LCMS Convention Workbook St. Louis, Missouri — 2001, Page 356

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356 THEOLOGICAL DOCUMENTS—COMMISSION ON THEOLOGY AND CHURCH RELATIONS

spiritual adviser. The pastor should be known to be a man who can hold

his tongue.'*

Mueller and Kraus’ Pastoral Theology continues Fritz’s accent on

confidentiality:
Confidentiality: To the extent that speaking the absolution is being
the voice of God, so hearing the confession is being the ears of God.
To the confessional prayer of Psalm 51, to “wash away all my iniq-
uity and cleanse me from my sin . . .[to} create in me a clean heart,”
the absolution responds with Ps. 103:12, “As far as the east is from
the west, so far has he [God] removed our transgressions from us.”
Therefore, under no circumstances should a pastor reveal anything
told him in confession by a penitent. Normally, the so-called con-
fessional seal will be recognized and respected by civil authorities,
but even if it were not, the pastor must stand by the promises which
he has solemnly made before the altar and the congregation in his
ordination and installation (i.e., not to divulge the sins confessed to
him, Lutheran Worship Agenda, pp. 212, 225). The pastor who uses
the specifics heard in the confessional (even if from a previous
parish) as “sermon fodder” drives his flock away from the most
blessed opportunity for personalized justification.”

Accordingly, confidentiality is critical, especially (but not only)
to the penitent. The forgiveness of sin is free and total. so that God
says that he no longer “remembers” the sin, that he no longer holds
our sins against us (Is. 43:25; Jer. 31:34). Similarly, the pastor
through whom absolution is declared no longer “remembers” the
matter.'° The penitent must be assured that the communications he
or she makes to the pastor are protected by the seal of the confes-
sional. Confession is therefore encouraged when sins may be fully
and freely confessed."’

The Ordination Rite in Lutheran Worship Agenda

Mueller and Kraus cite the Ordination Rite in the Lutheran
Worship Agenda which clearly asks the candidate in the vows taken
at ordination: “Will you forgive the sins of those who repent, and
will you promise never to divulge the sins confessed to you?”'*
The response to this question is “I will with the help of God.” This
vow comes after the ordinator has asked the ordinand “in the pres-
ence of God and of this congregation” whether he believes the
“canonical books of the Old Testament to be the inspired Word of
God,” accepts the Ecumenical Creeds “as faithful testimonies to
the truth of the Holy Scriptures,” believes that the Book of Con-
cord is “in agreement with this one scriptural faith,” and whether
the ordinand will “solemnly promise” to “perform the duties of
[his] office in accordance with these Confessions, or Symbols.”’”
The oath to maintain the seal of the confession is placed alongside
such solemn promises as belief in the Scriptures as the Word of
God and the Book of Concord as a true exposition of the same.”

Recognition of the Privilege by the State

In recent decades civil authorities have afforded less protection
to religious institutions under the First Amendment’s establishment
and free exercise clauses. It is increasingly difficult to withstand
the pressure to divulge confessional confidences in efforts to “dis-
cover the truth.” Nonetheless, courts generally recognize a privi-
lege claimed by pastors who refuse to divulge what is communi-
cated to them by parishioners—although the extent to which the
privilege is recognized may vary from state-to-state. Many states
recognize the privilege even beyond the traditional setting of the
confessional. And, for the most part, the privilege is recognized in
instances where a communication is made in confidence to a pastor
while the pastor is acting in the capacity of confessor or spiritual
advisor.*' It is not necessary that the person communicating to the
pastor be a member of the congregation the pastor is serving.”
However, some civil authorities will not recognize the privilege if
the communication is also made in front of a third person, such as
a pastor’s wife, secretary or other church member.

A state-by-state review of this issue is impractical. Indeed, such
a review would not be determinative of the questions facing our

2001 Convention Workbook

pastors in this area. Though we are called to be obedient and re-
sponsible citizens of our community, state and nation, we also rec-
ognize that the responsibilities of our pastors are based on funda-
mental scriptural and theological principles irrespective of any civil
authority (See, e.g., Acts 4:19-20). So also, in the context of our
Lutheran heritage we seek guidance and instruction from our
church fathers and those who followed them.

Distinctions in Pastoral Practice

Certain distinctions may be helpful as pastors wrestle with the
issue of confidentiality within the pastor-penitent relationship. The
first relates to communications which may be confessional in na-
ture as opposed to those which are not. The vow taken by many of
our pastors relates specifically to “sins confessed to you.” How-
ever, communications between pastor and member or penitent
occur in contexts other than what might be considered strictly con-
fessional. And pastors do not necessarily (nor are they expected to)
differentiate between communications that are in the form of con-
fessions and those that are not. In properly providing scriptural and
spiritual guidance and direction, a pastor may deem it necessary to
assure his members that their discussions are confidential. This pro-
vides assurance to the member who will feel more comfortable in
sharing his or her concerns without fear of betrayal and will en-
courage full and free discourse that may well aid the pastor in his
responsibilities to those he counsels.”* Therefore, communications
in such circumstances, whether “confesstonal” or not, should be
considered confidential.

Second, the pastor has promised to undertake other solemn
obligations that include the protection of his flock through the per-
formance of his duties. The vow to keep confidences must be
viewed in conjunction with other obligations that also bind the pas-
tor. When a pastor’s vow to keep confidences conflicts with other
solemn promises he has made, pastoral judgments have to be made
by weighing the conflicting and competing interests involved.~ In
a sense, then, the vow of confidentiality does not stand alone as ab-
solute.

Third, as indicated above, theological principles rather than
legal constraints should guide a pastor’s decisions in this regard. A
pastor should not allow the particular degree of legal protection or
compulsion in a given circumstanee to dictate his pastoral judg-
ments in this area. In making such judgments, the pastor should be
guided by the demands of his office, not by the limitations of or
protections afforded by the law.

Fourth, consideration needs to be given to a parishioner’s ex-
pectations of confidentiality. The integrity of and confidence in the
pastoral office are critical. Those who seek spiritual guidance must
have full confidence in the pastor that statements he or she may
make to the pastor in such a context will be held in strict confi-
dence. It is only right, fair and ethical to inform the congregation of
the potential limitations of confidentiality afforded to communica-
tions made to the pastor. This is so because great damage can be
done to the relationship of confidence and trust between a pastor
and his congregation if private communications are somehow di-
vulged in instances where confidentiality was expected. In this con-
text, the principles and guidelines which are included below should
be shared with the congregation.

Finally, problematic questions also may arise where a pastor
feels that the penitent is not truly “penitent” but rather is “using”
the pastor in order to get something off his chest, with every inten-
tion to continue his erring ways.*° A person is not free to “take un-
fair advantage” of the pastoral office through hypocritical means
or to compromise or neutralize the pastor by revealing sinful be-
havior and then threatening the pastor should he feel compelled to
disclose it.*°