Published February 4, 2025
On February 4, 2025, EPPC Fellow Eric N. Kniffin of the Administrative State Accountability Project offered public testimony before the Washington State House Human Services, Youth & Early Learning Committee regarding House Bill 1211, which would prioritize clergy members’ legal duty to report suspected child abuse over their religious duty to keep penitential communications absolutely private.
The public testimony reads in part:
For the past three years, I have been monitoring and commenting on Washington efforts to make clergy mandatory reporters. This is a good goal, endorsed by Washington’s three Catholic dioceses, each of which already requires priests to report suspected child abuse and neglect.
However, it won’t do Washington children any good to pass a bill with obvious constitutional problems.
Two years ago, I warned that Substitute House Bill 1098, were it enacted, “would make Washington State’s mandatory reporter law the most radical in the country. By explicitly overruling the clergy penitent privilege, while leaving the attorney client privilege untouched, Washington State would go where no state has gone before, setting the State up for a civil rights lawsuit I am confident it would lose.”
The same is true of this year’s HB 1211. The bill is clearly unconstitutional and would be enjoined and struck down before it ever went into effect.
As I have warned the Washington State Legislature each of the last two years, favoring secular privileged communications over religious privileged communications is a huge constitutional red flag. Targeting religious conduct like this makes a law unconstitutional unless it can survive “strict scrutiny,” the most stringent test in constitutional law. Washington would fail that test because HB 1211 fundamentally misunderstands the problem it is purporting to address in three critical ways.
First, the bill incorrectly presumes that government could coerce clergy into reporting what people confess. …
Second, HB 1211 incorrectly presumes that the clergy-penitent privilege hurts children. Since 2002, more than a dozen grand jury or attorney general reports have carefully reviewed decades of heartbreaking stories about child abuse at the hands of Catholic priests. But none of these reports have ever pointed to the sacrament of confession as a contributing factor. …
Third and finally, HB 1211 would be unconstitutional because it discriminates against religion by failing to target comparable secular privileges. The bill would make it official State policy that its good for lawyers to keep confessions confidential for secular reasons, but it’s bad for priests to keep confessions secret for religious reasons. It’s hard to think of a more blatantly unconstitutional policy. …
Washington should instead follow the approach that other states have taken in recent years, making clergy mandatory reporters while respecting religious liberty. That is what Hawaii did in 2020, when it made clergy mandatory reporters except with respect to information “gained solely during a penitential communication.”
Read the full public testimony.
Eric Kniffin’s public testimony cites and builds upon his advocacy in Washington State on related bills in 2023 and 2024:
- Eric Kniffin, Public Comment in Opposition to SBH 1098 (Feb. 24, 2023);
- Eric Kniffin, Public Testimony in Opposition to SB 5280 (March 21, 2023);
- Eric Kniffin, Attacks on the Seal of the Confessional, First Things (March 30, 2023); and
- Eric Kniffin, Public Comment Regarding SB 6298 (Feb. 12, 2024).
Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s Administrative State Accountability Project.
