Free Exercise, Penance, and Delaware Court
by John M. Grondelski February 9, 2016
Regular First Things readers know that the late Father Richard John Neuhaus never tired of arguing that the First Amendment contains not two religion clauses but one: “no establishment” and “free exercise” are not two free-floating provisions at occasional loggerheads with each other but one. Congress is banned from establishing a religion in order to foster the free exercise of religion. Neuhaus insisted that the muddle of First Amendment jurisprudence in which the Supreme Court often finds itself is in no small measure owing to its own separation (and contraposition) of “no establishment” and “free exercise.”
That dilemma was on display in late January in a Delaware Superior Court in connection with what is usually called the priest-penitent “privilege.” Many states recognize that a priest cannot be compelled to disclose what has been revealed within the Sacrament of Reconciliation. At the same time, many States—Delaware among them—have also enacted mandatory reporting requirements in connection with child abuse or neglect. Delaware requires reporting of child abuse/neglect except in instances involving an “attorney and client and . . . priest and penitent in a sacramental confession . . . .”
In January 2013, two elders of a Jehovah’s Witness congregation spoke with a minor member of that congregation about an abusive sexual relationship between the child and an adult member of the group. They subsequently also spoke with the adult. Disciplinary sanctions were later imposed on both the child and adult. The conversations were not reported. Delaware subsequently sought civil penalties against both the congregation and the individual elders. The defendants sought summary judgment against the charges on religious freedom and priest-penitent “privilege” grounds. In Delaware v. Laurel Congregation of Jehovah’s Witnesses et al., a Delaware Superior Court judge denied the motion.
What is concerning about the decision is how the court arrived at it. The decision is a perfect illustration of what happens when “no establishment” and “free exercise” are put at odds.
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