Confidentiality is an essential part of numerous professions. In many cases, that confidentiality is even protected by law (called a “privilege”) to safeguard sensitive information and to ensure that people can freely discuss issues with their chosen professionals. The attorney-client relationship has a privilege. So too does the doctor-patient relationship. Without these legal protections, professionals couldn’t serve their clients fully or faithfully.
How much more vital, then, is confidentiality between clergy and those they counsel spiritually? Various churches have taught for centuries that their ministers must retain absolute secrecy about things communicated to them in confidence by the faithful. Because of the importance of these sensitive communications, clergy have long received legal protection from forced disclosure of what’s said to them in confidence. That clergy-penitent privilege, as it’s called, has deep roots.
Yet, the state of Washington tried to break that sacred trust.
Confidentiality protected … except for clergy
Orthodox Churches, along with other Christian denominations, recognize confession as a sacrament in which the faithful confess their sins to God and receive God’s forgiveness through the priest. Priests administer the sacrament as a sacred duty that testifies to Jesus’ love and mercy by preaching “repentance and forgiveness of sins … in his name to all nations” (Luke 24:47).
Orthodox Churches teach that priests have a strict religious duty to maintain the absolute confidentiality of what is disclosed in confession. Orthodox tradition requires confidentiality because a priest’s role in the sacrament is to mirror God’s love and mercy and because people are unlikely to come to the sacrament if they fear that the priest will share their sins with others. Violating this mandatory religious obligation is a canonical crime and a grave sin, with severe consequences for the offending priest, including removal from the priesthood.
Because of the importance of the confidentiality of the sacrament, every state, including Washington, recognizes the clergy-penitent privilege. That legal privilege protects priests from being forced to disclose what penitents tell them during the sacrament.
However, the state of Washington enacted an amendment to its mandatory reporting law that would have required priests to violate their sacred duty to keep confession confidential.
Washington law undermines religious freedom
For decades, Washington state has had a mandatory reporter law that requires certain people, such as doctors, law enforcement officers, and school personnel, to inform public authorities when they have “reasonable cause to believe that a child has suffered abuse or neglect.”
But there are exceptions to this. If this information is learned solely as a result of a privileged communication (such as an attorney-client communication), there is no mandatory reporting duty.
Yet, in May 2025, Washington amended its law by stripping confidentiality from conversations with clergy. The amendment read, “Except for members of the clergy, no one shall be required to report … when he or she obtains information solely as a result of a privileged communication…” So while the state’s law maintained confidentiality privileges for attorneys and clients, peer supporters, sexual assault advocates, and alcohol and drug recovery sponsors, it attempted to revoke the same privileges from clergy, uniquely targeting them for punishment. A single violation could have carried up to 364 days in jail, a $5,000 fine, and civil liability.
In other words, Washington retained protection for confidential secular communications, but eliminated the protection for confidential religious communications. That was blatant religious discrimination.
To be clear, Orthodox Churches and their priests do not object to alerting authorities when they have genuine concerns about children based on information learned outside the narrow context of confession. Indeed, priests are already required to make such reports under their own bishops’ policies for information learned outside of confession. The Churches and priests merely wanted to preserve the longstanding legal protection for the confidentiality of confession, as the Constitution requires.
Washington’s amendment would have also harmed all members of Orthodox Churches. By piercing the privacy of confession, the law deterred believers from confessing certain sins—or even from going to confession at all—and so prevented them from mending their relationship with God.
This is why ADF, with co-counsel Eric Kniffin and George Ahrend, challenged the state of Washington in federal court. No state should criminalize keeping confessions confidential.
Court order restores protections for confession
One month after the lawsuit was filed, a court order temporarily stopped the challenged provision of the law from going into effect. Thankfully, a permanent injunction against the law was issued a few months later, stopping Washington from enforcing the law as applied to the sacrament of confession and other sacred confidences.
“The First Amendment guarantees that governments cannot single out religious believers for worse treatment,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “Washington was targeting priests by compelling them to break the sacred confidentiality of confession while protecting other confidential communications, like those between attorneys and their clients. That’s rank religious discrimination. We are pleased the state agreed to swiftly restore the constitutionally protected freedom of churches and priests.”
Orthodox Church in America v. Ferguson
- May 2025: The state of Washington passed SB 5375, which both adds clergy to the state’s list of mandatory reporters and removes the protection of the clergy-penitent privilege for mandatory reports.
- June 2025: ADF attorneys, with co-counsel Eric Kniffin and George Ahrend, filed a lawsuit on behalf of Orthodox churches and a priest.
- July 2025: A federal court order temporarily stopped the challenged provision of the law from going into effect.
- October 2025: Washington state officials agreed to a court order permanently stopping them from enforcing the law as applied to the sacrament of confession and other sacred confidences.
Related Articles
