Will Washington's New Law Rewrite Religious Freedom in America?
Priests, Confession, and the Constitution: The High-Stakes Battle Over Washington's Mandatory Reporter Law
The Governor of Washington recently signed Senate Bill 5375 (SB 5375) into law, requiring clergy to report child abuse and neglect. While this law may appear reasonable on its face, for Catholics, it signals a sharp turn against religious freedom. Reconciliation is a sacrament in the Catholic faith, requiring the faithful to confess their sins to a priest, who God then acts through to grant forgiveness. Priests are bound by the Seal of the Confessional, a commitment to absolute secrecy regarding anything revealed in Confession. Breaking the seal can result in excommunication from the Catholic Church. Thus, for Catholic priests, this Washington law forces priests to choose between obeying the law of God or the law of man.
Trump’s Department of Justice has already opened an investigation against Washington, claiming that the bill may violate the First Amendment’s Free Exercise Clause. If the DOJ were to bring a lawsuit, this might seem like a straightforward win for the DOJ. However, a deeper understanding of how the Supreme Court interprets free exercise cases shows that this case may not be as clear-cut as it appears.
A BRIEF HISTORY OF FREE EXERCISE
In law school, I took a class on the First Amendment religion clauses. There are two landmark cases that highlight how the Court analyzes Free Exercise claims.
The first is the 1990 case Employment Division v. Smith. In Smith, the Court reviewed an Oregon law denying unemployment benefits to individuals who used illicit drugs. A Native American was denied benefits after it was discovered he used peyote, a substance with sacramental significance in his faith. Justice Antonin Scalia, writing for the majority, held that the Oregon law was constitutional, even as applied to the Native American claimants. The Court ruled that neutral, generally applicable laws do not require religious exemptions, even if they incidentally burden religious practice.
The second case, Church of the Lukumi Bablu Aye v. City of Hialeah (1993), clarified Smith. The city of Hialeah, Florida, passed ordinances prohibiting animal slaughter in religious rituals. There was evidence that this law specifically targeted the Santeria religion, an Afro-Caribbean faith that uses animal sacrifice in worship. Notably, the ordinances did not ban all animal killing, but only ritualistic slaughter. The Supreme Court held that when a law specifically targets a particular religion, it must survive strict scrutiny. To survive strict scrutiny, the law must be narrowly tailored to serve a compelling government interest and must be the least restrictive means of achieving that interest.
The Hialeah ordinances failed strict scrutiny. They were not narrowly tailored to achieve the city’s stated interests in public health, animal welfare, and preventing cruelty. The ordinance banned ritual animal sacrifice but allowed animals to be killed for food, hunting, and even for other religious practices such as kosher slaughter. The city also failed to use the least restrictive means, as it could have regulated the disposal of animal remains or the method of slaughter, rather than banning the religious practice outright. Importantly, there was evidence of religious targeting, which triggered the heightened standard of strict scrutiny.
Congress, in response to Smith, passed the Religious Freedom Restoration Act (RFRA), seeking to restore strict scrutiny for all free exercise claims. This would require that all free exercise claims be examined by the standard used in the Hialeah case. However, the Supreme Court ruled that RFRA was unconstitutional as applied to the states, meaning that the states are still governed by the standard set in Smith: neutral, generally applicable laws that incidentally affect religious practice will be upheld as constitutional.
WASHINGTON’S BILL: SB 5375
Reading Washington’s new law, one thing stands out: it is religiously neutral and was drafted to avoid strict scrutiny. The law does not mention Catholics, confession, or any particular faith practices.
Like most legislation, Section 1 of SB 5375 is a list of definitions. The bill defines “members of the clergy” to be “any regularly licensed, accredited, or ordained minister, priest, rabbi, imam, elder, or similarly situated religious or spiritual leader of any church, religious denomination, religious body, spiritual community, or sect” or a “person performing official duties that are recognized as the duties of a member of the clergy” under the basic tenets of any faith or spiritual community.
Section 2 of SB 5375 amends the existing mandatory reporter law to include “members of the clergy.” When the law goes into effect, members of the clergy will be required to report any incidents of child abuse to law enforcement when that clergy member “has reasonable cause to believe that a child has suffered abuse or neglect.”
Both Section 1 and Section 2 of the bill are religiously neutral. While they mention religious members, it does not specifically call out the Catholic church or any other religious sect. The law is generally applicable to all members of the clergy, regardless of faith.
However, the DOJ will likely make an argument that Washington made a critical error in Section 3 of SB 5375.
In Section 3, SB 5375 requires supervisors who learn that someone under their authority has committed child abuse to report it to authorities. However, it exempts privileged communications, “except for members of the clergy,” by reference to another law, RCW 5.60.060. Under RCW 5.60.060, certain communications are privileged, including those between spouses, attorneys and clients, and clergy and penitents. With regard to clergy and penitents, RCW 5.60.060 states that a “member of the clergy, a Christian Science practitioner listen in the Christian Science Journal, or a priest shall not, without the consent of the person making the confession or sacred confidence, be examined as to any confession or sacred confidence made to him or her in his or her professional character, in the course of discipline enjoined by the church which he or she belongs.” Remember, SB 5375 excludes that specific provision from those who are exempt from the reporting requirements.
The DOJ will likely argue that the Washington bill is not generally applicable because it exempts some people, but specifically excludes an exemption for clergy.
IS THERE A CASE TO BE MADE?
While the exemptions may give the DOJ some arguments, its language can likely still be interpreted as neutral. Although the referenced exemption law names Christian Scientists and seems to reference Catholic confession, it is a stretch to argue that the law specifically targets Catholics by excluding clergy from the list of exemptions.
However, there is precedent to argue that if some exemptions are allowed, religious exemptions should also be considered. In Fulton v. City of Philadelphia (2021), the Supreme Court unanimously struck down a Philadelphia policy requiring adoption agencies to serve same-sex couples, which prevented Catholic Social Services from operating in the city. The Philadelphia law allowed the Commissioner to grant individual exemptions at his sole discretion. The Court held that when individual exemptions may be granted, the city “may not refuse to extend that exemption system to cases of religious hardship without compelling reason.”
In the Washington bill, however, there are no individual exemptions—only blanket exemptions based on relationship to the abuser, not discretionary exemptions by government officials. This distinction likely places the Washington case outside the scope of Fulton.
However, the Fulton case may provide a roadmap for how the Supreme Court will rule on this case.
WHAT THE COURT SHOULD DO
While the Court could simply expand on Fulton and require religious exemptions when other blanket exemptions are allowed, the most direct path for the Court would be to depart from precedent and overturn Smith, as Congress attempted to do with RFRA. While some on the left would argue that Smith’s overturning would be another way that the Court is biased, its overturning would not come as a total shock.
In Fulton, concurring opinions signaled openness to overturning Smith. Justice Alito, joined by Justices Thomas and Gorsuch, strongly criticized Smith, listing examples of how its holding—that neutral and generally applicable laws are constitutional—can harm religious practice. For instance, if San Francisco banned circumcision (as it attempted in 2010), an “ancient and important Jewish and Muslim practice” would be outlawed. If Prohibition in the 1920s had not exempted wine for Catholic Mass, a central part of the faith would have been illegal. If a state required all animals to be rendered unconscious before slaughter (as some European countries have required), kosher and halal practices would be banned. All of these laws, under Smith, would be neutral and generally applicable, and thus upheld.
Justices Barrett, Kavanaugh, and the liberal-appointed Justice Breyer also expressed reservations about Smith, though they were less willing to overturn it outright. They signaled caution, preferring not to discard Smith in a case that could be decided under the existing framework.
But what about the Washington case? As discussed, neither Smith nor Fulton provides a clear path to finding the law unconstitutional. The law is neutral, generally applicable, and does not provide for individual exemptions. The DOJ might attempt to argue that the law targets religion generally, but most faiths do not have an equivalent to the Seal of the Confessional, weakening that argument. Unless evidence emerges that lawmakers specifically targeted the Catholic Church—which would then send the law to strict scrutiny under the Hialeah case—the best chance of striking down the law is for the Court to overturn Smith.
What would replace Smith? That is the question that the Justices will have to address. Alito, Thomas, and Gorsuch are ready to overturn Smith now. Barrett and Kavanaugh may need more convincing. They have indicated reluctance to apply strict scrutiny to every law that indirectly affects religious practice, but they also seem uncomfortable leaving Smith in place.
What the new framework will be, I will not attempt to predict. But it is time for Smith to fall, and for the Seal of the Confessional to be protected by the United States Constitution.
