Breach of confidence by minister

Volokh, Eugene VOLOKH at
Sat Jan 23 17:26:17 PST 1999

        Neil Alexander "met with appellee, Reverend Harriet Culp, for
marital counseling.  Culp was a minister at appelle Fellowship United
Church of Christ.  Upon inquiry by appellant, Culp assured him that his
disclosures would be kept confidential.  Appellant told Culp that he had
several affairs during his marriage [including one that was going on at
the time].

        "On November 24, 1994, Culp met with appellant's wife, Lynn
Alexander, for lunch.  The complaint alleged that at this lunch, Culp
told Lynn that appellant was having an affair.  Culp also said that
appellant was a liar and not to be trusted.  Culp advised Lynn to obtain
a restraining order, change the locks on the house and divorce
appellant. . . ."

        Lynn divorced Neil, and Neil sued Culp and the Church.  The suit
was thrown out on a motion for directed verdict.

        What should be the result?  It seems to me that Alexander should
have a good claim against Culp and against the Church (on respondeat
superior grounds) for breach of contract.  Culp promised
confidentiality; clergy as well as nonclergy must keep their promises,
or face a breach of contract lawsuit.

        Apparently, though, Culp didn't sue for breach of contract, but
only for "statutory negligence" and "invasion of privacy."  The court
threw out these claims, but held that Culp could recover on a
"common-law negligence theory" arising from a "duty, arising out of the
minister/parishioner relationship, to maintain confidentiality."  The
court concluded that this would pass muster even if it were seen as a
clergy malpractice action, because "Public policy supports an action for
breach of confidentiality by a minister.  There is a public policy in
favor of encouraging a person to seek religious counseling.  People
expect their disclosures to clergy members to be kept confidential.
Such a policy is expressed in [the clergy-penitent testimonial
privilege], although this statute does not create statutory negligence."

        The court said that no Free Exercise Clause claim was present
because defendants didn't plead that "Culp's disclosure was in
accordance with religious practices."

        Seems to me a dangerous approach to take:  As a general matter,
a clergy malpractice tort -- outside the area of breach of contract --
strikes me as rife with 1st Am concerns; and I'm not sure that, under
the Estab Cl, public policy may be said to "favor . . . encouraging a
person to seek religious counseling."  Seems to me that the government
must be neutral as to whether religious counseling is a good thing.
(The clergy-penitent privilege ought to be justified on grounds other
than encouraging this particular religious practice.)  Better, I think,
to just see this as a contract case, based either on express statements
in this case by the minister (as here) or on general published
statements by the minister's employer (if, for instance, the church
repeatedly says that the seal of the confessional is sacred).  I realize
that the latter theory may implicate some entanglement concerns (in the
sense used in the church property cases), but many fewer than a clergy
malpractice or "common-law negligence theory" would.

        Any thoughts?

Eugene Volokh, UCLA Law School
405 Hilgard Ave., L.A., CA 90095

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