Prosecutor asks Missouri high court for access to alleged church confession

By The Associated Press

02.28.01

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JEFFERSON CITY, Mo. — In a case pitting church against state, a prosecutor has asked the Missouri Supreme Court to let him subpoena two ministers who heard a man's alleged confession to sexually abusing two young girls.

Texas County Prosecutor Doug Gaston wants to use the alleged church confession of Robert Eisenhouer as evidence against him on two charges of statutory rape and two of statutory sodomy.

A judge had quashed the subpoenas of two elders of a Jehovah's Witness church, saying the state law on which Gaston relied violated the U.S. Constitution's First Amendment protection of freedom of religion.

Gaston, in arguments yesterday, asked the Supreme Court to overturn the decision. Eisenhouer's trial is on hold pending the appeal.

Some Supreme Court judges appeared hesitant to insert law enforcement officers into church matters.

"If we compel the elders of the church to testify against the church members, doesn't that in some way affect the exercise of their religious beliefs?" Judge Michael Wolff asked the prosecutor.

"It absolutely does," replied Gaston, but he called it a "permissible infringement" because the intent of the state law was to protect children.

The state law cited by Gaston says that any legal shield for communication — except that between an attorney and client — shall not apply to situations involving suspected child abuse or neglect.

"That is a law that directly attacks religion," the church officials' attorney, Jon Hutcheson, told the high court. "The issues raised are fundamental in the case, because they involve the First Amendment to the Constitution."

The First Amendment states in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

"We all realize there is a separation of church and state. What we are doing is defining the parameters of that," Hutcheson said.

Eisenhouer's wife told investigators that Eisenhouer confessed to church elders his sexual involvement with the children, Gaston told the Supreme Court. But the wife had declined to testify, and the church officials' testimony was needed as proof of the confession, he said.

Wolff questioned whether their testimony was vital to the case.

If the testimony were required, Judge John Holstein quipped, it could lead to signs at confessional booths warning people of their right to remain silent and not incriminate themselves.

But other judges questioned whether the church was overextending its religious freedoms.

Judge Stephen Limbaugh Jr. questioned whether the church would maintain the same confessional shield if someone said he planned to leave the sanctuary and immediately harm someone.

Without directly answering, Hutcheson said that was a different situation not pending before the court.