Invading the Confessional

Robert A. Sirico
The Washington Times
June 12,1996

RELIGIOUS CONSERVATIVES ARE SOMETIMES skeptical that church and state should be separated. If they mean that the state shouldn't be aggressively secular, stamping out religion at every turn, they are right. But there's another case for keeping the two apart: the church, and the faith it promulgates, must be protected from invasion by secular authorities. Here lies the real case for Jefferson's idea as found in the First Amendment.

This is especially crucial in our times when few spheres of life are protected from violation by secular authorities. We live in a culture of statism, when police power operates as if it were the highest social authority. Given this, the church must retain the sovereignty and independence to stand up to government and say, when it becomes necessary, your authority stops here.

The moral urgency of this came home recently to a priest in Eugene, Oregon. In April, Fr. Tim Mockaitis of St. Paul parish traveled to the Lane County jail on request. An inmate had requested that a priest hear his confession and administer the Sacrament of Reconciliation. The priest heard the confession, gave absolution, and traveled on his way.

Two weeks later, he received a phone call from a reporter at Eugene's Register Guard. Unknown to Fr. Mockaitis, the confessional had been bugged and taped. The culprit was the Sheriffs' office. That tape was now in the possession of the Lane County District Attorney. Fr. Mockaitis immediately called diocesan authorities and explained what had happened. What followed was a heroic action by the Bishop, who explained the seriousness of the matter.

Under the Catholic Code of Canon Law, said Bishop Kenneth Steiner, then serving as Archdiocesan Administrator of Portland, a priest is bound to keep the confidentiality of anything said in the confessional. The sacramental seal compels secrecy and thus the church resolutely defends the inviolability of the priest penitent relationship. If a priest does betray the penitent, for any reason whatsoever, he is automatically excommunicated, the harshest penalty the church can apply. I have never known of this having happened.

In the Eugene case, the seal was broken, but not by the priest or the church, but by secular authorities. But church law extends penalties "not excluding excommunication" (cc. 983.2 and 1388.2) to the laity as well. This means no Catholic who comes into contact with the confessed information--stenographers, reporters, and judges, included--can reveal it.

The state had not respected the sphere in which the church is absolutely autonomous. This intrusion must be seen for what it is: violence aimed at the heart of the church's self-concept as reconciler of Man to God through the forgiveness of sins. No earthly authority can justly prohibit or compromise the fulfillment of the church's first duty, which is to administer the sacraments. The tape, said the Bishop, must be destroyed to guarantee the future integrity of the confessional.

Was this an overreaction? Not at all. The state may protest that it has a job to do also, and indeed it does. But there are limits to the reach of the state. An impenetrable wall separates the state from the church's essential duties. It is easy to forget this. This event should serve as a much needed reminder.

After a visit from the Bishop and lawyers representing the Archdiocese of Portland, and popular outcry over the incident, the district attorney turned the tape over to the district court which has permanently sealed it, but has so far not destroyed it. The Sheriff's office pledged to keep away from the confessional, fully in accord with the Constitution's protections for the "free exercise" of religion. Yet we have to wonder just how close we are to the day when such protests will be even less successful. Our times are defined by an ever-encroaching state. It has become entangled in society in increasingly complex and disturbing ways, directing economic life, legislating on matters affecting the family, and intruding on the natural development of the community. It was only a matter of time before even the confessional was no longer safe from the ears and eyes of the state. Do we no longer know the limits?

At least in this instance, the church understands the limits and that they are inviolable. The right to worship is more than a civil right granted by legislation or court decree. In some areas--the confessional among them--the church's rights are absolute and independently sovereign. These rights cannot be justly taken away by any court, legislation, or election. The social benefit is that priests, as a part of the penance they impose, often insist that penitents reveal their crimes. By violating this forum, the state narrows the church's ability to encourage people to be good citizens.

Sadly, the church is one of the few institutions in our time with the moral stature and structural means to make such claims and thereby counter government attempts at omniscience. The social movement that abolished slavery and segregation necessarily derived its authority from faith. Civil libertarians who understand the danger posed by an overly invasive civil power should learn to appreciate this fact.

Jesuit theologian John Courtney Murray helped American Catholics understand the separation of church and state, not as an article of faith, but as an article of peace. It is not a dogma but a legal practice that is essential for the church to retain its rights and have some legal claim in order that the faith can be freely exercised and propagated. As Father Murray argued it, the American Constitution does not permit the state to define the church or in any way to supervise her exercise of authority in pursuit of her own distinct ends.

He was describing a constitutional and practical fact in 1960. If his claim doesn't hold up as well today, people of faith need to be even more vigilant in asserting that the American religious proposition serves their interests above all else. It may keep sectarian prayers out of public classrooms, but it also keeps wiretaps out of confessionals.