From today's opinion by Judge David G. Estudillo (W.D. Wash.) in Etienne v. Ferguson:
At present, Washington clergy who learn of child abuse or neglect while acting within their official supervisory capacity are required to report such abuse to public authorities. Only information obtained "as a result of a privileged communication" is exempted from this mandatory reporting requirement. Effective July 27, 2025, however, Washington law [SB 5375] will require clergy to report child abuse or neglect regardless of how they learn about such information…. The Court concludes Plaintiffs are likely to succeed on the merits of their Free Exercise Clause challenge ….
There is no question that SB 5375 burdens Plaintiffs' free exercise of religion. In situations where Plaintiffs hear confessions related to child abuse or neglect, SB 5375 places them in the position of either complying with the requirements of their faith or violating the law. In this way, the statute "affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs."
[The law must therefore be judged under the "strict scrutiny" test unless it is neutral and generally applicable.-EV] [A] law is "not neutral and generally applicable, and therefore trigger[s] strict scrutiny … [if it] treat[s] any comparable secular activity more favorably than religious exercise." Tandon v. Newsom (2021)….
SB 5375 modifies existing law solely to make members of the clergy mandatory reporters with respect to child abuse or neglect. However, other groups of adults who may learn about child abuse are not required to report. Parents and caregivers, for example, are not mandatory reporters.
Moreover, the Washington legislature passed Substitute House Bill 1171 ("SHB 1171")—"AN ACT Relating to exempting attorney higher education employees from mandated reporting of child abuse and neglect as it relates to information gained in the course of providing legal representation to a client"—around the same time as it passed SB 5375….The twin passage of SHB 1171 and SB 5375 appears to be a textbook example of "permitting secular conduct that undermines the government's asserted interests in a similar way" to religious conduct that is regulated. The government interest at issue in both statutes—protecting children from abuse and neglect—is the same. Nevertheless, one law eliminates the privilege for clergy while the other expands the privileges available to secular professionals. "The underinclusion is substantial, not inconsequential" here.
