In 1917, the Iowa Supreme Court ruled that a confession can be rendered to a committee of four and still be protected by the confessional privilege.
by Massimo Introvigne
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In California, Section 1032 of the Evidence Code protects the secret of the confession only if it is rendered by one penitent to one religious minister “in the presence of no third person.” This creates an unjustified privilege for the Catholic Church and other religious organizations that have a one-on-one model of confession. This model does not represent the only possible form of confession.
A landmark decision that established this principle was rendered by the Supreme Court of Iowa as early as February 14, 1917. The plaintiff in the case was a widowed farmer who had a 14-year-old daughter called Mary. The defendant was a 21-year-old boy who had, as the judges said, “carnal knowledge” of Mary, which resulted in the girl giving birth to a child.
As a testament to a bygone rural life, the plaintiff claimed that as a result of being a mother and having to take care of the child, Mary would no longer be able to help him with the farm. He had to hire a worker outside the family. He asked the boy to pay as damages four years of wages of that worker, covering the period between the birth of the child and Mary’s coming of age at 18, plus punitive damages.
The widower did get his damages from the Winneshiek District Court, but the boy appealed up to the Supreme Court of Iowa, where the case focused on a confession Mary had rendered to her Presbyterian Church.
The boy claimed that he had heard that Mary had confessed he had slept with more than one man, thus casting a doubt (in a pre-DNA era) on whether he or somebody else was the father of the child. The lower court refused to enter into any discussion or summon witnesses of the confession, stating that it was protected by the confessional privilege. The boy objected it was not, because it had been rendered to a committee consisting of a pastor and three elders rather than to a single minister, and this was the matter the Supreme Court had to adjudicate.
The Iowa justices observed that both Iowa law and precedents based on common law referred to the confession as a communication rendered in secret to a “minister of the Gospel.” Without discussing whether the reference to the Gospel discriminated against non-Christians, the justices observed that what a “minister” is was far from being clear.
“The word ‘minister,’ they wrote, which, in its original sense, meant a mere servant, has grown in many directions, and into much dignity. Few English words have a more varied meaning. In the religious world, it is often, if not generally, used as referring to a pastor of the church and a preacher of the Gospel. This meaning, however, is not applicable to all Christian denominations. Some of them have no pastors and recognize no one as a minister in that sense, and yet all denominations recognize the spiritual authority of the church, and provide a source of spiritual advice and discipline.”
More specifically, should a “minister” necessarily be a single individual, or can a committee function as a “minister”? Remarkably, the Iowa justices concluded that secular courts of law cannot answer the question. This would compel them to interpret theological matters, which is prohibited by the U.S. Constitution. The only solution is to leave the definition of “minister” to each religious organization. “What is a ‘minister of the Gospel’?… The law as such sets up no standard or criterion. That question is left wholly to the recognition of the ‘denomination.’”
The question, thus, was not whether the justices believed that a committee may collectively function as a “minister,” but whether the Presbyterian denomination to which Mary belonged taught it. The answer to the second question was yes, and to come to this conclusion the justices relied on the “Confession of Faith” of the Presbyterian Church.
There, they read that to receive a confession “two elders, if there be as many in the congregation, with the pastor, shall be necessary to constitute a quorum,” and other elders may be added. “To these officers, the Presbyterian ‘Confession of Faith’ stated, the keys of the kingdom of Heaven are committed, by virtue thereof they have power respectively to retain and remit sins, to shut that kingdom against the impenitent, both by the word and censures, and to open it unto penitent sinners, by the ministry of the gospel, and by absolution from censures, as occasion shall require.”
The justices noted that in the Presbyterian Church the pastor of the congregation alone was not qualified to hear a confession. This power, they wrote, was “not conferred upon the pastor except in conjunction with the ruling elders… The power of discipline conferred upon the pastor is conferred upon him only in a joint sense, as one of the ‘officers.’”
Why, the justices asked in conclusion, do statutes and civil law protect the secret of the confession? This is based, they answered, on “the idea that the human being does sometimes have need of a place of penitence and confession and spiritual discipline. When any person enters that secret chamber, [the law] closes the door upon him, and civil authority turns away its ear. The privilege of the statute purports to be applicable to every Christian denomination, of whatever polity. Under the polity of the Presbyterian denomination, this privilege cannot be applicable to it unless it be true that the ruling elders are ‘ministers of the Gospel,’” when sitting collectively as a committee.
We see, thus, that already in 1917, although ignoring non-Christian religions, the principle had already been established that a confession does not lose the confessional privilege when it is rendered to more than one “minister”—or, to use different words, to a “minister” that is a committee rather than an individual. This is precisely what California Evidence Code Section 1302 denies, and why it is vulnerable to the criticism that it unjustly privileges the Catholic-Eastern Orthodox model of confession over the models adopted by other religions, such as the LDS Church, the Church of Scientology, or even the Presbyterian denomination discussed in the 1917 Iowa case.