• Key point. Police chaplaincy programs may be constitutionally permissible if the chaplains are volunteer clergy who serve without pay, and the program is open to volunteers of all faiths.
A Washington state appeals court ruled that a county sheriff’s chaplaincy program was constitutionally permissible so long as certain safeguards were followed. Prior to 1984, deputy coroners and deputy sheriffs in Pierce County, Washington, gave death notifications to the next of kin of deceased persons. Deputy sheriffs also provided crisis intervention to victims of violent crimes and to their families. Neither the coroners nor the sheriffs were trained to handle these responsibilities or to cope with the stresses of these tasks. Uniformed sheriff’s deputies also suffered emotional and psychological problems caused by their daily exposure to violence and tragedy in performing their duties. In 1984 the Pierce County Sheriff’s Department contracted with an organization called the Tacoma Pierce County Chaplaincy (TPCC) to provide the following services to sheriff’s department employees and to crime victims and their families: (1) 24 hour crisis intervention for deputies; (2) 24 hour crisis intervention and victim counseling for victims of violent crime and their families, as well as liaison duties between them and the sheriff’s department; and (3) death notifications and counseling for citizens and sheriff’s department employees. The chaplaincy organization (TPCC) is described as “a private non—profit and non—sectarian Christian ministry made up of ministers or lay—ministers qualified in crisis intervention and holding beliefs as divergent as Catholics and Quakers, Lutherans and Assemblies of God.” TPCC provides crisis intervention services for ten other public agencies in addition to the Pierce County sheriff’s department, including the Washington State Patrol. TPCC has one full—time paid employee who trains, coordinates and supervises volunteer chaplains who provide crisis intervention services on a 24 hour basis to the sheriff’s department and to the office of the medical examiner. Seventeen volunteer chaplains served in the chaplaincy program from 1984 through 1990. Sixteen were affiliated with Christian denominations. TPCC requires that a volunteer chaplain be a pastor of a local congregation, “credentialed,” willing to receive training, and able to relate to people in law enforcement and in crisis. Currently, all volunteer chaplains are from Christian churches because, according to the TPCC director only a small minority would want a non—Christian chaplain, the current chaplains are a compatible group, and the chaplaincy is a “Christian ministry.” In 1991 TPCC and the county entered into a contract calling for TPCC to provide volunteer, unpaid chaplains in crisis intervention situations on behalf of law enforcement personnel and crime victims and their families and in addition to provide death notifications and counseling. The contract prohibits TPCC from discriminating against any applicant on the basis of race, sex, color, creed, age, or handicap.
The county does not pay any compensation to volunteer chaplains, but it does provide the following benefits: (1) an office; (2) a car; (3) uniforms and bullet—proof vests; (4) police radios; (5) a computer; (6) mileage reimbursements; (7) miscellaneous supplies and equipment; and (8) accidental medical insurance and liability insurance. The cost to the county of these benefits has fluctuated between $1,000 and $5,000 per year. The county has acknowledged that it could not afford to purchase the services now provided free of charge by the volunteer chaplains.
Chaplains discuss spiritual needs with persons in crisis, but only if they request such counseling when asked by the chaplain. Such counseling occurs in about 15 percent of all cases. Chaplains are trained to respect the religious traditions of all people, and not to promote the doctrines of their own churches. The county has never received a complaint regarding the religious conduct of any chaplain.
A taxpayer filed a lawsuit challenging the constitutionality of the chaplaincy program. A trial court dismissed the lawsuit, and the case was appealed. The appeals court agreed that the program might be constitutional under the state and federal constitutions, but it sent the case back to the trial court to be sure that a few safeguards were in place. The court conceded that the county had not “appropriated” funds or property for religious purposes. Rather, funds had been appropriated for a “secular chaplaincy program that provides crisis intervention and counseling ….” The court continued:
The volunteer chaplains engage in religious worship, exercise or instruction. The record discloses that they pray, read scripture, and occasionally “share” about Jesus or “share” the Gospel. But the uncompensated volunteer status of the chaplains is crucial in resolving the application of [the state constitution] to this program. Public funds are used, employed or devoted to a constitutionally permissible crisis intervention and counseling program. Pierce County does not require the chaplains to offer religious worship, exercise or instruction, and does not compensate the chaplains any differently whether or not religious services are offered. The chaplains volunteer their own time, and no public funds pay their salary while they engage in any religious activities. Nor is there any indication in this record that this program was established for the purpose of, or in order to facilitate, religious worship, exercise or instruction. Pierce County appears to be indifferent whether such services are offered. Accordingly, we hold that public funds are not used, employed, or devoted to religious worship, exercise or instruction.
The court referred to the “unrebutted evidence that psychiatrists treating persons in crisis must recognize that Americans are profoundly religious. A recent Gallup poll reports that ninety—four percent of all Americans profess to believe in God, and that eighty—one per cent of the religiously active believe in life after death.” The American Psychiatric Association has adopted guidelines which state in part: “It is useful for clinicians to obtain information on the religious or ideologic orientation and beliefs of their patients so that they may properly attend to them in the course of treatment.”
The court concluded that
Volunteer chaplains may inquire whether a person in crisis has spiritual or religious needs. Inquiries about religion do not constitute religious worship, exercise or instruction. If the person expresses spiritual or religious needs, the chaplains may attend to those needs if they deem themselves qualified, or may refer the person to another spiritual or religious counselor.
A volunteer chaplain’s appropriate response to expressed religious needs does not constitute the application of public money to religious worship, exercise or instruction. First, secular psychiatrists recognize that such a response constitutes appropriate counseling without regard to religious exercise or worship. Second, no public money is expended for the religious worship or exercise apart from the totality of the crisis response program as a whole. The volunteer chaplain is not paid for the time spent counseling the person in crisis, and Pierce County does not expend any more or less money when the person expresses a religious need. Third, a contrary rule would honor form over substance and would fly in the face of common sense. We will not require a volunteer chaplain who is faced with an expressed spiritual need to discontinue counseling and to break off the encounter, perhaps returning later in an “unofficial” capacity as a clergyperson to respond appropriately to the person in crisis. Crises are not susceptible to such arbitrary and pointless distinctions.
The court rejected the argument “that the chaplaincy program is unconstitutional simply because Pierce County has contracted with a religious organization.” Any other conclusion “would evidence an affirmative hostility toward religion, a hostility which is not required under the state constitution.”
However, the court felt there were a few questions that needed to be answered before it could conclusively rule that the chaplaincy program was constitutional, and it sent the case back to the trial court in order to obtain answers. These questions included the following: (1) Do chaplains offer “unsolicited religious counsel” or do they limit themselves to determining the spiritual needs of a person in crisis and to offering religious guidance only when the person expresses a spiritual need? (2) Does the county send letters soliciting financial support for TPCC? (3) Does TPCC accept applicants for volunteer chaplaincy positions without regard to their religious affiliation, as required by its contract with the county? Maylon v. Pierce County, 903 P.2d 475 (Wash. App. 1995). [ The Establishment Clause]
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