Religious Liberty Commission examines imperiled Native American sacred site, mandatory reporter law

WASHINGTON (OSV News) -- Key religious liberty challenges facing Americans include the threat of the destruction to an Apache sacred site by a copper mining giant, as well as a new law in Washington state requiring clergy to report child abuse or neglect without exceptions for clergy-penitent privilege, said witnesses at the inaugural meeting of the Department of Justice's Religious Liberty Commission on June 16.

President Donald Trump in May signed an executive order creating a religious liberty commission, which includes Cardinal Timothy M. Dolan of New York and Bishop Robert E. Barron of Winona-Rochester, Minnesota. The commissioners gathered at the Museum of the Bible in Washington to examine what recommendations they should make to the president about promoting and protecting religious freedom.

Cardinal Dolan was not in attendance at the meeting, with Texas Lt. Gov. Dan Patrick, the commission's chairman, citing travel issues as the reason.

Bishop Barron said during the hearing that many have asked him to urge the commission to probe Washington state's Senate Bill 5375, approved in May, which designated members of the clergy as mandatory reporters, or people required by law to report suspected or known instances of child abuse or neglect. The state's Catholic bishops had supported a different version of the bill that included an exception for hearing confession, part of the sacrament of reconciliation, but opposed the version signed into law which lacked that exception.

While some have argued the bill addresses an important omission from the state's list of mandatory reporters, others have expressed concern that without exceptions for the clergy-penitent privilege, as similar laws in other states have, Washington state's law could place Catholic priests at odds with civil law in order to uphold church law regarding the seal of the confessional. The Catholic bishops of Washington state asked a federal court to block the new law.

The Catechism of the Catholic Church states that priests are strictly forbidden from divulging what penitents tell them during confession, stating that information a penitent shares is under "seal."

"To my, look, nonlegal mind, this is the most outrageous violation of the free exercise clause that I can think of, or the state involving itself illegitimately in the interior workings of a church," Bishop Barron said in an exchange with witnesses at the meeting.

Stephanie Barclay, a professor at Georgetown Law School and faculty co-director of the Georgetown Center for the Constitution, one of the witnesses, cited the 1813 case People v. Philips, seen as the first constitutional test of freedom of religion, which upheld the clergy-penitent, also known as priest-penitent, privilege in American law.

"The arguments that apply there, I think, you would also make here," Barclay said of the 1813 and 2025 cases on the subject. "Government was saying, 'Well, we, we need to take away the ability to reserve this sort of confidential testimony because of the need to reduce crime.' And the court simply saying, 'You have exceptions for a lot of other things, and if you're still able to reduce crime, why focus in on just this one?' And I think that same question applies in this case, and I think the government will be hard pressed to have an answer to that."

Multiple witnesses also raised the Supreme Court's recent rejection of a case from an Indigenous coalition that asked them to protect an Apache sacred site from destruction by a copper mining giant. A broad range of organizations from multiple faith groups -- including the U.S. Catholic bishops -- had argued the high court should hear the coalition's plea because the case has serious implications for the scope of the Religious Freedom Restoration Act.

Oak Flat -- about 70 miles east of Phoenix -- is considered a sacred site by the region's Indigenous peoples and is on the National Register of Historic Places. However, after the discovery of copper deposits on the land, in December 2014 Congress authorized the U.S. Forest Service to swap the land for other sites with Resolution Copper and lifted a mining ban on Oak Flat, known by the Apache as Chi'chil Bildagoteel.

Mark Rienzi, president and CEO of Becket, a religious liberty law firm in Washington, that represented the Indigenous coalition known as Apache Stronghold behind the case, said during witness testimony that "courts recently turned their backs on the western Apache people refusing to protect a sacred site where they have practiced their faith for generations now that holy ground is in danger of being destroyed so that a foreign-owned company can extract copper from it."

Ryan Anderson, president of the Ethics and Public Policy Center in Washington, and one of the commissioners, later asked Barclay about the case, asking, "Since our job here is to give advice to the president, are there steps that the Trump administration could take specifically on that case?"

The Trump administration has indicated that it plans to proceed with the transfer of the site to Resolution Copper, which is owned by companies in Melbourne, Australia, and London, the latter of which has Aluminum Corporation of China as its largest shareholder. But Barclay argued that "the man who knows the art of the deal should see that this was not a good deal for our country."

"It originated in a law passed during the Obama administration," she said, adding, "our government traded away this very valuable and very sacred site of the Apaches to a foreign, Chinese-owned mining interest. What did we get in exchange for that? Some worthless land in the middle of the desert."

Despite the high court's rejection of the case, Barclay said, "There is an opportunity for this administration to do something."

She argued Trump "could just decide he no longer wants to give away, virtually for free, really valuable United States land to Chinese mining interests," and "indefinitely" delay its Federal Environmental Impact Statement, among other policy actions.

"It's a huge opportunity to protect a site that received broad bipartisan support of religious groups of all types, in amicus briefings, to provide more religious liberty than predecessors or the courts have up until this point," she said.

Barclay also argued that "the important work of protecting religious liberty is never complete."

"Today, antisemitism is on the rise. Native American sacred sites are being threatened. There are many religious charities that face unnecessary obstacles to serving the most vulnerable amongst us," she said. "The commission's work is vital to preserving and strengthening religious liberty for future generations."

Attorney General Pam Bondi, who heads the Justice Department, under which the commission is working, said in brief remarks at the meeting, "I'm honored to serve as a member of this commission, but also to call the Department of Justice its home."

"I can assure you, the DOJ will use every legal and constitutional tool available to ensure Americans can live out their faith freely without fear," Bondi said.

"Let this commission serve as a reminder, elections have consequences, and this president and this administration are fully committed to restoring and defending religious liberty for all Americans," she said. "The religious liberty commission will be the tip of the spear."

Lt. Gov. Patrick, the commission's chair, said it planned to meet again in September.