"This definitely involves religious freedom," Father Orsi said. "The HHS mandate will look like small-time, small potatoes, compared to the government forcing a priest to violate the seal of confession."
The pressure on Father Bayhi to break the seal of confession, Father Orsi said, continues a trend of religious freedom being squeezed by government. In Father Bayhi’s case, the Catholic Church has held the line on the sacrament’s invioability, which stands in stark contrast to Anglican Church leaders who voted earlier this month to authorize Anglican priests in Australia to disclose unreported serious crimes, such as sexual abuse, to authorities that they hear in confession.
"Presuming (Anglican) sacraments are valid, they are betraying their own people by doing something like this because people go into confession with the belief that what they say will never ever be revealed," Father Orsi said.
Canon Alistair Macdonald-Radcliff, an ordained Anglican clergyman and director general of the World Dialogue Council, said the Australian Anglican Synod’s vote to break the seal of confession in certain cases is problematic.
"It chips away at the clergy’s ability to keep things in confidence," Macdonald-Radcliff told Aleteia. He said the vote also speaks to other issues pertaining to societal trust and the increasing notion that privacy and confidentiality are always attempts at concealing important information.
"It will not affect the Catholic Church, except that it will make it more difficult for outsiders to see why the Church is holding out when so many other Christian bodies have been ‘reasonable,’” Mirus added.
In addition to serious concerns about religious freedom, there are some complicated legal principles in the Louisiana case, especially those that pertain to "sacred communications" and exemptions from state public disclosure laws.
In most states, the clergy-penitent relationship, in the form of private counseling or sacramental confession, carries a similar privacy privilege granted between spouses, attorneys and clients, as well as physicians and counselors with their patients. However, sacred, privileged communications are not the same as informal conversations between members of the clergy and the laity. For example, a group of parishioners approaching a priest in a shopping mall and discussing a criminal act would not be considered a privileged conversation.
In Father Bayhi’s case, the trial court wants to determine whether the girl’s alleged disclosures happened during the formal Sacrament of Reconciliation, which would, in theory, be exempt from public disclosure laws.
"The question here is, ‘Was it a real confession?’ because she disclosed something that happened to her," said Paul Rothstein, a law professor at the Georgetown University Law Center.
Court documents indicate that Father Bayhi, while outside the confessional, sought to act "in good faith" regarding observations he made between the girl and the adult male parishioner. Father Bayhi told the man, who has since died, to end his relationship with the girl, advised him and his wife to speak with the child’s mother, and Father Bayhi also expressed concerns about the man’s relationship with the girl.
In Louisiana, sacred communications are theoretically exempt from the state’s mandated reporter law, but two state statutes conflict with each other; one statute says a member of the clergy is not required to disclose a sacred communication, but the other says any mandated reporter is obliged to report suspected child abuse "notwithstanding any claim of privileged communication."