Judge Demands Priest to Tell of Confession

LOS ANGELES — A Los Angeles Superior Court Judge ruled in November that Msgr. Michael Lenihan must testify as to whether someone came to him for confession.

The move has raised new questions about how far some U.S. courts are willing to let the separation of church and state go — or not go.

Most states have laws on the books protecting the priest-penitent confessional relationship, and the U.S. Supreme Court has been known to shy away from the issue.

In his ruling however, Judge Haley Fromholz said that while “the penitential privilege protects ‘a communication made in confidence,’ … It does not prohibit the disclosure of the fact that the communication occurred.”

As such, he said that Msgr. Lenihan cannot assert “clergy privilege” to avoid divulging information to the court about Michael Baker, a transitional deacon he once supervised.

The case is part of a larger debacle the Archdiocese of Los Angeles finds itself in, as its defenses against accusations of priestly abuse slowly falter. Baker’s case is one of about 550 pending civil lawsuits.

In a separate case, the Los Angeles District Attorney’s office recently won the right in the state Supreme Court to subpoena the archdiocese’s personnel files, which they plan to scour for evidence of sexual impropriety. In this case as well, lawyers for the Church unsuccessfully argued that the subpoena violates the archdiocese’s guarantee of religious freedom.

‘Deeply Worried’

According to an Associated Press report, Donald Woods, an attorney who represents the archdiocese, said that priests “feel that is within the scope of their obligation to maintain as confidential the names of those who come to them for confession.”

Woods told the Register that he is deeply worried about the ruling. He said, “We believe that the court is concerned about a hypothetical practice of subordinates confessing to their superiors as a means arguably to prevent disclosure of improprieties.”

He and the archdiocese “hope that once that issue is clarified, the subordinate issue of the identity of penitents can be resolved against disclosure.”

Woods added that “many priests in most situations will refuse to disclose the names of their penitents” and that he intends to raise the issue if it surfaces again. “Next time we will present much more extensive briefing on the sanctity of confession as to the identity of the penitent as well as the content.”

Father Scott Traynor, a canon lawyer from the Diocese of Sioux Falls, S.D., thinks that demanding Msgr. Lenihan’s testimony apart from the protected seal of confession merely creates a straw-man argument. He said that “a priest cannot really affirm who did or did not go to confession…without personally drawing on the knowledge of what was confessed.”

In this sense, he said, “the priest cannot accurately testify.”

The Code of Canon Law states that “a confessor is absolutely forbidden to use knowledge acquired from confession when it might harm the penitent,” and that “one who is placed in authority can in no way use for external governance knowledge about sins” (Canon 984).

The real question, said Father Traynor, is why the court “suspects he went to confession in the first place?”

“Why on earth would this be relevant?” he asked.

From a canonical point of view, Father Traynor said that “if the judge ordered him to say what went on in confession, the priest has to go to jail.”

The requirement for a priest to keep the sacramental seal of confession is one of the most heavily protected in Church law. To fail to keep it, according to Canon 1388, is to incur automatic excommunication.

Although Msgr. Lenihan could, by Church law, technically affirm a “meeting on a calendar,” Father Traynor pointed out that he could never discuss the content of that meeting. This content, however, would seem to be the only evidence the prosecution’s case could really depend on, he said.

While Father Traynor admitted that the mere fact of going to confession may not technically be protected under the confessional seal, some think that the ruling sets a dangerous precedent for the separation of church and state.

Richard Thomson, chief counsel for the Michigan-based Thomas More Law Center, said that as Catholics, “our feeling is that the confessional seal is inviolable, no matter what the court says.”

He thinks that even if Judge Fromholz’s ruling is not in direct violation of canon law, it would precipitate a ride down a slippery slope which would be difficult to stop.

The courts, he said, “will soon want to know when [Baker] went, how many times, etc. … It begins to destroy the integrity of the sacrament.”

Recalling his law center’s namesake, who opted to be punished with death rather than compromise Church teaching, Thomson said “it’s incumbent upon that priest, even though he might face contempt of court or jail … to prevent testifying.”

He noted that in 2002, during the height of the Church’s sexual abuse scandal, some states began to consider changing their priest-penitent laws to try to gain evidence from the confessional. Even now, Thomson pointed out, in light of Msgr. Lenihan’s case, “People want to use the emotion of the sexual scandals to try to break down the sanctity of confession.”

He is convinced that the case could set a major precedent for modern day church-state relations. “That’s why,” he said, “it’s very important for this priest to fight any attempt to compromise what happens in the sacrament of confession … including the fact of someone going.”

A ruling like this, he stressed, “violates the religious exercise of a person,” namely because a priest can’t effectively administer the sacrament and the penitent can’t give himself freely to it, out of fear that sins confessed could be used against him or her.

Scott Powell is based in Denver.

Cistercian Father Thomas Esposito says of discerning one’s college choice, ‘There has to be something that tugs at you and makes you want to investigate it further. And then the personal encounter comes in the form of a visit or a chat with a student or alumnus who communicates with the same enthusiasm or energy about the place. And then that love of a place can be a seed which germinates in your own heart through prayer.’

Choose a College With a Discerning Mind and Heart

Cistercian Father Thomas Esposito, assistant professor of theology at the University of Dallas (UD) and subprior (and former vocations director) of the Cistercian Abbey of Our Lady of Dallas, drew from his experience as both a student and now monastic religious to help those discerning understand the parallels between religious and college discernment.