The Louisiana situation is an example of how states respond differently when weighing privileged religious conversations with the government’s interest in investigating and prosecuting criminal and civil offenses.
"Some states are coming out differently on that balance," Rothstein said. "Some say the state interest is compelling and that freedom of religion has to take a backseat, while other states take the view that freedom of religion is paramount and supersedes the interest of the state to get information.
"The bottom line is different states all resolve this differently, and until the U.S. Supreme Court gets the question directly and makes a ruling, there will not be unity on this kind of matter," Rothstein added.
However, a complicating factor in the Louisiana case is that the penitent, according to court documents, has waived her right of privacy, and she is willing to testify about what she claims she told Father Bayhi in the confessional on three occasions.
The Diocese of Baton Rouge tried to prevent any testimony about the confessions from being introduced at trial. The trial court refused the diocese’s request, which prompted an appeal. The state appellate court sided with the diocese, and dismissed the lawsuit against the diocese and Father Bayhi on the grounds that the girl’s confession was "clearly" made during the Sacrament of Reconciliation, and was thus confidential.
The Louisiana Supreme Court took the position that the confession was not a "privileged communication" because the penitent waived her right to privacy. In effect, the high court said Father Bayhi cannot invoke confidentiality because it can only be invoked "on behalf of" the penitent.
"It’s hard to see any legitimate reason why that evidence should be suppressed," Rothstein said. "You could see a reason if it was the wrongdoer who had confessed, then you could see why there would be some religious interests to keeping that testimony out.
"There’s an argument on the other side that the priest and the church also have an obligation to their conscience, but it’s difficult to understand why a priest’s conscience demands he keep quiet if she doesn’t want him to," Rothstein said.
The Diocese of Baton Rouge said in its statement that "Church law" does not allow the penitent or anyone else to waive the seal of confession, though the Code of Canon Law does not actually address the question of whether a penitent can release a priest from the seal of confession.
St. Thomas Aquinas, writing in the Summa Theologica, said a penitent could repeat what he or she confessed to the priest outside the confessional. Other commentators have also suggested that as a way to free the priest to talk about something disclosed during confession, said R. Michael Dunnigan, the vice president of canonical affairs and general counsel for the St. Joseph Foundation, a Texas-based canon law firm.
"It’s a little bit complicated. If I were a confessor, I’d have to be extremely careful about this," Dunnigan told Aleteia.
In Canons 983 and 984, the Code of Canon Law says the seal of confession is "inviolable," and adds that it is "absolutely wrong" for a confessor to betray a penitent "by word or in any other fashion." The confessor is also forbidden to use knowledge acquired in confession to the detriment of the penitent, "even when all danger of disclosure is excluded." A pastor cannot even use knowledge that he obtains in the confessional when operating his parish.
In Father Bayhi’s matter, Canon Law would theoretically advise him not to testify in court about the girl’s confessions if his testimony would create a possible detriment to her.