Breach of confidential lawsuit against rabbis

[Volokh, Eugene]

                (Full story is at
http://www.yucommentator.com/v63i6/features/rabbinic.shtml)

                Free Exercise Clause (hybrid rights?) / state RFRA
question:  Say that the Rabbis explicitly promised confidentiality; do
they have a Free Exercise Clause / state RFRA right to breach the
contract (without paying damages)?



                "Recently, a maelstrom of controversy has been whipped
up by a Long Island woman's
                       accusation against two area Orthodox rabbis over
the issue of rabbinic confidentiality. The
                       woman, Chani Lightman, consulted the rabbis while
going through a divorce several years ago.
                       As a result of her conversations and the Rabbis'
subsequent actions, Lightman, a nurse and
                       mother of four, has become the focal point of a
battle in which the nature of Orthodox rabbinic
                       interaction with congregants has become a matter
of contention.

                       "Mrs. Lightman claims that while arranging for
her husband to provide her with a Get, or Jewish
                       bill of divorce, she met with two community
rabbis who were acquainted with her husband and
                       his position in the case. During the two separate
meetings, Mrs. Lightman confided that she no
                       longer practiced taharat hamishpacha (family
purity laws) as she was no longer intimate with
                       her spouse. Subsequently, the two rabbis, Rabbi
Dovid Weinberger of Congregation Shaarei
                       Tefilah of Lawrence and Rabbi Tzvi Flaum of the
White Shul in Far Rockaway, filed an affidavit
                       in support of Dr. Hylton Lightman, Chani's soon
to be ex-husband. Their affidavit concluded that
                       the courts should be sympathetic to Dr.
Lightman's case as his wife is no longer a practicing
                       Orthodox woman.

                       "Mrs. Lightman took the offensive, suing the
rabbis for breach of confidentiality. Despite a recent
                       ruling in the case against Rabbi Weinberger in
which the judge, David Goldstein, called the
                       rabbi's disclosure 'outrageous and most
offensive,' the case is by no means over. Franklyn
                       Snitow, who has a long history of involvement in
legal proceedings involving Orthodox Jews, is
                       the defense council for the accused rabbis. He
plans to appeal the ruling and in the meantime
                       both he and his clients have remained silent on
the case saying only that 'there was never any
                       expectation of privacy.' They insist that Mrs.
Lightman was aware that her meetings with the
                       rabbis were never intended 'as pastoral
counseling or a penitent's confession. . . .

                       "[I]t appears that many Orthodox rabbis believe
that the laws of confidentiality can be
                       broken when a congregant person expresses a
desire to harm himself or others. The crucial
                       question in this particular case then, to many
Orthodox rabbis, may be whether Mrs. Lightman
                       intended to cause harm to herself or to others."


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