Seal of confessional is already protected under Irish civil law
The courts in Ireland and abroad have backed the right to religious freedom and in turn the right to keep confessions private, writes GERRY WHYTE
IN VIEW of the revelations of the Cloyne report, it is understandable that the Government should conclude that legislation is now needed to address the problem of concealment of child abuse by members of the clergy.
In particular, it has been indicated that such legislation will not permit Catholic priests to rely on that distinctive innovation of the old Irish Celtic church, the sacrament of Confession, as a defence to any charge of failing to report child abuse.
This move has been characterised by some as ensuring the civil law of the State will prevail over the canon law of the Roman Catholic Church.
Such an analysis, however, fails to take account of the fact that the seal of the confessional enjoys some legal protection in civil law as well as under canon law, and so it is more accurate to characterise the issue here as one of securing a balance between conflicting civil rights.
It is now well settled in Irish common law that a member of the clergy of any denomination may not be compelled to disclose the content of any conversation between them and a parishioner unless the parishioner agrees to such disclosure.
In 1999, Judge Hugh Geoghegan in the High Court went further, in relation to the seal of the confessional, offering a non-binding opinion in the Johnston case that disclosures in confession probably could not be made public even if the penitent agreed to such disclosure. Of course, such protection of the relationship between cleric and parishioner operates only at common law and, as such, could be modified by legislation.
However, if the seal of the confessional also enjoys constitutional protection, the issue becomes more complicated from the legislature’s point of view. This specific issue has not yet arisen for consideration by the Irish courts. However, in 1813, the court of general sessions in New York recognised (in The People v Phillips) that the seal of the confessional was protected by the guarantee of religious freedom in the first amendment to the US constitution.
According to the court: “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. Suppose that . . . 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.”
More recently, in 1997, the US ninth circuit court held (in Mockaitis v Harcleroad) that the tape-recording by prison authorities of a confession made by a prisoner to a priest violated the priest’s privacy rights under the fourth amendment to the US constitution.
It is therefore arguable that, under our Constitution, the seal of the confessional is protected by the guarantee of freedom of religious practice in Article 44.2.1 and by the privacy right implicitly guaranteed by Article 40.3.
Moreover, in relation to freedom of religion, the Supreme Court ruled, in the Quinn’s supermarket case in 1972, which concerned the trading hours of butchers, that “[Any] law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practise of religion by any person . . . would be [constitutionally] invalid . . . unless it contained provisions which saved from such restriction or prevention the practise of religion of [that] person . . .”
If this line of reasoning was applicable in the present dispute, it might be argued that a general law criminalising failure to report child abuse would, contrary to the expressed intention of the Government, have to create a defence to liability in respect of disclosures made in confession in order to facilitate the penitent’s right to free practice of religion.
That said, the law at issue in the Quinn’s supermarket case was not enacted to protect public order, a point that might be sufficient to render the Supreme Court’s reasoning in that case inapplicable to the proposed legislation on disclosure of child abuse. For, of course, neither the guarantee of freedom of religion nor the guarantee of the right to privacy are absolute. Indeed, the free profession and practice of religion are expressly made subject to public order and morality by Article 44.2.1.
However, for the proposed legislation to enjoy the protection of this proviso to the guarantee of freedom of religion, it may be necessary to show, inter alia, that the legislative interference with the seal of the confessional is necessary in order to prevent the concealment of child abuse and that the proposed interference impairs the right of free practice of religion as little as possible.
I am far from suggesting that such legislation would be unconstitutional. However, the matter is a bit more complicated than simply ensuring the applicability of State law to the members of a private club.
Gerry Whyte is an associate professor at the Trinity College Dublin law school, a fellow of Trinity College and dean of students