Orthodox Church in America v. Ferguson

Description:  A Washington state law targets priests by criminalizing their religious obligation to keep confessions confidential.

TACOMA, Wash. – Four months after Orthodox Churches and a priest sued, Washington state officials agreed to a court order permanently preventing enforcement of a provision of law that targeted priests by criminalizing their religious obligation to keep confessions confidential. Alliance Defending Freedom attorneys, with co-counsel Eric Kniffin and George Ahrend, filed the lawsuit Orthodox Church in America v. Ferguson in June to challenge Washington’s discriminatory law.

“The First Amendment guarantees that governments cannot single out religious believers for worse treatment,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “Washington was targeting priests by compelling them to break the sacred confidentiality of confession while protecting other confidential communications, like those between attorneys and their clients. That’s rank religious discrimination. We are pleased the state agreed to swiftly restore the constitutionally protected freedom of churches and priests.”

Orthodox Churches teach that priests have a strict religious duty to maintain the absolute confidentiality of what is disclosed in the sacrament of confession. This confidentiality protects the penitent and fosters a sense of safety and trust, allowing the individual to approach God for forgiveness without fear. Violating this mandatory religious obligation is a canonical crime and a grave sin, with severe consequences for the offending priest, including removal from the priesthood. Washington’s law would also harm members of Orthodox Churches. By piercing the sacramental confidentiality, the law deters believers from confessing certain sins—or even from going to confession at all—and so prevents them from mending their relationship with God.

Every state, including Washington, honors the confidentiality of clergy-penitent communications, and the U.S. Supreme Court has recognized that this privilege has long been part of common law tradition. Also, like every other state, Washington has a mandatory reporter law that imposes a legal duty on certain persons to file a report with the government when they have reasonable cause to believe that a child has suffered abuse or neglect. And like nearly every other state, Washington’s mandatory reporter law has recognized a clergy-penitent privilege that protects the confidentiality of confession—until recently.

In May, Washington passed a law that made it a crime for priests to fulfill their religious obligation to uphold the confidentiality of confession. That law would have put priests to an untenable choice: obey Washington law and violate their sacred obligation to maintain the confidentiality of confession, or else uphold their religious vow and face criminal penalties.

While the state’s law maintained confidentiality privileges for attorneys and clients; peer supporters; sexual assault advocates; and alcohol and drug recovery sponsors, it attempted to revoke the same privileges from clergy, uniquely targeting them for punishment. A single violation can carry up to 364 days in jail, a $5,000 fine, and civil liability.

As the lawsuit explains, the Orthodox Churches and priest do not object to alerting authorities when they have genuine concerns about children based on information learned outside the narrow confidentiality of confession. Indeed, priests are already required to make such reports under their own bishops’ policies for information learned outside of confession. The Orthodox Churches and priest filed suit to preserve the longstanding clergy-penitent privilege, as the Constitution requires.

In July, a court order temporarily stopped the challenged provision of the law from going into effect. Now, Washington officials have agreed to an order permanently stopping them from enforcing the law as applied to the sacrament of confession and other sacred confidences.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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