The following is the first entry in a three part series discussing the disclosure of documents during and after litigation, and the legal arguments invoked by religious institutions to protect themselves from producing such documents. Today's post will discuss the Free Exercise Clause, with follow up posts next week discussing the Establishment Clause, and the Priest Penitent Privilege.
An often overlooked element of resolving cases that deal with clergy sexual abuse is the need for institutional transparency. For many victims, it is hard to find some measure of closure knowing that an institution that harbored pedophiles will never be forced to disclose the nature and extent of their complicity in the problem. This issue generally comes up when the parties are required to exchange documents and other information relating to the case at issue, called discovery. Currently, our firm is engaged in litigation to compel the Diocese of San Diego to produce documents that they agreed to produce, but haven't as of yet, relating to their cover-up of the priest abuse scandal.
Generally, religious institutions invoke three doctrines of law to protect them from disclosing relevant documents, the Free Exercise and Establishment Clauses of the First Amendment, and the evidentiary Priest Penitent privilege.
The idea behind the Free Exercise Clause is that individuals should be free to practice their religion without any government interference. As it relates to the issue of disclosing documents, institutions such as the Diocese of San Diego, argue that the Free Exercise Clause allows them to determine, based on their religious laws and practices, which documents to disclose and which to keep confidential.
However, the United States Supreme Court, in Employment Division v. Smith, made clear that the Free Exercise Clause does not give an individual or religious institution the ability to make such a determination. Instead, so long as a law is valid, neutral, and applies to everybody equally, individuals and religious institutions must abide by the law, even if their own religious laws or practices say otherwise. In
Roman Catholic Bishop of Los Angeles v. Superior Court, the California Court of Appeal clarified that the rule outlined in
Employment Division applies to all laws, criminal or civil.
Our requests for religious institutions to disclose documents fall under laws that are valid, neutral, and apply to everybody. The fact that their religious practices may prohibit such disclosure is irrelevant under the law.
Check back next week for parts two and three of the series, discussing the Establishment Clause as well as the Priest Penitent Privilege