Costly Advice

In the state of Tennessee, laymen and churchmen were hotly debating a point of law: May a minister of the Gospel properly refuse to testify to statements made to him in confidence and in his capacity as a minister?

The Rev. James Glisson, 33, was minister of the tiny Baptist church in McLemoresville (pop. about 300). Among the town's inhabitants was a stormy young couple, Mr. and Mrs. Donald Casey. Their marriage was marked by continual quarreling, and, though they seldom attended his church, the Rev. Mr. Glisson offered them counsel and tried "to get them in the right relationship with God." Despite Glisson's efforts, the battling Caseys ended up in a divorce court.

In a countersuit against his wife's case, Donald Casey charged that 23-year-old Martha Sue Casey had boasted of intimate relations with his father. When Martha Sue denied it, her lawyer called to the stand the only available witness--the Rev. Mr. Glisson. Had she ever admitted such an intimacy? Pastor Glisson refused to answer, and Martha Sue's lawyer withdrew the question. But Donald's lawyer insisted on an answer. Refusing again, Glisson was slapped with a $50 fine and a ten-day suspended jail sentence for contempt of court by Circuit Judge John F. Kizer. The intimacy issue was vital to his decision, said the judge, and Tennessee law recognizes privileged communication only between lawyer and client.

"I just felt duty-bound not to betray a confidence," said Pastor Glisson. Other churchmen were outraged. "If this happens," said Dr. Fred Kendall, Tennessee Baptist leader, "how can church members ever confide in their ministers?"

Though 31 states do allow some degree of privileged communication to a clergyman, the right is still not recognized as a rule of common law. British judicial opinion since the Restoration has been almost unanimous in denying it, mainly out of ancient enmity to the confessional system of the Roman Catholic Church. But many leading British attorneys have differed. "Practically," Lord Chief Justice Sir John Coleridge said in the 1890s, "the question can never arise while barristers and judges are gentlemen." But if it did, according to Sir James Willes, he was satisfied that priests have an actual legal right to withhold confessional information because confession is for the purpose of absolution--a judicial act.

In practice, British judges have usually denied priests any legal right of refusal. But U.S. law has slowly become more lenient. Trickiest legal quibble: whether the confessional is an essential part of a church's system. Those who seek a pastor's advice on their own volition in nonconfessional churches may find their confidences are not protected by state law.

Last week Tennessee churchmen were hard at work soliciting support for a solid privileged-communication law from all five candidates in next month's gubernatorial primary. So far, the three leading candidates have promised, if elected, to propose such a law to the legislature.

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