Try forcing a member of the clergy to reveal in court what passed between them and a penitent under the seal of the confessional. No court here would stand for it. Such communications are covered by the same privilege as those between doctor and patient and lawyer and client. And, in this enlightened country, between journalist and source.
But it doesn't work the other way round, as Chani Lightman has discovered to her fury.
This week the New York Court of Appeals threw out her suit against two rabbis, who told her husband that while seeking their advice she had admitted deliberately breaking Orthodox practices and was "seeing another man in a social setting".
Unlike the absolute obligation of secrecy imposed on Catholic priests, in the Jewish and some Protestant denominations the veil of secrecy over spiritual counselling is balanced by an obligation on clergy to protect others - where that line should be drawn is a matter for the church not the court, judges agreed unanimously.
While the clergy-penitent privilege would make the information inadmissible in court, and while the woman "understandably resents the disclosure of intimate information", the Court of Appeals said, she could not seek damages under the state law establishing the privilege.
In 1995, Chani Lightman's marriage to Hylton Lightman was in a mess. She decided to consult Rabbi Tzvi Flaum of Congregation Knesseth Israel in Queens, where she and her husband were members, and Rabbi David Weinberger, Long Island, before seeking a divorce. And she brought her mother and a friend along for moral support. The way you do.
Among the revelations she made was that her sexual relationship with her husband was unfulfilling and that she was not going to a ritual bath for monthly cleansing. According to Orthodox Jewish tradition, a husband can't cohabit with his wife if she hasn't performed the ritual called a mikvah. The rabbis argued they had to disclose Ms Lightman's violation of Jewish law to save her husband from unwittingly violating Jewish law.
In the course of the 1996 divorce hearing, the rabbis decided to sign affidavits outlining her revelations to help her husband retain custody of the children.
Ms Lightman then sued for unspecified damages for breach of confidence.
Mr Franklyn H. Snitow, the rabbis' lawyer, said they "truly tried to do the right thing" and "believed that the children were emotionally in danger" because their mother had stopped following Orthodox household law. They also claimed that the presence of mother and friend had changed the nature of their discussion - it was no longer confidential. Not so, said a lower New York court.
In New York, lawyers, doctors and psychologists may be sued for breaches of confidence, but the Court of Appeals said their obligations were based on state laws and professional codes governing conduct, not by the statutory privileges that cover their discussions with clients.
Whether or not the rabbis were in breach of their religious duty was a matter the court did not want to get involved in, particularly in the light of the First Amendment's protection of the right to practise one's religion as one sees fit. "The prospect of conducting a trial to determine whether a cleric's disclosure is in accord with religious tenets has troubling constitutional implications," Judge Victoria Graffeo wrote.
A lawyer who filed a friend-of-the-court brief supporting the rabbis in the case, Mr Nathan Lewin, of the National Jewish Commission on Law and Public Affairs, said the ruling is a "strong affirmance of the importance of independent judgment by religious authorities."
"For a civil court to be second-guessing rabbis on a matter of their religious principles would be unconstitutional and contrary to what religious believers and adherents expect," Mr Lewin said.
But Prof Stephen Gillers, a New York University law professor and an expert on professional ethics, said that, while the result was not surprising, "the underlying allegation is disturbing because if the courts we now know will not protect the parishioner by recognising a legal claim, we run the risk of deterring members of the public from confiding in their priests, ministers and rabbis".
Ms Lightman may yet appeal to the US Supreme Court.
psmyth@irish-times.ie
