Washington State Is Attacking Religious Freedom. And It Won’t Stop There.

Everyone agrees that those in certain positions, from teachers to doctors, should report instances of child abuse and neglect. Democrat lawmakers in Washington state, however, are advancing legislation that would require clergy members to report, even in circumstances that would violate the Sacrament of Confession, a central tenet of the Catholic faith.  

Washington legislators have attempted to pass similar legislation—with an exemption for Confession—in each of the last three legislative sessions to no avail. The current bill, with no such exemption, has been approved by House and Senate committees and seems destined for the governor’s desk.

The bill applies to any “ordained minister, priest, rabbi, imam, elder, or similarly situated religious or spiritual leader of any church, religious denomination, religious body, spiritual community, or sect.”

While it does not single out Catholic priests, it would have a particularly harsh impact on that faith because of the Catholic Church’s clear teaching regarding Confession. The Church has long taught that priests must hold all confessed sins with utmost secrecy; in fact, priests face the immediate penalty of excommunication for violating the seal of the confessional.

Catholic bishops such as St. Basil and St. Ambrose began developing the concept of penitential secrecy as early as the fourth century and the Seal of Confession became codified into Canon Law in the 1215 Lateran Council. For more than 1,000 years thereafter, the church has adhered to the same prescription, reaffirming in the 1992 Catechism, that “what the penitent has made known to the priest remains sealed by the sacrament.”

Washington lawmakers, therefore, are poised to impose a requirement that has a much more serious impact on the religious practice of some than others.

Thankfully, our nation’s founders who escaped religious tyranny sought to enshrine the inalienable right to practice religion in our Constitution’s First Amendment which declares that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” After the ratification of the 14th Amendment, the Supreme Court “incorporated” that provision so that it also applies to the states. 

For decades, the Supreme Court recognized that laws can violate the First Amendment because of their impact on religious practice, even when appearing to be generally applicable. Even after the court narrowed the free exercise clause’s application in Employment Division v. Smith, it still utilized the traditional rigorous standards for laws that appear to target particular religious practices. 

In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Supreme Court found unconstitutional a city ordinance prohibiting animal sacrifice, an important practice in the Santeria religion. While the ordinance did not explicitly mention Santeria, an Afro-Caribbean religion, its negative impact on religious practice was limited exclusively to them. To be consistent with the Free Exercise Clause, the Supreme Court has said, laws must not only be facially neutral, but also generally applicable. The ordinance in that case passed the first hurdle, but not the second. 

The parallel to the Washington legislation is obvious. It may be facially neutral by applying to clergy of all religious traditions but, as the Supreme Court held in Lukumi, the Free Exercise Clause forbids not only “facial discrimination” but also “subtle departures from neutrality” and “covert suppression of particular religious beliefs.”

In this case, the departure from the neutrality required by the First Amendment is not subtle at all. Some Washington lawmakers criticized previous versions of this legislation, that included an exemption for the Seal of Confession, as not going far enough. Now, state senators Amy Walen and Noel Frame not only reject any suggestion of compromise, but have stated that bishops should simply “change their doctrine and their rules.”

Forcing religious believers to change centuries old doctrines in order to comply with the edicts of a state is exactly what the First Amendment was written to protect Americans against.

This is not about the importance of reporting child abuse and neglect, which everyone recognizes, or even about requiring those in certain positions to do so as completely as they can. That laudable objective, however, does not require directly attacking a central tenet of one religious faith. The free exercise of religion is not simply a good idea or one of many available policy options. It is a natural and inalienable right of the most fundamental kind.

James Madison explained that the right to religious practice taps into man’s “duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.” Practicing the religion of one’s choosing must precede any civil law because “before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe.” 

Madison’s defense of religious freedom was pivotal to how that fundamental right has been understood in America. That understanding is today under attack on multiple fronts. Washington state’s proposed uncompromising reporting law unnecessarily turns its back on this important principle and is at odds with America’s history and legal tradition.

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