Peggy Penley and Buddy Westbrook (followup)

This article is a follow up to the article 6 weeks ago about the Peggy Penley and Buddy Westbrook case. The Supreme court of Texas has rendered its decision in this case. All filing can be found at their website.

The court in my opinion accurately captured the key point of dispute:

Westbrook contends Penley’s suit encroaches upon the autonomy of churches to decide matters of internal church discipline and governance. He acknowledges that there are exceptions to the concept of church autonomy, but claims they should be narrowly drawn by allowing judicial interference in church disciplinary matters only when a claim arises from a purely secular act. Westbrook describes actions that are purely secular in nature as those that are clearly nonreligious in motivation, like intentional torts or sexual misconduct. According to Westbrook, if there is any doubt as to the secular or religious nature of a particular action, courts should proceed no further. Any less deferential standard, Westbrook claims, would require a case-by-case analysis that would in itself excessively entangle the courts with religion and infringe upon the church’s authority. In this case, Westbrook asserts, once Penley admitted that she looked to him as both a counselor and a pastor, the trial court was precluded from adjudicating her claim. The rationale, Westbrook explains, is to avoid courts having to determine which acts are done in a secular role and which are done in an ecclesiastical capacity, particularly when there is such a blend of roles, as here, that makes it impossible to perceive where one ends and the other begins.

The court first noted that Westbrook was a licensed counselor. They did hold that Westbrook did violate ethical standards of conduct but that the courts should impose no liability. In their explanation latter in the case, they argued that the state does have a compelling interest in preserving counselor patient confidentiality but that those interest do not trump the interest in protecting the first amendment. They explicitly drew the analogy to employment discrimination cases. The court felt that deciding this the other way would have in essence been back door judicial oversight of church discipline,

"In sum, while the elements of Penley’s professional-negligence claim can be defined by neutral principles without regard to religion, the application of those principles to impose civil tort liability on Westbrook would impinge upon CrossLand’s ability to manage its internal affairs and hinder adherence to the church disciplinary process that its constitution requires. See Idleman, 75 Ind. L.J. at 254 n.96."

Or from earlier in the document

For purposes of our review, we presume the counseling at issue was purely secular in nature as Penley claims. Even so, we cannot ignore Westbrook’s role as Penley’s pastor. In his dual capacity, Westbrook owed Penley conflicting duties; as Penley’s counselor he owed her a duty of confidentiality, and as her pastor he owed Penley and the church an obligation to disclose her conduct. We conclude that parsing those roles for purposes of determining civil liability in this case, where health or safety are not at issue, would unconstitutionally entangle the court in matters of church governance and impinge on the core religious function of church discipline. Accordingly, we reverse the court of appeals’ judgment and dismiss the case for want of jurisdiction.

The biggest weakness however in the Penley case was an inconsistency. All claims but the professional misconduct ones had been dismissed by the first court. That is the court explicitly held ecclesiastical functions were not subject to judicial review. Penley had argued that her suit was regarding Westbrook's disclosure to the elders and not the elders disclosure to the church; because the later had first amendment issues. The court essentially dismissed this since the damages were as a result of the second not the first disclosure; that is the defamation came from the church hearing about her "inappropriate relationship".

The court made a few interesting observation. Penley had paid for counseling in 1998 but for the group sessions she did not pay, further evidence that strengthens Westbrook's claim that she wasn't engaged in secular counseling.

The court also noted that the church constitution regarding discipline was very explicit and Penley agreed to the constitution. Further the letter sent to the was not explicit and contained minimal information. Further it explained this was a member's only issue. While not stated explicitly the point of these statement was to establish that the church had met the informed consent burden.

As an editorial aside I think the Texas court decided wisely. I also believe the court may have wanted to have been a bit more specific. Clearly the first amendment issues are real had the Penley case been decided the other way. Moreover in the court did establish a fairly high burdon in that they noted:

1. non payment for the sessions in which the adultery was revealed.
   
2. that Westbrook was her pastor and not just another church member
3. That Westbrook took minimal action

However the court failed to address what would have been their ruling if any of the above had not been true. The initial and final statements are much stronger than the body of the decision and I believe that the possibilities for extension left open are quite large. For example what about disclosure between a catholic and his catholic criminal lawyer?



This case is likely to be big news so we will add other interesting commentary as we find them.

• Vision forum (reformed fundamentalist baptist, with a record of controversial discipline) wrote a commentary expounding on the two spheres position.