Constitutional Law - Free Exercise Clause - Texas Supreme Court Holds That Trial Court Lacks Subject Matter Jurisdiction over Professional Negligence Claim against Professional Counselor/church Pastor

Harvard Law Review, December 2007 | Go to article overview

Constitutional Law - Free Exercise Clause - Texas Supreme Court Holds That Trial Court Lacks Subject Matter Jurisdiction over Professional Negligence Claim against Professional Counselor/church Pastor


CONSTITUTIONAL LAW--FREE EXERCISE CLAUSE--TEXAS SUPREME COURT HOLDS THAT TRIAL COURT LACKS SUBJECT MATTER JURISDICTION OVER PROFESSIONAL NEGLIGENCE CLAIM AGAINST PROFESSIONAL COUNSELOR/CHURCH PASTOR.--Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).

Courts around the country have struggled to determine when the First Amendment's Free Exercise Clause bars certain kinds of civil claims against religious ministers. (1) Often, the claims themselves relate to hotbutton issues, such as the abuse of minors (2) and sexual harassment.(3) Recently, in Westbrook v. Penley, (4) the Texas Supreme Court held that a civil court lacked subject matter jurisdiction over a claim against a pastor and state-licensed professional counselor who released information he learned in a counseling session to church elders for the purpose of disciplining a congregant-counselee. Although the court was right to emphasize the importance of protecting internal church matters from outside interference, it failed to recognize that the pastor had relinquished some of his free exercise rights when he chose to be certified as a professional counselor by the state. Instead, the court should have followed an analogous line of free speech cases culminating in Boehner v. McDermott (5) and ruled that the First Amendment right to free exercise does not protect a counselor who is certified by the state and holds himself out as such from liability for disclosing confidential information he learns in his sessions.

In August 1998, Peggy Lee Penley engaged the services of C.L. "Buddy" Westbrook, Jr., a licensed professional marriage counselor and a parishioner at the church she was then attending. (6) In October 1999, Westbrook, Penley, and others left their church and formed CrossLand Community Bible Church, in which Westbrook came to serve as pastor and as a church elder. (7) The new church's constitution, by which Penley agreed to abide, contained a disciplinary policy which provided that if a member engaged in acts violating Biblical standards and refused to repent or resign,> the elders would not only remove the member, but also announce this removal to the congregation. (8)

In July 2000, Penley and her husband separated. (9) Afterwards, they attended free weekly counseling sessions in Westbrook's home with other couples from CrossLand. (10) Penley believed these sessions were a continuation of her previous professional counseling meetings with Westbrook and claimed the Bible was not discussed. (11) During a break at a session attended only by Penley, Westbrook, and their respective spouses, Penley told Westbrook privately that she had been having an extramarital affair and that she intended to divorce her husband. (12) Penley claimed that Westbrook then met with the other church elders and, together with them, composed a letter to the congregation explaining that Penley had had an affair and that she intended to divorce her husband. (13)

In November 2001, Penley filed suit against Westbrook, CrossLand, and the other church elders, alleging various causes of action.(14) She later added a professional negligence claim against Westbrook, which became the focus of later appeals. (15) With regard to her negligence claim, she alleged that Westbrook's secular counseling had failed to meet the standard of care set forth in the Texas Licensed Professional Counselor Act (16) (TLPCA) and in other regulations. (17) The regulations required counselors to keep communications between themselves and patients confidential, (18) but recognized religious practitioners were not covered unless they represented themselves as licensed professional counselors. (19) In response, Westbrook and the other defendants filed motions challenging the trial court's jurisdiction, arguing that "the suit involved an 'ecclesiastical dispute' concerning a church disciplinary matter, which the First and> Fourteenth Amendments to the United States Constitution precluded the trial court from adjudicating. …

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