In April of 1996, arrested Oregon murder suspect Conan Hale asked to see a priest for the purpose of confessing his sins. Father Timothy Mockaitis, who was serving at St. Paul's Parish in Eugene, heard Hale's confession, granted conditional absolution, and then departed. What would normally be a mundane occurrence -- a priest hearing a criminal's confession -- became a carnival when it was learned that a) the jail had recorded this conversation; b) the district attorney, Doug Harcleroad, was considering the possibility of using the confession as evidence in a court of law; and c) consequently, the district attorney refused to destroy the tape.
Outrage followed. Columnist William F. Buckley, Catholic founder of National Review, denounced the incident as "naked fascism, truly the end of the line." If it were allowed to stand it would rupture the "sacredly inviolate" relationship between priest and confessor and would "[yank] at the pillars of separation between church and state." Buckley called for the removal of Harcleroad and for massive civil disobedience in the event that the trial did employ the taped confession.
Nor was Buckley alone in his ire. Those who opposed the admission of the tape as evidence were a strikingly ecumenical group, including Catholics, many Protestants, and privacy rights advocates. In the end Hercleroad did not use the tape in the trial (Hale landed a death sentence anyway), lost in court to the Portland Archdiocese to the tune of $25,000, and finally lamented the fact that the recording was ever made. It was widely seen as a landmark test case in church-state relations -- one in which the state ended up with a black eye as the confessional door was slammed in its face.
So why, one wonders, did the legislature of the state of Connecticut recently almost pass a law requiring priests to report certain crimes that are disclosed in the confessional? In a debate that roused nearly as much passion as the Hale case but not as much ecumenical sympathy, some Catholic legislators charged the rest of the body with tampering with religious freedom and engaging in anti-Catholic bigotry. They did eventually manage to strip the bill of the offensive provision, but it was an uphill fight -- and one in which not even all Catholic legislators were reading from the same hymnbook.
In the Connecticut case, some of those pushing for forced disclosure of what is divulged in the confessional were Protestant ministers, who do not generally benefit from the same iron-clad exemption from legal disclosures regarding the confessions of crimes. Also less secure are the protections for secular psychologists and social workers: Though laws vary from state to state, they are usually required to disclose some crimes told to them in confidence.
The reasons the sanctity of the confessional has been allowed to remain thus far inviolate are its antiquity and the United States's grudging tolerance for the Catholic Church. Lawmakers in the past have understood that to tamper with the confessional seal would be to invite strong reactions from angry Catholic citizens and voters. And in the few instances where it has been attempted, the reactions have indeed been fierce. This is because, in Catholic theology, what happens in the confessional is essentially a conversation between man and God, as mediated by a priest. It has fallen under the category of something that is so private -- almost like reading one's thoughts -- that the state dare not tamper with it.
The current sex scandal in the Catholic Church, however, threatens to upset this balance. What began as aggressive and good reporting in Boston of the cover-up of pedophilia has snowballed. Diocese in Los Angeles, New York and Florida, to pick three among many, are currently under intense media and government scrutiny. Many states are rushing to extend statutes of limitations on sex-abuse cases and tightening up disclosure laws to force the Catholic hierarchy to come clean, and to attempt to prevent this sort of thing from happening again in the future. To give one example: Bernard Cardinal Law arguably did not break any laws by covering up for and transferring pedophile priests without telling congregations what they were getting themselves into. New laws seek to require such disclosures.
Catholic apologist Mark Shea, who has otherwise been very critical of his church's actions in this matter, is worried about overreach. Specifically, he predicted "the coordinated attack by the State on the Seal of the Confessional." Further, this and other attacks on "the integrity of the sacraments, no matter how outrageous, will be justified by the mantra 'We're doing it for the children.'" And, as if on cue, one of those Connecticut legislators defended the confession provision by opining that "you cannot let our children take the blunt of canon [church] law."
Shea may have expressed a more conspiratorial perspective than the facts warrant, but that does not mean that he doesn't have a point. The Catholic Church has been knocked down a peg or three since the Boston revelations first started to mushroom. In one horrifying incident, an alleged pedophile priest in St. Cloud, Minnesota, has also become a suspect in a double murder case involving two young girls. On May 13, a Baltimore priest was shot several times (but not killed) by a man who had accused the priest of molesting him.
Several priests have committed suicide, which, in Catholic theology, is likely fatal for the soul. A recent Gallup poll found that the church has suffered "a dramatic decline in favorability among Americans in the last two years." The number of people with a favorable impression has fallen from to 52 percent from 64 percent, and the negative side of the ledger has edged up to 39 percent rom 27 percent. In their recent meeting, President Bush told Pope John Paul II that the clergy crisis is hurting the American church as a whole.
Indeed, the Catholic Church is bleeding respect from the heads down. Though he condemned the actions of errant priests as "a crime" at the recent Vatican confab, the pope has thus far resisted replacing any of the cardinals and bishops who allowed the abuse to occur. Forgoing the normal process, in the corporate world, of cleansing by resignation has amplified the perception that the church is a secretive and patriarchal body more concerned with hocus pocus and theological minutiae than with helping people, materially and spiritually.
This culture of privilege and secrecy -- remember, various diocese often paid off the victims of pedophile priests or threatened them into silence before shuffling said priests to other parishes and other diocese -- is what many people, including some conservative Catholics, are fingering as the cause of the current crisis. In the rush to destroy this abusive and secretive culture, it is understandable that many Protestant and secular critics and legislators would see the institution of the confessional as Exhibit A. Paul Kurtz, chairman of the Council for Secular Humanism, argues in an e-mail that "If a Catholic priest learns about a crime past or intended, then he has an obligation to divulge this to the state." Kurtz elaborates:
[I]f a serial killer confesses to a priest that he has killed several innocent persons and that he intends to commit a murder again, then the law should compel the police to inform the state in order to apprehend the criminal and prevent harm to future victims ... The separation of church and state is vital but surely not at the expense of preventing harm to innocent individuals ... No one has the right to demand immunity on the basis of his religious beliefs, where these violate laws enacted by a democratic society. Any such exemptions should be repealed.
The problem that the hierarchy of the American Catholic Church will have in responding to this zeitgeist is that any defense of the confessional is inherently theological and, therefore, suspect. Catholics clearly have a special privilege when it comes to the confessional, which they claim is required in order for them to enjoy full religious freedom. Yet even some Catholics admit that more disclosure, outside of the confessional, is necessary. However, they warn that the nature of Catholicism must be taken into account in any legislative proceedings.
As trust in and respect for the church wane, however, people are daring to tamper with its privileges in ways that before might have seemed inconceivable. Legislators, as evidenced by the Connecticut case, are becoming more bold in their lack of deference to the institution of the confessional, as they understandably legislate restrictions aimed at making the institution that sponsors the confessional more accountable.
They should proceed cautiously. Religious freedom is not fixed and, despite protestations to the contrary, it has as much of a group component as an individual one. Breaking the confessional seal, while logically consistent with current legislation and any completely egalitarian understanding of the religious freedom clause of the First Amendment, would definitely challenge a religious practice that has existed for more than a millennium. In a very real way, the religious freedom of millions of American Catholics could be impinged upon. It could lead to priests being jailed for refusing to testify and a head-on conflict with the Vatican the likes of which hasn't been seen since the Middle Ages.
