This lawyer says Arizona ruling on clergy-penitent privilege preserves access to spiritual help

The Arizona Supreme Court sided with the Church of Jesus Christ of Latter-day Saints in a controversial religious rights case brought by the children of a man who admitted to church leaders to sexually assaulting them for years.

The court was unanimous in its ruling, affirming the First Amendment rights of church leaders, ruling they are shielded by Arizona’s clergy-penitent privilege law from reporting child abuse disclosed during confessions to authorities.

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Arizona Supreme Court rules religious groups can decide when to report child abuse

Howard Fischer/Capitol Media Services

The court unanimously ruled that religious institutions, not the courts, are entitled to decide when to report confessions of child abuse.

Advocates for abused children were disappointed in the decision, telling the Arizona Mirror it allowed predators to use what they call a “confessional loophole” to evade justice.

Attempts by Democratic lawmakers at the state Capitol to weaken the clergy-penitent privilege have been blocked for years by Catholic Republican lawmaker Quang Nguyen (Prescott Valley).

For Michael Mazza, the decision in the sad case is no reason to celebrate, though he agrees with the justices' decision.

Mazza is a canon and civil lawyer as well as adjunct professor of Law at Marquette University Law School. He has been on The Show before to talk about this case — and the purpose of the clergy-penitent privilege. He joined The Show to talk about his reaction to this final decision from the Arizona Supreme Court.

Full conversation

MICHAEL MAZZA: I agree with you that it’s a very sad case and very controversial, and to style this as a victory for religious liberty is one way to put it.

But I think the real crux of this case was decided on First Amendment grounds, very narrow. The Arizona Supreme Court said, “Look, we don’t have the capacity, we don’t have the power to weigh in on this matter because of a fundamental constitutional right to religious freedom and religious practice.”

But that doesn’t mean that the justices weighed in on the merits and said, “This is a great outcome.” Obviously, some children were hurt in this, and that always will remain a tragedy. But in terms of the constitutional protections for religious freedom, that remains.

LAUREN GILGER: So yes, a First Amendment issue in many ways. I want to have you, because of your specialty here in canon law, Michael, back up for us a little bit and explain just what this clergy-penitent privilege is, how it functions in the states in which it’s a law.

MICHAEL MAZZA: Sure. Well, there’s a good amount of overlap here between the civil and canon law. And to understand canon law, I mean, it’s the law of the church, and so it’s thousands of years old, and there’s a great tradition in, especially the Catholic Church, but even in other churches as well, for some kind of legal structure, recognizing rights and duties.

And in the United States, the discipline around confession, someone who’s sinning goes to someone in authority in their ecclesial community and says, “Look, I need help. I did bad things. I need God’s forgiveness, and I need help.” That has spilled over into the civil forum, the secular forum, the states, because the states by and large have recognized that that kind of sacred communication needs to be protected.

LAUREN GILGER: Right. So I mean, it’s almost like, I think we described it in the past as like a different language. Like, this idea of protecting the privilege, the privacy of a confession is so fundamental to what a confession is. You’re coming from the Catholic point of view, but that’s true in many religions, right?

MICHAEL MAZZA: Correct. And the church law would say, “Look, if a sinner says something to someone in church authority, there’s the famous situation in the Catholic Church where it’s called the seal of the confessional, and that can never be broken.”

In other words, the priest can never ever say anything to anyone about what he has heard in confession. Other religious communities have something similar. That was clearly at work in the Latter-day Saints case.

LAUREN GILGER: Yeah. One question that I think most people would have, though, right, like even if you’re talking about this religious context and the protection of that privilege and privacy in this very different kind of context than the civil one, I mean, it was the children of the abuser in this case who sued the Church of Jesus Christ of Latter-day Saints for essentially covering up the abuse. And advocates for abused children were not happy about the Supreme Court decision. They say it’s protecting abusers.

What do you say to that argument when it does seem very black and white in that context?

MICHAEL MAZZA: There’s a saying in the legal profession that bad facts make bad law, and it was I think very easy for the court to come out the other way on this on sympathy alone. I mean, this is a horrible case where three children who were abused by their own father, and all the other facts of this sad case might trigger a sympathetic response, but it was unanimous. I mean, 7-0 on the Arizona Supreme Court.

And so I can’t speak for the justices, but I would imagine that this is what justices have to do all the time, is sift through the sympathies and then come down with the law. And the law is not unsympathetic. The law is protecting other goods, other rights and duties that we have in society.

And this goes back to what we talked about a couple years ago, which was that the right of someone to go to a church official and say, “I have sinned, I am guilty of something horrible, I need help, I need God’s forgiveness." That right needs to be protected lest those people never go anywhere.

And so I think that is an important fact to keep in mind here, is that while some people might say, “Well, this is going to protect abusers,” actually what it might very well do is give abusers an outlet to go and get help that they need, and if we shut that down, they will never open the door to these sacred communications.

LAUREN GILGER: Right, that leads me to my other question here, which is sort of about the other responsibilities maybe civilly, but also just morally of clergy in confession-type situations like this. Like if someone admits to something awful like abuse in a situation like that or murder, something extreme, and they’re not required to report it, what should they do to try to make sure that abuse doesn’t continue?

MICHAEL MAZZA: Right. A couple of things. One is that this is a very narrow privilege. This goes to communications made in a very particular kind of way. If the clergy member sees something, if the clergy member hears about something outside of the sacred communication, simply observes the child in some other context, the clergy member can take action. It’s the very, very limited communication that’s being protected.

But the other thing is that even within those sacred communications, a lot of times the person is looking for help, and so the clergy member can say, “Look, we can talk about the spiritual repercussions of your sinful act, but now you need to go and report yourself to the police. I suggest these resources for you to get some help,” things like that.

LAUREN GILGER: I think this is especially difficult for maybe the secular world to understand, Michael, because of what’s happened in the history, the recent history of the Catholic Church with this massive child abuse scandal, similar cases within the LDS Church have arisen as well, including this one.

Why do you think that the First Amendment, the religious freedom aspect of this, has to be the overriding rule of law?

MICHAEL MAZZA: That’s a very common question, and this is one of the more sinister aftereffects of the church sexual abuse scandal in the Catholic Church and in other churches where people quite rightly look and they say, “Well, look, you guys are articulating a moral law, you’ve failed miserably, and now you’ve got a regime set up so that you’re going to protect these kinds of admissions. This is crazy, this needs to be done away with.”

The problem with that line of argument, however sympathetic it may appear at first, is that it’s not going to stop the sexual abuse. These mandatory reporting regimes are very, very tricky. We’ve got a society which doesn’t really carve out time or respect for the spiritual realities.

And so a lot of people look at this and say, “Well, this is just foolishness. Why don’t you put up these microphones in church offices and pick up these terrible actors and then lock them away?”

Well, the problem is that if you put that kind of surveillance in place in the spiritual realm, you’re going to shut it down, and that would be a real loss for the human community, to have these vehicles for spiritual help, spiritual healing basically just be shut down.

LAUREN GILGER: We’ll leave it there. Michael Mazza, canon and civil lawyer, adjunct professor of law at Marquette University Law School, as well as professor of canon law at Sacred Heart Seminary. Michael, thank you very much for coming back on The Show. I really appreciate you taking the time.

MICHAEL MAZZA: Thank you, Lauren.