Priest-penitent privilege did not exist in the English common law. Yet, only a few decades after independence, American states began recognizing a narrow privilege for sacramental confession, because without such a privilege the substantive equality of Roman Catholics seemed impossible. During the twentieth century, a broad therapeutic version of penitent privilege replaced this older sacramental privilege, so much so that most scholars no longer distinguish them.
This paper, however, argues that these two privileges share little in common. They diverge in their scopes, their rationales, their history, and their empirical results. Nineteenth-century jurists did not think therapy and spiritual advice were especially valuable. They protected Roman Catholic confession because the sacrament was something more than just counsel. Ironically, the rise of broad penitent privilege is part of the larger process of secularization, removing the church from the public sphere while translating theological doctrines into political ideals. Resolving the theoretical and practical problems that trouble penitent privilege today requires returning to the narrow older privilege and its substantive vision of equality.