If such a thing as a “political confessional” existed, where errant officeholders could go to seek forgiveness for colossally wrongheaded actions, Washington Gov. Bob Ferguson and a majority of his state’s legislators should be standing in the confessional line right now. 

“Forgive us, voters, for we have egregiously blundered,” they should collectively acknowledge, “by passing and signing into law a useless and utterly unconstitutional bill that flagrantly violates the sanctity of the Catholic sacrament of reconciliation.”

Washington’s new law designates Catholic priests (as well as clergy of other religions) as “mandatory reporters” of child-abuse disclosures, meaning they now are required to inform legal authorities when they become aware of such information — with no exception for communications made to them under the inviolable seal of sacramental confession. 

Catholic leaders in the state were supportive in principle of the Evergreen State Legislature’s desire to designate clergy as mandatory reporters, alongside of other previously designated groups whose professional responsibilities can place them in a position to hear disclosures of child abuse. In fact, the local Church’s internal policies already require clergy to be mandatory reporters, except when information is obtained during confession. And as in every other U.S. state, Washington’s three dioceses have instituted an array of other measures to comprehensively address the scourge of clergy sexual abuse.

What makes the Washington legislation completely unacceptable to Catholics is its deliberate failure to include an exception for information disclosed by penitents within the privacy of the confessional, despite repeated requests by the Washington State Catholic Conference. Indeed, it’s long-standing and settled law in the U.S., dating back to the groundbreaking First Amendment free-exercise case People v. Philips in 1813, that priest-penitent discussions are privileged private communications that can be withheld from legal authorities. 

This is similar to the privilege that necessarily applies to communications between lawyers and their clients and doctors and their patients. Yet the privilege in play when a Catholic makes a sacramental confession to a priest is of an even higher order because it protects communications that occur between penitential sinners and the Son of God himself. 

The underlying legal justification for this privilege was outlined by then-U.S. Supreme Court Chief Justice Warren Burger, in his 1980 Trammel v. United States decision. 

“The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return,” he commented in that case.

Aside from the obvious unconstitutionality of the new Washington law, it’s fatally flawed in other ways. Its value in terms of bringing acts of abuse to light would be virtually non-existent in practical terms, since it can be expected that abusers will withhold any sacramental disclosures if they know the priests who hear their confessions are required to immediately report what they said. 

Moreover, as both Archbishop Paul Etienne of Seattle and Bishop Thomas Daly of Spokane immediately pointed out after the bill was signed, clergy in their dioceses will not comply with the law under any circumstances. Indeed, if they broke the seal of confession they would incur automatic excommunication under canon law — that’s how serious the Church is about protecting the capacity of sinners to reach out confidentially to God, in the inviolable privacy of the confessional.

Archbishop Etienne pointed out a liturgical irony associated with the timing of the enactment of the law. The first reading at Mass the following Sunday was from the Acts of the Apostles recounting how, after being jailed along with the other apostles for preaching the Gospel of Jesus Christ, St. Peter unapologetically declared, “We must obey God rather than men.”

Since the clergy-sexual-abuse scandal erupted nationally in 2002, several other states have considered similar bills to force priests to violate the seal of confession, but none have become law, largely because of the likelihood such legislation would never survive court scrutiny. And when a trial judge in Louisiana ruled that a priest could be required to testify about a sexual-abuse disclosure that was allegedly made to him during a sacramental confession, the Bayou State’s Supreme Court overturned that finding in 2016, citing the priest’s inviolable “duty to keep such communications confidential.”

In light of all this, it’s impossible to avoid the conclusion that Gov. Ferguson and the Washington state legislators were grandstanding for short-term political advantage, at taxpayers’ expense, in their attack on the sacramental seal of confession. Given how firmly rooted the priest-penitent privilege is within the U.S. Constitution, it’s a near certainty the law will be struck down in short order by their own state’s top court. And if by some legal miscarriage that doesn’t transpire, it’s a slam dunk this egregious violation of the First Amendment will never pass muster with the U.S. Supreme Court.