The Pending Gauntlet to Free Exercise: Mandating that Clergy Report Child Abuse

Abstract

This Article analyzes the conflict between statutory child abuse reporting requirements for clergy and the clergy-communicant privilege for confidential communications made within specific religious practices. The constitutional conflict arises between the state's interest in the protection of children by requiring that suspected cases of abuse be reported and the clergy's interest in the free exercise of their religious tenets by maintaining confidentiality. This analysis recognizes that state legislators have broadened reporting requirements to include more and more classes of people in an effort to arrest the tremendous increase in child abuse in the past decade. As a result, the shield of privileged communications between clergy and communicant, attorney and client, doctor and patient, and counselor and client, has become more narrowly defined. The legislative reevaluation of the clergy-communicant privilege involves a greater constitutional issue: whether the religious liberty interest protected by the Free Exercise Clause can withstand one of the most egregious situations within society, the abuse of children. This Article evaluates the First Amendment protection of freedom of religion, specifically the right to maintain privileged communications as an exercise of religious practice, in light of the United States Supreme Court's treatment of other rights guaranteed by the Constitution. For example, if a priest is to assert the privilege to maintain the confidentiality of information received within the Sacrament of Penance, the interest in doing so must equal or outweigh the state's interest in protecting children. A number of United States Supreme Court decisions have balanced similar interests in a variety of cases. Thus, even if the Court has abandoned the balancing involved in the compelling state interest test, the way in which the Court has interpreted other constitutional provisions to afford rights to minorities not protected by the political process should serve as a guide for the Court when it addresses the conflict between free exercise and child abuse reporting statutes. The First Amendment should protect those farthest from the political process in their religious practices in the same fashion that it protects anti-majoritarian political views. Finally, this Article proposes that the interests of the state served by the clergy-communicant privilege outweigh the interest in protecting children through mandated reporting. In an effort to evoke protection of these confidential communications through the political process, this Article examines the constructive role of clergy-communicant confidentiality in the prevention of child abuse. What appears to be a conflict between mandatory reporting statutes and the assertion of confidentiality is actually two different means to the same end of protecting children. No legal analysis concerning the possibility of litigation over the enforceability of child abuse reporting statutes should ever lose sight of the fact that protecting children from abuse is paramount to both the clergy and the state.