Thanks for the legal analysis James.

It's a bit scary to hear, given that fallen sinners, regardless of their
religious convictions, are rarely able to act consistently within the
bounds of their belief.



-----Original Message-----
From: James W. Allen [mailto:jallen@...]
Sent: Monday, June 28, 2004 8:48 PM
To: soundofgrace@...
Subject: Re: [soundofgrace] Court: Pastor with counseling training was
woman's "secular counselor"


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@...

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