Many observers misunderstood the Hobby Lobby dispute and others like it as a First Amendment case, but it wasn’t. It primarily related to the Religious Freedom Restoration Act (RFRA), with an indirect reference to the constitutional freedom of religious expression. A case in Louisiana may be the real McCoy, though. The Louisiana Supreme Court has ruled that a priest must testify in a case about what he heard in a confessional — an order that would result in automatic excommunication and damnation, according to the doctrine and canon law of the Catholic Church:
The state high court’s decision, rendered in May of this year, demands that a hearing be held in 19th Judicial District Court in Baton Rouge, where the suit originated, to determine whether or not a confession was made. It reverses an earlier decision by the Louisiana First Circuit Court of Appeals dismissing the original lawsuit filed against Bayhi and the diocese.
The case stems from a claim by parents of a minor that their daughter confessed to Bayhi during the sacrament of reconciliation that she engaged in inappropriate sexual behavior with grown man who also attended their church. Court documents indicate the child was 12 years old at the time of the alleged sexual abuse.
This case gets complicated for a couple of reasons. While the common perception has been that priests cannot be forced to testify about confessions in the US because of ministerial privilege and the First Amendment, that privilege gets defined by each state separately. In Louisiana, the privilege attaches to the person offering the confession and not the priest. Once the penitent has revealed what was said — or perhaps more to the specific point in this case, alleges to have revealed what was said — the state can subpoena the priest to confirm or deny the testimony. In that sense, it’s akin to the lawyer-client privilege, which can be broken by the client.