                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 07a0374p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                     X
                             Petitioner-Appellant, -
 JANNISS VARNER,
                                                      -
                                                      -
                                                      -
                                                          No. 06-1255
          v.
                                                      ,
                                                       >
 CLARICE STOVALL,                                     -
                            Respondent-Appellee. N
                      Appeal from the United States District Court
                   for the Eastern District of Michigan at Ann Arbor.
                  No. 04-60210—Marianne O. Battani, District Judge.
                                             Argued: July 18, 2007
                                  Decided and Filed: September 11, 2007
      Before: GIBBONS and SUTTON, Circuit Judges; BECKWITH, Chief District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: James Sterling Lawrence, Royal Oak, Michigan, for Appellant. Debra M. Gagliardi,
OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: James
Sterling Lawrence, Royal Oak, Michigan, for Appellant. Janet A. VanCleve, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        SUTTON, Circuit Judge. A jury convicted Janniss Varner of assault with intent to commit
murder after she hired a third party to shoot her abusive boyfriend. In her federal habeas petition,
she claimed that the state courts (1) violated her rights under the Religion Clauses of the First and
Fourteenth Amendments by admitting into evidence several journal entries that included prayers and
an acknowledgment that she had tried to kill her boyfriend and (2) violated her Sixth and Fourteenth
Amendment rights by refusing to allow her to introduce evidence of Battered Women’s Syndrome
in support of her theories of self-defense and provocation. Because she has not shown that the state
courts unreasonably applied relevant Supreme Court precedent, we affirm the district court’s denial
of the petition.



         *
         The Honorable Sandra S. Beckwith, Chief United States District Judge for the Southern District of Ohio, sitting
by designation.


                                                           1
No. 06-1255           Varner v. Stovall                                                      Page 2


                                                 I.
        On November 27, 1995, Varner attempted to murder her abusive boyfriend, Alvin Knight,
by hiring a third party to kill him. Knight arrived at Varner’s mother’s home that morning to pick
up his young son. Varner’s mother told him to go to the garage, where a man came up from behind
Knight and “started shooting at him.” JA 196. Knight wrestled the gun away from the man and
turned it over to the police. Knight could not identify the shooter.
        Two-and-a-half years later, someone shot and killed Knight outside of his apartment
complex. Police searched Knight’s apartment for clues to the murder and uncovered Varner’s
journals linking her to the 1995 shooting. The journals identified the gunman of the 1995 shooting
and disclosed Varner’s responsibility for arranging the attempted murder. The journals also revealed
that Knight had raped, choked and abused her in the past and noted that, two days prior to the
shooting, “[h]e raped me and tied me up for three hours.” JA 226. Her entries also expressed her
wish that Knight had died in 1995, her lack of remorse for her actions and her determination to kill
him in the future. The entries often were addressed “Dear God,” see JA 122–28, sometimes
contained prayers of supplication and thanks, see JA 128 (“Lord, give me guidance and insight
concerning what I need to do . . . .”); JA 213 (“Lord I do thank you for helping me. God I thank you
for saving me and keeping me in my right mind.”), and in places expressed her disillusionment with
organized religion and church services, see JA 126–27.
        Varner was charged with and convicted of assault with intent to commit murder for her
involvement in the 1995 shooting. At trial, the court admitted into evidence excerpts from her
journals but denied her proffer of expert testimony on Battered Women’s Syndrome to support her
theories of self-defense and provocation and denied a mitigation instruction on provocation,
reasoning that theories of self-defense and provocation are not available in cases involving “hired”
third-party shootings. Varner received a sentence of 13 to 20 years’ imprisonment for her
conviction. The Michigan Court of Appeals affirmed her conviction and the Michigan Supreme
Court denied leave to appeal.
       After denying her federal habeas petition, the district court granted her a certificate of
appealability on two issues: (1) whether her rights under the Religion Clauses of the First
Amendment were violated when the state court admitted her private journal entries and (2) whether
her due-process right “to present a defense based upon provocation and self-defense was curtailed
improperly.” JA 120.
                                                 II.
        Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we may grant
Varner’s habeas petition only if the state court rulings were “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 529 U.S. 362, 404–05 (2000).
                                                 A.
        Varner argues that the state courts’ application of Michigan’s clergy-penitent evidentiary
privilege violated her rights under the Religion Clauses of the First (and Fourteenth) Amendment—
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof.” U.S. Const. amend. I. In doing so, she makes the following four-step argument. Step one:
Michigan has created an evidentiary privilege for religious communications. Step two: the privilege
applies only to religions that encourage their members to communicate with God through an
intermediary. Step three: this limitation discriminates among religions because it disfavors belief
systems in which individuals communicate directly with God. Step four: the solution to this First
Amendment problem is not to strike the privilege (which would not benefit Varner) but to extend
No. 06-1255            Varner v. Stovall                                                          Page 3


it to all religions, including those that do not use intermediaries, and thus to extend the privilege to
any journal entry that might be construed as a prayer to God.
        While we accept some of the premises of Varner’s argument, we cannot accept her
conclusion. A State, it is true, may not “enact[] laws that have the purpose or effect of advancing
or inhibiting religion,” Zelman v. Simmons-Harris, 536 U.S. 639, 648–49 (2002) (internal quotation
marks omitted); see McCreary County v. ACLU, 545 U.S. 844, 860 (2005). And a State, it is also
true, may not “officially prefer[]” “one religious denomination . . . over another,” Larson v. Valente,
456 U.S. 228, 244 (1982), a requirement that has roots in the Establishment and Free Exercise
Clauses, see id. at 244–45; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 531 (1993). But the clergy-penitent privilege was never designed to apply to private
journal entries, and the confinement of the privilege to its historic purposes does not offend these
or any other requirements of the Religion Clauses of the First Amendment.
        Recognized as early as the fifth century, the clergy-penitent privilege “originated” with the
“Catholic sacrament of Penance,” though it “fell into desuetude after the Reformation.” Cox v.
Miller, 296 F.3d 89, 102 (2d Cir. 2002). In the earliest known American case concerning the
privilege, a New York court recognized a nonstatutory privilege resting in the clergy person, who
is caught “between Scylla and Charybdis”: “If he tells the truth he violates his ecclesiastical oath—If
he prevaricates he violates his judicial oath . . . . The only course is, for the court to declare that he
shall not testify or act at all.” People v. Phillips (N.Y. Ct. Gen. Sess. 1813), reprinted in Privileged
Communications to Clergymen, 1 Cath. Law. 199, 201, 203 (1955); see Developments in the Law—
Privileged Communications, 98 Harv. L. Rev. 1450, 1556 (1985). Today every State has enacted
some form of the clergy-penitent privilege. 1 McCormick on Evid. § 76.2 (6th ed.). Although the
scope of the privilege varies from State to State, see Cox, 296 F.3d at 102, all States at a minimum
“require that the communications be made in private, with an expectation of confidentiality, to a
minister in his or her professional capacity as a member of the clergy.” R. Michael Cassidy, Sharing
Sacred Secrets: Is it (Past) Time for a Dangerous Person Exception to the Clergy-Penitent
Privilege?, 44 Wm. & Mary L. Rev. 1627, 1645 (2003) (citations omitted).
        Michigan has codified its clergy-penitent privilege, which appears in two statutes. One says:
“Any communications . . . between . . . members of the clergy and the members of their respective
churches . . . are hereby declared to be privileged and confidential when those communications were
necessary to enable the . . . members of the clergy . . . to serve as such . . . member of the
clergy . . . .” Mich. Comp. Laws § 767.5a(2). The other says: “No minister of the gospel, or priest
of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed
to disclose any confessions made to him in his professional character, in the course of discipline
enjoined by the rules or practice of such denomination.” Id. § 600.2156.
        One of the two statutes, section 767.5a, does not apply just to religious communications. By
its terms, it also applies to communications “between attorneys and their clients . . . and between
physicians and their patients.” Id. § 767.5a(2). The statute thus operates in secular and sectarian
settings linked by a common purpose—the everlasting need of the individual to seek spiritual and
worldly assistance from others on a confidential basis. See Trammel v. United States, 445 U.S. 40,
51 (1980) (“The privileges between priest and penitent, attorney and client, and physician and
patient . . . are rooted in the imperative need for confidence and trust.”); In re Grand Jury
Investigation, 918 F.2d 374, 383 (3d Cir. 1990) (“[T]he privilege protecting communications to
members of the clergy, like the attorney-client and physician-patient privileges, is grounded in a
policy of preventing disclosures that would tend to inhibit the development of confidential
relationships that are socially desirable.”).
       Just as the clergy-penitent privilege protects “the human need to disclose to a spiritual
counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to
No. 06-1255            Varner v. Stovall                                                           Page 4


receive priestly consolation and guidance in return,” Trammel, 445 U.S. at 51, so the “[t]he lawyer-
client privilege rests on the need for the advocate and counselor to know all that relates to the
client’s reasons for seeking representation if the professional mission is to be carried out,” id., and
so “the physician must know all that a patient can articulate in order to identify and to treat disease,”
id. “[B]arriers to full disclosure” in all three settings—including the barrier that would arise if the
counselor could be called upon to testify against the counseled—would undermine the values served
by these time-honored relationships. Id.
        In view of this function of the privilege, neither Michigan nor any other State (to our
knowledge) treats the clergy-penitent privilege as a broad cloak protecting all religious
communications. See Mich. Comp. Laws § 600.2156 (requiring the communication to be made to
clergy in his or her “professional character”); id. § 767.5a(2) (requiring a “communication[]
between . . . members of the clergy and the members of their respective churches . . . when those
communications were necessary to enable the . . . members of the clergy . . . to serve as” clergy);
see also Cassidy, supra, at 1645 (“All states require that the communications be made in private,
with an expectation of confidentiality, to a minister in his or her professional capacity as a member
of the clergy.”) (citations omitted). Because the objective of the privilege is to protect the “human
need” to place “total and absolute confidence” in a spiritual counselor without risk that the law will
extract those confidences from the counselor, the Michigan Court of Appeals had ample reason to
hold that privilege does not apply to “private writings.” People v. Varner, No. 224865, 2002 WL
741531, at *1 n.1 (Mich. Ct. App. Apr. 23, 2002). The privilege requires the communication to be
directed to a member of the clergy—just as the other privileges require the communication to be
directed to an attorney or doctor—because it is the clergy who may be subpoenaed to testify against
the individual. The same possibility does not exist with private writings to God, who may be
petitioned but never subpoenaed.
          Cox v. Miller, 296 F.3d 89 (2d Cir. 2002), reached a similar conclusion in construing New
York’s clergy-penitent privilege. Cox argued that statements to other members of Alcoholics
Anonymous should have been suppressed under New York’s clergy-penitent privilege and claimed
“that New York’s privilege officially discriminates against the ‘religion’ of A.A.” Id. at 101. It was
not necessary, the Second Circuit explained, to decide whether the Establishment Clause applies to
communications between members of A.A. because the communications failed to meet a threshold
requirement under state law: Cox did not speak with other members “‘for the purpose of obtaining
spiritual guidance’” but “primarily to unburden himself, to seek empathy and emotional support,
and . . . practical guidance.” Id. at 111 (quoting state law). Cox thus held that the privilege did not
extend to all religious communications, just those consistent with the traditional purpose of the
privilege.
          Varner does not argue that a privilege for communications between a spiritual counselor and
a congregant improperly advances religion, presumably because that argument would not help
Varner. The prototypical way to remedy a law that unconstitutionally advances religion in general
is to strike the law, not to extend it so that it advances other religions. See, e.g., Bd. of Educ., Kiryas
Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 710 (1994) (striking down state statute that carved
out a special school district to serve a religious enclave); Texas Monthly v Bullock, 489 U.S. 1, 17
(1989) (plurality opinion) (striking down a sales-tax exemption for religious periodicals); see also
County of Allegheny v. ACLU, 492 U.S. 573, 602 (1989) (enjoining the display of a creche rather
than expanding the display); Wallace v. Jaffree, 472 U.S. 38, 61 (1985) (striking down a moment-of-
silence statute). What Varner argues is something different—that the law improperly favors
religions that encourage their members to seek guidance through intermediaries, such as a pastor or
priest, over faiths that have no such tradition.
        The confinement of the privilege to its traditional function, however, does not favor some
religions over others. No matter what form of faith an individual practices, the privilege does not
No. 06-1255            Varner v. Stovall                                                           Page 5


protect journal entries, whether addressed to God or not. If a Catholic confesses to a priest and
proceeds to repeat everything she said in confession in “Dear God” entries in her journal, the
privilege protects only the first communication, not the second one. See Mich. Comp. Laws
§ 600.2156 (requiring the communication to be made to a cleric in his or her “professional
character”); id. § 767.5a(2) (requiring a “communication[] between . . . members of the clergy and
the members of their respective churches”) (emphasis added); cf. Mullins v. State, 721 N.E.2d 335,
338 (Ind. Ct. App. 1999).
        Nor can Varner tenably maintain that this limitation on the privilege restricts her ability to
practice her faith. Journal writings do not represent the only way she may communicate with God,
even if she remains a skeptic when it comes to organized religion. Like members of any faith, she
remains free to let life’s challenges take her to her knees—and seek God’s guidance and comfort in
the most common and commonly accepted form of prayer.
        Neither is it the case that a State discriminates against every individual who fails to meet a
statutory requirement for a religious benefit. A person of faith who like Varner chooses not to join
an organized religion cannot complain that the State’s and Federal Government’s tax exemptions
for property held by religious institutions and other non-profit organizations discriminate against
her—even though her faith will not benefit from the exemptions. See Walz v. Tax Comm’n, 397 U.S.
664, 680 (1970) (holding that such exemptions do not violate the Establishment Clause). Nor can
parents of children who attend public schools with “release time” programs—which allow students
to leave school to attend religious classes—complain that the programs discriminate against them
simply because they do not subscribe to a denominational faith that offers such classes. See Zorach
v. Clauson, 343 U.S. 306, 312–15 (1952); cf. Arlan’s Dept. Store v. Kentucky, 371 U.S. 218 (1962)
(per curiam).
        Varner does not alter this conclusion by invoking cases standing for the general proposition
that the Establishment Clause mandates government neutrality in religious practice. See, e.g.,
Epperson v. Arkansas, 393 U.S. 97, 103–04 (1968) (“Government in our democracy, state and
national, must be neutral in matters of religious theory, doctrine, and practice.”) (invalidating state
law that restricted the teaching of evolution theories that conflicted with the Bible); see also Sch.
Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 215–17 (1963) (prohibiting public schools from
requiring morning prayer and Bible readings as part of the curriculum); Everson v. Bd. of Educ., 330
U.S. 1, 15–18 (1947) (upholding state law that provided free transportation to students of public and
parochial schools). The decision of Michigan not to extend the privilege to private writings, as we
have shown, is neutral. Whether a Protestant, Muslim or Atheist pens the journal entries, the State
does not protect them. Whether the content of the journal entries is deeply spiritual, agnostic or
thoroughly nihilistic, the state does not protect them. Whether Mother Teresa, C.S. Lewis, Ayn
Rand or Janniss Varner authors the entries, the State does not protect them. Epperson, Schempp and
Everson, in short, do not begin to reach “conduct of the kind involved here” and therefore the state
court was not unreasonable in failing to extend their holdings to the clergy-penitent privilege. See
Carey v. Musladin, 127 S. Ct. 649, 654 (2006).
         Varner’s analogy to Larson v. Valente, 456 U.S. 228 (1982), does not help. Observing that
the Establishment Clause prohibits “one religious denomination” from “be[ing] officially preferred
over another,” id. at 244, Larson held that a reporting and registration requirement unconstitutionally
favored established religious denominations over non-established denominations through a “fifty
percent rule” that exempted religious organizations that receive more than half of their total
contributions from members, id. at 246–55. Varner argues that the clergy-penitent privilege
similarly favors institutionalized religions that use intermediaries in their worship over religions that
do not. But, as we have shown, this privilege applies in secular and sectarian settings and restricts
all religions from obtaining a benefit for private spiritual (or for that matter private secular) writings.
Rather than “focus[ing] precisely and solely upon religious organizations,” id. at 246 n.23 (emphasis
No. 06-1255           Varner v. Stovall                                                         Page 6


added), the privilege provides a limitation on the manner in which an individual of any religious
denomination may seek spiritual guidance and still retain the confidentiality of the communication.
         The better analogy is to Gillette v. United States, 401 U.S. 437 (1971), which upheld a
federal law affording conscientious-objector status to those who object to all wars (e.g., Quakers and
Mennonites) but not to those who object to particular wars (e.g., Roman Catholics, who object only
to “unjust” wars). Id. at 441. The law did not discriminate between religious denominations
because it permissibly “focused on individual conscientious belief, not on sectarian affiliation.” Id.
at 454. Like the conscientious-objector statute, Michigan’s privilege rules do not discriminate
between denominations but distinguish between the methods of communication that the
individual—any individual of any faith or no faith—chooses to pursue. Michigan courts did not
unreasonably apply Larson and Gillette in declining to extend the clergy-penitent privilege to this
setting.
                                                  B.
        Varner also challenges the state court’s refusal to permit her to introduce certain evidence
of self-defense and provocation, contending that the restrictions violated her Sixth and Fourteenth
Amendment rights to present a defense. Her principal concern is that the state courts refused to
allow evidence of Battered Women’s Syndrome in a murder-for-hire situation and refused to allow
her to submit a mitigation instruction on provocation.
         “[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense,” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks omitted);
see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973), including the right “to present relevant
evidence . . . subject to reasonable restrictions,” United States v. Scheffer, 523 U.S. 303, 308 (1998);
see also Washington v. Texas, 388 U.S. 14, 23 (1967). In subjecting this guarantee to “reasonable
restrictions,” the right must “bow to accommodate other legitimate interests in the criminal trial
process.” Scheffer, 523 U.S. at 308. One such interest is this: “[S]tate and federal rulemakers have
broad latitude under the Constitution to establish rules excluding evidence from criminal trials” so
long as the rules do not “infring[e] upon a weighty interest of the accused” and are not “arbitrary or
disproportionate to the purposes they are designed to serve.” Id. (internal quotation marks omitted).
In view of the imperative of preserving federal-state comity, federal courts will not step in to
override a State’s application of its own evidentiary rules unless the State “offends some principle
of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
See Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (internal quotation marks omitted).
                                                  1.
         Any right to present a theory of self-defense requires at a minimum that the theory be
“supported by the evidence,” Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002), which under
Michigan law requires the defendant to show that she “honestly and reasonably believes that [her]
life is in imminent danger or that there is a threat of serious bodily harm,” People v. Heflin, 456
N.W.2d 10, 18 (Mich. 1990) (emphasis added); see Barker v. Yukins, 199 F.3d 867, 875–76 (6th Cir.
1999) (holding that a court’s refusal to provide a self-defense instruction under Michigan law
violated petitioner’s rights where she murdered a man to resist an imminent rape). In this case, the
Michigan courts determined that, when an individual hires a contract killer, the evidence does not
support a defendant’s belief that she was “in imminent danger or that there is a threat of serious
bodily harm.” “[S]elf-defense,” the courts concluded, “is not available to repel a potential force.”
Varner, 2002 WL 741531, at *1; cf. Lannert v. Jones, 321 F.3d 747, 755 (8th Cir. 2003) (upholding
trial court’s refusal to instruct the jury on self-defense where a daughter killed her abusive father in
his sleep because the father was not the initial aggressor and therefore the elements of self-defense
were not met). Much as we sympathize with Varner’s plight, we must conclude that the confinement
No. 06-1255           Varner v. Stovall                                                       Page 7


of self-defense instructions to cases of “imminent danger” does not unreasonably apply Supreme
Court precedent, and neither does the state courts’ conclusion that a scheme to hire a contract killer
does not involve such an imminent danger.
                                                  2.
         As is the case with self-defense, a court is required to permit a theory of provocation only
if the theory is material to the dispute. See Scheffer, 523 U.S. at 308. Varner argues that admitting
evidence of, and permitting an instruction on, provocation would have negated the requisite intent
for assault with intent to commit murder. See People v. Pouncey, 471 N.W.2d 346, 349–50 (Mich.
1991); People v. Lipps, 421 N.W.2d 586, 590 (Mich. Ct. App. 1988). Michigan defines provocation
as “that which causes the defendant to act out of passion rather than reason” and requires that the
provocation be “adequate”—which is to say, it must “cause a reasonable person to lose control.”
People v. Sullivan, 586 N.W.2d 578, 582 (Mich. Ct. App. 1998) (internal quotations and emphasis
omitted).
        The Michigan courts acted reasonably when they held that Varner, in hiring a contract killer,
did not “act out of passion” based on an event that would “cause a reasonable person to lose
control.” Cf. Arreola v. Garcia, 43 F. App’x 130, 130 n.1 (9th Cir. July 30, 2002). Whether it is a
question of self-defense or a question of provocation, Varner fails to explain why an individual who
faces a nonimminent threat is not just as capable of calling the authorities as of hiring a contract
killer. Allowing the state courts to define the scope of provocation in this way was not “arbitrary
or disproportionate,” did not “infringe[] upon a weighty interest of the accused,” Scheffer, 523 U.S.
at 308 (internal quotation marks omitted), and did not violate a right that is “so rooted in the
traditions and conscience of our people as to be ranked as fundamental,” Egelhoff, 518 U.S. at 43.
The Michigan Court of Appeals’ decision therefore was not contrary to or an unreasonable
application of clearly established Supreme Court precedent.
                                                 III.
       For these reasons, we affirm.
