Washington state recently passed a bill obligating clergy to report suspected child abuse to law enforcement, even if the disclosure was made during confession to clergy. But now, the U.S. Department of Justice has announced it is investigating whether the law violates the First Amendment.

Battle lines are being drawn around the state over the legislation, which impacts clergy of all faiths, but especially Catholics for whom confession is mandatory at least once a year. Because counselors are mandated reporters for child abuse in Washington state, clergy have been a safe place for people to go to without fear of arrest.

The Seattle Catholic Archdiocese has already said it will excommunicate any priest who complies with the law and the bishop of Spokane has said his clergy will go to jail rather than comply.

A DOJ press release describes Washington’s new law as “anti-Catholic” and states it appears to be in conflict with the free exercise of religion provided under the First Amendment.

“SB 5375 demands that Catholic Priests violate their deeply held faith in order to obey the law, a violation of the Constitution and a breach of the free exercise of religion cannot stand under our Constitutional system of government,” stated DOJ Assistant Attorney General Harmeet K. Dhillon. “Worse, the law appears to single out clergy as not entitled to assert applicable privileges, as compared to other reporting professionals.”

Most states exempt clergy from divulging what is said during confession; a few including New Hampshire, West Virginia and now Washington – once the law goes into effect July 27 – do not.

Although the law requires clergy to report suspected abuse revealed during confession, it exempts religious leaders from being compelled to testify about it in court. The bill was signed May 2 by Democratic Gov. Bob Ferguson.

Ferguson, a Catholic, told reporters he felt the legislation was “pretty straightforward,” according to KCPQ-TV Ch. 13, the Fox affiliate in Seattle. 

“My uncle was a Jesuit priest for many years,” the governor said. “(I’ve) been to confession myself – and so I’m very familiar with that. I felt this was important legislation, and protecting kids is first priority.”

Sometimes Protestants have tried to appropriate legal exemptions for confession to other situations, including counseling.

In 2004, Dr. Albert Mohler, president of The Southern Baptist Theological Seminary, wrote a paper in defense of Carey Hardy, then an associate pastor at California’s Grace Community Church, who had been arrested for failing to disclose reported child abuse.

Mohler told El Informe Roys (TRR) in 2022 that his paper argued that Hardy should have been exempt from mandatory reporting requirements because the abuse was disclosed during counseling, which he equated with confession. However, Mohler said he no longer believes clergy should be exempt from reporting child abuse in this setting.

Archbishop Paul D. Etienne described Washington’s legislation as overreach and said “people of every religion in the State of Washington and beyond should be alarmed” in a statement posted May 4 on the Washington State Catholic Conference website.

“Catholic clergy may not violate the seal of confession – or they will be excommunicated from the Church,” Etienne stated. “All Catholics must know and be assured that their confessions remain sacred, secure, confidential and protected by the law of the Church.”

Etienne stated that the Catholic Church supports protecting children and preventing child abuse and that its policies already require priests to be mandatory reporters when information about possible abuse or neglect is obtained outside of confession.

Sen. Noel Frame, D-Seattle, sponsored the bill. According to the The Seattle Times, Frame is a childhood sexual abuse survivor who was inspired to introduce the legislation after reading a 2022 InvestigateWest report about sexual abuse within a Jehovah’s Witness group in Spokane.

“There are some things that it doesn’t matter what religion you are in, you never put somebody’s conscience over the protection of a child,” Frame said in a KCPQ report.

TRR reached out to the Washington state attorney general’s office for comment on the DOJ investigation.

“We look forward to working with the governor’s office to explain why this law complies with the Constitution,” stated Mike Faulk, the deputy communications director.

Ann Marie Shambaugh has reported as a print journalist in multiple states, including currently in Carmel, Indiana.