Lightman v. Flaum & Weinberger
New York Supreme Court, Appellate Division -- Second Department

ARGUMENT

1. C.P.L.R. §4505's PURPOSE IS TO PROTECT AND PROMOTE THE FUNCTION OF CLERGY WITHIN NEW YORK STATE AND MUST NOT BE TRANSFORMED INTO A WEAPON, THUS UNDERCUTING THESE GOALS.
   1. C.P.L.R. §4505's History Clearly Demonstrates Its Purpose.

      The "clergy-penitent privilege" (sometimes denoted as the "clergy testimonial privilege") was first introduced in the United States in the State of New York in the 19th century in the case of People v. Phillips. In that case, the priest of St. Peter's Catholic Church had returned some stolen goods to their rightful owner but refused, citing the seal of the confessional, to divulge who had returned them to him. New York City's Court of General Sessions refused to compel the priest to testify rooting its decision in "the benevolent and just principles of the common law" which prevented a witness from being placed between the 'Scylla' of violating his religious oath and the 'Charybdis' of criminal punishment. See Mazza, Should Clergy Hold the Priest-Penitent Privilege?, 82 Marq.L.Rev. 171, 179 (1998). The court also propounded that its decision was based upon "the social compact" as well as the New York State constitution, and, significantly for an early-19th century state court decision, the Free Exercise Clause of the U.S. Constitution's First Amendment:

      It is essential to the free exercise of a religion, that its ordinances should be administered… The sacraments of a religion are its most important elements. We have but two in the Protestant Church - baptism and the Lord's Supper… Suppose that a decision of this court, or a law of the state should prevent the administration of one or both of these sacraments, would not the constitution be violated and the freedom of religion be infringed? Will not the same result follow if we deprive the Roman Catholic of one of his ordinances? …To decide that the minister shall promulgate what he receives in confession, is to declare that…this important branch of the Roman Catholic religion would be…annihilated.

      Id. Shortly after this decision, in 1828, the New York legislature was the first to codify the privilege in the United States. See 26 Wright & Graham, Fed. Prac. & Procedure: Evidence §5612 (1992); Yellin, The History & Current Status of Clergy-Penitent Privilege, 23 Santa Clara L. Rev. 95, 96 (1983). Other states soon followed New York and by 1904, twenty-five states had enacted a statutory clergy-penitent privilege. By 1963, forty-four states had this privilege; today, all states have codified it.

      In more current cases and commentaries, several justifications have been offered for the clergy-penitent privilege. The "utilitarian rationale" asserts that the privilege "recognizes the human need to disclose to a spiritual counselor, in…confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return." Trammel v. U.S., 445 U.S. 40, 51 (1980). Thus, the privilege is society's mechanism designed to promote the ability of clergy to serve in this function by encouraging people to seek spiritual counseling. See Mitchell, Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion, 71 Minn.L.Rev. 723, 762 (1987). A second rationale offered to explain the privilege is that it is a corollary of the U.S. Constitution's Free Exercise Clause, for to compel clergy to disclose confidential communications from penitents is to ask them to violate fundamental tenets of their religious beliefs. Id.

      Finally, some suggest that the privilege arises out of practical experience - that clergy will refuse to disclose confidential communications regardless of the penalty a court will impose upon them. Thus, the privilege avoids any possibility of the judiciary being compromised or embarrassed. See Yellin, supra, at 110.

      Each of the foregoing rationales for the clergy testimonial privilege, at their core, center upon the recognition that the privilege is designed as a shield to protect and promote the work of the clergy, not a sword to be turned against them. While different states have different approaches as to which party, technically, holds the privilege, compare C.P.L.R. §4505 ("unless the person confessing…waives the privilege") with, M.D. CTS. & JUD. PRO. §9-111 ("a…clergyman…may not be compelled to testify…"), the jurisprudence of this privilege throughout the fifty states clearly recognizes that at its core, this privilege is designed to facilitate their role in society. Thus, reading into this provision the creation of a private right of action is to turn this statute on its head.

   2. C.P.L.R. §4505 Must Empower Clergy of All Faiths in its Operation.

      If the clergy-penitent privilege is to serve our society's interests by promoting the role of clergy, it must do so for clergy of all faiths. To serve this noble goal it must be sufficiently flexible in its application to the many diverse faith-communities located in the State of New York. For this reason alone, the decision below must be reversed, for its operative interpretation of §4505 precludes the privilege from applying equally to, and thus promoting, the clergy of all faiths.

      As discussed above, the clergy privilege was first created by our common law courts, then codified over the course of more than a century. Given the privilege's historical origin, it is not surprising that its underlying presumption is that a clergyman's faith demands of him that he not disclose confidential communications under any circumstances; that, indeed, is the doctrinal requirement of traditional Catholicism - the very doctrine that gave rise to Father Kohlmann's dilemma in the early 1800s. But this underlying presumption is not consistent with the demand that other religions place upon their clergy.

      As has been revealed by the instant case, traditional Judaism will, in certain circumstances, insist that rabbis disclose communications that would otherwise be held confidential. While there is no question that Jewish law's default position is that rabbis must not divulge these confidences, see Babylonian Talmud, Tractate Yoma 4b; Code of Jewish Law --Magen Avraham, Orach Chaim, 156:2, there are situations in which the Bible's mandate against standing "idly by while a brother's blood is shed," Leviticus 19:16, is understood to require the disclosure of confidences. See Cohen, Privacy: A Jewish Perspective, 1 J. Halacha & Contemp. Society 82 (1981); Kirschenbaum, The Good Samaritan: Monetary Aspects, 17 J. Halacha & Contemp. Society 83 (1989); Waldenberg, 13 Tzitz Eliezer (Responsa) 81. These situations may range from those in which physical or financial harm will befall another person to those in which spiritual or religious harm (that is, through illicit conduct) will befall them. Across this range of scenarios, classical sources and modern decisors offer a range of opinions as to the mandatory nature of requiring a confidential communication to be disclosed so as to avert the prospective harm. While a ruling as to whether disclosure is mandated is, wisely, context-specific, Jewish Law's sources possess notable precedents in favor of disclosure in these circumstances - thus leaving the determination to a particular rabbi weighing the facts of a particular case.

      What is critical to recognize in this context, is that in order for §4505 to fulfill its function of promoting the work of clergy of all faiths it must encompass the ability of rabbis to fulfill their responsibilities to Jewish Law, and thus to Jewish people.

      It is important to note that §4505's Catholic perspective, if strictly applied, is not only out of step with promoting Jewish clergy's functions, but with others as well. Islam, too, has a default position requiring Imams to keep communications confidential, but also requires disclosure in circumstances wherein Catholicism would prohibit disclosure. See, Al-Hibri, The Muslim Perspective on the Clergy Penitent Privilege, 29 Loy.L.A. L.Rev. 1723 (1996).

      It falls to this court to ensure that §4505 fulfill its purpose for clergy of all faiths - Catholic, Jewish, Muslim and all others - and not insist that all clergy conform to one mode of conduct with respect to the issue of confidentiality. §4505 must be understood and applied to allow clergy to utilize it, as they will in the overwhelming number of cases, as a shield against compelled disclosure where their faith prohibits it; but §4505 must not be understood to serve as a check against clergy fulfilling their religious obligations, including disclosure, by transforming it into a private right of action to be wielded against ministers, priests, imams, and as in this case, rabbis.