Clergy Participation in Court-Ordered Counseling

Fri Jan 25 16:59:16 PST 2002

I believe the quick answer to Alexander's question is that the state would
be limited to subjecting all counselors to regulations and criteria that
transcend the distinction between pastoral and non-pastoral approaches.  In
other words --- to use an analogy --- to ask not whether someone prays over
the soup at a soup kitchen, but instead whether $500 of government money
for the hungry buys $500 worth of soup.  Of course, this *is* the quick
answer, because I assume Alexander wants to know how the government will
know for sure that the soup (pastoral counseling) is good soup (effective
counseling).  I do not think this is an easy question to answer, but I
believe we've seen it before.  For example, we may not know if a parochial
school teaches reading and writing well, but we can make the school's
participation in a school choice program contingent upon its students'
continued strong performance on standardized tests.  On this view, a
pastoral counselor whose clients consistently relapse in drug abuse, etc.,
would be excluded from the program.  We could also insist that pastoral
counselors obtain whatever certificate is appropriate for their
denomination.  I recognize that this would leave out non-denominational
pastoral counselors --- but again, this problem is already encountered in
other contexts --- for example, in the context of who can perform a marriage.

At 02:16 PM 1/25/2002 -0700, you wrote:
>My question was a bit vague.  I was not suggesting that the state might
>credit only spiritual counseling by clergy, to the exclusion of
>non-spiritual counseling by clergy.  Rather, I intended to inquire whether
>it would change the analysis if the state counted spiritual counseling (by
>clergy) on an equal footing with secular counseling (by clergy).  Just as
>in the charitable choice context, the state presumably has an interest in
>ensuring that the desired secular benefit (here, counseling that helps to
>alter socially improper behavior) is delivered.  Can it ensure that
>without excessive entanglement when clergy are delivering the counseling,
>or is the state faced with a take-it-as-it-is-or-leave-it situation?
>
> >>> psalaman at UKY.EDU 01/25/02 01:28PM >>>
>If a state "credited" spiritual counseling but not secular counseling,
>would it not be unconstitutionally discriminating in favor of religion?  At
>least one court has held that court-ordered alcohol treatment cannot be
>limited to AA.  Also, assuming such discrimination would violate the
>Constitution, would it not follow that the state would have no legitimate
>reason to monitor counseling to ascertain its religious or non-religious
>character?
>
>Actions for malpractice are designed primarily to protect patients.  On
>this view, a patient who chooses spiritual counseling, knowing that an
>action for malpractice will not lie, is not subjected to an involuntary
>burden.  Of course, ascertaining whether the counseling is pastoral or not
>would call for some monitoring, albeit by way of discovery.  But this
>problem must already exist in jurisdictions that do not allow malpractice
>actions against pastoral counselors, unless I'm missing something.
>
>At 07:56 AM 1/25/2002 -0700, you wrote:
> >Does the analysis change if the state credits spiritual counseling by
> >clergy as opposed to secular counseling by clergy?  To what extent can the
> >state monitor whether the counseling is spiritual or secular?  As you
> >know, some courts have held that if the counseling is secular in nature
> >(e.g., secular marriage counseling), the cleric can be held liable for
> >malpractice or breach of fiduciary duty, whereas if it is spiritual he/she
> >cannot be held liable under those theories since there is no legal
> >standard for good spiritual counseling.
> >
> > >>> davideguinn at YAHOO.COM 01/24/02 04:41PM >>>
> >It strikes me that this is simply a variation on the various charitable
> >choice laws and programs.  It simply allows religious providers
> >(clergy/couselors) to provide social services.
> >
> >
> >----- Original Message -----
> >From: "Rick Duncan" <conlawprof at YAHOO.COM>
> >To: <RELIGIONLAW at listserv.ucla.edu>
> >Sent: Thursday, January 24, 2002 1:53 PM
> >Subject: Re: Clergy Participation in Court-Ordered Counseling
> >
> >
> > > I agree with Paul. The state's interest is in ensuring
> > > that the person receive counseling and treatment. The
> > > viewpoint of the treatment (secular or religious)
> > > should be a matter of private choice, not governmental
> > > coercion. At a minimum, it should be *permissible* for
> > > the state to allow the patient to determine whether to
> > > seek religious or secular counseling. The private
> > > choice feature of the law ensures that the govt. is
> > > neither endorsing religion nor coercing religious
> > > participation.
> > >
> > > Cheers, Rick Duncan
> > >
> > > --- Paul Salamanca <psalaman at UKY.EDU> wrote:
> > > > This provision strikes me as reasonable, and
> > > > consistent with the Religion
> > > > Clauses.  It wouldn't require a person to seek
> > > > pastoral counseling; it
> > > > would simply permit it.  It makes a lot of sense
> > > > from a free exercise
> > > > perspective.
> > > >
> > > > At 10:03 AM 1/24/2002 -0700, you wrote:
> > > > >I just noticed that the Utah legislature is
> > > > considering a bill that would
> > > > >allow clergy to participate in court-ordered
> > > > counseling.  Any thoughts on
> > > > >the constitutionality of this?  The text follows.
> > > > >
> > > > >  78-3a-122. Court-ordered counseling.
> > > > >     If a person is ordered by the court to
> > > > participate in counseling as
> > > > > part of a program or treatment plan, the person
> > > > may be counseled by a
> > > > > member of the clergy, subject to reporting
> > > > requirements prescribed within
> > > > > the program or plan.
> > >
> > >
> > > =====
> > > "Do you not think an angel rides in the whirlwind and directs the storm."
> > >     --President George W. Bush (quoting John Page)
> > >
> > > "When the Round Table is broken every man must follow Galahad or Mordred;
> >middle things are gone."  -C.S. Lewis
> > >
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