Church and State Face Off in Court
By Annamarie Adkins
SALEM, Oregon, 26 AUG. 2009 (ZENIT)
When Father Timothy Mockaitis heard inmate Conan Wayne
Hale’s sacramental confession on April 22, 1996, he had no idea it was
He also didn't know that the event would spur an unprecedented legal
case that attempted to demonstrate that a violation of the seal of the
confessional was an infringement on the free exercise of religion
guaranteed by the First Amendment to the U.S. Constitution.
Father Mockaitis details these pivotal events in his new book, “The
Seal: A Priest’s Story.” The pastor of Queen of Peace Catholic Church
shared with ZENIT how this case involved not only canon law versus civil
law, but also a threat to the long term viability of our Constitutional
ZENIT: You filed a lawsuit to prevent disclosure of the contents of the
confession. What were your legal claims?
Father Mockaitis: Our legal position was based essentially on First and
Fourth Amendment violations, which concern religious freedom and
protections against illegal search and seizure.
We also claimed civil rights violations against privacy. This was an
offense against not only the Church, but against the penitent himself.
But we also raised moral and ethical objections that this particular and
deliberate intrusion by the state was one incident that could never be
justified for a greater good.
The integrity of both the Constitution and an unmistakable explanation
of Canon Law, and the centuries-old tradition of the Church about the
absolute secrecy of the seal in the sacrament of reconciliation, were
all presented in this case.
It was the first time an attempt was made in court to define a violation
of the seal of confession as a First Amendment violation.
The state consistently claimed the tape as among the body of evidence in
A priest comes to the confessional in a parish church, a jail cell or a
hospital bedside not as a judge and jury, but as a pastor of souls.
The actions of the state, and the response of the Archdiocese of
Portland, set up a never-before-test of the American Constitution. I
felt state authorities had backed themselves into an untenable legal
ZENIT: American law normally protects something called the
priest-penitent privilege, like the attorney-client privilege. How did
that figure into your case?
Father Mockaitis: The priest-penitent privilege, like the
attorney-client privilege, is granted in this country from the common
law of the land. Civil authorities knew this was a sacrament of the
Church and they secretly taped it because it was that sacrament; they
had the audacity to cross this line between the values of Church and
In Oregon as of 1996, if one party
in such a relationship as priest-penitent
was willing to reveal information and wave the assumed confidence, then
the other party could not object, despite his or her desire to maintain
However, neither the penitent nor myself as confessor knew of the
taping. By the time I got wind of this surreptitious act done with the
approval of the local district attorney, a warrant had already been
issued and signed by a local judge for law enforcement authorities to
listen to the contents of the tape.
As priest and confessor I was forbidden to grant any waiver of the
confidence from the sacrament, so from the beginning there was no doubt
the priest-penitent privilege had been violated. We demanded the
immediate destruction of the tape and its written transcript.
One footnote to mark is that as a result of this case, about two years
after litigation, Oregon revisited the priest-penitent privilege and
granted protection for the priest (or member of any clergy) who could
claim immunity from public testimony if he and his religious
organization had an expectation of privacy.
The seal of the sacrament would certainly meet those criteria.
ZENIT: Are there other stories like yours of the seal being broken? Is
this a growing phenomenon? Do you see it as part of a trend about
disrespect for religious freedom?
Father Mockaitis: No incident as is described in "The Seal" had ever
come before a court of law in this country. The late William F. Buckley
wrote, in his estimation, this action was “naked fascism, truly the end
of the line.”
I don’t believe it is likely that secret eavesdropping on conversations
between priests and penitents is a growing trend in this country, but
the revelation of truth and the limits that the law allows between civil
authorities and clergy are being pushed to more narrow levels.
For instance, just a few years ago Connecticut almost passed a law
requiring priests to report certain crimes that are disclosed in the
The sad and painful saga of clergy sexual abuse in this country has
indeed made professional confidence a more tenuous protection. Yet, it
seems to me, the search for truth has in many cases gone well beyond
professional respect and reasonable investigation to reach a far more
intrusive and disrespectful level.
ZENIT: Why is there a seal of the confessional? Didn’t penitents once
confess their sins publicly in church to the whole assembly?
Father Mockaitis: I believe the seal of the confessional finds its
greatest justification in the protection of the integrity of the
sacrament and for the safety and respect of the individual penitent.
Although, in the early centuries of Christian history, we do hear of the
public acknowledgement of sins and the exercise of public penance, some
sense of personal privacy was always a part of this sacrament.
The seal guarantees that whatever may be shared between priest and
penitent will forever remain confidential.
To know this truth is to grant instant trust for the penitent to speak
openly and honestly about whatever his or her struggle with sin may be.
The seal creates an environment in which the penitent can be disposed to
receive the grace of healing from a God of mercy.
ZENIT: Why shouldn’t the seal be broken when a great public good could
come about? Don’t priests usually instruct those who committed a heinous
crime to turn themselves in to the police as part of their penance
Father Mockaitis: What would be the greater good that might justify the
revelation of a sacramental confession: the good of the soul of the
penitent or some piece of so-called “evidence” that might lead to the
conviction of guilt or innocence of an individual?
While the safety of citizens is crucial for the common good, is there no
other ethical and legal way to search for evidence besides the invasion
of the sacred trust established in the sacrament?
Law enforcement has developed myriad ways to seek evidence for the
conviction or innocence of an individual that would make the
eavesdropping of a conversation between priest and penitent a desperate
method of investigation.
The purpose of a penance is to seek justice, to repair the damage done
by sin and to accept personal responsibility for one’s actions.
In the course of conversation between priest and penitent, in the case
of a serious crime, the penitent may come to the realization that
submission to authorities is the most appropriate way to be granted
But, if an individual has come to the sacrament properly disposed and
sincerely seeking reconciliation, the priest is obliged to carry through
as a pastor of souls, not as a police officer.
ZENIT: Your case received some attention in the media. What was the
general public reaction to the recording of the sacrament? Do you
believe the public’s response is a barometer of peoples’ views about the
importance of religious freedom?
Father Mockaitis: This case received an enormous amount of media
However, the reaction of the mainstream population was far more
visceral. Universal shock, outrage, insult and fear about a new
disrespect for people of faith were not uncommon.
Good people knew this was neither about the Catholic Church alone, nor
about this sacrament alone, but rather about our Constitutional
protections in the long run. I was amazed and edified by the united
voice of concern well beyond the Catholic Church.
ZENIT: What happened to the tape recording of Hale’s confession? Was it
ever used in evidence or destroyed?
Father Mockaitis: Despite the state authorities’ and the District
Attorney’s promise at that time that the tape would be destroyed after
the murder trial of the inmate, the tape still exists to this very day.
The ultimate finding of the Ninth Circuit Court of Appeals that this
action was a blatant violation of the First and Fourth Amendment made
the action of this taping illegal.
Although it was never played during the trial of the inmate, the tape
was not destroyed a year after the Appeals Court issued its opinion in
January of 1997.
For what purpose does it remain more than 10 years since the inmate’s
It remains a red flag of warning for all those who treasure our First
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