(dissenting, with whom Spina and Cowin, JJ., join). I concur in Justice Spina’s view that, in employing the balancing test to analyze the free exercise claim asserted here, the court minimizes the chilling effect the subpoena at issue will have on the ability of the Society of Jesus of New England (Jesuits) to conduct internal inquiries into the fitness of its priests for ministry service. I write separately to express my view that the “specific State interests at stake,” ante at 671, do not, in the circumstances of this case, present a compelling State interest in obtaining church records documenting communications between James F. Talbot and his superiors regarding his service and future as a priest.
There is no doubt that the Commonwealth has a compelling interest in prosecuting sexual assaults committed by adults, and particularly assaults committed by teachers on the students with whose care they are entrusted. There is, however, no claim here that such a prosecution will be thwarted without access to these otherwise confidential communications, nor could there be. To the contrary, the Commonwealth conducted its criminal investigation of Talbot, apparently with the cooperation of the Jesuits to the extent such cooperation did not threaten to impair its function as a religious establishment, and that investigation resulted in the return of the indictments now pending in Suffolk County. The subpoenaed documents were obviously not necessary to the investigation, and no claim has been made that the Commonwealth’s case depends on them or that the trial cannot take place without them.
The Commonwealth has subpoenaed the questioned documents in the hope that there might be an admission somewhere within them that it can use as added evidence at trial. If there is none, the case will not be dismissed, and will presumably be based, as most criminal cases are, on the testimony of witnesses, including any alleged victims of the charged sexual assaults. If Talbot made incriminating or inconsistent statements to police, other teachers, students, or parents, such evidence will also be admissible. The Commonwealth, understandably, will always want to know if there is more evidence it might *684obtain, but that does not make its ambition to get access to any possible evidence, necessary to the fulfilment of the Commonwealth’s “compelling interest” to prosecute certain types of crimes, nor does it make obtaining the additional evidence a “compelling interest” in and of itself.1 What is compromised, on the other hand, lies close to the heart of the “methods chosen [by the Jesuits] to foster and preserve their relationship within a religious order,” ante at 670, the requirement that Jesuit priests make honest disclosures to their superiors.2
Today’s environment has been poisoned by a sexual abuse scandal of unimaginable proportions, that some officials of the Roman Catholic church attempted for decades to keep hidden from public view. In this environment, it is understandable that any claim regarding the need for confidentiality in communications between priests and their religious superiors would be looked on with a jaundiced eye. Efforts underway both from within and without the church have begun to assess and remedy what went wrong.3 As a court, we must not allow the terrible circumstances of today to undermine the important principle of religious freedom for tomorrow. In the absence of a need more compelling than the Commonwealth has demonstrated here, I would conclude that to the extent the subpoena seeks documents regarding communications between a Jesuit priest and his superior, made or required for the purpose of disciplining or assessing that priest’s fitness for present or future ministry, it exceeds the bounds of the constitutional protections afforded religious organizations and should be quashed.
his is not a case where the communications between Talbot and his superiors are themselves part of the criminal conduct. Nor is this a case where an integral element of a criminal act or scheme cannot be proved without the information sought. A different case might be presented if this were a criminal prosecution for the failure to report child abuse as required by G. L. c. 119, § 51 A, where proving the existence and receipt of the information recorded in the documents was necessary to proving the offense.
It is not contended that this requirement is the product of anything other than religious belief and practice: we are not confronted with methods or procedures adopted solely for the purpose of frustrating the Commonwealth’s legitimate interest in prosecuting criminal conduct.
See, e.g., St. 2002, c. 107, amending G. L. c. 119, § 51A, that adds various church officials to the list of mandatory reporters of abuse.