The Law and Church Counseling: Part Two—The Legal History and Climate
Note: You’re reading Part Two in a blog mini-series on The Law and Church Counseling. Read Part One. I’m summarizing material from chapter twelve of Equipping Counselors for Your Church. To learn more about the book, which is now available for pre-order, visit Equipping Counselors.
The Legal History
Before exploring specific wisdom principles, it’s helpful to gain a “lay of the land.” What is the recent history of the legal system and church counseling?
We can trace the current concern about church counseling and the law back over three decades to the case of Nally v. Grace Community Church of the Valley. On April 1, 1979, twenty-four-year-old Kenneth Nally committed suicide. Four years earlier, Ken had begun seeing a secular psychologist. In 1978, he began a discipleship relationship with one of the pastors at Grace Community Church.
The records show that in the two-month period between February 1979 and his death, Ken saw at least four physicians, one psychiatrist, a psychologist, and a psychologist’s assistant, and had several counseling sessions with pastors at Grace Community Church. Ken’s parents, Walter and Maria Nally, could have sued anyone who had seen their son over the few months prior to his death, but they chose Grace Community Church.
They charged among other things, wrongful death based upon “clergyman malpractice” and negligent counseling. They alleged that following a suicide attempt, the pastors “actively and affirmatively dissuaded [Ken] from seeking further psychological and/or psychiatric care.” Despite the records showing that the pastors encouraged Ken to keep his appointments with physicians and outside counseling professionals, the case went through the California court system twice before the Supreme Court of California exonerated the church in November 1988.
Levicoff explains that, “The key question was whether the pastors, as spiritual counselors, had a duty to refer Ken Nally to professional secular counselors to help prevent his suicide. The Court of Appeal ruled that ‘non-therapists [non-licensed] counselors—both religious and secular—have a duty to refer suicidal persons to psychiatrists or psychotherapists qualified to prevent suicides.’”
Levicoff continues, “In reversing the Court of Appeal, the state Supreme Court rejected the imposition of a broad ‘duty to refer,’ not only for the defendants, but for non-therapist counselors in general.” Addressing pastoral counselors specifically, the court stated:
The Legislature has exempted the clergy from the licensure requirements applicable to marriage, family, child and domestic counselors and from the operation of statutes regulating psychologists. In so doing, the Legislature has recognized that access to the clergy should be free from state imposed counseling standards and that the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations.
Expanding their holding to non-therapist counselors in general, the court noted:
By their very definition, non-therapist counselors are not professional medical experts on suicide. Their activities are undertaken pursuant to doctrines explicitly left unregulated by the state.
Levicoff concludes that, “The good news is that, in addition to religious counselors, the decision protects peer counselors….”
The Nallys appealed the case to the United States Supreme Court who refused to hear the case, thus allowing the California Supreme Court opinion to stand. Levicoff summarized his conclusions based upon this case and other case law:
Legally, Christian counseling falls under the general term spiritual or religious counseling and enters a realm that civil courts are neither prepared nor permitted to adjudicate. In terms of the law, the primary difference between spiritual and secular counseling is in the area of regulation. While secular counseling can be regulated by the government or licensing board, spiritual counseling deals with religious beliefs, and the courts are precluded from making value judgments at to the truth or falsehood of those beliefs.
The Legal Climate
Levicoff does not believe that Christians and churches should be naïve. He explains that the American Bar Association has sponsored a seminar called Tort and Religion. It was touted for “attorneys who want to be on the leading edge of an explosive new area of law.” The purpose of the seminar was, in effect, to train attorneys in how to sue churches.
Jay Quine, a lawyer, pastor, and seminary professor bluntly opines. “Law school professors are not your friends. They have one goal: to make you a shrewd layer. Lawyers are trained to think with one word: LAW! Law is competitive, cut-throat, brutal. Lawyers are different. They have no qualms about suing your church. The law is the law.”
Perhaps you are thinking, “Bob, if your goal is to reassure me, then I’m not sure it’s working.” My goal is not reassurance. My goal is wisdom. Wisdom requires that we face facts, that we not be naïve.
Churches are not immune from lawsuits. They can be sued for a divot in the parking lot that causes Aunt Sally to fall and break her hip, but the answer is not to eliminate all parking lots. The answer is to take care of our parking lot because we care about Aunt Sally. There is nothing any organization can do to guarantee they will never be sued. However, there is much that we can do to practice ethical and legal wisdom that seeks to do no harm and to do much good.
The Rest of the Story
Join us for Part Three as we learn biblical principles of caring carefully, specifically The Scope of Care: Communicating Honestly and Accurately about Your Ministry.
Join the Conversation
Given the legal history and the legal climate, are you scared off or motivated to act wisely?
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