(dissenting, with whom Cowin and Cordy, JJ., join). Because the court minimizes the burden on the right of the Society of Jesus of New England (Jesuits) and James F. Talbot to free exercise of religion, and because the Commonwealth has failed to demonstrate that enforcement of the subpoena duces tecum is the least restrictive means of achieving its goal of prosecuting the crimes at issue, I respectfully dissent.
Article 46, § 1, of the Amendments to the Massachusetts Constitution, amending art. 18 of the Amendments, provides, “No law shall be passed prohibiting the free exercise of religion,” and thus parallels the First Amendment to the United States Constitution (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . .”). See Commonwealth v. Nissenbaum, 404 Mass. 575, 578 & n.3 (1989). “The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion . . . .” Bowen v. Roy, 476 *679U.S. 693, 700 (1986). As the court correctly notes, we analyze free exercise claims under art. 46, § 1, using the balancing test employed by the United States Supreme Court before its decision in Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872 (1990) (Smith), “a much criticized opinion that weakened First Amendment protections for religious conduct.” Attorney Gen. v. Desilets, 418 Mass. 316, 321 (1994). See Abdul-Alázim v. Superintendent, Mass. Correctional Inst., Cedar Junction, 56 Mass. App. Ct. 449, 453-454 & n.8 (2002).
First we examine the burden, if any, that is placed on free exercise by the proposed government action. Burden “looks to the degree that the government’s requirement will, directly or indirectly, make the believer’s religious duties more difficult or more costly.” L. Tribe, American Constitutional Law § 14-12, at 1247 (2d ed. 1988) (Tribe). “Where the requirement is inherently incompatible with the adherent’s religious duty, the case for an exemption is stronger than where the requirement simply makes following the religious duty more costly.” Id. at 1247 n.37.
Acknowledging that the tenets of their religious faith require Jesuit priests to make honest disclosures to their superiors, the court recognizes that “confidentiality assists that process,” and further, that deprivation of that confidentiality conflicts with “the methods chosen to foster and preserve their relationship within a religious order.” Ante at 670. The court therefore accepts the argument by Talbot and the Jesuits that forcing disclosure of the contents of the letters would impose “some” burden on the free exercise of their religion. Id.
The court’s concession, however, fails to consider the chilling effect such disclosure could have on the methods used to conduct internal church investigations and disciplinary procedures. As the court recognizes, “confidentiality in . . . [the Jesuits’] internal review of priests is based on a religious belief.”1 Id. Such an internal inquiry requires that the priest whose conduct is at issue be able to speak fully and freely to his superiors. While acknowledging the burden on the free *680exercise rights of the priest, the court overlooks the fact that superiors too may be reluctant to undertake such an investigation and demand full disclosure if they know that any confidential information gained in the course of their inquiry may be divulged by force of a government subpoena. See Mockaitis v. Harcleroad, 104 F.3d 1522, 1530 (9th Cir. 1997) (“the knowledge, belief, or suspicion that freely-confessed sins would become public would operate as a serious deterrent to participation in the sacrament and an odious detriment accompanying participation”). Such an unfortunate result, in my opinion, adds weight to the burden on the Jesuits’ right to religious free exercise. See id. (asserting that secret recording of jailhouse confession substantially burdens priest’s exercise of religion). Cf. Attorney Gen. v. Desilets, supra at 331 (“It should be remembered that the task is to balance the State’s interests against the nature of the burden on the defendants and that we are concerned here with the business of leasing apartments, not with participation in a formal religious activity”).
Turning to the “compelling interest” aspect of the test, it is important to keep in mind that “[t]he state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.” Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981). “[Ojnly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). The court identifies the “specific State interests at stake,” ante at 671, as first, prosecuting the crimes of rape, assault with intent to rape, and assault and battery, and second, preventing sexual abuse of high school students.2 Ante at 671-672. In the very next paragraph, however, the court states that “the Commonwealth has a compelling interest in obtaining these documents.” Ante at 673. In note 11, the court refers to the Commonwealth’s “interest in obtaining more solid evidence for use at trial,” and its “compelling interest in presenting the strongest *681case it can.”3 Finally, in note 12, the court identifies yet another, “even more compelling” interest: that of sparing victims the trauma of having to testify as to an alleged sexual assault. Such a shift in the identity of the State’s interest affects dramatically whether or not such interest may be characterized as “compelling.”4 If the government’s interest is in getting its hands on the secret documents, then keeping them impounded would indeed “substantially hinder fulfillment of the goal” — thus rendering the nature of such an interest more compelling. See Attorney Gen. v. Desilets, supra at 322-323, quoting Tribe, supra at 1242. If the compelling State interest is in keeping alleged victims of sexual assault from having to undergo the ordeal of taking the witness stand, then any lawful tactic that would impel a defendant to plead guilty would be permissible. If, however, the government’s interest is in prosecuting the above-specified crimes, as I believe it is, then keeping the documents secret would not substantially hinder that goal, because many, if not most, assaults — sexual and otherwise — are prosecuted without benefit of access to such documents.
Attempting to justify its use of the subpoena as a tool to establish Talbot’s guilt, the Commonwealth argues that it has not “placed any listening devices or undercover detectives” at Talbots current residence “in an effort to somehow obtain a confession.” However, the fact that the subpoena is less restrictive than these techniques does not make it the least restrictive means.
The court also states, without citation to any authority, that “there are no other avenues by which the Commonwealth could obtain the equivalent of these documents” (emphasis added). Ante at 673. It arrives at this conclusion with no discussion of *682the standard that it employed. The standard that should be applied is whether the documents are essential to the prosecution, see United States v. Lee, 455 U.S. 252, 257-258 (1982), not whether there are no other avenues by which these documents or their equivalent may be obtained. If it were the latter, then art. 46, § 1, it seems, would always fail. Indeed, entitling the government to obtain constitutionally protected information that could result in such a strong case that the defendant is impelled to plead guilty, simply eviscerates the protection that art. 46, § 1, aims to provide. Under pre-Smith jurisprudence, the United States Supreme Court required “that when a state chooses to attain its goals in a way which imposes a burden upon the free exercise of religion, the state must show . . . ‘[that method] is essential to accomplish an overriding governmental interest,’ [United States v. Lee, supra] (emphasis added).” New Life Baptist Church Academy v. East Longmeadow, 885 F.2d 940, 946 (1st Cir. 1989). See Thomas v. Review Bd. of the Ind. Employment Sec. Div., supra; Wisconsin v. Yoder, supra. See also Sherbert v. Verner, 374 U.S. 398, 406-409 (1963). This is the standard articulated by the United States Supreme Court when it employed the balancing test that Massachusetts still uses. The Commonwealth simply has not shown that the documents at issue are essential to prosecuting its case against Talbot.
“[T]he free exercise clause may require religion-based exemptions to criminal procedures. . . . The issue is not the propriety of government’s prosecuting [clergy], but rather the means by which government gathers its evidence.” Tribe, supra at 1270. Here, the State may gather its evidence using other, less restrictive techniques available to law enforcement. See Mockaitis v. Harcleroad, supra at 1530 (“the ordinary means of proving a case by good police work were ‘the least restrictive means’ of furthering the prosecutor’s desirable goal”). See also Attorney Gen. v. Desilets, supra at 331. The court, however, concludes that the State’s interests in disclosure “outweigh the claimed interest of keeping these communications confidential.” Ante at 673. In my opinion, the Commonwealth could substantially achieve its laudable goals of prosecuting rape and preventing sexual abuse of students through means less restrictive than compelling production of confidential exchanges — undisput*683edly mandated by religious tenets — between a priest and his superior.
The Commonwealth does not contend otherwise. See Abdul-Alázim v. Superintendent, Mass. Correctional Inst., Cedar Junction, 56 Mass. App. Ct. 449, 451 n.5 (2002).
The alleged crimes occurred between 1977 and 1979, according to the indictments.
These references seem to conflict with the court’s earlier assertion that it is focusing on “the specific State interests at stake in enforcing this particular subpoena, not at any more abstract or generalized State interest in obtaining testimony and documents in criminal prosecutions” (emphasis added). Ante at 671.
Likewise, the Commonwealth in its brief identifies the “compelling” State interest, variously, as “providing all the relevant evidence to a jury in the trial of a criminal case,” “prosecuting [Talbot] for rape and sexual assault of students in his charge,” and “upholding the rape laws.”