The Bible urges Christians to confess their sins one to another, a clear recognition that confessing our moral failures and offenses against a Holy God is an important step toward spiritual growth and maturity. Within the context of our church life, these confessions are often protected by a rule of law known as the Clergy-Penitent privilege.
A privilege is a rule that exempts certain communications from the burden of disclosure. Because privileges operate to exclude otherwise relevant and useful information, most courts apply a rule of application referred to as “strict construction.” Thus, under the rule of strict construction, the privilege that prevents disclosure of confidential communications between a church member and a minister is narrowly applied to avoid placing beyond reach information that could potentially have a significant impact upon the resolution of a legal dispute. In other words, while courts respect the confidentiality of certain conversations between a church member and his pastor, the exclusion of these communications is not automatic and oftentimes, does not even apply. A recent opinion from the Supreme Court of Kentucky illustrates this point.
Breen v. Castlen is a case in which Smith, a construction contractor, has sued Breen, a resident of a neighborhood in which Smith has built many homes. The nature of the suit is one for defamation in which Smith alleges that Breen has made false and defamatory statements against him. Before the lawsuit began, Smith and Breen met in accordance with the mandate of Matthew 18 to attempt to resolve their dispute. The meeting was unsuccessful and Smith eventually brought suit against Breen and others. After the lawsuit was filed, Breen also had numerous meetings and conversations with the elders at his church.
During the discovery phase of the case, Smith’s attorney questioned Breen concerning conversations he had had with others concerning Smith and specifically asked if he had ever referred to Smith as a “liar, cheat, thief,” etc. In response to these questions, Breen asserted the “clerical privilege,” claiming that his communications with Smith and the elders at his church were protected from disclosure by the clergy-penitent privilege. The trial court ordered Breen to answer, but Breen exercised his right to seek relief from the Court of Appeals of Kentucky.
The case eventually made it to the Supreme Court of Kentucky, which analyzed Breen’s position according to the general rule of privilege found in Kentucky Rule of Evidence (KRE) 505, which states in part as follows: “A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the person and a clergyman in his professional character as spiritual advisor.”
After considering the facts developed up to that point in the case, the Supreme Court of Kentucky ruled that clergy-penitent privilege did not apply to the communications between Smith and Breen at their “Matthew 18” meeting because neither met the definition of “clergyman” in KRE 505, which states as follows: “A “clergyman” is a minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.” The court explicitly rejected Breen’s argument that the communication was privileged based “upon the primary tenet of the ‘Matthew 18’ conciliation conference arising from the biblical teachings of The New Testament.” In so doing, the court observed that Kentucky law does not recognize any such general privilege and the court obviously chose not to create one.
With respect to the meetings between Breen and the elders at his church, the court also rejected his argument that the communications were privileged. This conclusion was based, in part, upon the conclusion that the elders were “tasked more with administrative and business matters of the Church” than “spiritual duties” and, therefor, were not “similar functionaries” with respect to clergymen. The court arrived at this conclusion after reviewing the bylaws of the church.
So, what does all of this mean for churches and church leaders? First, it means that only confidential communications with clergy regarding spiritual matters are likely to be protected by the clergy-penitent privilege. Communications with elders and deacons are not within the protections of the privilege. Second, it means that communications between church members are not likely to be protected, even when those communications are undertaken in accordance with the mandate of scripture. These things we can say with confidence.
However, there is an argument to be made that the Court fundamentally misunderstood the biblical role of elder (sometimes referred to as “overseer”). As I Timothy makes clear, the role of an elder is not primarily administrative in nature:
“The saying is trustworthy: If anyone aspires to the office of overseer, he desires a noble task. Therefore an overseer must be above reproach, the husband of one wife, sober-minded, self-controlled, respectable, hospitable, able to teach, not a drunkard, not violent but gentle, not quarrelsome, not a lover of money. He must manage his own household well, with all dignity keeping his children submissive, for if someone does not know how to manage his own household, how will he care for God’s church? He must not be a recent convert, or he may become puffed up with conceit and fall into the condemnation of the devil. Moreover, he must be well thought of by outsiders, so that he may not fall into disgrace, into a snare of the devil.” (1 Timothy 3:1-7 ESV)
Would the outcome of Breen v. Castlen have been different if the church bylaws described the office of elder as a spiritual overseer? Perhaps.
Brian Schuette, Esq.
Schuette Law Group
 “Therefore, confess your sins to one another and pray for one another, that you may be healed. The prayer of a righteous person has great power as it is working.” James 5:16 ESV
 See, generally, Black’s Law Dictionary, Privilege.
 Breen v. Castlen, 2012 Ky. Unpub. LEXIS 33, 2012 WL 2362592.
 “If your brother sins against you, go and tell him his fault, between you and him alone. If he listens to you, you have gained your brother. But if he does not listen, take one or two others along with you, that every charge may be established by the evidence of two or three witnesses. If he refuses to listen to them, tell it to the church. And if he refuses to listen even to the church, let him be to you as a Gentile and a tax collector. Truly, I say to you, whatever you bind on earth shall be bound in heaven, and whatever you loose on earth shall be loosed in heaven. Again I say to you, if two of you agree on earth about anything they ask, it will be done for them by my Father in heaven. For where two or three are gathered in my name, there am I among them.” (Matthew 18:15-20 ESV)
 The discovery phase of a lawsuit is the time during which the parties exchange documents and submit to questioning concerning matters touching upon the subject matter of the case.
 Breen v. Castlen, pp. 8-9.
 Breen v. Castlen, p. 10.