Washington pastor fights government demands for information

Wednesday, March 25, 1998

A minister in Washington state says his First Amendment right to practice religion free of government intrusion is being tested by prosecutors intent on forcing him to discuss a conversation he had with an accused murderer.

The Rev. Rich Hamlin of the Evangelical Reformed Church in Tacoma, Wash., has been fighting demands by county prosecutors to tell of a conversation he had with a man charged with murdering his 3-month-old son.

In January, a Pierce County judge ordered Hamlin to tell authorities what Scott Anthony Martin told him concerning the death of Martin's son or face court fines and jail time. Hamlin refused to do so, arguing that his conversation with Martin was a confessional and that the free exercise clause of the First Amendment protects him from government actions he considers coercive.

Before Hamlin was sent to jail, his attorneys persuaded the Washington State Court of Appeals to reverse the lower court's contempt order and schedule hearings to determine whether prosecutors' demands for information subverted Hamlin's rights to freely exercise his religion. The court set hearings for May 17th in this case pitting religious freedom against the state's right to evidence.

“We are talking about government actions which are coercive,” Steven O'Ban, Hamlin's attorney said. “The state is seeking to compel through coercion confessional statements by someone who later was charged with a crime. As a minister, Hamlin has to be able to ensure that those who come to him that their comments will be held in the strictest confidence. Without being able to ensure that, none of Hamlin's parishioners will truthfully tell him what is troubling their souls.”

Prosecutors, however, believe that Martin admitted to Hamlin last summer that he shook his baby, causing his death, and that the First Amendment provides Hamlin no shelter from state demands for details about the conversation.

Steve McFarland, director of the Christian Legal Society's Center for Law and Religious Freedom, said that the actions by Pierce County prosecutors clearly violate the right to free exercise of religion.

“No question about it,” McFarland said. “I can think of no other thing that would constitute a violation when you force a minister to violate his conscience and trust that a penitent has placed in him. The government has better ways of pursuing its legitimate interest of criminal procedure other than conscripting clergy to rat on their parishioners.”

Martin, who is awaiting trial, also has had difficulty trying to shield his confessional from state authorities. His lawyers have attempted to prevent Hamlin's testimony by citing the state's priest-penitent law, which provides that a “member of the clergy or priest shall not, without consent of a person making the confession, be examined as to any confession .…”

Last year, a Superior Court judge ruled that the priest-penitent privilege did not apply to conversations between Martin and Hamlin because Hamlin is not an ordained Catholic counselor and Martin was not a member of Hamlin's church.

Kit Proctor, deputy prosecutor for Pierce County, praised the court's decision, noting that Martin's faith did not force him to talk with Hamlin.

“I don't think there's a harm going on here,” Proctor said.

The law does “not protect everybody who simply wants to get something off their chest,” she said. “They chose to protect people whose religions require them to make these statements.”

McFarland, whose group is preparing a brief in support of Hamlin, said the state's clergy-penitent law is constitutionally suspect.

“The law is stingy and has been construed too narrowly,” he said. “The way the statute has been read so far violates the separation of church and state. “If you're not a Catholic priest or a member of the church, then the law does not apply. It appears that only certain religions are being provided the exemption. Fortunately, in this country we have more protections than just what a legislature has decided to give away in a statutory privilege.”