SUING CLERGY FOR DIVULGING CONFIDENCES:
Why The New York Court Of Appeals Was Wrong To Hold That A Woman Could Not Sue For Violation Of The Clergy-penitent Privilege

On November 27, the highest court of New York State refused to allow an Orthodox Jewish woman to sue two Rabbis for failing to keep her confidences and thus violating the clergy-penitent privilege.

In so ruling, the court gave a disturbing reading to the First Amendment's religion clauses - the Free Exercise Clause and the Establishment Clause. Its holding could have the effect of eviscerating a policy meant to protect people's access to private spiritual counseling from their religious leaders.

What is a Privilege?

In evidence law, a "privilege" typically refers to a rule that prohibits a party or a witness from testifying about private communications divulged within the context of a protected relationship. Protected relationships include those between attorneys and clients, between husbands and wives, between psychotherapists and patients, and between clergy and parishioners.

Under the spousal confidences privilege, for example, a man can confess to his wife in private that his negligent driving caused an accident, without worrying that his wife could later be called to testify about his disclosures. Under the psychotherapist/patient privilege, a patient trying to address his kleptomania in therapy could reveal that he stole a computer from his office, and the psychiatrist could not testify about that revelation in court.

Privileges are special, because they represent an exception to the rule that every person must testify fully in response to questions asked when she is on the witness stand. The principle that "the public . . . has a right to every man's evidence" is an old and revered one, and privileges directly undermine that principle whenever they are held to apply.

If people confide secrets in their close friends or their parents, for example, as Monica Lewinsky learned the hard way, those people not only may but must testify about those secrets if called to do so in an official proceeding. However, when the law announces a privilege, it finds that the sanctity of the relationship at issue is important enough to trump the otherwise compelling interest in getting at the truth.

The Clergy-Penitent Privilege

The purpose of the clergy-penitent privilege is to recognize "the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one's self and others can be realized."

The privilege originally applied only to clergy who were bound by their own religion to keep confidences. However, the New York Legislature ultimately adopted a new rule of civil procedure, CPLR 4505, which applies to confidential communications made by congregants to clerics of all religions, regardless of whether a particular religion requires clergy to keep confidences. The rule provides that unless "the person confessing or confiding waives the privilege, a clergyman . . . shall not be allowed [to] disclose a confession or confidence made to him in his professional character as spiritual advisor."

The Arguments of Mrs. Lightman and the Rabbis

The plaintiff in this case, Chani Lightman, went to speak with two rabbis, one of whom was associated with her synagogue. She told them that she had stopped observing the laws of family purity, and that she had been seeing a man, not her husband, "in a social setting."

Later, Mrs. Lightman sued her husband, Hylton Lightman, for divorce and temporary custody of the couple's four children. In response, the husband submitted affirmations (a form of written testimony) by each of the two rabbis in whom Mrs. Lightman had confided. The affirmations revealed the secrets that Mrs. Lightman had shared with them.

Mrs. Lightman then brought a lawsuit against the two rabbis for various wrongs, including breach of fiduciary duty in violation of New York's "clergy-penitent privilege." The rabbis claimed that the information they revealed had not been shared in a confidential setting (and therefore did not trigger the protection of the privilege). They also argued in the alternative, that even if the information had been confidential, violating the clergy-penitent privilege does not and should not provide grounds for private lawsuits against the clergy.

The rabbis added that Jewish law affirmatively required them to reveal Mrs. Lightman's confidences - because the Torah forbids sexual relations in the absence of ritual purification, and because the couple's children needed to be shielded from exposure to their mother's improper conduct.

The New York Ruling: No Lawsuit For Rabbis' Confidentiality Violation

The trial court held that the action for breach of fiduciary duty based on the clergy-penitent privilege was viable. It also held that issues regarding whether the communications were actually confidential and whether they were made to the rabbis in their spiritual capacity were issues of fact suitable for trial, on which there was evidence for both sides. But trial on these issues was never held, for the appellate courts disagreed with the trial court's rulings.

The intermediate court of appeals reversed the trial court's decision. It found that Mrs. Lightman had waived the clergy-penitent privilege and therefore could not proceed with her suit for breach of fiduciary duty.

The state's highest court (called the "Court of Appeals" in New York) did not address the question of whether Chani Lightman had waived her privilege. Rather, it held that even if the defendants had disclosed privileged matters, they could not be sued for those violations.

The court gave two primary reasons for its decision. First, the court explained, since the rabbis claimed that Jewish law required their disclosures, a private lawsuit would entangle the courts in the business of determining what religious law does and does not require and potentially challenging religious leaders' beliefs about their own religion. This inquiry would violate the First Amendment's Establishment Clause and Free Exercise Clause.

Second, the court said, it would not make sense to imply a private right to sue from a privilege. After all, a privilege is a rule that governs the admissibility of evidence. So, as with other rules of evidence, privileges' only function is to govern what a court may or may not consider in ruling on disputes between litigants. Such procedural rules create no substantive rights or duties.

Why New York's Highest Court Was Wrong in the Lightman Case

The reasoning of the Court of Appeals is flawed. If demanding that a clergyman keep a penitent's confidences violates a clergyman's religious freedom, then the clergy-penitent privilege is itself unconstitutional. Indeed, the words of the privilege do not vest discretion in the clergy but simply prohibit disclosure: The clergyman "shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor."

When a clergyman feels that religious doctrine compels his testimony, the only difference between prohibiting the testimony - as the privilege expressly does - and recognizing a private right of action when that prohibition is breached - as Chani Lightman sought - is that the latter provides a monetary remedy for noncompliance with the former.

Moreover, the fact that keeping confidences might violate religious law does not present an insurmountable constitutional problem. Nor did it put the rabbis in Mrs. Lightman's case in an impossible situation, in which their religious obligations required them to risk legal liability. That is because the privilege applies only when it is not waived by the penitent.

A rabbi or other clergyman who believes that some disclosures are required by religious law can tell a penitent in advance that he might have to disclose some of what she tells him. Once this statement is made, the penitent who continues speaking has waived the privilege. In contrast, those members of the clergy who feel that keeping confidences is religiously permissible (or even required) may skip the warning. No court needs to be the arbitrator of which construction of religious doctrine is correct.

An Analogy Illuminates Why the Lightman Ruling Is Wrong

Consider an illustrative analogy. Orthodox Jewish law prohibits talking on the telephone on the Sabbath, which runs from Friday evening to Saturday night. Assume that an Orthodox Jewish accountant who works in New York, David, signs a contract to provide financial advice to a non-observant Jewish client, Bruce. Because Bruce will be in Australia on the day in question, a Friday, David agrees to call him there and offer the advice over the telephone.

When the Friday arrives, David - scheduled to call Bruce at noon - learns that because of the time difference, in Australia, it is Saturday, already the Sabbath. David decides not to call Bruce, because he believes that it is a sin to participate in another Jew's violation of religious law.

When he does not hear from his accountant at noon, Bruce tries to call David, but David has caller-ID and doesn't pick up the phone. As a result of David's failure to honor the agreement, Bruce is unable to procure the advice he sought and suffers financial consequences. As a result, he sues David for breach of contract.

David asks the court to dismiss the suit, because honoring his contract would have required him to violate his understanding of religious doctrine. Would the New York Court of Appeals dismiss the suit under the First Amendment's Free Exercise or Establishment Clauses? I would hope not.

It was David's responsibility either to warn Bruce in advance about what circumstances might preclude their telephone conference, or to pay for any damages resulting from the breach of contract. To rule against David, the court need not determine whether it really is a sin to talk on the telephone to a Jew for whom it is the Sabbath. Either way, David breached his contract.

The same principle applies to contracts breached for secular reasons. With limited exceptions, though a person may have an honorable motive for deciding to breach a contract, he still must pay the other party for resulting damages. For instance, it may be better for a man to attend his child's birth than to paint a restaurant he has promised to paint, but if he has failed to arrange for this contingency in advance, then he should pay for the costs arising from a delay in the restaurant's opening.

Why Allowing Suits Vindicates the Privilege's Religion-Fostering Purpose

Perhaps implying a private right of action from the clergy-penitent privilege is different, one might think, because it is not just a neutral contractual principle of the sort that David violated in our example. Rather, the entire purpose of the privilege is to protect a religious practice. Maybe it should accordingly not be enforced in a manner that interferes with anyone's religious exercise.

Though this distinction is a real one, it may as easily be understood to cut in favor of giving Chani Lightman a remedy. From her perspective, the clergy-penitent privilege was meant to encourage her to go to her rabbis for advice. She could instead have gone to one of her friends, but if she did, then they might be forced to testify against her later. Her rabbis, in contrast, not only could not be forced to testify against her but would not - under the statute - even be allowed to do so. Her secrets were safe with them, the law encouraged her to believe.

The policy at issue specifically favors confidences to one's religious leaders over confidences to one's friends. Unlike a friend, the rabbis might have been inclined to steer Mrs. Lightman toward a greater devotion to her religion. On the whole, therefore, enforcing the privilege could enhance religious observance.

The Clergy-Penitent Privilege: Not Just A Rule of Evidence

The court's second argument, that the privilege is a rule of evidence and thus implies no right on the part Chani Lightman, is unpersuasive. Most rules of evidence concern themselves with aiding the search for truth and excluding matters that might confuse or inflame a jury. But privilege is different.

Privilege frustrates the search for truth and thus imports into the courtroom a distinct and competing value, the value of fostering particular confidential relationships. A private suit based on violations of the privilege would vindicate that value, too - and might even be necessary to its preservation.

To prohibit the clergy from testifying about confidences they receive from congregants is to place a value on the privacy that congregants seek in relation to their clergy. Though the hearsay rule may create no private right of action, a privilege rule should.

As a rule of evidence, the clergy-penitent privilege makes no sense except as a recognition of a duty, and a correlative right, to seal the lips of those who give religious counseling. It implies and recognizes a promise of secrecy. That promise fosters the health of the clergy-parishioner bond. It does so effectively, however, only to the extent that courts enforce it against those who would violate it.