This month, Washington State enacted a law requiring clergy to report suspected child abuse or neglect, even when the information is obtained through a confidential spiritual communication, like Confession in the Catholic Church. The new law seems clearly unconstitutional under current doctrine; that's the easy part. But the deeper issues are more interesting and more difficult, and they have been with us for a very long time.
The new law departs significantly from the approach in most other states, even those that mandate clergy reporting. Most of those states preserve the traditional clergy-penitent privilege while mandating that clergy report abuse they learn about in other contexts. What's more, Washington's law expressly preserves other professional privileges, like the attorney-client privilege, but explicitly eliminates the clergy-penitent privilege. That unequal treatment presents a serious problem under current free exercise law.
Under cases like Fulton v. City of Philadelphia and Tandon v. Newsom, which adopt what scholars have called the "most favored nation" approach, laws that provide exemptions for secular conduct but not analogous religious conduct must survive strict scrutiny. That means the government must show that the law advances a compelling state interest and that it uses the least restrictive means of doing so. Punishing child abuse is undoubtedly a compelling state interest, but if the law allows attorneys to withhold relevant information while requiring clergy to disclose it, the state will have difficulty justifying its choice.
