By Emma Maple | FāVS News

The Department of Justice is currently investigating Washington’s new law mandating clergy report knowledge of child sex abuse, claiming it is a violation of the First Amendment and focusing on its impact on Catholic priests. The Clergy Accountability Coalition, a multifaith group of supporters that lobbied for the law, has stated these claims are inaccurate. 

“It’s pretty absurd to say that the whole goal of this was to be an anti-Catholic bill,” Clergy Accountability Coalition (CAC) member Mitch Melin said. 

Mandatory Clergy Reporting Law: SB 5375

The law in question is SB 5375, signed into law on May 2. It reinstates clergy as mandatory reporters of child abuse – even when disclosed during normally privileged communications such as religious confessions. “Clergyman” had been listed as mandatory reporters starting in 1969, but it was removed in 1975, according to prior reporting. 

Days after this law was passed, the Department of Justice opened a First Amendment civil rights investigation into the law, stating that the law singles out members of the clergy as the only supervisors who may not rely on applicable legal privileges such as religious confessions as a defense to mandatory reporting. 

“SB 5375 demands that Catholic priests violate their deeply held faith in order to obey the law, a violation of the Constitution and a breach of the free exercise of religion [that] cannot stand under our Constitutional system of government,” Assistant Attorney General Harmeet K. Dhillon of the Justice Department’s Civil Rights Division stated in the press release. “We take this matter very seriously and look forward to Washington State’s cooperation with our investigation.” 

The Clergy Accountability Coalition and other supporters disagree with the DOJ’s analysis. 

A CAC press release stated that SB 5375 applies to clergy of all faiths, noting that the impetus for the law was based on abuse from Jehovah’s Witnesses. 

“This is an opportunity for all religious organizations that have used existing loopholes in the law to reexamine the harm caused to children by their policies, rather than fight this positive change,” it read.

The law does eliminate an exemption for what is learned in confession. However,  it joins seven other states and territories (New Hampshire, Rhode Island, Guam, Texas, West Virginia, North Carolina and Oklahoma) in doing so. 

“The CAC is not aware that this has been found unconstitutional in any of these other states,” the press release stated. “Both state and the federal constitutions place limitations on religious practices when they are inconsistent with the peace and safety of the state, when the practice runs afoul of ‘public morals’ or a compelling government interest or when it involves licentiousness.” 

Second, the CAC noted in a press release that the law does not specify other privileged individuals because state statute already removes the privilege of doctors, mental health counselors and therapists, domestic violence advocates and union representatives. Additionally, this law still allows clergy the privilege to not testify in court regarding what they have learned – which is stronger than the privilege the other positions are afforded. 

Others think that the DOJ’s characterization of the law is accurate. Rep. Hunter Abell, who unsuccessfully proposed an amendment to the bill, said that although the intent of the bill may not be anti-Catholic, the effect is. 

“I think the effect is profoundly anti-Catholic in the sense that Catholic priests are unique [and] they have taken a vow to protect information in the course of confession,” Abell said, noting that most other states either don’t require clergy to be mandatory reporters or they allow information obtained in the course of confession to be exempt. 

Abell’s amendment would have allowed priests the same exemption that attorneys have, where information obtained about future crimes is not protected but information about past behavior is. 

“We all want to protect children,” Abell said. “I was disappointed that the amendment was not adopted. I was particularly disappointed that the Legislature decided to move forward with passing the bill with no exemption for information discovered in the course of confession.” 

The law as it is currently written has concerns regarding the free exercise of religion, as protected by the First Amendment, according to Abell. 

“It seems like a significant amount of overreach by the state,” he added. “I’m encouraged that they’re [the DOJ] is looking at it.” 

If challenged, the new Washington law will be defended by the state Attorney General’s office. 

“I’m feeling confident that the law will stand muster,” CAC’s coordinator Sharon Huling said.