Church-state issues surrounding clergy sexual abuse are becoming a pressing concern to church bodies, even as they draw up new regulations to punish perpetrators and establish ministries to help victims, according to scholars speaking at a recent symposium on religious freedom in New York, which RW attended. The trend of more legislative attempts to require clergy to report cases of abuse, even if they are under traditional confidentiality privileges, was the main topic of concern at the late-September gathering sponsored by the Morningside Institute, a think tank dealing with religion and public life that works with New York-area universities. Mark Movsesian of St. John’s University Law School in New York cited as an example of this type of legislation Senate Bill 360 in California, which would require priests to report other clergy if they learned of incidents of abuse. There have been other bills that have sought to make clergy report abuse crimes, but they have rarely been enforced and they have exempted confidential conversations, such as in confession. SB 360 focused on clergy in penitential situations, however, and it passed the California senate by a 30-2 margin, igniting significant protests. Eventually, the bill landed in the state assembly where it was put on hold.
But Movsesian said that similar bills that violate the free exercise of religion are being written, such as in New York, and it may only be a matter of time before they become law. “Sooner or later, a state prosecutor will apply such legislation to clergy and the courts will have to consider them under the Free Exercise clause and whether it defends clergy-penitent privilege,” he said. The symposium participants were of the view that increasing polarization on religion in the U.S., and especially the growth of non-affiliated Americans (“nones”), was likely to lead to less allowance for clergy confidentiality, especially on such a sensitive issue as sexual abuse. For nones, who tend to be Democrats and hardline church-state separationists, especially on issues of gender and sexuality, “the idea that clergy should get a pass [as far as being exempt from sexual abuse reporting laws] will seem increasingly unreasonable.”
“The clergy-penitent relationship makes sense only in a society upholding religion,” Movsesian added. By the same token, such anti-religious animus may unify and mobilize religious groups and individuals to stand up for their rights, something that took place in the California case. Frank Beckwith of Baylor University said that “legal tests derive from the wider culture” and that in the legal literature there has been a shift, with the view that “religion isn’t unique” gaining prominence. While Beckwith said that the new legislative and legal challenges have targeted the Catholic Church, another speaker, Phillip Bettencourt of Southern Baptist Theological Seminary, said the use of legislation and litigation to address abuse cases is also becoming apparent in the Southern Religion Baptist Convention, as the denomination faces its own upheaval over clergy abuse in the wake of widely publicized cases that were reported in the media last year. The church body has initiated programs and conferences to address the concerns of abuse survivors, but Bettencourt said ministry to such victims may be complicated, in a culture where there is growing anti-religious sentiment, by litigation challenging the balance between the free exercise of religion and the compelling interest to intervene in church matters.
