The courts in Ireland and abroad have backed the right to religious
freedom and in turn the right to keep confessions private.
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