March 11, 1993
The Honorable James Forrester The Senate of North Carolina State Legislative Building Raleigh, North Carolina 27601-1096
Re: Proposed Legislation Establishing a North Carolina Board of Examiners of Professional Christian Counselors and Therapists; Constitutionality Under the First Amendment to the United States Constitution and the Religious Liberty Guarantee of the North Carolina Constitution
Dear Senator Forrester:
This letter is in response to your letter of February 25, 1993, to Attorney General Michael F. Easley. With that letter, you enclosed a proposal for legislation that would establish a North Carolina Board of Examiners of Professional Christian Counselors and Therapists. You asked this Office for an advisory opinion as to the constitutionality of this proposed legislation. We are happy to provide you with this opinion, and will deal individually with the specific questions you have raised.
l. Would the establishment of such a licensing board violate the Establishment Clause of the First Amendment to the United States Constitution by singling out Christian counselors for their own separate licensing board?
The First Amendment to the United States Constitution provides, in pertinent part: "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof …." This prohibition has been made applicable to each of the States by the Fourteenth Amendment to the Constitution. The Establishment Clause has been interpreted by the United States Supreme Court to prohibit governmental action or laws that do not have any significant secular purpose; that have the primary effect of advancing, prohibiting, or endorsing religion; or that foster excessive governmental entanglement with religion. See Lemon v. Kurtzman, 403
U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745, 755 (1971). Although the Supreme Court has deviated from and altered this Lemon test in specific cases over the years, the test remains, for the most part, the exclusive yardstick by which the Supreme Court and other federal courts have evaluated Establishment Clause questions. Applying the Lemon test to the proposed legislation you have provided us, it would appear likely that this legislation would be found to violate the Establishment Clause.
In all probability, this legislation would be found to have a genuine and significant secular purpose: the protection of the consuming public by ensuring that persons who offer certain professional counseling services are adequately trained to do so. The first prong of the Lemon test, therefore, could probably be met, inasmuch as the Supreme Court has held that a governmental act will be struck down only if it has no secular purpose at all. Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). The second prong, however, requires that the legislation not advance, prohibit, or endorse religion. It is our opinion that the proposed legislation does not satisfy this component of the Lemon test.
As you have noted, the legislation could easily be viewed as endorsing the value of Christian counselors or therapists over counselors of other religions or of no specific religion. The Supreme Court has held that government action violates the Establishment Clause if such action sends the message to a reasonable observer that the government favors one religion over another or the practices of one religion over the practices of others. Allegheny County v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). The likelihood that a court might find this legislation to constitute an endorsement of uniquely Christian methods and principles of counseling becomes stronger in light of the language used in the proposal for legislation to the effect that Christian counseling includes "biblical principles of faith in God and obedience to God’s will."
Likewise, this proposed legislation appears likely to violate the third prong of the Lemon test by causing excessive governmental entanglement in religious affairs. For example, the proposed legislation provides that, after July 1, 1997, any academic inadequacies at the time of application "shall become the responsibility of the American Society of Christian Therapists in conjunction with Carolina University of Theology until inadequacies are completed …." This link with a specific religious training institution might be said not only to endorse the beliefs of that institution, but also to involve the government, through the Board, in excessive and impermissible ties to that institution. Likewise, the provision that provides that the act does not prevent "any Rabbi, priest, or clergy of any religious denomination from engaging in activities within the scope of the performance of their regular or specialized ministerial duties, and for which no separate charge is made, and which is made under the auspices or sponsorship of an established and legally recognizable church or denomination, and when the person remains accountable to the established authority thereof" poses the danger that the Board will be drawn into determinations of when a person is acting in accordance with the practices of his or her own religious group. The Board’s passing of judgment in such internal religious questions could be viewed as excessive entanglement.
Perhaps more fundamentally, this proposed legislation invites the government to become involved in questions of doctrinal orthodoxy by placing the Board in the position of deciding what counselors and methods are "Christian" and what counselors and methods are not. Such questions could become very complicated. For example, counselors who belong to some religious groups, such as Unitarians and Mormons, might consider themselves Christian, while others might not consider these bodies to be Christian bodies. The proposed legislation contemplates that the Board will evaluate doctrine and determine which practices include "biblical principles of faith in God and obedience to God’s will." Entanglement in such questions are clearly prohibited by the Establishment Clause. See gen. Presbyterian Church in the United States v. Mary Elizabeth Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969).
It is the opinion of this Office, therefore, that the proposed legislation creating a North Carolina State Board of Examiners of Christian Counselors and Therapists would, in all likelihood, be found by a court to violate the Establishment Clause of the First Amendment.
2. Would the establishment of such a licensing board violate the Free Exercise Clause of the First Amendment to the U.S. Constitution or the religious liberty guarantee of the North Carolina Constitution (Art. I, Sec. 13) by controlling or interfering with the free exercise of religion?
As noted above, the First Amendment to the United States Constitution provides that "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof…." In general, this clause prohibits the government from taking any action to proscribe, regulate, or favor, either directly or indirectly, any particular religious beliefs, although in certain circumstances the government may regulate or prohibit conduct based on those beliefs. See Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Typically, however, government regulation of conduct has been approved only when the regulation is necessary to keep peace and order in the community, while actual infringement of religion has been tolerated only where the government can show a compelling state interest. See Swaggart v. California Equalization Board, 493 U.S. 378, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990); Cantwell
v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
Similarly, Article I, Section 13, of the North Carolina Constitution provides that "[a]ll persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience." This provision has been interpreted by our courts as being coextensive with and providing the same protections as the First Amendment to the United States Constitution. See Heritage Village Church & Missionary Fellowship, Inc. v. State, 299 N.C. 399, 263 S.E.2d 726 (1980).
It is difficult to tell exactly what the status of the proposed legislation would be under the free exercise of religion guarantees of the two constitutions. The proposal does not specifically indicate whether licensure by the Board would be mandatory or voluntary. If licensure is mandatory, the proposal does not indicate what persons would have to be licensed by the Board. The proposal also does not indicate what penalties, if any, would be incurred by those who engage in practice without a license. The resolution of these issues has a definite bearing upon whether a person is harmed by not being licensed.
We note that the proposed legislation states that it does not prevent "any Rabbi, priest, or clergy of any religious denomination from engaging in activities within the scope of the performance of their regular or specialized ministerial duties, and for which no separate charge is made, and which is made under the auspices or sponsorship of an established and legally recognizable church or denomination, and when the person remains accountable to the established authority thereof." This language, coupled with the fact that the legislation would call for licensure rather than certification, however, would tend to indicate that licensure would be mandatory. Assuming that licensure is, indeed, mandatory, then it appears possible that a court would find this legislation to violate the Free Exercise Clause to the extent that it prohibits an unlicensed clergyman, Christian or non-Christian, from rendering counseling for any kind of remuneration, from counseling persons outside his or her own religious group, or from exercising other usual ministerial duties. It could also be found to violate the Free Exercise Clause to the extent that it prevents a practitioner of any particular religious group from receiving the counseling services of a clergyman of that group.
It is likely that these same issues of classification and regulation on the basis of religion would give rise to challenges for violation of equal protection and due process rights under the Fourteenth Amendment to the United States Constitution.
It should be noted, however, that a court in these instances might find the legislation to be unconstitutional as applied in the specific situation, rather than unconstitutional on its face. Moreover, the Supreme Court has indicated that the Free Exercise Clause might not be violated if prohibiting the free exercise of religion is not the object of the legislation. See Employment Division v. Smith, ___ U.S. ____, 110 S.Ct. 1595, 103 L.Ed. 2d 876 (1990).
In short, the proposed legislation’s possible infringement of the free exercise of religion would depend, to a large degree, on the actual provisions and implications of the legislation. It is not difficult, however, to imagine cases in which defense of the legislation from a free exercise challenge would be tenuous at best.
As you noted in your letter, the General Assembly in 1991 passed the Fee-Based Practicing Pastoral Counselors Certification Act. G.S. 90-380 et seq. This act creates the North Carolina State Board of Fee-Based Practicing Pastoral Counselors and allows for the voluntary certification by the Board of Pastoral Counselors who charge for their professional counseling services. You asked for any comments that this Office might have on the constitutionality of this act. For your reference, we enclose a copy of an opinion rendered on July 10, 1991, on this subject to Senator J. Clark Plexico.
Three salient points should be noted about this act as compared to the proposed legislation for the Board of Examiners of Christian Counselors and Therapists. First, certification under the Fee-Based Practicing Pastoral Counseling Act is voluntary. The only prohibition imposed by this act is that no person may represent himself or herself as a certified fee-based practicing pastoral counselor without Board certification. Otherwise, the act does not prohibit the activities of any counselor or therapist. Second, certification by the Board is not restricted to Christian therapists. Indeed, the act relies on the Internal Revenue Code’s definition of recognized denominations for the purpose of making the act applicable to the clergy of any religious group. Finally, the Fee-Based Practicing Pastoral Counseling Act does not in any way involve the Board in questions of religious doctrine or in the internal affairs of any religious group.
We trust that this letter fully answers your questions on this matter. Please do not hesitate to contact us if we can be of any further assistance.
Ann Reed Senior Deputy Attorney General
Alexander McC. Peters Assistant Attorney General