Washington state's bishops filed a lawsuit May 29 over a new law requiring clergy to report child abuse or neglect without exceptions for clergy-penitent privilege.
First reported by The Pillar, the lawsuit is in response to Democratic Gov. Bob Ferguson's approval of Senate Bill 5375 earlier the same month, which designated members of the clergy as mandatory reporters, or people required by law to report suspected or known instances of child abuse or neglect.
The requirements of the legislation signed into law did not include an exception for sacramental confessions. Other mandatory reporters in Washington state include school personnel, nurses, social service counselors and psychologists.
While some have argued the bill addresses an important omission from the state's list of mandatory reporters, others have expressed concern that without exceptions for the clergy-penitent privilege, as similar laws in other states have, Washington state's law could place Catholic priests at odds with civil law in order to uphold church law regarding the seal of the confessional.
"It's hard to imagine a more brazen attack on faith than state bureaucrats policing the sacrament of confession," Mark Rienzi, president and CEO of Becket, a religious liberty law firm in Washington,D.C., that is representing the bishops, said in a statement provided to OSV News.
"Washington's law isn't about protecting kids -- it's about jailing priests for following the Church's ancient faith practices," Rienzi said. "We're asking the court to step in and stop the state from turning a sanctuary for the soul into a tool of surveillance."
The governor's office did not immediately respond to a request for comment from OSV News.
In the lawsuit, which was filed in the U.S. District Court for the Western District of Washington at Tacoma, the bishops argued, "Washington is targeting the Roman Catholic Church in a brazen act of religious discrimination," citing how the state protects confidential communications in other settings.
"Without any basis in law or fact, Washington now puts Roman Catholic priests to an impossible choice: violate 2,000 years of Church teaching and incur automatic excommunication or refuse to comply with Washington law and be subject to imprisonment, fine, and civil liability," the lawsuit said, citing historic examples of priests who were martyred over their refusal to break the seal, from St. John Nepomucene in the 14th century all the way to bishops martyred in 1936 during the Spanish Civil War.
Every U.S. state, district or territory has some form of mandatory reporting law. Most states that specifically include clergy in their mandatory reporting laws provide some clergy-penitent privileges to varying degrees, according to data from the Child Welfare Information Gateway, which operates under the Children's Bureau at the U.S. Department of Health and Human Services.
The Washington State Catholic Conference, which is the public policy arm of the state's Catholic bishops, previously supported a different version of the legislation to make clergy mandatory reporters that did include an exception for hearing confession, part of the sacrament of reconciliation. However, they opposed the particular version of the legislation that was signed into law which lacked that exception.
"Previous versions of legislation mandated that clergy report sexual abuse while at the same time protecting the sacramental seal surrounding confession," the lawsuit said.
Jean Hill, executive director of the Washington State Catholic Conference, said in a statement provided to OSV News, "Confession offers the faithful a confidential space to seek God's mercy and guidance."
"This trust is sacred, and any law that jeopardizes it risks discouraging those who recognize the harm they have caused from seeking moral guidance," she said.
The Catechism of the Catholic Church states that priests are strictly forbidden from divulging what penitents tell them during confession and states that information a penitent divulges is under "seal."
"Given the delicacy and greatness of this ministry and the respect due to persons, the Church declares that every priest who hears confessions is bound under very severe penalties to keep absolute secrecy regarding the sins that his penitents have confessed to him," the catechism states.
The Washington bishops' lawsuit referenced the church's ancient history of confessional secrecy, from the letters of Pope Leo I in the fifth century, citing the teaching of the Apostles, to its codification in canon law by the Fourth Lateran Council in 1215.
The lawsuit also recounts the steps taken by the Catholic Church in the U.S., as well as the dioceses involved in the suit, to eradicate clergy sexual abuse and sexual abuse more broadly.
It added under their own internal policies, priests in each of the three dioceses in the state "who suspect based on what is disclosed during confession that the penitent is suffering from abuse or neglect, the penitent has engaged in abuse or neglect, or some third party has engaged in abuse or neglect, invite the penitent for counseling outside of the sacrament of confession."
"And, should the priest learn information in that non-sacramental counseling providing reasonable cause to believe abuse or neglect has been committed, the priest is obligated to report that suspected abuse or neglect to proper law enforcement agencies or the department of children, youth, and families," the lawsuit said. "The Church recognizes that even one credible allegation is too many and that there is more work to do. Yet evidence-based measurements of the Church's response show that the Church's efforts to combat abuse are working."
Hiram Sasser, executive general counsel for First Liberty Institute, also representing the bishops in the lawsuit, said in a statement provided to OSV News that "Washington's law targeting Catholic clergy with threat of imprisonment and fine if they do not break the sacramental confessional seal is a brazen act of religious discrimination."
"For centuries, Catholic priests have been willing to die as martyrs rather than violate this sacred duty," Sasser said. "A few politicians in Washington state won't break them. And the Constitution protects them."
Earlier in May, the Justice Department said it planned to investigate what it called an apparent conflict between the Washington state law and the free exercise of religion under the First Amendment.
