STATE OF LOUISI ANA

ClF2TOFAPPEAL
FYP STCiR 7I
lQ2913 CVd 03f6
PARENTSOF M1INORCHILD
VERSUS
GEORGEJ CHARLET JRDECEASED CHARLET FUNERALHOME INC
THE PRIESTAND THE ROMANCATHOLICCHURCH
OF THE DIOCESE OF BATONROUGE
Judgment
rendered
OCT 21 2013
On Application forWrit of Certiorarito the
19JudicialListrict CoJrt
in and for the Parish of East Bakon Rouge Louisiana
TrialCourt No 580066
F
Honorable RMichaelaldwe lJudge
lJ
BRIAN
KABELS
AT ORNEYS FOR
MARKDBOYER
PLAINTIFFS RESPONDENTS
DENHAM
SPRINGS
LA
PARENTS OFTHE MINORCHILD
DONM RICHARD
ATTORNEYS FOR
MICHAELLDESHAZO
DEFENDANTS REL4TOR5
NEW
ORLEANS
LA
THE RIESTAND THE
ROMANfATHOLICCHURCH
OF THE DIOCESE OF BATONROUGE
1lf t1
CQitJ
CtS
s5 G5
rcS
BEFORE PARROKUHNAND PEITIGREW J
Because this matter deals with delicate subjects and for ti eorokeckion of the parties involved the record
was sealed both at the tria court and on appeaiexcept for this appealopinion To further protect the
privacy of the parties involved the names have been omit ted herein and the parties wili be referred to as
the
parents
ofthe
minor child
piaintiffs
theminor
child
and the
priest
defendant
PETTIGREW J
The defendants the priest an the Ro naatholic Ch rchof the Diocese of East
Baton Rouge theChurch seek su ervisory reuiewcf a trialcourt sdenialof theirmotion
in limine which had sought to prevent he piaintiffs on this matter from mentioning
referencing and orintroducing evider ceat trialof any confessions that may or may not
have taken place between plaintiffs minor child ared the priest while the priest was
acting in his officialcapacity as a Diocesan priest and hearing confession from his
parishioner the minor child We granted certiorari to address the significant and res
noua issue underlying the determination of the propriety of allowing such evidence
whether the priest is a mandatory reporter under Louisiana sChiidren sCode provisions
In reviewing the issue uis a vis the trialcourt swrit enjudgment for the following
reasons we find this matter compEis us to exereise the authority vested in us by La
CCPart 9276 to raise on our own motion the peremptory exception of no cause of
action and grant same in effect dismissing allof plaintiffs claims against the priest and
theChurch
FACTUALBACKGROUND
On July 6 2009 plaintiffs the parents of a minor daughter filed a petition for
damages suffered by themand their daughter as a result of the alleged inappropriate and
sexualacts perpetrated on the minor chiic They named as defendants the alleged
perpetrator then deceased George J Charlet ar a vell knownlong timeparishioner
and active member of the Church who died ora February 9 2Q09 while a criminal
investigation into those allegations was endinglCharlet Funera Home Inc of which
Mr Charfet was the alleged President the proest far ailegediy being a mandatory
reporter who failed to report the abuse allegatfons and the Church alleging vicarious
liability for the alleged misconduct of the priest in failing tq report the sexualabuse as
wellas forthe negligent training and supervision ofikhe priest The plaintiffs lateradded
a claimagainst the Church alleging additionalliability forthe acts of MrCharlet under the
theory that he too was an employee of the Church parish however these claims were
laterdismissed by summary judgment
2
The parents alleged that in 2000 theirfamily moved from Baton Rouge to Clinton
in East Feliciana Parish and began attending Our Lady of the Assumption Catholic
Church where they met and became friendly with a parishioner Mr Charlet as wellas
the priest the pastor of the chur hAcc rdi gto khe petition fromthe young age of
eight years through her adolescerit years their rinordaughter viewed Mr Charlet as a
second grandfather
The petition alleged that during the summer of 2008 when the minor daughter
was approximately twelve years old there began an exchange of emails 12per day
from MrCharlet to the minor child involving words of inspirationand daily Bible verses
It is alleged that the emails soon increased in frequency 57per day and also began
taking on a more personaltone while being laced with seductive nuances Mr Charlet
allegedly told the minor child to keep the nature of their emailcorrespondence private
and to herself because no person other than God would understand their mutual
feelings for one another The petition contains various other paragraphs noneof which
are directly relevant to the issue herein detailing the continued wrongfulacts of
Mr Charlet which culminated with kissing and fondling theminor child
The petition alleged that the minor child became confused and scared over the
evolving relationship with Mr Charlet and that n three separate occasions she
decided to seek spiritualguidance through the Sacrament of Reconciliation with the
defendant priest The petition alleges that on Tuesday July 15 2008 and Tuesday
July 29 2008 prior to the 630 pmmass at thechurch as wellas on at least one other
occasion after July 29 2008 the minor child related to the priest during her confession
2The actualreports made by the minor child were that on severaloccasions Mr Charlet kissed her
aggressively sticking his tongue down her throat and fondled her breasts underneath her shirt and bra
There are also specific allegations about a sexually lacedjournalthat Mr Charlet wrote during a trip to
Korea detailing his desires that the girlbe on that trip with him and including an entry that he had taken a
naked picture of himself in the shower to send her at a latertime He allegedly gave the 53 pagejournaito
the minorchild upon his retumfromthat trip
3
the Sacrament of Reconciliationlthat Mr Charlet had inappropriately touched her kissed
her and told her that hewanted to make love to her According to the petition and
consistent with the minor child ssubsequent deposition testimony fhe priest allegedly
responded to her that she simpiy needed ko handle the situatior herself because
otherwise too many people would be hurt The minor child testified that during one of
those confessions she told the priest what had happened and asked foradviceon howto
end it According to her depositiontestimony Hejust said this is your problem Sweep
it under the floorand get rid of it
Subsequent to these three confessions during which the minor child relayed the
sexualacts by Mr Charlet to the priest the abusive acts fully detailed in the petition
continued On one occasion the minor child decided she needed to take the advicegiven
to her by the priest during the confessions and confront Mr Charlet in person She
attempted to arrange a meeting with Mr Charlet at his place of business but when she
arrived at the funeralhome she was surprised to find no one there other than
Mr Charlet who then proceeded to sexually abuse her in his private office The minor
child became scared again and instead of confronting himshe simply reminded himthat
her mother would be there shortly to pick herup to which he responded We better go
eat before Ieat you up
According to the allegations in the petition and the deposition testimony in the
record
subsequent meetings
were
had
one between the priest and Mr and Mrs
Charlet and another between the Charlets and the minor child sparents theplaintiffs
concerning the obsessive number of emails and phone cafis between Mr Charlet and
the minor child and the seeming inappropriate closeness between the two that had been
observed by various parishioners Again according to the allegations in the petition after
these meetings Mr Charlet contacted theminor child to let her knowabout the meetings
He informed her that he told them their relationship was mutualand appropriate that he
did not knowif they believed himbut he assured her he would takecare of making sure
everyone believed their relationship was appropriate and mutualand that she just
needed to play thegame
4
However shortly thereafter theparents canfronted their minordaughter about the
emails and phone calls at which time she confessed tQthetrue nature of the relationship
with Mr Charlet incfuding de ails of th inappr pri tsexualcontacts The plaintiffs
immediately contacked Mr Iarlex ederinc ha nrcease contacfiwtntheir daughter
According to the ptition hwe srrd suhseaaa ntSc nday the laintiffs witnessed
Mr Charlet approach their dauynt rrcauscYcihu j her 3penly against her will
They then filed a formalcomplaint against Mr Charlet with the East Feliciana Parish
Sheriff sDepartment According to the petition the investigation was ongoing when on
February 9 2009 Mr Charlet died unexpectedly after suffering a massive heart attack
while in post operativerecovery following knee replacement surgery
APPLICABLE LAW
In order to facilitate an understanding of the subsequent proceduralhistory and a
discussion and analysis of the issues presented the law applicable to the parties
arguments and resolution of the issues is provided at this juncture
Louisiana Children sCode article 603 provides definitions applicablethroughout the
Title VIof theCode In relevant part it provides asfollows with emphasis added
As used in this Title
1Abuse means any one of the following acts whoch seriously endanger
the physicalmentalor emokionalhealth and safety of the child
c The involvement of the child d ay sexualact with
parent or any other person or the auding or toleration by the
parent or the caretakerof the child ssexualinvolvement with
any other personorof the child sis vof ement in pornographic
displays or any other involvemenk ofa child in sexualactivity
constitutinga crime underthe laws of this state
15Mandatory reporter is any of thefollowing individuals
cMember of theclergy is any priest rabbiduly ordained
cfericaldeacon or minister Christian Science practitioner or
other similarly situated functionary cfa refigious organization
except that he is not repuired to eport a confidentia
communication as defined in Gode ofEviden eArtic
511 from a person to a member of khe ciergy who in the
course of the dis ipline or practice of that church
5
denomination or Qrganization is at9 oizedor accustomed to
hearing confid ntialeommunocatsor nd uncier thediscipline
ortenets of the ccrcfa denom inationer organization has a
duty to keep such commur icatio sconfdentialIn that
instance he shalf encc rac that prsJ to repart the
allegations to the pr riatauth wiesin accordance with
Articl2fi1Q
Louisiana Cade of Evidenc rk i1crtdommunieations to clergymen
which is referenced in theforegoing Cnidren sodedetiniteo spro4 isionprovides
A Definitions As used in this Article
1 Aclergyman is a minister priest rabbi Christian Science
practitioner or other similar functionary of a religious organization or an
individualreasonably believed sa to be by the person consulting him
2A communication is confidentialif it is made pivatety and not
intended for further disdosure except to other persons present in
furtherance ofthe purpose ofthe communication
B Generalrule of privilege A person has a privi egeko refuse to
disdose and to prevent another person from disc singa conFdential
communication by the person to a cyman in his professional
character as spiritualadviser
CWho may claimthe privilege f1nprivi eyemay be caimed by
thepersonor by his legalrepresentatise Tne clergyman is presumed to
have authority to claim the privilege on bhalf of the person or deceased
person
Louisiana Children sCode article 609 addressees mandatory as wellas permitted
reporting and provides in pertinent part with emphasis added
A With respect to mandatory reporters
1Notwithstanding any caimofprivi eged communication a
mandatorv revorterwho has cause ko believe that a child sphysicalor
mentalhealth or welfare is endangered as a resuliof abuse or neglect or
that abuse orneglect was a cntributing faet rin a child sdeath sha freport
in accordance with Articfe61
2
io ationof the duties imposed upon a mandatory reporter subjects
the offenderto crimina prose cutionauthor zedby l2 S14 403 AJ
Louisiana Revis dStatukes 14 4Q3 referred tp in the Chiidren sCode as the
penalty provision forviolations of the mandatory reporterVaws provides in pertinent part
with emphasis adcfed
6
403 Abuse of childrer riorts ahaai ercaf privwle e
A
1aAny ersan who ur der Cri rens Code Article 609 Ais
required to repoit the abuse or neglec7t rsexualabuse of a child and
knowingly and wsllfully fails fo so repc tshallbe guilty of a misdemeanor
and upon corrviction mav be fne ot mar thar five hu dred dollars or
imprisoned for not mor haix ie thraath
nx
B In any proceeding coneernich af userrelecor sexualabuse of a
child orthe cause of such conait revic ecerrray raot be excluded on any
ground ofpriuilege except inthe case ofcommunications between
an attorney and his client ar between a priesi rabbi duly ordained
minister orChristian Sc encepractitioner and fiis communicant
SPECIFICFACTS ALLEGATIONSAND PItOCEblJR 4L11ISTARYRE THE PRIEST
AND THECHURCH
Specifical y as to the priest tne ptitioralleges that he was negligent in advising
the minor child auring her confessions on three separate occasions Ehat she needed to
handle the abusive relationship wth Mr harlet by herself because too many people
would be hurt if they found out The petition seek damages for this alleged negligent
advising The petition furtherspecifically alieg dth tkhe priest is amandatory reporter
pursuant to La Children sCode art 503 15 cwth a resulting mandatory legalduty
pursuant to La Children sCode art 609 to eport the abuse to the proper locai
authorities and to the minor sparents Thus tF epainte faVlege the proest is also liable to
themfor his failure to immediately report tihe abuu and that the Ch rchis iiable for the
negligence of the priest as its ea ploy eas wei9 as ats cwr Ifeged egiigence in failing to
train and supervise himas a manda ory re ort rof hila abuse
Motion In LimineAt Issue Hrein
In February 2013 khe ps rest ar ath Fac rcfii da motion in iimin seefcing to
exclude ak trialafevidence ineiud ngtes imony by the minor chiiti herself about the
confessions The deniaiof cnac motion is thesubje tofthis supervisory reviewand grant
of certiorari However the dfendants had also filed a mation for summary judgment
which was heard and decided riorto the riinc on the motion in limine Alti ough no
reviewhas been sought of the denialof ti emoticn for summary judgment the issues
raised and
the
defendants
argum ns
in
support
of that
mation
are similar
to
arrd often
overlap those advanced in suFpork of khe rruotio sa limine Also they are pertinent to a
fullunderstanding of the issue befQre us on the pr prfety of the denialof the motion in
limine Therefore to that eentta thotio susilltdiscussed
Summarv udctment
First defendants argued that any and Idamages suffered by the minor child
were at the hands of and due to acts of no one other than Mr Charlet not the priest
Moreover they contended that the priest attained knowledge of these incidents of abuse
through the Sacrament of Reconciliation pursuant to which that communication was
cloaked with a statutory confidentiality as wellas protected against disclosure by the
Catholic Canon
law
They maintained that according to La Children sCode art
603 15 ca priest is classified as a mandatory reporter when theinformation is received
while he is not performing his vocationalministry but the statute specifically excludes the
reporting of confidentialcommunications as defined by Article 511 of the La Code of
Evidence That codalarticle provides that a communicatioh is confidentialwhen relayed
to a clergyman when it is made in private and not intended forfurtherdisclosure See La
CEart 511 A2They further argued that the penalstatute for failing to report La
RS14 403 Balso supports their claimof priviiege by providing
In any proceeding concerning the abuse or neglect or sexualabuse of a
child
evidence may not be excluded on any ground of privilege exceptin
the caseofcommunications between an attorney and his client or between
a priest and his communicant
Defendants also argued that the priest is bound by the mandates of the Roman
Catholic Church
Law
known as
the
Code
of
Canon Law
which also preclude himfrom
divulging information acquired through fhe Sacramerrt of Reconciliation They attached to
their motion the affidavit of Fr Paui Counce Judici l4iear and canon lav yerfor the
Diocese which explained in detailand cited fhe fawof the Catholic Church and the
obligation of confidentiality that a priest has in refation to anything heard in
confessions reconciliations which is cloaked by thE Sealof Confession The affidavit
attests that the SeaPis absolute Moreover a violat onthereof results in theinstante
excommunication
of the
priest the most severe penalty icnown to theChurch
8
The defendants maintained that it is undi puted that the only communications had
between the minor child and the priest concerning the sexua acts committed by
Mr Charlet occurred during the Sacrament af Reconciliation therefore to compelthe
priest to disclose such communications under threat of statutory penalties whether civil
or criminalwould be to place his duty ko his faith and his duty to abide by statutory
authority into direct conflict They maintained that to compelthe priest to disclose such
communications would entangle the State in matters of church doctrine implicating the
constitutionalright of the free exercise of religion protected by the First Amendment
They claimed that the Louisiana Legislature recognized as much by enacting a statutory
scheme that exempts such communications from the mandatory reporting provisions in
theChildren sCode
Additionally the defendants asserted that the Diocese cannot be held liable
because the church itself has no duty to report even ffthe plaintiffs misaligned claims
that thepriest is a mandatory reporter were to be upheld
Finally the defendants asserted that there is no private right of action against a
mandatory reporter for thefailure to report the statutory remedy being limited to criminal
prosecution pursuant to La RS14 403 Although there is no Louisiana jurisprudence
defendants cite severalcases from other jurisdictions with similar mandatory reporting
statutes that have held that there is no private cause of action fora violation of such a
statute
the remedy therefor being limited to criminalprosecution by the state The
underlying reasoning for such a finding in those cases is thak the duty is owed to the
generalpublic
for
the
protection
of its
minor children
and not to any one person in
particular
Plaintiffs opposed the motion for summary judgment on severalfronts only those
pertinent
to
the motion in limine
are
presented
here
They
argued without admitting
3 We note that the constitutionalissue is certainly implicated inthis case However the parties advised this
court during the oralargument that in accordance with the long standingjurisprudence that precludes this
murt fromdetermining theconstitutionality of a statute untilafter such determination has been made by a
trialcourt they had separately and subsequently reised that specific issue and khat that proceeding is
currently pending in thetrialcourt Accordingly weneed not address ordecide that issue
9
that even ifthe priest were statutc riiy ex mpt tronn the efinition and obligations of a
mandatory reporter teon y tning exduded wouid be the knowledge acquired by the
priest during the mi norchild sconfessia aey tintalned th evide cedrived from
Ms Chariet sdepasit oreveals that aars zart rmany 3rzfarmatior received
directly fromthe minar child durin ae Fraf siQr sFepraest i6nself had independently
observed and discussed his concems abouithe ateraction between Mr Charlet and the
minor child and that he expressed those eoncerns with khem During that meeting
according to Ms Charlet sdeposition the priest advised the Chariets to speak with the
minor child smotherand he advised MrCharlet to end his friendship with the minor child
Thus to the extent that the priest independently observed and voiced concerns about
seemingly inappropriate relations between Mr Charlet and the minor child plaintiffs
argued that he indeed did have the statutory duty as a mandatory reporter since this
information was acquired outsidethe confidentialcommunication and is not cloaked with
the privilege of a confidentialcommunication Thus plaintiffs maintained a genuine issue
of materlalfact exists as to whether to tk isei ent the priest was a mandatory reporter
under La Children sCode arts 603 and 609 such tf atsummary judgment is preduded
Plaintiffs additionally maintained that any privilege attaching to the confessional
communications had been waived by tne minor cr idtheholderof the privilege by and
through her consent and disc9osure ef the cornrnun cations They also submitted an
affidavit executed by chem and ths minor eniid xpressly waiving her privilege
regarding herconfession
Finally plaintiffs disputed the defendants claimthat reporting the information was
against Catholic Canon Lawand even argued that pursuar tto Catholic Canon Lawthe
priest had a duty to report the abuse and the ChUrch is vicariously Iable for the priest s
breach of that duty In support of this positio piaintiffs submitted into evidenee relevant
portions of the Coae of Ethics ana Behavior for Adults whcr Monister uvith Marors irc the
Diocese af Baton Rouge Diocesan Cod of Ethics and guidelines regarding sExual
abuse of chiidren Howeveras willbe seere belowour ultimate issue abviakes discussion
ofthis argument and no further expYanation of piaintiffs argument is necessary
1
In denying the motior for smry iaidc rraer tas to the priest sduty to report the
trialcourt expressly found en ainssues af at rPa fact as to what the priest knew
when he knewt when he gc th x fr rr atsoniP Iat infor rarion was acquired
somehowother than duringthe efess crsaduskwr ateiy what fty tI Friest may have
had at that point The trialcourt noted sur eof the fiactuaf issues indicated that there
may have been some sort of duty on the art of the priest for what he observed and
upon which he commented outside of the confessionaB and outside of what the minor
child may have told him in the confessionalHovvever the krialcourt also added
So I have made my position perfectly clearihet whiie the lawmay give the
plaintiffs the right to inquire as to what went onin that confessionalImnot
going to hold the priest to any standard of having to say what went on
and to violate his vows to theChurch But I beli vethere are certain factual
issues of things that he observed outside tne confessionalwhich could
conceivably create a duty on his part to ave taken more action than he
took
Thus while thetrialcourt deniedthe mQkion for summary judgment on the failure
to report issue it is clear that the ruiing enco apassed a finding that heconfession itself
was confidentialand protected fromdisclasure
Denialof Motion in Limine
In denying the defendants motion in lamine thereby allawing the plaintiffs to
present evidence of th confession the trialcou tnoted t6 eappar ntineonsistency in the
Children sCode articles one provision staklnq hat clergy is excepted from being
mandatory rporter for anythirag that is a co afd ntlaiccmmunication Art 603 15 c
and the other randating reportirg ot vitrstar dingany elaim of privifeged
communication Arto 6Q9 However tne couthen noted that the privilege grantea by
Code of Evidence Art 51clearly bei ngs tc the communieant such that it can be
vraivEd by the communicant Thus the trialcourt found thetestimony of the minor child
regarding the confesslons was rel vantand ce iainly as the holder of ihe privifege she
was entitled to waive it and testify When pressed by the defendants counselas to
whether that meant that the trialcourt was nolding that tne priest also had a dury to
report the trialcourt stated Yes ak this point there may be some duty based on Art
lY
609 The trialcourt also noted tteat its arlier suling also er itted auestioning of the
priest concerning any other informa ionac uirea v hFin about ti eab seoutside of the
confessionalThe tr a court althaugh dc rseetemotiUn aGse cmmented that I
certainly recognize tl s cor rcsaamstvuh ree raest ss presenk and Iknowhis
solution to that is gaing xa be that rae s tc3roy tu say ai hii gbo ainy cnfession
The motion in liminewas denied by jud gmentdated February 222013
DISCUSSION ANALYSIS
ISAPRIESTA MANDATORYREPORTERPURSl1ANTTOLOUISIANA S
CHILDREN SCODE
The parties maintain and argue that t6 epivotai issue underlying the dispuke of
whether the motion in limine was properly denied aiYOwing evidence to be su mitted
concerning the occurrence and orcontents of a co fession between the minor daughter
and the
priest
is
whether
a Catholic
priest
or
any
member of
the
clergy is exempt
from Louisiana Children sCode art 609 smandatory child abuse reporting requirements
pursuant to La Child Code art 603 iS ewh nhEfacts allegedly giving rise to the
duty to report were learned during theSacran entof Reconciliation
Defendants maintain that under the fac tsof this case the priest is exempt from
the mandatory reporter requirements Thus the ass rttE atthe priest is shielded from
having to testify as to any facts lear ned aurirthat conf ssion Mor verthey mair tain
that sincekhe priest has no du y to repark th recan Qc reach of said duiy rena2r ng
any and akescimany crvide cerec rdis gthe Scaues cof Rec ncildati raod rthe
contents revealed therein irrelevant to th purported cause of action by plaintiffs against
the priest and the Church for the breach of said duty IFor the folEawing reasens we
agreeand find the trialcourt erred
Rules of Statutorv Construction Tnte rretation
Very recen lytne Lauisiana Supreme Court reiterated the zul sthat apply whero
determiningthe truemean ngof a statute
The fundamentalquestior n aicases of statutory ir terpretatio ais
legislative intent and the ascertainment of the reason or reasons khat
prompted the legislature to enact the lawLreSuccess onofB yter99
0761 p 9La 17007S6 So 2d 11221128 The ruies of statutory
i2
construction are designed to ascertair and enforce the intent of the
legislature Id Stognev Stogner 93044p 5La 7799739 So 2d
762766 Legislation is the salemn ex ression of le islative willand
therefore interpretation of a Iv involv spim rily a search for the
legislature s
intent La Rev Stat
142Qa4LaCiu Codeart 2Lockett
v State Dept of Tans arLeue pment Q3 1767p 3a225 04
869 So 2d 790 When aaw9s ciear and unambiguous and its
application does not lead to absur cansequences the la v shallbe appiied
as written and no furthe interpreta ionray emade in search of the
intent of the legislature La Civ Cc deart 9 Lackeft 03 1767at p 3 869
So 2d at 90 91Conerly v State 97 0871 p 34La 7898714So 2d
709 710 iL
The meaning and intent of a lawis determined by considering the law
in its entirety and allother laws on the same subject matter and placing a
construction on the provision in question that is consistent with the
express terms of the lawand with the obvious intent of the legislature in
enacting it Boyter99 0761 at p 9 756 So 2d at 1129 Stogne 98 3044
at p 5 739 So 2d at 766 The statute must therefore be applied and
interpreted in a manner that is consistent with logic and the presumed fair
purpose and intention of the legislature in passing it Boyter 99 0761 at
p 9 756 So 2d at 1129 This is because the rules of statutory
construction require that the generalintent and purpose of the legislature
in enacting the lawmust if possible be given effect Id Backhus v
Transit Cas Co 549 So 2d 283 289 La 1989 It is presumed the intent
of the legislature is to achieve a consistent body of lawStogner98 3044
at p 5 739 So 2d at 766
La Civ Code art 13 provides that where two statutes dealwith the
same subject matter they should be harmonized if possible Kennedy v
Kennedy 96 073296 0741p 2La li 25 96699 So 2d 351 358 on
rehearing It is a well settled rufe of statutory construction that alllaws
dealing with the same subject matter must be construed in parimateria
La Civ Codeart 171870 Reed v Washington Parish PoliceJury 518
So 2d
1044
1047
La 1988
Statutes
are
ira
pa i
material
pertain to
the
same
subject
matter
when they relate to the same person orthing
to the same class of persons or things or have the same purpose or
object
2B Sutherland Stat Const
51 3p2227th ed 2012
Pociask v Moseley 2013 0262La 628 13So 3d 2013 WL
3287125 2013
Guided by these precepts vve find as foflows Pursuant to the clear language of
La Child Code art 603 15 camember of the cfergy which includes a priest is
not equired to report aconfidentialcomrnunication as defined rn the Code of
EidenceArtic Si1 As defined in Art 511 a communication made to a clergyman is
confidentialwhen it is made privately and not intended for further disclosure Thus
any communication had between the minor child and the priest during the minor child s
confession with that priest is a confidentialcommunication under La CEart 511 It
is also equally clear that any alleged confession between the minor child and the priest
13
in this case is aconfidentialcommur icationas defined in Article 511 To the extent
that the plaintiffs attempt to imply that the minor child sconversation with the priest in
this case was not truly a conPession because she was not confessing her own sin in
the course of relaying the alleged abuse uve reject such argument as not supported by
the facts We further note that this ar ument is belie by the plaintiffs own allegations
in their petition and otherwise and the fact that the minor child chose to disclose the
abuse to the priest during the Sacrament of Reconciliation We note that even the
minor child in her deposition testified that she was underthe clear impression that she
was going to confession when she spoke with the priest about the alleged abuse
Therefore the record clearly established that the communication was had while in
confession therefore it is statutorily defined to be a confidentialcommunication
Given that the communication shared during confession is a confidential
communication made to a clergyman pursuant to the dictates of La Child Code art
603 15 cthe priest is not required to reportthe communication even if it
concerns allegations of sexualabuse of a child Therefore it is axiomatic that the
priest under these circumstances is not and cannot be a mandatory reporter
Accordingly La Child Code art 609 which addresses mandatory reporters and
mandates the reporting of any child abuse or negfect notwithstanding any claim of
privileged communication is simply and wholly inapplicable To interpret Art 609 as
applicable to priests as mandatory reporters as argued by the plaintiffs and apparently
as found by the trialcourt runs afoulof the rules of statutory construction because
such interpretation would render the exemption in La Ch Cart 603 15 c
meaningless Nevertheless a violation of the duty to report set forth in La Children s
Code art 609 A1is subject only to criminalprosecution authorized by La RS
14 403 A1however the penalty for such a violation is negated by La RS
14 403 Bwhenthe communication is between a priest and his communicant
In addition to comporting with the aforementioned principles of statutory
construction
we
find
further
support
for
our
conclusion that the Children sCode does
not render
a
priest
a
mandatory
reporter
by reviewing the legislative history of the
14
statutory scheme for mandatory repca tingand discerning the legislative intent
Member
of the
lergy
was added a class fiandato ryepc rters by amendment
to Lao ChilCode rt 60 n 21e 3at1rr ta he list of ene imandatory
reporters
Th
deY Riilon
as
stat c
kfoc
sud
haf
priesiis nmt required to
report a confdentia commwnica io rThe 2Q3 cments to that article address
the reasons forthe amendment and the lirrbitagions that were intended as follows
The scope of the definition of mandatory reporters of chi dabuse has
always recognized that priests rabbis pastors or other religious ministers
typically provide counseling to members of their congregations and that
many denominations consider those communications such as the
confessiona to be sacrosanct and nondisc sab eRespecting that policy
former law included religious ministers within the category of mental
health socialservice practitioner but exempted them from mandatory
reporting if the knowledge of abuse or neglect arose out of aconfession
or other sacred communication In2003 thelegis aturecreated a specia
category for members of the crgy and continued exemption fo
confidentia communication the teimused by the EVidence Code Code
of Evidence Artic 511 which governs communications to clergymen
defines the privileged confidentialcommunication as one made privately
and not intended for further disclosure except to other persons present in
furtherance of the purpose of the communicationMembers of the clergy
who exclusively provide spiritualcounseling are not required to report
disclosures of abuse made in the course of a coa fdentiaicommi nication
However the legislature also reeognized that members of the clergy may
also engage in other roles such as administrative and organizationalwork
as wellas provide supervision for other clergy or lay workers The
exemption from report ngdoes noCextend to nonconFdentia
communications given to a piest orotherminester uuringadrrrinist ative
supen isory orsecufarcounselingorothertypeofconference
La Children sCode art 603 2003 Comments Emphasis added Thus it was clearly
envisioned and intended that members of the clergy were to be given a special
exemption via the exclusion of confdentialcommunications as defined in Code of
Evidence art 511 unlike other mandatory reporte spursuant to La Ch Cark 609
who may also possess communication privileges schas physicians psychoiogists and
other mentalhealth Socialservice practitioners but who must nonetheless report
Thus it appears axiomatic that a pr est wha learns of alfeged sexuai abuse
during confession Sacrament of Rec9neiiia ans not a mandatory reporter and
15
therefore not subjec tthe aandaiilry eport crequiremenzs of La Ch Cart 6Q94
Because we have ocluded that thP pistis rtaaadat ryreporker there can be no
private or civilcaus vf action agaizst hE for ar y bseac roof a statute inappficable to
him thias any evid nceor ttimcny py any aEgard ngroccurrence of a
confession or the subject mterth reaf is uh alWy adr oissibleirrelevant and non
probative Accordingly the motion in fomine seeking to exciude allsuch evidence
should have been granted We flnd the triaE court erred and hereby reverse that
denialand grant said motion
NOCAUSE OFACTION
However and more significantly we are compelled in this matter to exercise the
authority granted us under La CCPart 9278 tc notoce on our own motion the
peremptory exception of no cause of action grant thQsame and dismiss the plaintiffs
suit against the priest and theChurch in its entirety
Inconsidering whether a petition states a cause of ac tiona court must accept all
well pleaded facts in the petition as true The fnctie nof the exception of no cause of
action is to test the legalsufficiency of the petition b determining whether he law
affords a remedy on the facts of the pieading Evans vo Louisiana Bd of Parole
2012 2053La App 1 Cir 67p13 upubiished
Negliaent Advisina
Ira additionto afleging that the priest breachecla puroorted duty teport hicfn
we have found to lack me at beca sea priest under the fcts of kfnfs case is not a
mandatory reporker tne piadntiffs petitior aileges that the priest wvas regliger tin tt e
advice he gave the child during car fessbon
4V1We note that the record also contains evidence clearly establisheng that the wnfidentiality owed to all
communications had during a confession is also included in themandates of the Roman Catholic Churehlaw
known as the Code of Canon Lawpursuant to which a priest os preciuded from divulging information
acquired through the Sacrament of Reconciliation Tne confidentiaiity attacfhed ko such information is
cloaked by the Sealof Confession which is absolute and a vioiation thereof results in the irstanYer
excommunication of the priest tne most severe penalty knawn to the Church Because wre nave found
that thepriest is not a mandatory reporter underthe iouisiana CivilLawweare neokher faced with nor need
ko decide whether any such lawwhich may mandate reporting is n conflict with the First Fnmer dmenYs
Constitutionaimandate of separation petween Church and Siate
16
First we note that the Rlaii tffscsYe nasws nar da we knowof any under
Louisiana lawfor imposinq a dty naiergy mernber the breach of which would
sustain a private Gr elvilcause ot actieotekhat a cause of aticnin malpractice
is available gadns a physicdan L1r th rsrae ot 9heatltPa rei lserv9c rovidewhich
may include elem nts of nqaiaart mso4hat aty eanates from the
professioe alskilis and traininy ard dtls rer satioof entainealth services and is
adjudged by the standard ofcare established within fatrofession
Addit anally any such alleged neglig ntadlvice in th is matter occurred during
the Sacrament of Reconciliation which vehave already found to be aconfidential
commuraication
the
disclosure
of nhich is
prohibit d
Furthermore the giving of
advice including the allegedly negligent spiritualadvicein this matter is by definition
voluntary suggestions based on personalopinion gvenbased on the facts with wnich
one is presented in an effort to guide and dirECt another sdecisions actions or
thoughts Such advice does not lead to imposition of a duty which wouid be impossible
to
dictate
and
much more so to monitor
and
adjaadye Spirituai advice is also
subjective at best and not susee tibiEof being adiudged wrong Qr right Indeed
as noted
by
thseci nd circuit
ira
Lanr v
Davis is92
La Ap Cir 822j01 793
So 2a 463 a case in ciergy nalpra tscebased na9le ations tat a past rneglagently
revealed perspr alant70rfde kEatliformat oratf a vvas disclos adurir gprivate
spiritualcounseling in uphalding the sustaining of ara exceptian of ro cause of action
A pastor who provides counseling services usuafiy does so under the agis
of his chureh and is not subjected to th srestandards as a state
licensed psychiatrist or sociai uvarfce List nctiv iy faittr based relic io s
principles may gidepastoralcur stherefr reabstain from
ruling on sucf roun9eling fst khey cr aean Excessive 2ntanglement
which is prohibited by the IFfrsfi Arri rdonen tIn shork courts rave o
right to interpret religious doctrines
Id at p 4J93 So 2d at 466
Cause of Actionfor Breach ofMandatorv Ite orterProvisions
Moreover and rr oresignificanEly we find w ompo kantto note that ever ifwe
found the priest in trtlis matker o be anandatory repr rterthere is na civi9 ca rseof
action and no civilremedy forany lie ed vio9ati orofX Yiat stat te
17
Louisiana Chi dren sCode ar 609A 2clearly and expressly provides Violation
of the duties imposed upan a ma datory reporter subjects the offender to criminal
prosecution authorazed by RSI4 403 ALouisiana Revis dStatutes Title 14is a
criminal
statute
Specifically La tS i4 403 A1provides that anyone who
knowingly and willfully fails to report if requlred xo dc so under La Ch Cart 609
shallupon conviction be fined not more than fve hundred dollars or imprisoned for
not more than six months or both There are no civilremedies provided in the entire
statutoryscheme Accordingly we find there is no civilremedy and therefore no civil
cause of action for an alleged breach of the mandatory reporter duty to report That
remedy
is
expressly delegated
to
criminal
law enforcement See Fontenot v
Manpower Motivation Educ and Training Inc 594So 2d 998 999 1000 La
App 3 Cir 1992wherethe trialcourt sjudgmer tsustaining the defendants exception
of no cause of action and dismissing the suit ruling plaontiffs have no civilremedy
under La RS23 1691 which is a criminalstatute was armed Cf Keller v
Aymond 98 843 La App 3 Cir 12 23 98722So 2d 12241227writs denied 99
0199 and 99 0219La 4199742So 2d 551 and 552cert denied 528 US963 120
SCt 397145 LEd 2d 310 1999 wherethe court held that the Electronic Surveillance
Act La RS15 1301 et sequitur provides specific remedies in the form of criminal
fines and imprisonment for the willfulinterception disclosure and use of the
communication and aso provides specific civilremedies in the form of monetary
damages including attorney fees and punitive damages dgainst any person who
intercepts discloses or uses such information lo such civilremedies are provided in
this matter
CONCWSION
Therefore to the extent that the iriaicourt sruling left remaining any cause of
action against the priest for any reportable information to which he may have been
privy outside of the confessionalthejudgment is hereby reversed
For the foregoing reasons we hereby raise and grant the peremptory exception
of no cause of actior based on our reviewof the petition and the absence of any
18
allegations supporting a viable civilcause of action against the priest and orthe Church
in this matter Accordingly the plaintiffs claims against the defendants relators the
priest and the Church are hereby dismissed in their entarety with prejudice Costs of
this grant of certiorariare assessea to tlhe plaintiffs
THE TRIALCOURT SUDGMENT ONTIiE NIOTIONINLIMINE IS REVERSED
AND THE MOTIONINLIMINE IS HEREBY GRANTED PEREMPTORY
EX CEPTIONOF NO CAUSE OF ACTIOIV RAISED AND GRANTED PLAINTIFFS
CLAIMS AGAINST THE DEFENDANTS RELATORSTHE PRIEST AND THE
CHURCH AREHEREBYDISMISSED
19
PARENTS
OF
MINOR
CHILD
STATE OFLOUISIANA
VERSUS
COURTOFAPPEAL
GEORGEJ
CHARLET JRDECEASED
FIRST CIRCUIT
CHARLET FUNERALHOME INCTHE PRIEST
AND
THE
ROMAN
CATHOLICCHURCH OF
2013 CW0316
THE DIOCESE OF BATONROUGE
KUHNJconcurring
This case presents a question considered before in Peoplev Philips NYCt
Gen Sess 1813 iewhether a Roman Catholic Priest can in any case be justifiable
in
revealing
the
secrets
of a sacramental
confession
In that landmark case
addressing freedom of religion and the priest penitent evidentiary privilege defendant
Phillips and his wife were indicted for a misdemeanor of receiving stolen goods Upon
being questioned by the authorities the person whose property had been stoien
reported that he had received the restitution of his effects from the hands of his pastor
Reverend Anthony Kohlmann William Sampson The Catholic Question in America
1813 reporting Peoplev Philips supra Vol1 p 5 When the Reverend Pastor
was summoned and questioned he excused himself fromanswering questions touching
the restitution of the goods and the persons involved Id When the matter was sent
to the Grand Jury the Reverend Pastor was subpoenaed to attend but he respectfully
declined to answer the questions The matter proceeded to trialwhere the Reverend
Pastor again sought to be excused The ministerialbasis for the Reverend Pastor s
request that the Court excuse him from testifying is set forth in detailbelowin
pertinent part
Were I summoned to give evidence as a private individualinwhich
capacity I declare most solemnly I knownothing relatively to the case
before thecourt and to testify from thoseordinary sources of information
from which the witnesses present have derived theirs I should not for a
moment hesitate and should even deem it a duty of conscience to declare
whatever knowledge Imight have as it cannot but be in the recollection
of this same honorable Court I did not long since on a difference
occasion because my holy religion teaches and commands me to subject
to the higher powers in civilmatters and to respect and obey them But
if called upon to testify in quality of a minister of a sacrament in which
my God himself has enjoined on me a perpetualand inviolable secrecy I
must declare to this honorable Court that I cannot I must not answer
any question that has a bearing upon the restitution in question and that
it would be my duty to prefer instantaneous death or any temporal
misfortune rather than disclose the name of the penitent in question
For
were Ito
act
otherwise
I
should
become
a
traitor
to
my
church
to
my sacred ministry and to my God In fine Ishould render myself guilty
of eternaldamnation
Lest this open and free declaration of my religious principles should
be construed into the slightest disrespect to this honorable Court Imust
beg leave again to be indulged in stating as briefly as possible the
principles on which this line of conduct is founded Ishalldo this with the
greater confidence as Iam speaking before wise and enlightened judges
who Iam satisfied are not less acquainted with the leading doctrines of
the Catholic Church than with the spirit of our mild and liberal
Constitution
The
question
now
before the court is this
Whether a Roman
Catholic Priest can in any case be justifiable in revealing the secrets of
sacramentalconfession I say he cannot the reason whereof must be
obvious to everyone acquainted with the tenets of the Catholic Church
respecting the sacraments For it is and ever was a tenet of the Catholic
Church that Jesus Christ the divine Founder of Christianity has instituted
seven sacraments neither more nor less It is likewise an article of our
faith that thesacrament of penance of which sacramentalconfession is a
component part is one of the said seven sacraments It is in fine the
doctrine of the Catholic Church that the same divine Author of the
sacraments has laid theobligation of a perpetualand inviolable secrecy on
the minister of said sacrament
This obligation of inviolable secrecy enjoined on the minister of the
sacrament of penance is of divine institution as wellas confession itself it
naturally flows from the very nature of this sacrament and is so
essentially connected with it that it cannot subsist without it For when
the blessed Saviour of mankind instituted the sacrament of penance as
the necessary means for the reconciliation of the sinner fallen from the
grace of baptism by mortalsin he unquestionably did it with the
intention that it should be frequented and resorted to be the repenting
sinner Nowit is self evident that if Christ ourLord had not bound down
his minister in the sacrament of penance to a strict and perpetualsilence
it would be wholly neglected and abandoned for we want neither great
learning nor deep sense to conceive that in that supposition the last of
the temptations of a sinner would be to revealallhis weaknesses and
most hidden thoughts to a sinfulman like himself and one perhaps in
many respects inferior to himself and whom he knows to be at fullliberty
to divulge and disclose whatever may be intrusted to him In short the
thing speaks for itself Christ the incarnate Wisdom of God would have
manifestly demolished with one hand what he was erecting with the
other unless we believe that he has affixed by a divine and most sacred
lawthe sealof inviolable secrecy to alland every part and circumstance
of what is communicated to his minister through the channelof
confession
If therefore I or any other Roman Catholic Priest which God
forbid and of which Church History during the long lapse of eighteen
centuries scarce ever furnished an example if I say I should so far
forget my sacred ministry and become so abandoned as to revealeither
directly or indirectly any part of what has been entrusted to me in the
sacred tribunalof penance the penalties to which I should thereby
subject myself would be these 15 Ishould forever degrade myself in
the eye of the Catholic Church and Ihesitate not to say in the eye of
every man of sound principle the world would justly esteem me as a
base and unworthy wretch guilty of the most heinous prevarication a
2
ii
priest can possibly perpetrate in breaking through the most sacred laws
of his God of nature and of his Church
2dly According to the canons of the Catholic Church Ishould be
divest of my sacerdotalcharacter replaced in the condition of a Layman
and foreverdisable from exercising any of the Ecclesiasticalfunctions
3dly Conformably to the same canons I should deserve to be
lodged in close confinement shut up between four walls to do penance
during the remainder of my life
4thly Agreeably to the dictates of my conscience Ishould render
myself guilty by such a disclosure of everlasting punishment in the life to
come
Having thus briefly stated to this honorable Court my reasons for
not answering the questions of the Attorney Generalin the present
instance Itrust they willnot be found trivialand unsatisfactory
Id at p 81Z
In this posture the exemption claimed by the Reverend Pastor was raised forthe first
time in this country Id at p 13 Counselfor the Reverend Pastor urged that the
exemption was protected by the NewYork state constitution and by the common law
With respect to the constitution he asserted the exemption was secured by the state
constitution sprotection of free exercise and emjoyment of religious profession and
worship
Id
at
p
30
Every thing essentialto that object is by necessary
implication secured by the constitution unless it leads to acts of licentiousness or to
practices inconsistent with the peace or safety of the State Id at p 31 In support
of the argument the rhetoricalquestion was posed Is auricular confession dangerous
to the peace or safety of the State Id at p 33 Regarding the common lawthe
exemption was supported by the known principles that the lawwould not compelany
man to answer a question that subjected him to a penalty or forfeiture impaired his
civilrights ordegraded disgraced or disparaged him Id at pp 14and 36 Counsel
urged that man was neither bound to accuse himself of a crime nor was he bound to
subject himself to a penalty or forfeiture Id at p 36
WilliamSampson an Irish Protestant lawyer and politicalexile argued on behalf
of the Clergy and Trustees of St Peter sRoman Catholic Church He urged in part
This concurrence presents only a brief reference to some of the arguments of munseland of the
decision of thePhillips court
3
howour United States Constitution provided explicit authority to support the claimed
exemption
The
constitution
stands
in
need of no such
illustrations
It is
simple and precise and unequivocalThe people whose willit speaks
were not
of
any
one church
but of many and various sects allof whom
had suffered more or less in Europe fortheirreligious tenets and many of
whom had unrelentingly persecuted each other The catholics it is true
bore the hardest burthen of allbut the others would be very sorry I
believe to put aside our constitution and resume their ancient condition
And God forbid it should be so Id at p 77
The constitution is remediate of many mischiefs and must be
liberally construed It is also declaratory and pronounces toleration If
its authors are yet alive or if looking down from a happier abode they
have nowany care of mortalthings howmust they rejoice to see it
flourish to see that allthese churches are but so many temples of one
only living God from whence his worshippers no longer sally forth with
tusk and horn to gore each other but meet like sheep that are of one
shepherd but of another fold Id at pp 91 92
Finding merit in the positions advanced by the priest and the Catholic Church
the Philips decision zupheld the exemption claimed finding that the witness and his
brethren were protected by the laws and constitution of this country in the fulland
free exercise of their religion Philips addressed the enquiry at hand as an important
one to allreligious denominations and because paraphrasing the Court seloquent
findings would subtract from its import Iset forth the following excerpts of the Court s
decision
The question then is whether a Roman catholic priest shallbe
compelled
to
disclose what he
has received
in
confession
in violation of
his conscience of his clericalengagements and of the canons of his
church and with a certainty of being stripped of his sacred functions and
cut off from religious communion and socialintercourse with the
denomination to which he belongs
This is an important enquiry itis important to the church upon
which it has
a
particular
bearing It is important to allreligious
denominations because it involves a principle which may in its practical
operation affect themall
z Mayor De Witt Clinton authored the opinion of the court
3 Because therewas no evidence against the defendants in the Phillips case they were acquitted Id at
p 114
4
It is a generalrule that every man when legally called upon to
testify as a witness must relate allhe knows This is essentialto the
administration of civiland criminaljustice
But to this rule
there
are several
exceptions a husband and wife
cannot
testify
against
each
other
except
for
personal
aggressions
nor
can an attorney or counselor be forced to revealthe communications of
his
client
nor is a man obliged to answerany question theanswering of
which may oblige him to accuse himself of a crime or subject him to
penalties or punishment Id at pp 96 98
Whether a witness is bound to answer a question which may
disgrace or degrade him or stigmatize him by the acknowledgement of
offences which have been pardoned or punished or by the confession of
sins or vices which may affect the purity of his character and the
respectability of his standing in society without rendering him obnoxious
to punishment is a question involved in much obscurity and about which
there is a variety of doctrine and a collision of adjudications
Aftercarefully examining this subject we are of opinion that such a
witness ought not to be compelled to answer Id at p 99
Inthe case now pending if we decide that the witness shall
testify we prescribe a course of conduct by which he willviolate his
spiritualduties subject himself to temporalloss and perpetrate a deed of
infamy
There can be no doubt but that the witness does consider that his
answering on this occasion would be such a high handed ofFence against
religion that it would expose himto punishment in a future state and it
must be conceded by allthat it would subject him to privations and
disgrace in this world
It cannot therefore for a moment be believed that the mild and
just principles of the common Law would place the witness in such a
dreadfulpredicament in such a horrible dilemma between perjury and
false
swearing
If
he
tells
the truth he
violates his
ecclesiastical
oath If
he
prevaricates
he violates
his
judicial
oath
Whether he lies or whether
he testifies the truth he is wicked and it is impossible for him to act
without acting against the laws of rectitude and the light of conscience
The only course is for the court to declare that he shallnot testify
or act at allAnd a court prescribing a different course must be governed
by feelings and views very different from those which enter into the
composition of a just and enlightened tribunalthat looks with a propitious
eye upon the religious feelings of mankind and which dispenses with an
equalhand the universaland immutable elements of justice Id at pp
102 03
But this is a great constitutionalquestion which must not be solely
decided by the maxims of the common lawbut by the principles of our
government
upon the ground of the constitution of the social
compact and of civiland religious liberty
5
Religion is an affair between God and man and not between man
and man The laws which regulate it must emanate from the Supreme
Being not from human institutions Established religions deriving their
authority from man oppressing other denominations prescribing creeds
of orthodo ry and punishing non conformity are repugnant to the first
principles of civiland politicalliberty and in direct collision with the divine
spirit of Christianity Although no human legislator has a right to meddle
with religion yet the history of the worid is a history of oppression and
tyranny over the consciences of inen And the sages who formed our
constitution with this instructive lesson before their eyes perceived the
indispensable necessity of applying a preventative that would forever
exclude the introduction of calamities that have deluged the worid with
tears and with blood and the following section was accordingly engrafted
in our stateconstitution
And whereas we are required by the benevolent principles of
rationalliberty not only to expelciviltyranny but also to
guard against that spiritualoppression and intolerance
wherewith the bigotry and ambition of weak and wicked
princes have scourged mankind this convention doth
further in the name and by the authority of the good people
of this state ordain determine and declare that the free
exercise and enjoyment of religious profession and worship
without discrimination or preference shallforever hereafter
be allowed within this state to allmankind Provided that
the liberty of conscience hereby granted shallnot be so
construed as to excuse acts of licentiousness or justify
practices inconsistent with the peace or safety ofthis state
A provision conceived in a spirit of the most profound wisdomand
the most exalted charity ought to receive the most liberalconstruction
Although by the constitution of the United States the powers of congress
do not eend beyond certain enumerated objects yet to prevent the
danger of constructive assumptions the following amendment was
adopted Congress shallmake no lawrespecting an establishment of
religion or prohibiting the free exercise thereof In this country there is
no alliance between church and state no established religion no
tolerated
religion
fortoleration results fromestablishment but religious
freedom guaranteed by the constitution and consecrated by the social
compact
It is essentialto the free exercise of a religion that its ordinances
shallbe administered that its ceremonies as wellas its essentials should
be
protected
The sacraments of a religion are its most important
elements
It has been contended that the provision of the constitution which
speaks of practices inconsistent with the peace or safety of the state
excludes this case fromthe protection of the constitution and authorized
the interference of this tribunalto coerce thewitness In orderto sustain
this position it must be clearly made out that the concealment observed
in the sacrament of penance is a practice inconsistent with the peace or
safety of the state
6
There is in fact no secret known to the priest which would be
communicated
othenvise
than
by
confession
and no evilresuits from
this
communication
on the contrary it may be made the instrument of
great good
The language of the constitution is emphatic and striking it speaks
of acts of licentiousness of practices inconsistent with the tranquility and
safety of the state it has reference to something actually not negatively
injurious
To acts
committed
not to
acts omitted
offences of a deep
dye and of an extensively injurious nature It would be stretching it on
the rack so say that it can possibly contemplate the forbearance of a
Roman catholic priest to testify what he has received in confession or
that it could ever consider the safety of the community involved in this
question To assert this as the genuine meaning of the constitution
would be to mock the understanding and to render the liberry of
conscience a mere illusion It would be to destroy the enacting clause of
the
proviso
and to render the exception broader than the rule to
subvert allthe principles of sound reasoning and overthrow allthe
convictions of common sense
If a religious sect should rise up and violate the decencies of life
by practicing their religious rites in a state of nakedness by following
incest
and
a
community
of
wives
If the Hindoo should attempt to
introduce the burning of widows on the funeralpiles of their deceased
husbands or the Mahometan his plurality of wives or the Pagan his
bacchanalian orgies or human sacrifices If a fanaticalsect should spring
up
and pullup the pillars of society or if any attempt should be made
to establish the inquisition then the licentious acts and dangerous
practices contemplated by the constitution would exist and the hand of
the magistrate would be rightfully raised to chastise the guilty agents
But untilmen under pretence of religion act counter to the
fundamentalprinciples of morality and endanger the wellbeing of the
state they are to be protected in the free exercise of their religion If
they are in error orif they are wicked they areto answer to the Supreme
Being not to the unhallowed intrusion of frailfallible mortals
We speak of this question not in a theologicalsense but in its
legaland constitutionalbearings Although we differ fromthe witness and
his brethren in our religious creed yet we have no reason to question the
purity
oftheir
motives
or
to
impeach
their
good
conduct
as citizens
They
j
are protected by the laws and constitution of this country in the fulland
free exercise of their religion and this court can never countenance or
authorize the application of insult to their faith or of torture to their
consciences
Id at pp 108 114
Two hundred years after this landmark case was decided the priest and the
Roman Catholic Church invoke the same protected exercise of religion in the matter
before this court And the lawprotecting freedom of religion remains the same Thus
our state slegislature has accordingly provided that a priest is not required to report a
7
confidentialcommunication under Louisiana Chiidren sCode article 609 smandatory
child
abuse
reporting requirements
Premised on our nation sbillof rights the
provisions of La Ch Code arts 603 15 c609 and La CEart 511 collectively
acknowledge that the priest is not required to report aconfidentialcommunication
made by a person to a priest To subject a Catholic priest to such mandatory reporting
would be clearly violative of the First Amendment of the United States Constitution
The Religion Clauses of the First Amendment of the United States Constitution
provides Congress shallmake no lawrespecting an establishment of religion or
prohibiting the free exercise thereof The first of the two Clauses commonly called
the Establishment Clause commands a separation of church and state The second
the Free Exercise Clause requires government respect for and noninterference with the
religious beliefs and practices of our Nation speople Cutter v Wilkinson 544US
709 719 125 S Ct 2113 2120 161 LEd 2d 1020 2005 These two Clauses while
expressing complementary values are frequently in tension Locke v Davey 540
US712124SCt 1307158 LEd 2d 12004The basic purposes of these Clauses
however are to assure the fullest possible scope of religious liberly and tolerance for
allSchoolDist of Abington Township v Schempp 374US203 83 SCt 1560
10 LEd 2d 8441963 concurring opinion of Justice Goldberg joined by Justice
Harlan b
These statutes cannot be interpreted without contemplating their Constitutionalunderpinnings
5
Likewise
La Const art
1
8 provides NO lawshallbe enacted respecting an establishment of
religion orprohibiting thefree exercise thereof
6 Relevant to this point is the following pertinent excerpt from A Letter Concerning Toleration by John
Locke 1689
The toleration of those that differ from others in matters of religion is so
agreeable to the Gospelof Jesus Christ and to the genuine reason of mankind that it
seems monstrous for men to be so blind as not to perceive the necessity and advantage
of it in so clear a
light
Howeverthat some may not color their spirit of persecution
and unchristian cruelty with a pretence of care of the public wealand observation of the
laws
I esteem it above allthings necessary to distinguish exactly the business of civil
government from that of religion and to settlethe just bounds that lie between the one
and theother
It is the duty of the civilmagistrate by the impartialexecution of equallaws to
secure unto allthe people in generaland to every one of his subjects in particular the
just possession of these things belonging to this life If anyone presume to violatethe
8
Notably the rote of religion in American life has been officially acknowledged by
allthree branches of government from at least 1789 Van Orden v Perry 545 US
677686 125 S Ct 28542861 162LEd 2d 6072005 citing Lynch v Donnelly
465 US668 104SCt 1355 79 LEd 2d 6041984Our United States Supreme
Court observed in SchoolDist of Abington Township v Schempp 374US203
83 SCt 1560 10 LEd 2d 8441963
It is true that religion has been closely identified with our history and
government
The fact that the Founding Fathers believed devotedly
that there was a God and that the unalienable rights of man were rooted
in Him is clearly evidenced in their writings fromthe Mayflower Compact
to the
Constitution itself
It can be truly said therefore that today as
in the beginning our nationallife reflects a religious people who in the
words of
Madison
are
earnestly praying
as
in duty bound that the
Supreme
Lawgiver
of the
Universe
guide them into every measure
which
may
be
worthy
of
his
blessing Id at 212 21383 SCt
1560
Our Constitution acknowledges this country sreligious foundation by the use of the
phrase in the Year of our Lord The Declaration of Independence opens with
references to Nature sGod and the Creator and closes with an appealto the
Supreme Judge of the World and divine Providence Amar AkhilRAmerica s
laws of public justice and equity established for the preservation of those things his
presumption is to be checked by the fear of punishment consisting of the deprivation or
diminution of those civilinterests or goods which otherwise he might and ought to
enjoy
In the second place the care of souls cannot belong to the civilmagistrate
because his power consists only in outward force but true and saving religion consists in
the inward persuasion of the mind without which nothing can be acceptable to God
In the third place the care of the salvation of inen ssouls cannot belong to the
magistrate
In the variety and contradiction of opinions in religion wherein the
princes
oftheworld are as much
divided as
in theirsecular
interest
one country alone
would be in the right and allthe rest of the world put under an obligation of following
their princes in the ways that lead to destruction Menwould owe their eternal
happiness or misery to the places of their nativity
These considerations
seem unto me sufficient to conclude that allthe power
of civilgovernment relates only to men scivilinterests is confined to the care of the
things of this world and hath nothingto do with the worid to come
9
Unwritten Constitution the precedents and principles we live by New York Basic
Books 2012Print
Iacknowledge that the free exercise of religion is not without some government
restriction
Where people sactions are found to be subversive of good order
limitations on such action have been upheld Braunfeld v Brown 366 US599 603
0481 SCt 11441961 eBut here as recognized in the Philips case the PriesYs
compliance with the doctrines of the Roman Catholic Church iethat he not divulge
any information obtained during the Sacrament of Reconciliation is not in anyway
subversive of good order and does not otherwise pose any substantialthreat to public
safety peace or order on the contrary the Church sdoctrines are the foundation of
these things Because the alleged actions of the Priest and the Roman Catholic Church
of the Diocese of Baton Rouge are protected by the Free Exercise Clause of the First
Amendment plaintiffs have not set forth a cause of action against them Accordingly I
concur in the majority sopinion
The First Prayer of the ContinentalCongress 1774The Office of theChaplain United States House of
Representatives petitioned the Lord our Heavenly Father high and mighty King of kings Lord of
lords OGod of wisdomand Jesus Christ Thy Son and our Savior to direct the councils of this
honorable assembly to enable themto settlethings on thebest and surest foundation
8 In Braunfeld 366 USat 604the Court noted that Thomas Jefferson articulated this generalpoint
that legislative power may reach people sactions when they are found to be in violation of important
socialduties in statingas follows
Believing with you that religion is a matter which lies solely between man
and his God that he owes account to none otherforhis faith or his worship that
the legislative powers of government reach actions only and not opinions I
contemplate with sovereign reverence that act of the whole American people
which declared that their legislature should make no law respecting an
establishment of religionor prohibiting the free exercise thereof thus building a
wallof separetion between church and State Adhering to this expression of the
supreme willof the nation in behalf of the rights of conscience Ishallsee with
sinceresatisfaction the progress of thosesentiments which tend Yo restore to man
allhis naturalrights convinced he has no naturalright in opposition to his social
duties
8 Works of Thomas Jefferson 113
The Braunfeld Court also referenced the words of Oliver Ellsworth a member of the
ConstitutionalConvention and laterChief Justice who wrote
But while I assert the rights of religious liberty I would not deny that the
civilpower has a right in some cases to interfere in matters of religion It has a
right to prohibit and punish gross immoralities and impieties because the open
practice of these is of evilexample and detriment
Emphasis added Written in the Connecticut Courant Dec 171787as quoted in
1 Stokes Church and State in the United States 535
Braunfeld 366 USat 604 60581 SCt at 1146
10