Hello, again, Chad.

In answering the questions, I want to issue a quick disclaimer. As I noted
before, all these cases are fact-driven. The difficulty in answering any
hypotheticals is that, as a matter of simple reality, no hypothetical ever
provides enough facts for a certain answer to be given. I would also note
that I am not admitted to practice in your state, so that you should not
consider my answers to be reliable for purposes of obtaining a legal opinion
on which you should rely. I believe I have the federal issues down pretty
well, however you should consult with someone in your area who knows this
field before making any decisions.

Your notes are provided, with my responses:

1. Affordable payment is provided to our counseling center for any
counselees, saved or unsaved, that are outside of our church body (ex: there
is a pooling agreement in which other churches pay to have our church
provide counseling for their members; the counseling is always done with an
elder present from the other church).  The counseling (the "Monday" sermon)
is part of the church's ministry and is easily shown by the church beliefs
and structure.

My response would be that you need to make sure that the "easily shown"
means "easily shown to a judge or jury," rather than "evident to us in the
church." If I were an elder there, I would propose at least the following:

    a.    That the church's statement of mission (or whatever such thing you
have) include counseling as a religious duty of the church, setting forth
specifically the reasons that you (as a church) believe this to be a
biblically mandated or biblically justified function. For example, is this
part of your "salt of the world" or "light of the world" concept of the
church's role in a lost society, or is it part of "evangelism" or "charity"?
If it is part of your ministry, then you need to explain why you charge for
the service, so as to make clear that you are not acting in order to obtain
a profit.

In this regard, one of the principal concerns of the courts is to prevent
churches from unfairly competing in secular affairs against secular
businesses. For example, a church that opens a "bookstore" is competing in a
business fashion against other bookstores. The law, therefore, can limit the
church's operations in regard to the bookstore, even if the church sees the
bookstore as part of its ministry. A good example of this was the Tony and
Susan Alamo case before the Supreme Court, which sets out the "competition"
reasoning quite well. The case can be found at
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=471&invol=290
and I strongly urge leaders of complex church organizations to be familiar
with it.

    b.    That all the printed materials make clear that your counseling is
"biblical" counseling, based in and arising from the theological convictions
of the church. In this regard, it needs to be clear that the "counseling"
would never (for example) include telling someone to do something that the
church considers to be sin. If possible, that is, if true, your materials
should make clear that your goal is not psychological wellness but spiritual
healing, restoration, holiness, etc., that is, matters of faith and practice
rather than of worldly ideas of men. Your practices should be consistent
with your beliefs.

    c.    That each person who comes to the counseling service is aware of
these rules and signs an acknowledgement that he or she understands that the
counselor is acting in accordance with and subject to the church, its
leaders, and its statement of faith and practice.

 It is these sort of elements that would substantiate your claim that this
is a ministry or (in other words) an outworking of the faith of the church
and its understanding of its role as God's people in the world.

2. What do you do with split households (one is a believer, the other not)?

    If you have done things similar to what is listed above, this matters
little. In light of 1 Cor. 7, it is clear that how a believer interacts with
his or her spouse is a fundamental spiritual issue as to which the church
has a legitimate role. If the unbeliever agrees to participate, then your
actions can certainly be seen as consistent with your role as shepherd to
the believing member, as well as assisting in the spiritual duty of the
spouse to be a godly witness to the unbeliever in his or her home.

3. We offer limited counseling to unbelievers as evangelism (or some might
call, in today's seeker friendly evangelicalism, pre-evangelism... :-)).
The sessions are terminated at the point it is determined that the
unbeliever will not submit to Christ as Lord... i.e. counseling will take
the unbeliever only so far before it's obvious only a band-aid will be
discussed and not the cure.  I suppose the question is whether or not that
waiver that everyone who walks into the center signs is enough to keep a
lawsuit like the one in the story at bay.

I would not at all count on a waiver, but, of course, it depends on the
language of the waiver. Some things cannot be waived and virtually nothing
can be waived "in advance." What I mean is that if someone signed a waiver
saying "I will not sue for anything done in the counseling session," but the
counselor later used the counseling session to beat the person, the waiver
would mean nothing. Likewise, if a psychologist had you sign a waiver before
treating you, and then committed malpractice, the waiver would be
meaningless.

On the other hand, an acknowledgement, signed by the client, which clearly
states that he or she knows that the counseling is biblical counseling, that
the counselors will be bound by scriptural directives and the beliefs of the
church, and that the church does not claim to be secular experts nor to rely
on secular methods would be very effective. It is not a "waiver," that is, a
document that gives up a right, but it is an "acknowledgement" which shows
that they knew what they were getting into and freely chose to get into it.
In most church settings, the waivers I have been given are of no legal
value, but an acknowledgement is often worth more than its weight in gold.


4.  Is the Matthew 18 process, without waivers or sign agreements from
members, the kind of a process that, in today's litigious society, is a
risky activity?  IOW, would the Matthew 18 process be considered "freedom of
religion"?

 This question illustrates the "fact-driven" nature of the inquiry. You ask
"would the Matthew 18 process be considered "freedom of religion"? The
answer is:  well, that depends on whether the religion of the person using
it mandates its use as a part of the person's religion. If a church
consistently preaches and teaches a particular version of Matthew 18 as the
biblically mandated way to handle a situation, and acts consistent with its
preaching and teaching, then the evidence would support a finding that
acting in that manner in a particular case was an exercise of religion.
However, if a church has not historically preached or taught Matthew 18 as
the way to handle a situation, and has not practiced Matthew 18 approaches
in the past, then the fact that they suddenly do this in a particular case
certainly raises questions about whether they were actually acting out of
religious belief. No waivers or agreements or covenants are important here.
What matters is whether the church has believed and practiced these things
consistently.

For example, if a pastor has historically ignored that process in a number
of cases (keeping secrets, not confronting people, etc.), but suddenly uses
that process in a particular case against a particular person, that person
might be permitted to proceed at law on the theory that the pastor's sudden
decision was not based in religion but in some other motive. For example, if
a "white" church had historically ignored Matthew 18, but suddenly uses
Matthew 18 as a mechanism to run a black employee out of the church (by
spreading accusations against him and confronting him and shunning him),
then a claim might well lie under 42 U.S.C. Sec. 1981. If the employee can
show that the church's beliefs did not compel the Matthew 18 approach, but
that he was fired because of his race, then the reference to Matthew 18
would not save the church at trial.

That is why I say that "be consistent" is the watchword. When challenged,
you must be able to show that your actions were in "exercise of your
religion." If they were, then you win. If they weren't, then you stand on
the same grounds as every other defendant in court.



James W. Allen
jallen@...