court included eighteen clergy, including the original bishop, the Stake President, his two counselors, and twelve “high priests,” who were essential to the furtherance of the religious purpose of the ecclesiastical procedure. Moreover, if the Stake imposes serious ecclesiastical discipline, it is required to submit a Report of Church Disciplinary Action to the senior officials of the Church. Emphasizing that all such internal communications were confidential and remained secret except to those to whom the communications were made, the Washington Court of Appeals upheld the claim of privilege, finding that the privilege was not “vitiated” by communication of the communication to a third person “when the third person is another member of the clergy.”45
State v. MacKinnon,46 involved confidential communications made to clergy of the Missoula Christian Church. A congregant of that church made confidential communications to two members of the clergy in the presence of his ex-wife. The trial court granted MacKinnon’s motion to suppress the statements made in those communications, as well as a document relating to the communications.47
In addition to the denominations that require or permit communicant-clergy confidential communications to be shared by other members of the clergy, numerous denominations permit such communications to be made in the presence of one or more non-clergy members, usually close family, where such presence is believed necessary to or in furtherance of the religious purpose of the communication. In a ruling involving penitential communications to a Lutheran minister, a federal appeals court held that “the presence of third parties, if essential to and in furtherance of the communication, should not void the privilege” and emphasizing any contrary rule risked “the prospect of restricting the privilege to Roman Catholic penitential communications [which would] raise serious First Amendment concerns;”48 a decision from the state of Louisiana held that communications to a Baptist minister in the presence of the “victim” of alleged aggravated assault was privileged because it was made in expectation of confidence and the minister was acting in “his spiritual capacity as spiritual advisor to two congregants of his church;”49 a ruling in the State of Georgia found that communications made by a mother and her two daughters, in contemplation of the death of their husband/father, to a minister of United Methodist Church “to provide pastoral counseling, spiritual guidance,” pursuant to church doctrine, were privileged and that the privilege was not “waived by the presence of more than one person seeking spiritual comfort or counseling;”50 in a state court in Michigan, the defendant’s statements to a Baptist minister in the presence of his mother were held privileged because they were “made in the course of discipline enjoined by the Baptist Church;”51 a state court decision in Arizona found that confession to a Mormon bishop in the presence of the penitent’s wife was privileged, because the confession was confidential and undertaken in furtherance of the repentance process under church doctrine.52
Any denominational preference in favor of the historical one-to-one Catholic model of confession or that of any other denomination and against confidential communications in other religions has thus been disapproved by numerous state and federal courts.
The religion clauses also complement each other in a third essential way that is directly relevant to the question of government power to compel disclosure of confidential communications both between church members and clergy, on the one hand, and among clergy members, on the other. The courts recognize a strong church autonomy right that restricts such interference in ecclesiastical affairs.
It is of significance that the church autonomy doctrine was first enunciated by the Supreme Court as a matter of common law, only later to be recognized as essential to the religious freedoms created by the Religion Clauses. In 1871, the Court, applying federal common law, made clear that matters internal to religious organizations “which concern theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them” are beyond the ken of judicial authorities, and that those who participate in such religious bodies do so subject to the internal rules of those bodies.53 Eighty-one years later, in Kedroff v. St. Nicholas Cathedral,54 the Court held that the Watson principle is mandated by the First Amendment, requiring a “spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” The Supreme Court’s recognition in Kedroff that federal cases upholding religious freedom that were decided in the nineteenth century under the rubric of the “common law,” such as Watson, must be accorded constitutional support in the modern era is precisely what has occurred in the lower state and federal courts with respect to the religious confession privilege. It is inevitable that if such a question were to reach the Supreme Court today, it would so rule.
In subsequent cases following Kedroff, the Court made clear that the judiciary is constitutionally incompetent to resolve disputes concerning the proper interpretation or application of religious doctrine or practice. In Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church,55 the Court held that the First Amendment “forbids civil courts from playing such a role” because “in reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines.”56
In Lemon v. Kurtzman,57 the Court formulated its three-pronged Establishment Clause test. Under that test, government action must have a secular purpose; its primary effect must be one that neither advances nor hinders religion; and it must not create or permit significant entanglement between church and state. While the Kurtzman test has been subject to criticism by those arguing for greater deference to religious free exercise and thus may be subject to modification in the future, the non-entanglement principle remains at the heart of the Supreme Court’s jurisprudence on the religion clauses. The non-entanglement principle includes both “substantive and procedural components.”58 With respect to the procedural entanglement component, “It is not only the conclusions that may be reached by [a court] which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.”59
These principles were summarized in Serbian Eastern Orthodox Diocese v. Milivojevich,60 (“Milivojevich”), where the Court held that courts may not involve themselves in “matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” Of particular note, the Milivojevich Court emphasized that matters of internal church discipline were particularly ill-suited to civilian judicial review and are constitutionally forbidden.61
Lest there be any doubt about the centrality of the Watson-Kedroff-Milivojevich doctrine of religious autonomy from government interference and control, the cases were central to the Court’s more recent decisions specifically recognizing a ministerial exception to such entanglement and articulating such a doctrine of autonomy.62 In its most recent decision in Our Lady of Guadalupe School v. Morrissey-Berru,63, the Court emphasized that its decision in Hosanna-Tabor rested on the church autonomy doctrine and the three prior decisions in Watson, Kedroff, and Milivojevich:
The Constitutional foundation for our holding was the general principle of church autonomy to which we have already referred: independence in matters of internal government. The three prior decisions on which we primarily relied [i.e., Watson, Kedroff, and Milivojevich] drew on this broad principle, and none was exclusively concerned with the selection or supervision of clergy.64
These principles severely limit or prohibit government interference with the ministerial privilege. The privilege lies at the heart of a church’s governance, discipline and ecclesiastical doctrine. It is inconceivable under these cases for a United States court to order a minister to disclose a privileged communication contrary to the rules and governance of his church, even in the unlikely event that the parishioner attempts to waive the privilege.
The most important case on point was written by Judge Noonan for the United States Court of Appeals for the Ninth Circuit in Mockaitis v. Harcleroad,65 which was decided under the United States’ Religious Freedom Restoration Act (“RFRA”).66 RFRA was enacted as a direct response to the Supreme Court’s decision in Employment Division v Smith67 which had held that burdens on the religious practices of individuals were subject to ordinary review for reasonableness so long as the burden was one of general applicability and did not address religion per se. RFRA specifically restored strict scrutiny review to any act of government that burdened the free exercise of religion; under RFRA, any burden upon religion must be justified by a compelling governmental interest and be achieved by the means least restrictive of the religious practice. While RFRA later was held to be unconstitutional on federalism grounds as applied to the states in City of Boerne v. Flores,68 its analysis of the application of the strict scrutiny standard to a burden on religion remains applicable not only to federal cases, but also to state cases where strict scrutiny applies under the free exercise clause itself, such as cases where the plaintiff alleges a burden on a religious belief or practice that creates a denominational preference. Thus, the strict scrutiny test (compelling state interest/least restrictive means) applies to any challenge to a restriction on the ministerial privilege that is based on a claim that the state privilege discriminates, either intentionally or not, upon the beliefs and practices of a religious body or person.
In Mockaitis, the Court held that RFRA was violated when a local prosecutor seized an audiotape recording of a murder suspect’s confessions to a Roman Catholic priest while the priest was visiting the defendant in the local jail. Although the confession was partially exculpatory and therefore the defendant—i.e., the parishioner—consented to the publication of its contents, the Court held that the religious beliefs and practices of the priest were burdened by the recording and the turning over of the audiotape to the prosecutor. The Court explained:
No question exists that [the prosecutor] has substantially burdened Father Mockaitis’s exercise of religion as understood in the First Amendment. Father Mockaitis was exercising his religion in a priestly function. He was seeking to participate in the Sacrament of Penance understood by the Catholic Church to be a means by which God forgives the sins of a repentant sinner and restores the sinner to life in God’s grace. It is a sacrament that from experience the Catholic Church has surrounded with extraordinary safeguards so that the content of the penitent’s confession will not be revealed unless the penitent himself chooses to reveal it; and these safeguards have the evident reason that the knowledge, belief, or suspicion that freely-confessed sins would become public would operate as a serious deterrent to participation in the sacrament and an odious detriment accompanying participation. When the prosecutor asserts the right to tape the sacrament he not only intrudes upon the confession taped but threatens the security of any participation in the sacrament by penitents in the jail; he invades their free exercise of religion and doing so makes it impossible for Father Mockaitis to minister the sacrament to those who seek it in the jail.69
The Court further held that the free exercise of the supervising Archbishop was burdened as well. “A substantial burden is imposed [on the Archbishop’s] free exercise of religion as the responsible head of the archdioceses of Portland by the intrusion into the Sacrament of Penance by officials of the state.70
Mockaitis established as a constitutional principle that any version of the ministerial privilege must recognize that the privilege belongs to the minister as well as the congregant, so long as such secrecy is an essential element of the minister’s duty.
The Scientology central practice of auditing meets all the necessary requirements for full protection in every state and in the federal courts under the constitutional standards set forth above. While the process ultimately employs more than one minister, that characteristic is necessitated by the beliefs and structure of the religion, as in numerous denominations other than Scientology. The cases universally agree that under the First Amendment no disparate treatment may be afforded because of the difference of that practice from more traditional forms of confession. Likewise, while a Scientology auditor is prohibited as a matter of faith and doctrine from revealing what is said or written in an auditing session even if a congregant attempts to “waive” his privilege contrary to his religious covenant never to do so, that provision mirrors the duties of a Catholic priest or ministers of other faiths, and must be respected by judicial and government authorities. At the end of the day, all religions and faiths must be treated equally with recognition of the various forms and practices with which Americans practice their faith.
Governments and judicial decisions of many countries have recognized the religious character of the Scientology Church. In a few countries, the Church has been forced to litigate the issue of its bona fides, either affirmatively or in response to unfounded charges. Inevitably, the Church prevailed in these cases and its religious status has been unequivocally acknowledged. Some of these decisions established the standards in their respective countries regarding what should be deemed a religion. Among these are the following:
United States v. Ballard, 322 U.S. 78, 87 (1944).
See The Federalist, No. 51, p. 326 (H. Lodge ed. 1908).
The First Amendment by its terms was addressed only to limitations upon the power of the United States Congress (“Congress shall make no law …”). Nevertheless, at least one early decision by a New York court, discussed in greater detail below, specifically applied the language of the First Amendment’s Free Exercise of Religion clause to protect against disclosure of a confession to a Catholic priest. People v. Phillips (N.Y.Ct.Gen.Sess. 1813). As we describe in Part III, the development of the privilege post-Phillips proceeded through state courts and legislatures and as a matter of federal “common law.” See, e.g., Totten v. United States, 92 U.S. 105, 107 (1875); Mullen v. United States, 263 F.2d 275, 278 (D.C. Cir. 1959). Indeed, perhaps the seminal Supreme Court case upholding principles of religious autonomy and freedom was decided as a matter of federal common law in 1871, only to be recognized as a core constitutional principle under the Religion Clauses 81 years later. Watson v. Jones, 80 U.S. (13 Wall.) 679, 733-34 (1871); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 115-16 (1952) (Watson principle is mandated by the First Amendment, requiring a “spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine”). It was not until 1924 that the Supreme Court held that the Fourteenth Amendment’s due process clause, ratified in 1868, mandated that the First Amendment speech clause be applied to the states as well as the federal government, Gitlow v. New York, 268 U.S. 652, 666 (1925) (“For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States”) and not until the 1940s that the Court specifically recognized that the Fourteenth Amendment similarly “incorporated” the Religion Clauses. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (“The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws”) and Everson v. Board of Education of Ewing TP et al., 330 U.S.1 (1947).
United States v. Ballard, 322 U.S. 78, 87.
See John T. Noonan. The Lustre of Our Country: The American Experience of Religious Freedom. Berkeley (University of California Press. 1998).
E.g., Funderberg v. United States, No. C 02-05461 (N.D.Cal. 2004) (finding, inter alia, that auditing is “deemed strictly confidential by the Church,” it is “conducted by trained auditors,” and “the records from such audits are maintained in separate files which are marked ‘confidential’ and stored in locked cabinets”); Creel v. Hudson Ins. Co., et al., No. 2018-02674 (New Orleans, Louisiana District Court, 2020) (denying motion to compel auditing files), writ denied, 297 So.3d 763 (Louisiana Supreme Court, 2020).
For a summary of government and judicial decisions around the world that have established that Scientology involves bona fide religious practice, see Appendix I to this chapter.
The practices of the Scientology religion consist of “Auditing” (spiritual counseling), and “Training,” i.e., learning about the religious beliefs, practices and application of the religion through the study of L. Ron Hubbard’s writings and lectures. Scientology churches also host weekly congregational services, ceremonies to honor the major stages of life (naming ceremonies, weddings and funerals) and major events to commemorate the major holidays of the religion.
As emphasized in Part III, numerous courts in the United States have held that confidential communications made to a “team” of ministers in furtherance of the religious doctrines and practices of a church are and must be protected from coerced disclosure by the Religion Clauses of the First Amendment.
To clarify for those unfamiliar with United States law and government, the nation is governed by a system of federalism, with each of the fifty states maintaining its own laws and judicial system and the national government maintaining a system of regional or specialized federal courts. The federal courts have limited jurisdiction over cases and controversies as established by Article III of the Constitution and by federal statute. The state courts have general jurisdiction over all matters except those several areas where federal jurisdiction is exclusive. The United States Supreme Court has ultimate jurisdiction over all cases and controversies in both the state and federal courts that raise a question under the Constitution or other federal law, but it is exercised today mostly as a matter of discretionary review, and quite sparingly.
People v. Phillips (N.Y.Ct.Gen.Sess. 1813), quoted in Mockaitis v. Harcleroad, 104 F.3d 1522, 1532 (9th Cir. 1997) (Noonan, J.).
Totten v. United States, 92 U.S. 105, 107 (1875).
Mullen v. United States, 263 F.2d 275, 278 (D.C. Cir. 1959) (“Sound policy—reason and experience—concedes to religious liberty a rule of evidence that a clergyman shall not disclose on a trial the secrets of a penitent’s confidential confession to him, at least absent the penitent’s consent.”)
Trammel v. United States, 445 U.S. 40, 51 (1980).
Id. See United States v. Nixon, 418 U.S. 683, 709 (1974) (“[G]enerally, an attorney or priest may not be required to disclose what has been revealed in professional confidence.”)
26 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5620 (2019). Those state courts that have addressed the issue have held or presumed documents to be within the scope of various statutory formulations of the privilege, including some referring to “testimony” or to the “examination” of a cleric. See Corsie v. Campanalonga, 721 A.2d 733, 735-36 (N.J. Super. Ct. App. Div. 1998) (recognizing statute according “privilege” to “[a]ny communication” to protect documents), rev’d on other grounds, 734 A.2d 788 (N.J. 1999) (augmenting protection accorded by intermediate court); Commissioner v. Stewart, 690 A.2d 195, 197 (Pa. 1997) (treating documents as within scope of privilege against “disclos[ure]” of “information”); Ryan v. Ryan, 642 N.E.2d 1028, 1034 (Mass. 1994) (protecting documents under statute forbidding “priest[s]” from “disclos[ing] a confession… [or] testify[ing] as to any communication”); Doe v. Corporation of the President of the Church of Jesus Christ of Latterday Saints, 90 P.3d 1147, 1151 (Wash. App. 2004) (protecting against document’s disclosure under statute providing that cleric “shall not… be examined as to any confession”); People v. Campobella, 810 N.E.2d 307, 321 (Ill. App. 2004) (recognizing protection against disclosure “not only of the admission, confession, or accompanying ‘information’ as originally articulated… but also of any reiteration or repetition in any form,” under statute providing that clergy “shall not be compelled to disclose… a confession or admission… nor be compelled to divulge any information.”)
The Rules Enabling Act of 1934 (28 U.S.C. § 2071-2077) authorized the Supreme Court to promulgate rules of procedure, which have the force and effect of law. Over time, the Court delegated the work and oversight of the rule making process to committees of the Judicial Conference, the principal policy-making body of the federal courts. In 1988, amendments to the Rules Enabling Act formalized this committee process. Today, the Judicial Conference’s Committee on Rules of Practice and Procedure, (“Standing Committee”) and its five advisory rules committees “carry on a continuous study of the operation and effect” of the federal rules as directed by the Rules Enabling Act.
In re Grand Jury Investigation, 918 F.2d 374, 384 (3d Cir. 1990).
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531-32, 546 (1993) (“A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny,… must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.”)
Ibid 534 (quoting Walz v. Tax Commissioner of City of New York, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)).
See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 433.
James Madison, Memorial and Remonstrance, as quoted in John T. Noonan, Jr., The Lustre of Our Country (n 5).
Everson (n 3), 15 (1947).
Larson v. Valente, 456 U.S. 228, 245 (1981) (quoting The Federalist (n 2)); see also Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O’Connor J., concurring).
Epperson v. Arkansas, 393 U.S. 104, 106 (1968).
Torcaso v. Watkins, 367 U.S. 488, 495 (1960).
Larson (n 24), 247.
Fowler v. Rhode Island, 345 U.S. 67, 69-70 (1943).
Larson, (n 24), 247.
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 433 (2006) (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993)).
In re Grand Jury Investigation, 918 F. 2d 374, 384.
Reutkemeier v. Nolte, 161 N.W. 290 (Iowa 1917).
Scott v. Hammock, 133 F.R.D. 610 (D.Utah 1990).
Ibid 619 (emphasis added).
Scott v. Hammock, 870 P.2d 947 (Utah 1994).
Doe v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints, 122 Wash. App. 556 (2004).
Ibid 566, quoting Washington v. Martin, 137 Wash.2d 774, 787 (1999).
State v. MacKinnon, 288 Mont. 329 (1988).
In re Grand Jury Investigation, (n 18) 384-85.
State v. Ellis, 750 So.2d 418 (La. App. 1999).
Alternative Health Care Systems v. McCown, 217 Ga. App. 355 (1999).
People v. Bragg, 824 N.W.2d 170, 187 (Mich. App. 2012).
State v. Archibeque, 223 Ariz. 231, 236 (Ariz. App. 2009).
Watson v. Jones, 80 U.S. (13 Wall.) 679, 733-34 (1871).
Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 115-16 (1952).
Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969).
Ibid. See also New York v. Cathedral Academy, 434 U.S. 125, 133 (1977) (“The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment.”)
Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
Alcazar v. Corp. of the Catholic Archdiocese of Seattle, 598 F.3d 668, 672 (9th Cir. 2010), adopted in relevant part as en banc decision, 627 F.3d 1288, 1290-91 (9th Cir. 2010).
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502.
Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976).
Ibid 717 (“questions of church discipline and the composition of the church hierarchy are at the core of ecclesiastical concern.”)
See, e.g., Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. 171.
Our Lady of Guadalupe School v. Morrissey-Berru, U.S. , 140 S.Ct. 2049 (2020).
Mockaitis (n 11).
See 42 U.S.C. section 2000bb, et seq.
Employment Div., Oregon Dep’t of Human Resources v. Smith, 494 U.S. 872 (1990).
City of Boerne v. Flores, 521 U.S. 507 (1997).
Mockaitis (n 11), 1530.
Ibid 1531. While the court did not discuss the issue, the case might also have been decided under the church autonomy doctrine discussed above. It is hard to imagine a more egregious violation of church autonomy than for a state official secretly to tape a confession of a prisoner to his priest.