All U.S. states have laws protecting the confidentiality of certain communications under the priest-penitent privilege. The First Amendment is often considered the basis of such a privilege. Sometimes, however, the privilege is tied more to the idea that certain conversations (like those between spouses, attorneys and clients, couples and marriage counselors, or doctors and patients) are presumptively privileged, are covered by a right to privacy, or enjoy a privacy mandated by considerations of public policy, than to First Amendment free exercise rights.
Privilege to not reveal confessions defended under religious freedom
Many religions have recognized the value of confession of sins. Roman Catholicism has done more than most to formalize such confessions by classifying confessions to a priest as a sacrament. In People v. Phillips (N.Y. 1813), a New York court defended this privilege on constitutional grounds, citing free exercise rights, and refused to force a priest to testify to information he had learned in the confessional about stolen jewelry. Since that case, there has been continuing controversy over whether the privilege, not recognized in English common law, is justified on chiefly constitutional or prudential grounds. The scope of the privilege also remains controversial.
Some states passed laws about what ministers could keep secret
Several antebellum cases addressed similar issues. In People v. Smith (N.Y. 1817), a murder defendant unsuccessfully attempted to exclude testimony by his Protestant pastor, who did not believe he was obliged to conceal what he knew, but his testimony appeared to have aided the defendant’s version of events. Similarly, in Commonwealth v. Drake (Mass. 1818), a Massachusetts court refused to exclude testimony of members of a Baptist congregation to whom the defendant had confessed.
In 1828, however, the New York assembly adopted a bill providing that “No minister . . . or priest . . . shall be allowed to disclose any confessions made to him in his professional character” (cited in Walsh 2005: 1056). Similar legislation was later adopted in Missouri (1845), Michigan (1845), Wisconsin (1845), California (1851), and Iowa (1851).
By 1923, 17 states and four American territories had similar legislation, and this number continued to grow. This trend gained momentum in 1953 when the American Bar Association and the National Conference on Uniform State Laws adopted Rule 29 of the Uniform Rules of Evidence providing for such a privilege. By 1963, 44 states had adopted such legislation, and all have it today.
Courts that have affirmed priest-penitent privilege
Several lower courts have affirmed this privilege in recent years. In Mockaitis v. Harcleroad (1997), the Ninth Circuit Court of Appeals largely upheld the confidentiality of a confession between an inmate and a priest which an Oregon district attorney had secretly taped at the jailhouse. The Supreme Court cited this privilege both in the Watergate Tapes Case (United States v. Nixon [1974]) and in Trammel v. United States (1980), where it addressed spousal privilege.
Some states deny priest privilege in child abuse cases
There is continuing controversy as to whether the privilege is possessed by the confessor, the clergyman, or both, and existing state laws differ on this matter. The issue of privilege can be especially challenging when it comes to cases involving child molestation or other heinous crimes.
In 2025, the state of Washington adopted a law, which will go into effect on July 26, requiring clergy to report child abuse or neglect even if they gained this knowledge through the confessional.
State Sen. Noel Frame said she sponsored the bill after reports that Jehovah’s Witnesses were hiding their knowledge of child abuse, believing this was a matter for them to resolve and relying in part upon the secrecy surrounding the Catholic confessional (Graham 2025).
Although most states have laws designating members of the clergy as mandatory reporters of sexual abuse, most specifically preserve the priest-penitent privilege. A few do not, with Tennessee denying the privilege in cases of child sexual abuse. Journalist Ruth Graham observes, however, that “It’s not clear that any priests have been prosecuted or penalized in those states over failing to report abuse that they learned about during a confession” (2025).
Consistent with his policy of “eradicating anti-Christian bias,” Harmeet Dhilon, who heads the civil rights division of Donald Trump’s Department of Justice, has launched an investigation into the Washington state law for anti-Catholic bias. Defenders of the law, including Gov. Bob Ferguson, note that the reporting requirement applies to all clergy members, whether they be a “minister, priest, rabbi, imam, elder, or similarly situated religious or spiritual leader of the church” (Graham 2025). Most religions do not, however, have formalized confessionals in which individuals confess their sins directly to a priest.
Some prominent Roman Catholics felt that the law was directly aimed at them. Bishop Thomas Day of Spokane called the law “a certain kind of anti-Catholicism in the western part of the state.”
“The purpose of confession is not the gathering of information. It’s to reconcile the sinner with God so the sinner receives God’s mercy,” Day said.
Priests who violate the secrecy of the confessional are subject to excommunication (Mion 2025).
John Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.