Free Exercise Clause Absolutely Bars Slander Claims Based on Statements in Confidential Church Proceedings

(Eugene Volokh) So held a Kansas state trial judge in Purdum v. Purdum, 2011 WL 1430279 (Kan. Dist. Ct. Apr. 11, 2011), which dealt with a slander claim based on statements made in a church annulment proceeding. I doubt that this is right; the First Amendment ban on religious decisions by secular courts should preclude slander or libel lawsuits that require evaluation of religious statements (e.g., "X is a sinner," "X violated God's law," "X is not a true Christian," etc.), but I don't think the First Amendment should preclude such lawsuits based on ordinary secular assertions ("X had sex with Y," "X lied to me about this secular subject," etc.). But I thought it was worth noting. An excerpt: [T]he Free Exercise Clause of the First Amendment … appl[ies] in this case to protect the defendant's confidential communications with her church or its representatives …. The Court finds that, in this case, the statement is absolutely privileged as made pursuant to the defendant's First Amendment right to Free Exercise of her religion. This case is virtually identical to that of Cimijotti v. Paulsen, 230 F. Supp. 39 (N.D. Iowa 1964). In Cimijotti, the plaintiff filed a slander suit against his ex-wife and two other women serving as witnesses in the religious tribunal for separate maintenance and divorce, and the plaintiff did not allege any publication outside of the religious proceeding. The Cimijotti court held that, "[t]o allow slander actions to be based solely upon statements made to the Church before its recognized officials and under its disciplines and regulations would be a violation of the First Amendment. The law withdraws from the State any exertion of restraint on the free exercise of religion. The freedom of speech does not protect one against slander, yet a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. This does not mean that in some instances it may not have to be disclosed, but nonetheless the person must not be prohibited, by fear of court action either civil or criminal against his person or property, from actually making the communication. Also, the court is not holding that it would not be actionable if communicated to other third persons. Likewise, it might be actionable if made outside strictly religious activities." In this case, the plaintiff does not allege that the statement was made to anyone other than the Archdiocese and the plaintiff himself. Disclosure to the plaintiff allowed the plaintiff notice and an opportunity to participate in the ecclesiastical proceeding. Furthermore, neither party disputes that the annulment of a sacramental marriage in the Catholic Church is a required religious proceeding if the Catholic individual ever wants to enter into a sacramental marriage again. As held by the Cimijotti court, an individual's right to engage in the free exercise of his or her religion is protected by the First Amendment; this is especially true when a penitent communicates with his or her minister. To hold otherwise, would require individuals to defend themselves in civil court for statements made during required religious proceedings, even if the statements are later determined to be true. Therefore, the statements made by the defendant under the circumstances of this case, even if false, are absolutely privileged by the First Amendment right to free exercise…. Note that the case doesn't seem to involve a state law privilege for confidential penitential communications (such as confessions). Rather, the court finds that there's an absolute Free Exercise Clause privilege – one that can't be overcome even based on a showing that allowing liability is narrowly tailored to serving any possibly compelling government interest – regardless of what state law mandates.

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