In regard to this whole matter, the central idea that must be kept in mind
is that what we refer to as "freedom of religion" is a "legal" concept,
defined by courts. Within our legal system, individuals have a range of
freedoms with respect to their religious faith, and "churches" have rights
that are derivative from the rights of the individuals. (What I mean is that
a "church", as such, has no rights. However, as a conglomeration of
individuals in agreement, the "church" partakes of the rights of the
individuals.)

The right to "free exercise of religion" guarantees to each individual the
right to "freely exercise" his religion, without unjustified interference by
the state. When any act becomes a matter of controversy, courts must examine
the act and the actor and determine whether, under the specific facts, that
act by that actor is an act in "exercise of religion."

As you can imagine, the analysis is very fact specific and fact-driven. What
constitutes a "free exercise of religion" for one person may not be a "free
exercise of religion" for another. A good example is the wearing of beards.
If a man is a member of a religion that requires a man to remain unshaven,
then the law cannot require him to shave. On the other hand, if a man's
religion does not require him to remain unshaven, but he just likes to have
a beard, then there is no "religious freedom" issue if he is required to
shave it off. Thus, a domestic police force may require all policemen to be
clean-shaven, but must also make allowance for those whose religion forbids
them to shave. A Sikh, for example, employed by a domestic police force,
could not be forced to shave or fired for not shaving.  For the Sikh, it is
a religious act, for the other man, it is just a preference.

In regard to counseling, the question in each case would be whether, under
the facts of that case, the counseling was a part of the "free exercise" of
the religious rights of the counselor. In the case at issue, it was
apparently his "vocation" outside of his ministry, that is, he performed
counseling for others, not within his religious tradition or the
requirements of his faith, but as a secular job. Therefore, the court held,
under those facts, his practice of counseling would not be an "exercise of
religion" and, therefore, the state's laws can limit his right to practice
by making him liable for malpractice. By separating his ministry from his
vocation, he makes clear that his vocation is not an exercise of religion.
In the same way, when I am driving to visit a parishioner (a religious
duty), I am not insulated from liability for negligent driving. If I drive
recklessly and hit a child while driving on a religious duty, I can still be
sued for reckless driving, because the "driving" was not part of the
religious duty, merely a secular thing I did in connection with a religious
duty.


On the other hand, if someone sued him for "bad preaching," the court would
immediately kick the suit out. Why? Because preaching is inherently a
religious activity.

In each case, the courts will examine a man's claim that his act was an
exercise of religion, and will broadly construe that term  in most cases,
but will not merely accept a man's word for it. If a man's life is
inconsistent with his claim, for example, the court may find the claim to be
invalid. An example of this occurred in Michigan, where a Methodist church
(if I remember correctly) hired a woman to be associate pastor. After some
years, a new pastor came to the church, who objected to a woman being
associate pastor. She was fired and sued for sex discrimination. The court
noted that the First Amendment absolutely protects a church's decisions in
regard to the religious qualifications for ministry and that, in most cases,
the First Amendment would prohibit such a suit. However, the court went on
to make a logical but really scary point. The court noted that if the
church's religious convictions prohibited a woman from being associate
pastor, then her claim would be barred. However, the court also noted that
the church's convictions did not, in fact, prohibit a woman from being an
associate pastor, as proven by the fact that the church hired her for the
job and let her keep it for years. Since the church's actions "proved" that
the gender issue was not disqualifying, then the church could not claim that
firing her because of her sex was an "exercise of religion" that was
constitutionally protected.

 The moral of the story:  Be consistent. If your testimony by actions is
inconsistent with your later claim to constitutional protection, the court
will not protect your inconsistent actions.

A church that is offering "counseling" needs to make absolutely clear that
its actions are a direct result of its religious convictions, that its
counseling is in line with and subject to the church's religious beliefs,
and that the counselors and their clients are aware of and agree with this
reality. The church should not offer counseling to unbelievers for pay
(because that is commercial activity, not religious activity). If the
counseling is part of the church's ministry, as shown by the church's
beliefs and structure, then the First Amendment will provide the maximum
protection possible.

But if a pastor has a side business of counseling, then he must be prepared
to accept the same standards and liabilities that other secular counselors
face.


James W. Allen
jallen@...