California legislators want to force Catholic priests to break the sacramental seal of confession and reveal what penitents disclose in cases of suspected child abuse or neglect. Senate Bill 360 by Jerry Hill of San Francisco would achieve this by designating priests—and all clergy, in fact, regardless of religious affiliation—as “mandatory reporters” of such crimes.
The brazenness of this proposed law is breathtaking. We all know that California lawmakers are basically allergic to reality, but it’s distressing to contemplate that, at best, they have never heard of the First Amendment’s free exercise clause, or, at worst, they hate and want to gut it.
Yet it is not at all surprising this would happen in a cultural moment when:
- CNN anchor John King felt comfortable musing that maybe Second Lady Karen Pence shouldn’t get Secret Service protection because she’s an evangelical Christian
- Senator Dianne Feinstein (D-Calif.) attacked now-Judge Amy Coney Barrett’s impartiality because she’s an orthodox Catholic (remember “the dogma lives loudly within you”?)
- The Obama administration tried to force nuns to pay for contraceptives in violation of their Catholic faith
- Senator Kamala Harris (D-Calif.) implied that a judicial nominee who is part of a Catholic charitable organization, the Knights of Columbus, couldn’t be an impartial judge
- The Colorado Civil Rights Commission openly expressed its bigotry against Christian cakemaker Jack Phillips (but was slapped down by the Supreme Court last term)
- The mainstream media perpetrated a coordinated smear campaign against 16-year-old Nick Sandmann of Covington Catholic High School and his friends.
The California bill is just the latest and boldest salvo in a broader assault on religious liberty, a precious right Americans ought to hold dear, orchestrated by the Democratic Party’s progressive, “social justice” wing: a pack of extreme, anti-Christian fundamentalists.
However, we might wonder whether we should really care about this bill. After all, haven’t some Catholic priests done horrible things to some children? Why should they get “special treatment” just because they wear a Roman collar? Maybe we should force them to report the abuse or neglect of minors.
That impulse is understandable given the degree to which the Church has soiled itself in recent decades, and because some of her leaders have behaved unbelievably shamefully in speaking about and denouncing clerical sex abuse, but this bill emphatically is not the way to protect children and secure justice.
A Bad Standard Made Better
Whatever our in-the-moment instincts say, we have to remember that we simply will not and cannot promote the common good and human flourishing by trampling on the natural right to religious freedom.
In Employment Division v. Smith (1990), Justice Antonin Scalia authored what might have been his very worst majority opinion. In it, he seemed to imply that we could and must suborn religious freedom in some cases in order to promote the common good.
In Smith, the Supreme Court held that the First Amendment’s free exercise clause permits the government to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use. Smith stands for a broader proposition, too: “[I]f prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”
Essentially, Smith teaches that if a law is general in its reach and therefore doesn’t target a particular religion, then it’s analyzed under rational-basis review—a very lax standard under which the government nearly always wins.
In response, and endorsing a more robust conception of religious freedom, Congress passed the Religious Freedom Restoration Act (“RFRA”) in 1993 to overrule Smith; many states followed suit, passing their own RFRAs after the Supreme Court held in City of Boerne v. Flores (1997) that the federal RFRA was an unconstitutional attempt to abrogate states’ sovereignty pursuant to Congress’s Section 5 enforcement powers under the 14th Amendment. (Congress fixed that and other issues by enacting the Religious Land Use and Institutionalized Persons Act, “RLUIPA,” in 2000.)
RFRAs subject laws that allegedly infringe upon religious free exercise to strict scrutiny review; the government nearly always loses such cases, which is why we say that strict scrutiny—the highest standard of review known to modern constitutional law—is “strict in theory but fatal in fact.”
Religion Rightly Understood
RFRAs also stand for a broader proposition that religion—the freedom to worship God in accord with the binding dictates of one’s conscience, in private or public—is of paramount importance, and should only be infringed in the rarest of circumstances, namely, in the interest of preserving public order or to protect another’s rights.
An example of a practice that offends both limiting principles would be human sacrifice as practiced by the ancient Aztecs. Clearly, the victim’s right to life should matter more than the free exercise of the one who would sacrifice him. In endorsing a robust conception of religious freedom—a person is presumptively free to practice his religion until he hits an obvious limitation—RFRAs shield religion from crude “balancing tests” or imprecise, overly deferential judicial analyses, both of which result in the government’s accruing sweeping power to regulate, and thus control, the substantive content of religion.
But religion, rightly understood, is a pre-political right, ordered toward the supernatural and so is simply outside the government’s domain of competence. As Madison wrote in his “Memorial and Remonstrance against Religious Assessments”: “This duty [to the Creator] is precedent, both in order of time and in degree of obligation, to the claims of Civil Society” (emphasis in original).
California legislators, arrogantly and tyrannically, have decided that duties to our Creator, pursued and exercised in even the most sensitive of sacraments—the confession of sins—must be subject to their watchful, bigoted eyes. The inviolability of the confessional’s contents is what allows it to work; if people cannot be fully candid with the man who stands in the person of Christ to absolve their guilt, then they are not truly free to be faithful Americans Catholics.
Violations of the confessional are violations of a right which the Constitution does not create but merely recognizes as existing by nature. That is unacceptable. But if it is allowed to happen, it would have far-reaching, negative consequences for any person of faith.
Happily, however, such a law would have a positive side-effect: giving good, holy priests opportunities to prove their fidelity to Christ and His Church by enduring (probably) a bloodless martyrdom when they refuse to violate canon law or their own consciences under the threat of government coercion.
If this bill becomes law, no religious believer is safe.
First, they came for the Catholics, but I was not a Catholic, and so I did nothing. . . .
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