“Washington State and the Priest-Penitent Privilege Redux: The Federal Trial Court Injunction” by Charles J. Russo

View of the Vatican City Gardens by Patrik Kunec (CC BY-SA 4.0).

My earlier column reviewed Washington’s recently passed Senate Bill 5375 that would have required Roman Catholic priests to violate their sacred duty to maintain the seal of confession by reporting those who committed the heinous act of child abuse to state authorities. Based on my previous analysis, it is not surprising that a federal trial court in Washington enjoined the law that was scheduled to go into effect on July 27, 2025. 

By way of background, after being unable to adopt such a law previously, its proponents and abuse victims were dissatisfied with how religious leaders handled complaints amid allegations that some did not follow through adequately on accusations of child abuse. In fact, the bill’s primary sponsor, Senator Noel Frame of Seattle, a survivor of childhood abuse by a family member, stated she was motivated to act amid reports that Jehovah’s Witnesses officials covered up child sexual abuse in Washington for decades. At the same time the Catholic Church faced its own child abuse scandals over its recent history of failing to deal this serious problem, having had to pay out some five billion dollars between 2023 and 2024 to resolve incidents nationally involving 16,276 credible allegations of sexual abuse of minors by priests, deacons or religious brothers.

In adopting SB 5375, Frame and the law’s supporters sought to close what they viewed as a loophole in Washington’s reporting requirements because they feared that the current law inadequately protected children. As support for the bill, Frame cited to a federal study reporting that Washington was one of only a small handful of jurisdictions neither explicitly or implicitly requiring clergy to report suspected child abuse or neglect.

On July 18, 2025, in Etienne v. Ferguson, a case against the governor that named the Catholic Archbishop of Seattle Paul D. Etienne as lead plaintiff, Chief Judge David G. Estudillo of the Western District of Washington enjoined enforcement of SB 5375. In light of the significance of Etienne, this article first reviews the judge’s opinion in some detail because it is so important in understanding how Washington overstepped in questioning the inviolability of the seal of confession. The article then reflects on why this outcome is a significant victory for religious freedom.

Etienne v. Ferguson

After reviewing the background of Etienne v. Ferguson, Judge Estudillo addressed the plaintiffs’ likelihood of success on the merits of their First Amendment free exercise claim. To this end, he explained that because this dispute involved a fundamental constitutional right to religious freedom, it was subject to strict scrutiny, the most stringent level of judicial review; when courts apply strict scrutiny the government typically loses. 

The judge reasoned that SB 5375 failed to survive strict scrutiny because it was neither neutral nor of general applicability insofar as it treated “secular activity more favorably than religious exercise.” Buttressing this point, he observed that “[t]here is no question that SB 5375 burdens Plaintiffs’ free exercise of religion” because it “affirmatively compels [priests], under threat of criminal sanction[s including possible fine and jail time], to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Yet, as indicated below “other groups of adults who may learn about child abuse are not required to report” under SB 5375.

Judge Estudillo ruled that SB 5375 “is neither neutral nor generally applicable because it treats religious activity less favorably than comparable secular activity.” He further maintained that Washington failed to present compelling evidence justifying “the exemption for law professors and those they supervise [a]s not comparable in terms of the ‘risk’ posed to children” even though their clinics directly serve youngsters who could just as readily been subjected to abuse. Additionally, the judge commented that “the exemption for university attorneys applies to all attorneys employed by higher education institutions—not just clinical professors.” Turning to whether the law “targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation,” the judge enjoined SB 5375 because Roman Catholic “clergy were explicitly singled out.” 

Nearing the end of his opinion, Judge Estudillo decided that SB 5375 likely failed strict scrutiny because “[w]hen a plaintiff’s religious exercise is burdened by a law that is either not neutral or not generally applicable, the burden shifts to the defendants to demonstrate that the challenged action survives strict scrutiny.” He next remarked that  “[a] government policy can survive strict scrutiny only if it advances ‘interests of the highest order’ and is narrowly tailored to achieve those interests.'” The judge was also not convinced that Washington could “‘justify an inroad on religious liberty’ without first showing that it is the least restrictive means of achieving some compelling state interest.” In so doing, he suggested that Washington officials could have resolved this concern by adding clergy members to the list of mandated reporters while also permitting a narrow exception for the confessional, as approximately 25 other states have done. 

As an alternative, Judge Estudillo suggested that state officials “could have worked alongside clergy to determine where state intervention is needed to further this interest” in safeguarding religious freedom by devising a remedy that was more narrowly tailored than removing the priest-penitent privilege. In fact, he pointed out that the Archdiocese “adopted and implemented policies that go further in the protection of children than the current requirements of Washington law on reporting child abuse and neglect.”  

Judge Estudillo quoted the Archbishop in reiterating Roman Catholic Church teaching that “[b]ecause absolution given by a priest requires true contrition for all confessed sins, I, and the priests within the Archdiocese of Seattle to whom are confessed sins of child abuse or neglect by the penitent, could help counsel the penitent to self-report and obtain the necessary temporal intervention …. If the penitent were to agree to such counseling and I or a priest within the Archdiocese of Seattle were to learn information in that non-sacramental counseling … I or the priest is obligated to report that suspected abuse or neglect to proper law enforcement agencies….” However, the Archbishop did not state how often this happens.

According to Judge Estudillo, Washington’s inability to demonstrate a compelling interest justifying its restriction on the free exercise of religion by refusing to exempt Catholic clergy while excusing lawyers who work with at-risk children was fatal to SB 5375. Nearing the end of his opinion the judge declared that Washington, “in removing the privileged communication exception for clergy but expanding it for other professionals, cannot demonstrate the narrow tailoring strict scrutiny requires.”

In concluding Judge Estudillo found that the plaintiffs were entitled to a preliminary injunction grounded in their Free Exercise claim because they proved that they would have suffered an irreparable harm,. As such, the judge thought it unnecessary to address related charges as to whether the Church Autonomy Doctrine, which affords religious leaders the authority to make internal decisions for their faiths, and Establishment Clause claims might have independently support equitable relief.  There is no word yet on whether Washington officials plan to appeal this order.

Reflections

Decades before the recent Washington State legislation, the United States Conference of Catholic Bishops promulgated its Charter for the Protection of Children and Young People, originally released in 2002 and most recently updated in 2018. The Charter, a comprehensive set of procedures addressing allegations of sexual abuse of minors by Catholic clergy, calls for the creation of a permanent USCCB Committee on the Protection of Children and Young People as well as an accompanying National Review Board. The Charter also includes detailed guidelines creating safe environments for children and young people; addresses healing and reconciliation of victims and survivors; requires prompt, effective responses to allegations; mandates cooperation with civil authorities investigating allegations; requires subjecting offenders to discipline, both canonical, including the possibility of expulsion from the clerical state plus civil and/or criminal penalties; and devising means of accountability to ensure that the problem of child abuse continues to be dealt with effectively.

It all but goes without saying that state governments have a compelling duty to adopt and enforce laws designed to protect children from sexual abuse. However, as unacceptable as every instance of child abuse is, whether by Catholic priests or others, in seeking to eliminate the protection the seal of confession affords, there have not been any recorded accusations that anyone abused this privilege to cover up such misconduct. Consequently, it is unclear why Washington singled out priests, while lawyers and religious leaders in other faiths were untouched by this change, even though abuse has not limited to the Catholic clergy and that the rates of abuse have actually dropped dramatically even as legislation in states such as Louisiana allows litigation to continue. 

In enjoining SB 5375, the court rejected Washington’s overreaching efforts because legislators, and the attorneys at oral argument, were unable to demonstrate that the statute was justified by a compelling state interest in taking steps to restrict a fundamental religious right without ensuring that their efforts would have been accomplished by the narrowest means possible. The judge made it clear that he enjoined enforcement of SB 5375 for impermissibly singling out Roman Catholic priests while granting exemptions to others and these clerics would have faced the draconian choice of honoring their commitment to God or following this statute. In this regard, the judge highlighted that the Archdiocese had already initiated safeguards to protect children that exceeded what the state required, essentially making the law unnecessary. 

Returning to the litigation, Judge Estudillo thus enjoined SB’s 5375’s attempts at selectively denying protection to Catholic priests under the seal of confession by creating a slippery slope endangering religious freedom via the first of the one thousand proverbial cuts. More specifically, SB 5375 pushed the boundaries of how far civil authorities can intrude on the internal workings of faith-based organizations and their spiritual leaders, even if supposedly pursuing the worthwhile goal of protecting children. 

Had SB 5375 withstood this challenge, it is hard to know where the limit might have been drawn on matters involving church teachings to ensure conformity with the attitudes or values public officials think religious institutions and their clergy should adopt. For instance, might states such as Washington have attempted to adopt laws accusing the Catholic Church of sex-based discrimination by ordaining only celibate, unmarried males to the priesthood while promoting them to higher ranks of its clergy? Or, could states seek to adopt variations of statutes of the kind that the Supreme Court has already repudiated in attempting to place limits on butchering animals consistent with kosher or halal religious laws if animal rights activists challenge them as impermissibly cruel?

In sum, Etienne stands out as a significant victory for religious freedom for all, because Judge Estudillo recognized that the seal of confession, a sincere religious belief central to the values of the Roman Catholic Church, that American courts and legislatures have long respected and upheld, must remain inviolable. At the same time, the judge made it clear that Catholic priests could not be singled out because this demonstrated that the law was not narrowly tailored to accomplish a compelling governmental interest. It remains important to preserve the seal because it is in the best interest of all that individuals retain their religious freedom to speak openly and honestly, in complete confidence with their priests or a variety of faith leaders, without fear that their conversations might be disclosed to others regardless of what the parties discussed. ♦

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Recommended Citation

Russo, Charles J. “Washington State and the Priest-Penitent Privilege Redux: The Federal Trial Court Injunction.” Canopy Forum, August 7, 2025. https://canopyforum.org/2025/08/07/washington-state-and-the-priest-penitent-privilege-redux-the-federal-trial-court-injunction/.

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