Friday, August 10, 2007

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.


simplegifts3 said...

Thanks for your views on the matter, CD-host. My gut reaction was that if the matter was indeed unrepentant sin, and if Peggy was on the rolls as a member of that church, and as a member agreed to submit to church discipline on such matters, then I applaud the court for protecting the church.

It is very interesting that Doug Phillips posted about this on his blog. This case which you posted here, of course, is vastly different from the Epsteins' situation, because in their case the adultery had occurred many years prior to them coming to BCA, and had been long repented of.

Therefore, there was absolutely no need to inform the congregation about this, and especially so since Mark Epstein begged Doug to not disclose that confidential information.

CD-Host said...

True. I don't ascribe any negative motives to Doug on this one. He is a proponent of discipline and the church made a pretty strong pro discipline finding. Moreover, they did so on a basis of "2 estates" which is something conservative presbyterians have been pushing for 30+ years against liberal judges. So I actually don't think him being excited has anything to do with Jen.

In terms of comparison, I'd agree there was no church obligation to disclose on Doug's part. OTOH in terms of a pastor he's not a licensed therapists so he can't violate licensed therapy standards.

Jen said...

Thank you for your summary analysis, CD-Host. I like the way you boiled it down to the main issues. I do agree that the church should have a right to discipline, especially the Christian church to discipline in accordance with the Bible.

I notice that the emphasis of this case seems to be a little different than how Doug Phillips has seen fit to relate it to my case.

I'll be writing an article on this as well.

CD-Host said...

Jen -

Glad you liked. I'd agree there is little in this case that effects you. Your relationship with Doug was purely pastoral. I guess the only thing that is of import is the court again holds that the church constitution determines the expectation of privacy.

One thing that does help you is that the court found that Westbrook's disclosure was unethical and had it occurred in a secular context was tortable. That useful ammunition for you.

Also thinking about it you don't actually sign the membership covenant you might be considered a non member. The rules governing disclosure for non members are very different. If so then cases that are more relevant to your situation would be
Guinn vs. Church of Christ of Collinsville
Norman Hancock vs. Church of the Later Day Saints

I guess the question you have to ask yourself were you actually ever a member of BCA or just the wife of a member? If you considered yourself a member (which seems to be the case) I'm not sure where there is a tortable action.