Washington State Democrats’ Appalling Assault on a Catholic Sacrament

Forcing priests to divulge confessions, while exempting all manner of secular confessors, is rank religious discrimination.

H ow does the persecution of churches by the state begin? With a state that sees people of faith, or of one particular faith, as the enemy and no part of its own constituency. That’s what many of the first settlers of the American colonies came here to escape. It’s also what today’s Americans of faith increasingly find in deep-blue parts of the country.

The State of Washington has not elected a Republican governor in 45 years. Democrats have held the state senate since 2017 and the state assembly since 2002. Unsurprisingly, the result is a government that has little regard for the rights of the minority — including the Catholic Church. Governor Bob Ferguson and the state legislature put that contempt on garish display with a new law, signed on Friday, that would require Catholic priests to break the seal of the confessional if they learn of sexual abuse.

This is an outrage. It is an entirely predictable one. The church did everything it could to warn the Democrats about the bill, Senate Bill 5375. But Ferguson and his party don’t care. For their troubles, they are now facing a federal civil rights investigation from the Justice Department.

Singled Out

SB 5375 targets clergy; the whole point of it is to expand the set of people required to report sexual abuse. The bill’s impetus was to respond to cover-ups of sexual abuse by Jehovah’s Witnesses and Catholic priests.

Now, just about everybody believes that the goal of reporting more sexual abuse crimes is a good thing (at least until that goal conflicts with some progressive priority such as preventing sex abusers from being deported). Washington had previously been in a small minority of states that did not require any reporting by clergy. The Archdiocese of Seattle wasn’t opposed to the bill, in spite of the more onerous reporting requirements it would impose on clergy, so long as it made adequate exceptions for the confessional. That is the nub of the controversy.

The bill’s entire focus was on forcing clergy, and only clergy, to violate confidences to report abuse. It included an enlarged definition of a “member of the clergy” who may not invoke legal privileges to avoid making reports:

Any regularly licensed, accredited, or ordained minister, priest, rabbi, imam, elder, or similarly situated religious or spiritual leader of any church, religious denomination, religious body, spiritual community, or sect, or person performing official duties that are recognized as the duties of a member of the clergy under the discipline, tenets, doctrine, or custom of the person’s church, religious denomination, religious body, spiritual community, or sect, whether acting in an individual capacity or as an employee, agent, or official of any public or private organization or institution.

Worse, only the clergy are stripped of such defenses:

When any person, in his or her official supervisory capacity with a nonprofit or for-profit organization, has reasonable cause to believe that a child has suffered abuse or neglect caused by a person over whom he or she regularly exercises supervisory authority, he or she shall report such incident, or cause a report to be made, to the proper law enforcement agency, provided that the person alleged to have caused the abuse or neglect is employed by, contracted by, or volunteers with the organization and coaches, trains, educates, or counsels a child or children or regularly has unsupervised access to a child or children as part of the employment, contract, or voluntary service. Except for members of the clergy, no one shall be required to report under this section when he or she obtains the information solely as a result of a privileged communication as provided in RCW 5.60.060. [Newly added text emphasized]

The referenced list of privileges that are recognized, RCW 5.60.060, is in Washington’s code of evidence, and it therefore protects the privileges of a laundry list of people against reporting sexual abuse:

• attorney–client privilege;
• privilege of spouses not to testify against one another;
• privilege of a “peer supporter” in a support group, or a sponsor in an addiction program;
• privilege of a “sexual assault advocate” or “domestic violence advocate”;
• privilege of a “mental health counselor, independent clinical social worker, or marriage and family therapist” or “a physician or surgeon or osteopathic physician or surgeon or podiatric physician or surgeon”;
• privilege of a union representative, unless “necessary to prevent the commission of a crime that is likely to result in a clear, imminent risk of serious physical injury or death of a person,” or after the employee has been charged;
• privilege of a “public officer” for “communications made to him or her in official confidence, when the public interest would suffer by the disclosure.”

Sponsors and supporters of the bill postured about how “You never put somebody’s conscience above the protection of a child” and “The church is not above the law.” Ferguson insisted that “this was important legislation for protecting kids.” But if the public interest in ferreting out sex abusers was quite urgent enough to break the seal of the confessional, it would also be urgent enough to put union reps, marriage counselors, social workers, and secular peer-group leaders to a similar choice. If Washington had done that, at least it would have some sort of leg to stand on in arguing that it truly regarded this as a paramount state interest. But it didn’t. Clergy, and only clergy, were targeted by the state.

Why? Back in 2002, the publicity around sex abuse scandals in the Catholic Church led to well-deserved recriminations against the misconduct of bad priests and the complicity of church policy and the hierarchy in allowing them not only to go unpunished but to keep on abusing. It also, however, led to a series of anti-Catholic portraits of the church as a unique wrongdoer in this area. More than two decades later, we know better: the Me Too era in particular exposed how very many major institutions of our society acted in much the same way in protecting rather than exposing powerful sex abusers. The patterns appeared in secular, religious, public, and private institutions alike. Yet Washington targets only the clergy for the abolition of all privileges of confidentiality.

At the very same time, Washington Democrats passed through the state senate on a party line basis another bill that would restrict parents’ access to their minor children’s records of gender identity counseling, undoing a referendum passed last year. So, this is not all about radical transparency.

The Sanctity of Confession

Legal privileges from disclosure and testimony often exist for situations in which we want to ensure that people get help. The attorney–client privilege, for example, helps people get advice on how to avoid breaking the law. Psychiatric, group therapy, and addiction recovery privileges can help people avoid repeating behaviors that harm themselves and others. The absolute confidentiality of the confessional exists for reasons similar and superior to those: It not only helps the penitent lay down the spiritual burden of his sins and seek spiritual guidance on avoiding them in the future; it also saves his soul from eternal damnation. The church regards this as the most urgent of all things — the dispensing of the grace for which Christ died on the cross. Washington regards it as less deserving of protection than union representation.

The sacrament of confession imposes an absolute requirement of confidentiality on priests to take to their graves — even on penalty of execution — the confession of sins. The church has recognized only the narrowest of exceptions. This has been true for centuries and is such a well-known collision between the laws of God and the usual laws of men that it has long been a cliché of Hollywood screenwriting. In Alfred Hitchcock’s 1953 film I Confess, for example — based on a 1902 French play — a Catholic priest is tried for murder and cannot reveal that he knows the identity of the killer, which was told to him in confession. New York Mayor DeWitt Clinton ruled while presiding over a criminal case in 1813 that “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,” because “secrecy is of the essence of penance.”

Washington Democrats knew exactly what they were doing. The sex-abuse-reporting bill had been kicking around Olympia for three years; a 2023 version had exempted confessions. When that exemption was stripped, the Washington State Catholic Conference raised alarms. The bishops asked for a meeting with Ferguson but were rebuffed. The bill passed on nearly a party line vote. In the state house, all 59 Democrats voted for the bill, while Republicans voted 31–5 against it. In the state senate, Democrats voted 28–2 in favor, while all 18 Republicans who were present voted no.

The church has protested vociferously. Bishop Thomas Daly of Spokane wrote, “I want to assure you that your shepherds, bishop and priests, are committed to keeping the seal of confession — even to the point of going to jail.” Bishop Joseph Tyson of Yakima added that requiring priests to breach the seal of confession “is not about civil reporting of abuse, that’s breaking our sacramental way we worship God.” Archbishop Paul Etienne of Seattle explained that “our policies already require priests to be mandatory reporters, but not if this information is obtained during confession,” and emphasized that the church will not bend:

Catholic clergy are now required to violate the seal of the Sacrament of Reconciliation, better known to many as confession. . . . This weekend at Mass, the first reading was from the Acts of the Apostles. After the apostles were arrested and thrown into jail for preaching the name of Jesus Christ, St. Peter responds to the Sanhedrin: “We must obey God rather than men” (Acts 5:29). This is our stance now in the face of this new law. Catholic clergy may not violate the seal of confession — or they will be excommunicated from the Church. All Catholics must know and be assured that their confessions remain sacred, secure, confidential and protected by the law of the Church. . . . Priests cannot comply with this law if the knowledge of abuse is obtained during the Sacrament of Reconciliation.

As Etienne continued:

This law also attempts to supersede the Code of Canon Law, which states:

Canon 983: The sacramental seal is inviolable; therefore, it is a crime for a confessor in any way to betray a penitent by word or in any other manner or for any reason.

Canon 1388: A confessor who directly violates the seal of confession incurs an automatic (latae sententiae) excommunication reserved to the Apostolic See.

The archbishop’s conclusion:

With this law, the State of Washington is specifically targeting religious conduct by inserting the government into the Catholic tradition, namely, the highly defined ritual of the Sacrament of Reconciliation. The state is now requiring priests to violate an essential element of the rite, the confidential communication between the priest and penitent in which the absolution of sin is offered. . . .

Once the state asserts the right to dictate religious practices and coerce information obtained within this sacrament — privileged communication — where is the line drawn between Church and state? What else may the state now demand the right to know? Which other religious practices will it try to legislate? Why is this privileged communication between priest/penitent the only one singled out? Why not attorney/client? Doctor/patient? Spouses?

This new law singles out religion and is clearly both government overreach and a double standard. The line between Church and state has been crossed and needs to be walked back. People of every religion in the State of Washington and beyond should be alarmed by this overreach of our Legislature and Governor.

Ferguson, for his part, wrapped himself in the cloak of his supposed Catholicism: “My uncle was a Jesuit priest for many years, [I’ve] been to confession myself — and so I’m very familiar with that.” Something got lost in translating the faith to the governor. But the DOJ’s announcement that it “will investigate the apparent conflict between Washington State’s new law with the free exercise of religion under the First Amendment, a cornerstone of the United States Constitution” may get his attention.

States of Disclosure

Washington isn’t the first state to try this. Bills to a similar effect have been attempted in recent years in Delaware, Vermont, Hawaii, California, and Montana. Under existing laws, a clergy–penitent privilege is generally restricted or unrecognized in child or sexual abuse cases in New Hampshire, West Virginia, Texas, North Carolina, Oklahoma, Tennessee, and Rhode Island. State enforcement has been uneven, and while the New Hampshire Supreme Court generally rejected a penitent privilege in a non-Catholic context in 2013, Catholic priests were protected from disclosures of confessions by the Louisiana Supreme Court in 2016.

The Catholic Church and its principles are regularly on the defensive in progressive-run states, from Minnesota (where Tim Walz is trying to end state transportation aid to parochial schools) to New York (where Democrats in the state legislature are pushing to legalize assisted suicide over the opposition of the church, after enacting a law that massively and retroactively extends the statute of limitations for sex abuse claims). The Obama administration, of course, famously spent years in court trying to force the Little Sisters of the Poor to pay for contraceptives. This, however, is just about the most direct assault there is on a core, ancient, and extremely well-known Catholic doctrine that will require priests to go to jail if the state seriously attempts to enforce it. Shame on Washington.