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California never quits

I should say at the outset that the title of this post is a little misleading, because the California law I'm going to write about here was actually passed years ago, in 2012, it appears. Here, as far as my best googling efforts extend, is the text of the law. It's in the news again now because of a recent (bad) Ninth Circuit Court ruling on it.

This law forbids all "sexual orientation change efforts" by any licensed counselor, including any licensed marriage and family therapist (a credential earned and possessed by some pastors), for a counseling client under eighteen years of age. "Sexual orientation change efforts" are defined very broadly. This law doesn't apply only to some highly specific type of "reparative therapy" but to any attempt to work with the young person to "eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex." The law is sufficiently broadly worded that it presumptively also forbids attempts to help gender-confused minors become un-gender-confused. (In other words, telling confused boys that they are boys and confused girls that they are girls.)

The Pacific Justice Institute, another of the hard-working pro bono conservative legal organizations, has been filing suit against this law ever since using both freedom of speech arguments and freedom of religion arguments.

The case is in the news again because, just a few days ago, the infamous Ninth Circuit Court upheld the law against a religious liberty challenge from the PJI on behalf of pastors who are also licensed counselors.

As you can see from the text of the bill itself, there is no exemption stated in the bill for pastors at all. There is no exception for those working under the aegis of a church or other explicitly religious counseling facility. There is no exception for ministerial staff. Nothing.

Quite naturally, the Pacific Justice Institute and their plaintiffs interpreted the law to mean that a pastor who is also a licensed counselor who says the "wrong" thing to a young counselee, if caught, could lose his counseling license. (That is the penalty designated in the law.)

Homosexual activists (and now presumably transgender activists) do engage in "sting" operations in which they pretend to be clients who want to change their sexual orientation in order to "catch" counselors offering such counseling. Yes, it really is that bad. Help getting rid of homosexual desires is treated like selling illegal drugs, and just as someone might pose as desiring to purchase illegal drugs in order to catch someone selling them, activists post as wanting to purchase counseling to stop having unwanted homosexual desires in order to "catch" counselors giving it.

So this could, prima facie, happen to a pastor in California who happened also to be a licensed counselor. Or disgruntled parents or grown former parishioners who received biblical counseling on this matter could later "out" the pastor for having offered illegal advice and get his counseling license revoked.

It is perfectly legitimate and indeed valuable for Christian organizations and churches to run official counseling services. This allows Christians with psychological problems, including parents concerned about their children, to obtain counseling which they have some hope will be in line with their Christian beliefs while coming from someone licensed as a counselor, just in case there actually is some value or knowledge represented by that credential. (Also, insurance will not pay for psychological counseling from anyone unlicensed.)

In fact, it used to be that secularists trying to drive Christians out of the counseling profession explicitly told them to go and get their degrees from explicitly Christian schools and to work, once they obtained their license, in an explicitly Christian practice. But now, this law applies to everybody, including explicitly Christian practices, even those run by a church.

The court's reasoning for upholding the law against the PJI's challenge is curious. Here is the court's decision. The court states that, in oral arguments, the state's representative claimed that the law would not be applied against pastors "acting in their roles as clergy or pastoral counselors and providing religious counseling to congregants." The state said to the court that the law exempts (!) pastoral counselors and clergy "as long as they don't hold themselves out as operating pursuant to their licenses."

Now, let's be clear that none of these statements, including the claim that the law actually exempts a particular class of people, are in the law. They are simply claims made by the state to the court. If a reader can find a text of the law that contains any such exemption, he should feel free to pass on a link. But the court itself doesn't even claim that any of this is in the law. The court's own reference is simply to quotations from oral argument before the court itself!

Furthermore, this supposed "exemption," which means (says the court) that "the law does not excessively entangle the State with religion," is incredibly narrow, not to mention unclear.

Let's start with unclear: Suppose that everybody in the congregation knows that the pastor has a license as a family counselor. Under precisely which circumstances is he "acting in his capacity" as clergy as opposed to acting as a licensed counselor? Would that be left for the professional body (which has the power to yank his license) to decide after he's been accused of violating the law? What, precisely, counts as holding oneself out as operating pursuant to one's license? If the pastor mentions that he has the license, does that count? Who is a congregant? Only someone whose name is officially on the church membership rolls? Do regular attenders at a church count as congregants?

It looks like, even to claim this supposed exemption (which apparently exists only in the unstated penumbra of the law), a pastor would very nearly (or even literally) have to get a signed statement from a member of his congregation stating a) that the minor client is a "congregant" and b) that the minor and parents understand that the counsel the minor is going to receive is not being offered "pursuant to" the pastor's license but is purely "religious counseling" being offered "in the capacity of clergy." Or some such wording.

But now we come to the narrowness problem. That exemption, if it exists and if it could actually be used, is incredibly narrow. It means that licensed counselors who counsel non-congregants and who in any sense do "hold themselves out" as operating qua licensed counselors, would be muzzled, even if their salaries are entirely paid by a church, even if they are pastors or other unambiguously ministerial staff, even if the counseling is explicitly advertised as religious, and even if the counseling takes place on church premises.

The idea that such restrictions are consistent with the free exercise of religion is quite absurd.

Of course, secular counselors also should not be prohibited from offering sane counsel to young people with perverted desires or gender confusion. The only counseling allowed under this California law is that which is most destructive, that which affirms young people in their disordered desires and out-of-touch-with-reality gender confusions. It is scandalous that the only people who now have any hope of avoiding this insane law are religious counselors. But at least they should be free to counsel in line with reality, if religious freedom means anything.

SB 1172 is the product of wicked ideology coupled with jack-booted control-freakishness. It imposes the worst possible restrictions upon parents seeking to help their children at precisely the time of early intervention when it might be possible to turn the children away from the abusive, insane, harmful ideology confusing them in our culture and incessantly taught in school and the media. (See this fascinating article reprinted from 1997, by Joseph Sciambra, on his own experience.) Worse, it attempts to apply these restrictions even within the "Christian ghetto," even to Christian, biblical counselors billing themselves as such and sought out by willing clients. It attempts to apply them even to pastors if the pastors should dare, heaven forfend, to "hold themselves out" as operating with a professional counseling license.

Earlier actions
by SCOTUS concerning challenges to SB 1172 do not bode well for an appeal. If you are hoping to set up as a counselor, even an explicitly religious counselor employed by a church or other religious organization, your best bet is to avoid California if you want to be able to tell your clients the truth and help them.

Comments (27)

But mutilation and massive doses of hormones are healthcare!

-These type of laws strike me as barely concealed recruitment efforts. It is my understanding that a kid who even questions if they are experiencing same sex attractions or gender confusion can only receive counseling to embrace those feelings and desires that they might have. I am not sure what else to call that but recruitment. Even in the case of children who definitely are experiencing same sex attractions or gender confusion this counseling is still recruitment in the sense that they can only be told they should embrace and act on those feelings. I get that often saying that kids are being recruited into LGBT identification is seen as scaremongering, and perhaps it can be, but in this case it seems to fit.

-If the only legal penalty is losing a license, to what extent might this open up these Pastor's/Counselor's to civil penalties? I would think losing your license would not help you if you got sued for pain and suffering caused by giving illegal advice. If that is the case, would the Pastor/Counselor be the only liable party or could the whole church they work for be? If the entire church can be liable for any "harm" caused by the illegal counseling, that seems to me to open the door and incentivize these sting operators to trying to get illegal advice so they can win a hefty lawsuit and if that ruins a church all the better in their eyes.

http://www.insureon.com/blog/post/2014/04/23/malpractice-for-counselors.aspx
"“Malpractice” (aka “professional liability”) is another way of saying that a healthcare professional…

Breached a standard of care.
Offered wrong or negligent advice.
Failed to coordinate treatment with other professionals (i.e., psychiatrists and social workers)."

That makes me think that giving illegal advice would definitely be considered malpractice. Losing a license is no picnic, but I would bet on any fines from losing a lawsuit would be crippling. The courts don't seem to want to go easy when it is a Christian vs LGBT "rights" case.

-If the state says it is too "harmful" for a licensed counselor to suggest that maybe embracing a gay or transgender identity and life is not in one's best interests, can we trust the state to continue to let parents say these things to their children?

-These type of laws strike me as barely concealed recruitment efforts. It is my understanding that a kid who even questions if they are experiencing same sex attractions or gender confusion can only receive counseling to embrace those feelings and desires that they might have. I am not sure what else to call that but recruitment. Even in the case of children who definitely are experiencing same sex attractions or gender confusion this counseling is still recruitment in the sense that they can only be told they should embrace and act on those feelings. I get that often saying that kids are being recruited into LGBT identification is seen as scaremongering, and perhaps it can be, but in this case it seems to fit.

-If the only legal penalty is losing a license, to what extent might this open up these Pastor's/Counselor's to civil penalties? I would think losing your license would not help you if you got sued for pain and suffering caused by giving illegal advice. If that is the case, would the Pastor/Counselor be the only liable party or could the whole church they work for be? If the entire church can be liable for any "harm" caused by the illegal counseling, that seems to me to open the door and incentivize these sting operators to trying to get illegal advice so they can win a hefty lawsuit and if that ruins a church all the better in their eyes.

http://www.insureon.com/blog/post/2014/04/23/malpractice-for-counselors.aspx
"“Malpractice” (aka “professional liability”) is another way of saying that a healthcare professional…

Breached a standard of care.
Offered wrong or negligent advice.
Failed to coordinate treatment with other professionals (i.e., psychiatrists and social workers)."

That makes me think that giving illegal advice would definitely be considered malpractice. Losing a license is no picnic, but I would bet on any fines from losing a lawsuit would be crippling. The courts don't seem to want to go easy when it is a Christian vs LGBT "rights" case.

-If the state says it is too "harmful" for a licensed counselor to suggest that maybe embracing a gay or transgender identity and life is not in one's best interests, can we trust the state to continue to let parents say these things to their children?

Good point about a lawsuit. I believe the phrase is "unprofessional conduct." Could they then be sued for "unprofessional conduct"? Presumably so.

Does the law forbid even doing basic counseling on chastity? It seems that any sort of chastity counseling would focus on ways to reduce sexual desires. It seems that this counseling would be okay for teens who are experiencing heterosexual attraction, but not homosexual attraction, because such counseling would have as its express purpose reducing same-sex oriented desires. That sounds incoherent:

"Pastor Dave, I've got a crush on someone at school and I've had a hard time controlling my thoughts in this area."
"Okay, Tommy, step into my office."
"Pastor Dave, I should probably mention my feelings are for another boy."
"Sorry, Tommy, I can't help you. Get out!"

RC, that's probably about exactly it. It would be folly (in more ways than one) to try to pretend that one is just helping Tommy to reduce his feelings for this *particular* boy, because Tommy shouldn't be lusting over someone he isn't married to anyway, but that one isn't *generally* trying to help Tommy to stop lusting over boys generally. First of all, because of course it would be _wrong_ to suggest to Tommy (as one would suggest to a heterosexual boy) that it will be fine for him to think about a "spouse" in that way _later on_ but that he needs to control his thoughts about _this_ person (to whom he isn't "married") right now. That would be affirming homosexual "marriage." Folly, secondly, because the law is sufficiently broad that it would almost certainly not get one off the hook if one were caught anyway.

"... as far as my best googling efforts extend, is the text of the law."

http://leginfo.legislature.ca.gov/faces/codes.xhtml

"An act to add Article 15 (commencing with Section 865) to Chapter 1 of Division 2 of the Business and Professions Code, relating to healing arts."

http://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=BPC&tocTitle=+Business+and+Professions+Code+-+BPC

http://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=BPC&division=2.&title=&part=&chapter=&article=

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=BPC&division=2.&title=&part=&chapter=1.&article=15.

"Does the law forbid even doing basic counseling on chastity?"

"(2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation."

Yeah, and that doesn't contradict a thing I've said, Al. The point about "basic counseling on chastity" was a question about attempting to help a boy who didn't want to lust after another boy. Prima facie, that would be forbidden by the text of the law, at least if done by a licensed counselor "holding himself out as operating pursuant to his license."

Al's third link, to the text of the law, goes to a text that is the same in all the relevant respects (as far as I can tell, entirely identical) to the text I linked in the main post. There is nothing at all there that contradicts anything either in the main post or in the comments thread.

This may be of interest:

http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000009871

and this:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/23/15-16598.pdf

I provided the link to the California Codes as an item of general interest and the specific section in case the law had been amended.

I took "basic" as the operative in R.C.'s post as the hypothetical is, well, hypothetical while "basic" would reference any attraction. That may have to be adjudicated but I was coming from this consideration: My medical group has federal (and perhaps state) funding for walk in counseling for teens on sexual matters. Besides STDs and birth control they also provide strategies for teens who feel they are under pressure to engage in sex but want to remain abstinent. Would the counselors be unable to serve teens with same sex attractions who were not seeking to change their orientation but who merely wished to avoid sexual activity while providing the same services to to teens with opposite sex attractions? That doesn't make sense to me.

Here's the docket for Pickup which was the case which birthed Welch and has all sorts of amici.

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000635

I took "basic" as the operative in R.C.'s post as the hypothetical is, well, hypothetical while "basic" would reference any attraction.

Then I believe you misunderstood the question. The question concerned the hypothetical *as* an instance of basic counseling in chastity.

Counseling on chastity doesn't solely involve helping people to resist pressure to have sex when they don't want to. It includes _moral_ counsel concerning both sexual actions and lustful thoughts. In the example given, the requested counsel would be, precisely, to help the young man stop having sexual thoughts and feelings concerning another boy. As such, it would run directly afoul of the explicit text of the law, which prohibits attempts to "eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex."

I discussed a bogus attempt to get around this by affirming homosexual "marriage" while telling Tommy that he shouldn't be having sexual thoughts about another boy, to whom he is not "married," right _now_. Thus arguing that one is treating homosexual and heterosexual teens in a parallel fashion and not trying to "change orientation." But as I pointed out, this would still be prima facie contrary to the letter of the law, and more importantly, it would not count as "basic counseling on chastity" from the perspective of Christian morality. Hence, any faithful Christian counselor would consider it _wrong_ to give such counsel.

"Counseling on chastity doesn't solely involve helping people to resist pressure to have sex when they don't want to."

That, of course depends on the definition of "chastity" which is going to depend on the person doing the counseling. Not all counselors are going to be faithful, socially conservative, Christian counselors.

"Then I believe you misunderstood the question. The question concerned the hypothetical *as* an instance of basic counseling in chastity."

No misunderstanding on my part as we are (or should be) dealing with potentially valid situations under California law not creating just so stories that sound good but are unrealistic. The hypothetical fails by ignoring California law, over defining chastity to exclude what it might mean to individuals not devoted to this or that particular dispensation, and (I believe, reading the statute as a whole)) conflating "individuals of the same sex" with any given individual.

865 (b) (1) cannot be read as a stand alone paragraph. We need to read it in the context of 865 (b) (2) :

"(2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation."

We also need to look at sections 261.5 (a) - (d) and 269 of the California Penal Code which make sexual contact with a minor not ones spouse a crime as well as sections 120290 and 120291 of the Health and Safety Code which involve knowingly transmitting an infectious disease.

"Including sexual orientation-neutral interventions to prevent or address unlawful conduct" applies to anyone under 18 in California and "or unsafe sexual practices" is a matter likely to be covered with any minor. You also ask us to believe that a person involved in an abusive, same sex relationship with a given individual cannot be counseled as to that relationship without also being counseled to change their orientation towards all individuals of that sex. That seems a bit of a reach.

There simply isn't a right to a given treatment under the Constitution and ordination doesn't trump every general law. Those who read the briefs and watch the video will see that the PJI didn't have much of a case.

I'm sure we can all assume that Al, our esteemed but long-lamented commenter, would offer his legal services, pro bono, to any dissenting counselor under repressive pressure by the great State of California.

Right?

That, of course depends on the definition of "chastity" which is going to depend on the person doing the counseling. Not all counselors are going to be faithful, socially conservative, Christian counselors.
No misunderstanding on my part as we are (or should be) dealing with potentially valid situations under California law not creating just so stories that sound good but are unrealistic. The hypothetical fails by ignoring California law, over defining chastity to exclude what it might mean to individuals not devoted to this or that particular dispensation, and (I believe, reading the statute as a whole)) conflating "individuals of the same sex" with any given individual.

Are you actually saying, Al, that it's unrealistic that a teenager with same-sex attraction might ask a pastor (who also holds a license) to help him stop having feelings of lust? How is that unrealistic? And are you actually saying (in your muddled second paragraph just quoted) that a counselor who _did_ counsel him according to the norms of faithful, socially conservative Christianity would *not* be in violation of the law? Because, you know, such a counselor *would* tell him that God wants him to stop actively lusting after any men, ever, for the rest of his life, and that "there has no temptation taken you but that God is faithful and will provide a way of escape" (that's in the Bible). So, you know, that would involve trying to help him stop lusting not only after that one boy at school but developing tactics that would help in similar situations for the long term. And yes, that would be different from what he would tell Tommy if he were desiring a girl.

See, Al, whether _you're_ interested in discussing it or not, _we_ are interested in discussing whether it is possible for a counselor to legally give chastity counseling in CA in line with the "particular dispensation" that we happen agree with. It is quite obvious that they can't. You probably don't really dispute that. Hence your bullying little phrase "ordination doesn't trump every general law." Quite. And this particular "general law" makes it illegal for an ordained person who "holds himself out pursuant to" a counseling license to counsel a minor concerning chastity *consistently with* the moral norms of conservative Christianity.

That shouldn't even be controversial. You are just creating distraction to try to make it look like we, or I, don't know what we're talking about.

"Right?"

On facts, why not. Both the Third and Ninth Circuits have agreed on the right of the legislatures of New Jersey and California to ban therapeutic treatments that are deemed ineffective and possibly harmful and that First and Fourteenth Amendment considerations don't apply. The Supremes have declined to intervene and it seems from the tone in the video that the Ninth isn't going to be inclined to hear another appeal.

I have to note since you raised the issue that Pastor Dave (in our hypothetical) could engage in pro bono pastoral counseling with young Tommy that could deal with orientation.

"See, Al, whether _you're_ interested in discussing it or not, _we_ are interested in discussing whether it is possible for a counselor to legally give chastity counseling in CA in line with the "particular dispensation" that we happen agree with."

There's not much to discuss. As I understand the law and the opinion, Pastor Dave could counsel young Tommy as a licensed counselor as it isn't obvious from the related conversation that Tommy wishes to change his orientation ("controlling" ones thoughts is ambiguous and one purpose of counseling is to help the client clarify things) and it isn't clear whether we are dealing with pastoral counseling which isn't covered by the law or counseling that is covered.

This is the hypothetical:

""Pastor Dave, I've got a crush on someone at school and I've had a hard time controlling my thoughts in this area."
"Okay, Tommy, step into my office."
"Pastor Dave, I should probably mention my feelings are for another boy."
"Sorry, Tommy, I can't help you. Get out!""

On reflection, I find it strange that your ideal counselor would have such a limited tool bag. Assuming Pastor Dave is competent, why wouldn't he seek to help Tommy to the extent that he could? Counseling, like the other healing professions covered under the B&P code, is supposed to benefit the client not advance the practitioners' ideology or theology at the expense of clients' welfare. In fact, this is one reason these professions are policed by various professional organizations and the state. Perhaps Pastor Dave isn't cut out to be a licensed professional.

"You probably don't really dispute that."

I thought that was clear.

"Hence your bullying little phrase "ordination doesn't trump every general law." Quite."

Do you believe that the scope of "religious freedom" can only be legitimately defined by the person making the claim? The rest of us have no say?

"And this particular "general law" makes it illegal for an ordained person who "holds himself out pursuant to" a counseling license to counsel a minor concerning chastity *consistently with* the moral norms of conservative Christianity."

Right, assuming that your definition of "chastity" holds for all conservative Christians, but since he has broad latitude as a Pastor acting in the role of a Pastor, this resolves to his ability to bill parents' insurance.

This brief is interesting:

http://cdn.ca9.uscourts.gov/datastore/general/2014/01/29/12-17681_order_amended_opinion.pdf

Blaming parenting seems to be a part of SOCE. Whenever I see this I remember friends of mine who were having problems with their kid. The "counselor" they hooked up with had a bias towards parenting issues and (I realize now) was peddling snake oil. The project didn't turn out well. It's obvious now and should have been then to the counselor that the kid likely had a personality disorder (in retrospect this was almost a textbook case). Instead of therapy and meds for the kid, the parents became the focus.

but since he has broad latitude as a Pastor acting in the role of a Pastor, this resolves to his ability to bill parents' insurance.

Actually, even if we take statements _not_ found in the law and _merely_ made by counsel for the state to the court to be somehow gospel truth on the meaning of the law, that isn't quite correct. Those statements are specifically qualified to a pastor counseling "congregants," and the hypothetical didn't specify that Tommy is unequivocally a "congregant." (When I was growing up we could certainly refer to someone as "Pastor Dave" even if he wasn't the pastor of a church at which we were members.)

Second, it is extremely unclear under what circumstances Pastor Dave would be taken to be acting "pursuant to" his license. The state presents itself to the court as though this is cut and dried, but that is by no means clear. For example, suppose that Pastor Dave's office has, inter alia, a copy of his license on the wall. Suppose that he has mentioned to congregants that he has the license, maybe even has mentioned it from the pulpit. Suppose that Tommy's parents say that they suggested that Tommy talk to Pastor Dave partly because they know that Pastor Dave is a licensed counselor and hoped he'd have special qualifications as a result.

Whether or not all of that means that Pastor Dave was "holding himself out as a counselor acting pursuant to his license" as opposed to "acting in his role as a pastor" would (oh joy) presumably be left up to the state licensing board to decide if Tommy's parents, or Tommy himself in a few years, decides to bring a complaint against him for "unprofessional conduct."

I have to note since you raised the issue that Pastor Dave (in our hypothetical) could engage in pro bono pastoral counseling with young Tommy that could deal with orientation.

No, he couldn't. Not if his counseling was unambiguously grounded in a judgment against unchastity that included homosexual conduct -- or at least, based on applicable California law, he sure couldn't be sure, and would certainly be staking on thin ice, for all the reasons Lydia has laid out.

No, he couldn't. Not if his counseling was unambiguously grounded in a judgment against unchastity that included homosexual conduct -- or at least, based on applicable California law, he sure couldn't be sure, and would certainly be staking on thin ice, for all the reasons Lydia has laid out.

Indeed these laws are essentially engraved invitations to Christians to get out of the counseling business and where you say "he sure couldn't be sure, and would certainly be staking on thin ice", that is rather the point of this exercise in lawfare: demoralization and making the process the punishment.

I was thinking that churches and schools could take a Hosanna-Tabor approach. That is, just as they could designate all employment positions as ministerial allowing them to hire and fire at will, so they could abandon the patient/counsellor relationship altogether and make everything strictly confessor/penitent. The bad news is as Lydia pointed out, the law is so broad it might not work. The good news is that even Left-leaning courts have been very reluctant to approach religious doctrinal content (my instinct is that the commitment to the lie of liberal neutrality still works in our favor, but that's another topic), so perhaps it could work. But again, probably temporary as we've seen numerous trial balloons in aid of meddling in doctrinal affairs and they can afford to lose a thousand times, but only need to win once.

That is, just as they could designate all employment positions as ministerial allowing them to hire and fire at will, so they could abandon the patient/counsellor relationship altogether and make everything strictly confessor/penitent.

Basically, to do that, they would have to abandon their licenses. That way there would be no way to say that they were "holding themselves out as operating pursuant to their license."

That way, they could counsel non-congregants and congregants both, entirely according to their own doctrinal beliefs.

But what Christians tried to do _before_ was to set up counseling services and organizations, some run by churches, that had licensed counselors. In some cases these were/are self-sufficient. That is to say, some Christian counselors and counseling practices charge fees. Others are probably pro bono. But in all cases if you have been running a counseling practice, including a Christian one, there was some reason why you chose to have _licensed_ counselors involved, if only to give people confidence in the credentials of your counselors.

It's just there that CA is putting them out of business.

"Not if his counseling was unambiguously grounded in a judgment against unchastity that included homosexual conduct -- or at least, based on applicable California law..."

What applicable law? The statute in the CBPC refers to "orientation" not conduct. Any counseling relative to conduct has to be viewed in the context of CBPC 865 (b) (2) and the CPC as well as the counselors approach to "chastity" (does any and all "chastity" counseling by a conservative Christian have to include an attempt to change the client's orientation). A church can go pretty far down the counseling road and still be a religious organization (I'm not sure the line has ever been defined).

"We also note that the Legislature has exempted the clergy from the licensing requirements applicable to marriage, family, child and domestic counselors (Bus. & Prof. Code, § 4980 et seq.) and from the operation of statutes regulating psychologists (id., § 2908 et seq.). In so doing, the Legislature has recognized that access to the clergy for counseling 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." (Ericsson, Clergyman Malpractice: Ramifications of a New Theory (1981) 16 Val.U.L.Rev. 163, 176.)"

"The Grace Community Church (Church), at the time of the events in question, employed about 50 pastoral counselors to serve a congregation of over 10,000 persons. Pastoral counseling, as described in the Church's 1979 annual report, constituted "a very important part of the ministry at Grace Church." Church counselors offered their services not only to congregants, but to large numbers of nonmembers as well. In 1979, the annual report noted, about 50 percent of those seeking counseling came from outside the Church. Furthermore, while much of the counseling to members was apparently of an ad hoc or "drop-in" nature, more formal counseling was offered as well, with regularly scheduled counseling "sessions" much like [47 Cal. 3d 306] those between a therapist and a patient; indeed, the Church employed a secretary whose responsibilities included the making and scheduling of such counseling appointments. Moreover, in addition to individual counseling, a number of Church pastors taught classes, published books and sold tape recordings on the subject of biblical counseling."

http://law.justia.com/cases/california/supreme-court/3d/47/278.html


The above case was a wrongful death case revolving on standard of care matters (church prevailed) but it does point out the scope of counseling can be pretty extensive and still be pastoral counseling. Lydia's concerns (the pastor holds a license) would seem to be unfounded based on current precedent as to constitutional avoidance. I don't believe "congregant" has an established legal definition in California and, absent a property interest, I doubt the courts would be willing to get involved. This leaves us with some folks upset because a clergyman with a license can't use the license to his advantage while also using his ordination as a shield against a generally applicable law that the legislature and the courts have seen as having a valid purpose.

"(b) Neither the language of the statute nor its legislative history discloses any affirmative intention by Congress that church-operated schools be within the NLRB's jurisdiction, and, absent a clear expression of Congress' intent to bring teachers of church-operated schools within the NLRB's jurisdiction, the Court will not construe the Act in such a way as would call for the resolution of difficult and sensitive First Amendment questions. Pp. 440 U. S. 504-507."

https://supreme.justia.com/cases/federal/us/440/490/case.html

Lydia's concerns (the pastor holds a license) would seem to be unfounded based on current precedent as to constitutional avoidance.

I'm sorry, but I call bull.

All that the court said for _this_ statute was that the state had said (in oral argument) that pastoral counselors were exempt,

"as long as they don't hold themselves out as operating pursuant to their licenses."

The court accepted that but *did not* say anything remotely like that the "scope of counseling can be pretty extensive and still be pastoral counseling."

Indeed, the state's statements themselves seem to indicate to the contrary. The stated exemption (not found in the law) applies to a *licensed* pastoral counselor only if he doesn't "hold himself out as operating pursuant to his license."

The case you cite concerns pastoral counselors _not_ holding themselves out as operating pursuant to a counseling license. They were not licensed counselors and not covered by statutes relevant to licensed counselors. Nonetheless, the church really got dragged through it as far as the case you cite is concerned, even granting that they "prevailed" in the end. As we have noted already in this thread, the process can be the punishment.

But it's ridiculous to cite a case in which pastoral counselors just sort of "acted like" licensed counselors but weren't licensed counselors to lay to rest concerns about pastoral counselors who _are_ licensed counselors and even (in some cases) run counseling ministries based in part on the fact that they do hold counseling licenses.


This leaves us with some folks upset because a clergyman with a license can't use the license to his advantage

I call bull, again.

First, even if a Christian counseling service funds its operations by charging fees, this isn't some kind of nefarious "using the license to their own advantage" any more than _any_ counseling service that charges fees!

Second of all, a clergyman who also has a counseling license may offer his services pro bono but still use the counseling license as a *credential* to assure the person with whom he is working that he knows what he is talking about, thus "holding himself out as operating pursuant to his license" but not for some sort of personal advantage.

You know, Al, it would be much better if you would stop trying to pretend that this law isn't cracking down on Christian counseling, when you know full-well that it is, when that is the manifest, blatant, open _intent_ and _function_ of the law, but you just _like_ what it's doing.

That's tedious, deliberately dense, and annoying. Just admit that we disagree in our evaluation of the _goodness or badness_ of the law and go away, instead of trying to have it both ways, "Oh, you're just worrying about some dumb thing that would never happen, and anyway, whatever happens to these Christian counselors, if they're breaking this obviously reasonable law, they deserve it."

Very time-wasting.

"Don't be silly, this thing that you fear will never, ever happen, but if it does, they had it coming."

In Rod Dreher's phrase, the Law of Merited Impossibility.

http://www.theamericanconservative.com/dreher/the-law-of-merited-impossibility/

“It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”

"Suffer" is an interesting term. Christians in parts of the Middle East, regardless of their social views, may suffer rape, enslavement, banishment, and murder. Socially conservative Christians in Canada, the UK and the EU may suffer restraints on their speech (unacceptable under U.S law). Meanwhile some socially conservative Christians and Muslims in the U.S. may have to bake a cake (for which they are compensated at market rates) or pick up a blind man and his guide dog (again, being compensated). Oh the suffering.

"You know, Al, it would be much better if you would stop trying to pretend that this law isn't cracking down on Christian counseling, when you know full-well that it is, when that is the manifest, blatant, open _intent_ and _function_ of the law, but you just _like_ what it's doing.

Actually the court, looking at the legislative record and applying a little logic, found just the opposite. The law only affects a small subset of licensed counselors who happen to be Christians and who wish to be compensated at licensed counselor rates and mechanisms. Unlicensed religious counselors are unaffected. As some clergy may be licensed and wish to engage in pastoral counseling outside of their license re: SOCE and minors, there will likely be further clarifying litigation.

Of course I think the law is a good idea and you don't. I wouldn't have commented had that been all you wrote. I think some things are still unclear and counselors can still do a lot to help minors without engaging in a likely ineffective and possibly harmful therapy. You probably have library privileges at the university so an annotated California code may be available.

Meanwhile some socially conservative Christians and Muslims in the U.S. may have to bake a cake ...

I personally think that cooler heads will prevail in this. Call me an optimist, but I think many are already wondering what the consequences will be of trying to maintain such a pyrrhic victory over those with different beliefs. If a majority of Americans are really so stupid as to desire this sort of power over others, or if minority views are thought to matter so much, we're all screwed anyway.

On licensing and other such "professional" certifications or credentials, I have little sympathy for those who've played the game and now complain about the rules. I've explained to my employer why I'm not certified in my field and don't intend to be. The reasons have to do with a combination of the very unique things about the most recognized certification in my field, and my own personal goals. CPA's don't scare me, because their "continuing ed" requirements aren't diddly squat no matter what they may think. If there are enough people who are able and willing to get certified/licensed/credentialed in your field that you actually have to get one to do what you wish to do even if the rules work against your interests, then you've made some poor choices. If you can't publicly demonstrate your competitive value without approval by such arbitrary means, then that's a problem. Those that bet their livelihood on such arbitrary things can only complain so much when the regulatory game shifts.

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