I am finishing up what will be a book on “intersection” of legal issues and pastoral counseling. One question I have received has been the extent to which government may seek to regulate biblical counseling, whether by state mandate or by private lawsuit (which is in effect a petition to the government to exercise its power in a particular instance). Below, is a draft Preface to answer that question.
Yes. If you do not, you will not be able to minister well to others. Some counselees will be involved in legal disputes, divorces, criminal proceedings; you will need to understand their circumstance to help them.
But you also need to concern yourself with the law because the culture is changing: And as the culture changes, so does the law. The relatively amicable relationship Christian ministry in general and Christian counseling in particular had with the culture and law is changing: quickly and fundamentally.
The first thing we need to understand about the law is that the law is an expression of culture. If we return a few decades in our history, homosexual conduct was a crime in the United States. In Bowers v. Hardwick, 478 U.S. 186 (1986), the United States Supreme Court upheld the constitutionality of a law prohibiting sodomy. Yet, less than 20 years later in Lawrence v. Texas, 539 U.S. 558 (2003), the same Court found such laws to be unconstitutional.
The words of the Constitution did not change between 1986 and 2003, but the culture did change. When we think about the law, we need to realize that the law is an expression of the culture. If the culture changes, the laws will change.
So, when we think about the law, we need to think about the law as it relates to the broader culture. We need to understand where the law stands today, but we also need to be prepared for the where the law will be tomorrow.
A detailed consideration of the culture and the legal system would be well-beyond the scope of this work. Yet, there are some things we must consider. In 2013, Albert Mohler wrote of “A Moral Revolution at Warp Speed.” (Albert Mohler, Jr., “A Moral Revolution at Warp Speed,” Albert Mohler, December 11, 2013, https://albertmohler.com/2013/12/11/a-moral-revolution-at-warp-speed-now-its-wedding-cakes.) That moral revolution has been moving steadily through the legislatures and courts.
As this book is being finalized, decisions in the federal courts and decisions in legislatures are finding that “erotic liberty” (to use Dr. Mohler’s phrase) is of more social value than First Amendment rights to speech or religion. I have spoken with some of the most well-informed attorneys as to First Amendment law who are dumbstruck at what has been said and done.
There are well-known cases of Christian wedding photographers who have asked to be exhibited from being coerced to participate in same-sex weddings. A wedding (as opposed to a bare marriage license) for a Christian is a religious rite which serious theological consequences. In the recent decision of 303 Creative LLC v. Elenis, et al, _____ F.3rd _____ (10th Cir. 2021) the appellate court found that the law which prohibited a Christian wedding photographer from refusing to photograph a same-sex wedding was a content-based restriction on speech and that compelled speech by the photographer.
Only in the most extraordinary circumstances have the courts permitted such laws to stand. Under the law, the most-vile racist speech and pornography is protected. But in this decision, the 10th Circuit held that erotic liberty of same-sex couples was such remarkable importance that the state could compel the speech of a Christian to approve of the marriage, “we hold that CADA satisfies strict scrutiny, and thus permissibly compels Appellants’ speech.”
Think for a moment. We allow “conscientious objectors” to avoid war – which can entail the very existence of the nation – to refuse on the ground of a religious objection. We cannot compel a Nazi to speak well of Jews. But the government can compel someone to approve same-sex marriage.
You may think, “Yes, but the government will not try to concern itself with what is done in a church.” In Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church & School (6th Cir. 2010) 597 F.3d 769, the appellate court found that an ordained minister had the right to make a complaint to the EEOC and the church which fired the plaintiff was not permitted to rely upon the “ministerial exception.” When the church appealed the decision, the United States government argued that the state had the power to determine whether there really was a proper basis to fire the minister. The Supreme Court overturned the Sixth Circuit, but the federal government was on the other side.
There are well-publicized instances of the state taking a child away from a parent who wished to protect their child from what is called “transition,” but is sterilization and amputation of healthy body-parts, the poor child believes the body to not be who they “really” are.
You may think, “Yes, but I am a biblical counselor in a church, not a photographer at wedding, I’m not making a hiring decision, I’m not a parent who has lost her child to sterilization.” If this begins to sound like Martin Niemöller’s famous lines, “First they came for the Communists …,” you should realize that they are not that-far from you.
Consider this: There are state laws which prohibit licensed therapists from counseling minors against same sex attraction and behavior.
As will be discussed below in chapter 2, the activity which you undertake in providing counsel is functionally identical to conduct of a licensed counselor. I want you to imagine that a high school student, the child of a family in the church is brought to you, unwillingly, by the parents of a child. The parents ask you to “fix” their child. You gently and patiently explain to child that the Scripture has very clear instructions on sexual behavior. You explain that a very strong desire to do something, even an inability to not understand how one could not desire to do a thing, does not make a thing right in the eyes of God. You sympathize with the difficulty this will be for them, but counsel against this sin.
This teenager, who already resents his parents, goes to the local “human rights” attorney, who then sues you for (1) practicing psychotherapy without a license, and (2) violating the fundamental policy of the state. You will be brought before a judge, who must be re-elected to maintain her pension, and a jury who belongs to the culture at large and which thinks you at best outdated. Your scriptural counsel will be called hate speech.
Wait, you will say, the government will not concern itself with what a pastor says to his congregation! This would ignore instances, such as the mayor of Houston (through an outside group) subpoenaing the texts of sermons of local pastors to look for “troublesome” language.
And so, you lose at the trial court. You then bring your case to the 10th Circuit, say (who already believes Christians must be compelled to approve of same-sex marriage).
We need to understand where the law is today, and where the law will likely be tomorrow. There are many fine attorneys who have advocated on behalf of the freedom of religion. Some of those attorneys have contributed to this book. We know that God is sovereign.
However, we also know that God expects us to exercise wisdom. “The prudent sees danger and hides himself, but the simple go on and suffer for it.” (Prov. 22:3) This book is not meant to cause fear, but rather is a call for the exercise of wisdom. Since most biblical counselors will not have legal experience, we written this book to give what we have experience.