Catholics fight government surveillance in confession after wins against abortion mandate, tax

Catholic physicians and social service workers won over the Trump administration and Supreme Court, respectively, last week against their compelled participation in emergency room abortions and a state unemployment compensation program that costs more than their own church's.

Bishops hope to make it a trifecta against a Washington state law that violates the seal of confession, threatening priests with imprisonment and fines if they don't report suspected child abuse or neglect when "penitents" confess, but not lawyers who learn the same from clients.

Diocesan leaders filed a motion for preliminary injunction Thursday against Democratic Gov. Bob Ferguson, Attorney General Nicholas Brown and county prosecutors in federal court in Tacoma to block SB 5375 at least 10 days before it takes effect July 27.

The Justice Department also quickly opened a civil rights investigation into the law as a prima facie First Amendment violation after Ferguson signed it, expanding the category of mandatory reporter to "member of the clergy," defined as any regularly licensed, accredited or ordained minister, priest, rabbi, imam, elder, or similarly positioned religious or spiritual leader.

Denial of an injunction would likely fast-track the case to the 9th U.S. Circuit Court of Appeals and, if also rejected by the historically most liberal appeals court, to SCOTUS, which has rarely struggled to reach lopsided rulings upholding religious liberty.

The high court Thursday unanimously overturned the Wisconsin Supreme Court's ruling that found that a local Catholic Charities bureau's work is primarily secular and hence it can't get a religious exemption from paying into the state unemployment compensation system.

Justices unanimously ruled for Gerald Groff two years ago after the U.S. Postal Service threatened to fire the evangelical Christian for refusing to work Sundays under an Amazon delivery agreement, junking the "de minimis cost" standard that let employers easily deny religious exemptions but only appeared in a footnote in a 1977 ruling.

Masterpiece Cakeshop baker Jack Phillips got a 7-2 ruling in 2018 that found the Colorado Civil Rights Commission showed hostility to his Christian beliefs when it punished him for refusing to make a custom same-sex wedding cake. Colorado lost again five years later, 6-3, when it ordered 303 Creative's Lorie Smith to design same-sex wedding websites.

FBI offices nationwide told 'radical traditionalist Catholics' are potential violent extremists

Catholics were a bigger target of the Biden administration than portrayed by former FBI Director Chris Wray when he dismissed the sweep of a January 2023 Richmond Field Office memo that characterized "radical traditionalist Catholics" as potential violent extremists because they attend Latin Mass, Iowa GOP Sen. Chuck Grassley said last week.

The FBI recently turned over a production to Grassley that shows the memo was disseminated to more than 1,000 individuals in the FBI in February 2023, and nearly 20 intelligence analysts from 13 different field offices accessed the memo as well. Grassley accused Wray of obstructing his probe and participating in a possible "pattern of deception" in testimony.

The Trump administration freed Catholic physicians of another burden the next day by rescinding the Biden administration's 2022 guidance and accompanying letter that claimed the Emergency Medical Treatment and Labor Act required them to perform abortions as "stabilizing treatment" in emergency pregnancy situations, preempting state abortion laws.

The Centers for Medicare and Medicaid Services "will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy," the announcement said. 

"CMS will work to rectify any perceived legal confusion and instability created by the former administration’s actions," it said.

The 5th Circuit had blocked the guidance in January 2024, finding EMTALA "does not mandate any specific type of medical treatment, let alone abortion." SCOTUS pulled the rug from pro-life states months later, however, by lifting its stay on a lower court's injunction against Idaho's near-total abortion ban after SCOTUS heard oral argument on EMTALA's scope.

Catholic teaching is secular, Protestant is religious?

Writing for the unanimous court, Justice Sonia Sotomayor rejected the reasoning of the Wisconsin Supreme Court that Catholic Charities Bureau of the Diocese of Superior and its related entities are not "operated primarily for religious purposes" because they neither proselytize nor limit their service to Catholics.

The Badger State's top jurists "imposed a denominational preference" in violation of requisite government neutrality by "differentiating between religions based on theological lines," committing "textbook" discrimination, she wrote. It would be like limiting religious exemptions to organizations that "perform baptisms … or hold services on Sunday."

The Wisconsin Supreme Court admitted Catholic Charities is controlled by the Roman Catholic Diocese of Superior and its "charitable works are religiously motivated" but punished it for following Catholic teaching – at odds with some Protestants – that prohibits misusing charity "for purposes of proselytism" or making distinctions by religion, Sotomayor wrote. 

"Decisions about whether to 'express and inculcate religious doctrine' through worship, proselytization, or religious education when performing charitable work are, again, fundamentally theological choices driven" by different doctrines, she said.

Religious liberty law firm Becket, which represents Wisconsin's Catholic Charities and Washington's Catholic bishops, quickly incorporated Sotomayor's opinion into their same-day motion for preliminary injunction against confession-violating SB 5375.

It quoted the opinion's line that Wisconsin hadn't shown its law was "closely fitted" to a compelling interest in funding unemployment coverage when it exempted secular but not religious entities from the tax.

"A priest who directly violates the sacramental seal incurs … automatic excommunication — thereby risking eternal damnation," which is why "the historical record is replete with examples of Catholic priests choosing death as martyrs rather than succumbing to government demands that they violate the sacramental seal," the motion says.

"The Territory of Washington enshrined such protection into its first legal code and recodified the protection when Washington became a state," and the 9th Circuit, which oversees Washington, has found no U.S. case ion which a court greenlit the invasion of confession, it says.

Becket cited one of America's earliest religious freedom cases, from 1813, when New York City's Court of General Sessions exempted a Catholic priest from testifying in a criminal case about what he heard in confession. 

"The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed," that court said.

The Archdiocese of Seattle and Dioceses of Spokane and Yakima "have all implemented policies that require the reporting to proper law enforcement agencies or the department of children, youth, and families whenever Church personnel – including all priests – learn of abuse or neglect, except when that abuse is heard in the Sacrament of Confession," the motion says.

Their own rules go beyond the law "without imposing any burden on the religious exercise of Catholic clergy" and they support legislation to codify their rules.

SB 5375 imposes no reporting obligations on "all relatives, attorneys, and non-clergy supervisors of employees with regular access to children" while claiming to protect children by imposing a reporting mandate within confession, failing the requisite judicial hurdle of "strict scrutiny," the motion says.