• Key point 3-08.09. Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.
The Clergy-Penitent Privilege
• Key point 6-10.2. According to the minority view, the civil courts may engage in “marginal review” of disputes involving the discipline of a church member, in a few limited circumstances if they can do so without inquiring into religious doctrine or polity. For example, a few courts have been willing to review membership dismissals in one or more of the following limited circumstances: (1) the church interfered with a member’s civil, contract, or property rights; (2) the disciplining body lacked authority to act; (3) the church failed to comply with its governing documents; (4) the church’s decision was based on fraud or collusion; or (5) interpretation of contested terminology in the church’s governing documents.
* A Texas court ruled that a woman could sue a pastor for disclosing confidential information she had provided to him in the course of a counseling relationship in which the pastor allegedly was providing “secular” marital counseling in his role as a licensed professional counselor. A church was organized as a “Christ-centered church” operating according to biblical principles and practices as described in its statement of faith and constitution. The church’s constitution requires members to abide by the following disciplinary policy:
We believe that one of the primary responsibilities of the church is to maintain the purity of the Body. We are directed by God to be holy. In recognition of this obligation, the elders will biblically and lovingly utilize every appropriate means to restore members who find themselves in patterns of serious misconduct. When efforts at restoration fail, the elders will apply the biblical teaching on church discipline, which could include revocation of membership, along with an appropriate announcement made to the membership (Matthew 18:15-17; 1 Corinthians 5:1-5; Galatians 6:1, 2; 2 Thessalonians 3:6). No accusation shall be brought against any member except upon the testimony of two or three witnesses.
The constitution also provided that when a member engages in a “pattern of conduct which visibly violates Biblical standards, or which is detrimental to the ministry, unity, peace, or purity of the church, and such member remains unrepentant, the elders will follow our Lord’s instructions from Matthew 18:15-20. If the member remains unrepentant and chooses not to resign, such member will be removed from membership. This action will be announced to the congregation at the first appropriate Sunday service thereafter. The goal of such discipline will be to encourage repentance and restoration of fellowship with the Lord and His people.”
A female church member (Denise) separated from her husband due to marital difficulties. She and her husband received counseling from the pastor (who, in addition to being a pastor, was a licensed professional counselor), but these efforts were unsuccessful, and the couple obtained a divorce. Denise later informed the pastor that she was resigning her church membership. The pastor and board later wrote a letter to the church membership stating that Denise had no “biblical basis for divorce” and had engaged in a “biblically inappropriate” relationship with another man. The letter stated that the church’s actions were a “painful consequence that our Lord commands to bring her back to the Lord in a full sense and back to her family who deeply loves her.” The letter also encouraged members to “shun” Denise in order to bring about repentance and restoration to the church.
Denise sued the church, pastor, and board members, claiming that their actions amounted to defamation, breach of fiduciary duty, invasion of privacy, and emotional distress. She also claimed that the pastor had provided “secular” counseling advice to her in his role as a licensed professional counselor, and had committed “professional negligence” by disclosing to third parties (including the church board) highly confidential information she had shared during counseling.
The church defendants claimed that the lawsuit was an “ecclesiastical dispute concerning an intra-church disciplinary matter” which a civil court could not resolve without violating the first amendment guaranty of religious freedom. The trial court agreed with the church defendants and dismissed the lawsuit. Denise appealed, but only with respect to her claims against the pastor.
The appeals court acknowledged that the first amendment prohibits civil courts from “intruding into the church’s governance of ‘religious’ or ‘ecclesiastical’ matters, such as theological controversy, church discipline, ecclesiastical government, or the conformity of members to standards of morality.” However, it noted that the first amendment “has never immunized clergy or churches from all causes of action alleging wrongful conduct,” and it “does not necessarily bar all claims which may touch on religious conduct.” The court rejected the pastor’s claim that Denise’s lawsuit had to be dismissed because it focused on the disciplinary process of the church:
Denise’s lawsuit alleges facts and conduct independent of the church’s disciplinary process, which if taken as true, support her complaints that the pastor was negligent in providing her secular professional counseling …. We conclude that she pled a viable claim involving the pastor’s alleged breach of duty in his secular counseling role that does not implicate the propriety of the church’s disciplinary action. Thus, her professional negligence claim does not require a judicial review of such issues as the decision to discipline her, whether the pastor followed the church constitution in disciplining her, or how to properly interpret the statement that she “engaged in a biblically inappropriate relationship with another man.” Instead … [the jury] will resolve such issues as whether the pastor obtained confidential information from Denise while in the context of a secular counseling relationship and whether, without obtaining proper consent, he disclosed such information to outside parties.
Application. This case is important for two reasons.
1. It illustrates that ministers who are also licensed counselors may be held to a stricter standard of liability for their actions to the extent that their counseling in a particular context can be described as “secular” in nature.
2. The case suggests that ministers who disclose confidential information obtained from a counselee in the course of a counseling relationship, and without the counselee’s consent, may be exposing themselves to legal liability, especially if they are licensed counselors.
3. The case demonstrates that the first amendment is not necessarily a bar to all claims brought against churches and ministers by disciplined members. While claims involving the disciplinary process and decision will be barred according to most courts, this is not necessarily true with respect to claims having nothing to do with the disciplinary process and not requiring a court to examine church doctrine or polity. Penley v. Westbrook, 146 S.W.3d 220 (Tex. App. 2005).
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