The Texas Supreme Court Upholds Church’s Right to Discipline
Unanimous Decision is Landmark Affirmation of Church’s Authority Under God
EDITORIAL INTRODUCTION: Several weeks ago, the Texas Supreme Court handed down a stunning victory on the issue of the authority of the local church to discipline its own members. The decision was a unanimous affirmation of the true doctrine of the separation of church and state. It was also a defense of the historic, biblical, and legal right of local churches to discipline its own members and to exercise self-governance free of state intrusion. Christian attorney Kelly Shackelford, chief counsel for Liberty Legal Institute, should be commended for his able handling of this landmark case on behalf of religious liberty and in defense of the independence of the Church from the State.
The Court’s unanimous ruling left no doubt about the constitutional impropriety of the state interfering with pastors and congregations who are exercising church discipline. It also largely quashed the unaccepted and non-statutory theory of “clergy malpractice” which is sometimes promoted by Leftists within the legal community as a vehicle for state regulation of the church.
The story behind the case is revealing: A woman goes to her pastor to talk about crisis in her life. He holds himself out, not only as her pastor, but as a licensed professional counselor bound by a code of ethics. In the course of the counseling session, the woman discusses the immediate problems in her life and her marriage, and then the woman informs her pastor that she has had an affair with another man because her marital troubles had not improved and that she is planning to divorce her husband. She professes to be sorry for some things, but remains steadfast, defiant, biblically unrepentant, and unwilling to heed the counsel and admonition of her shepherds. The church follows 1 Corinthians 6 and excommunicates the unrepentant women. The embittered and unrepentant excommunicant then sues the pastor for violating a “pastoral confidence” for following Matthew 18 by bringing the relevant facts to the local church for disciplinary purposes. Because the pastor is not only a church leader, but a licensed professional, she asks the Court to find him guilty of ethical impropriety.
From these facts, the following question arose: Are pastors and local churches subject to secular lawsuits for obeying Christ’s command to discipline congregants engaged in serious unrepentant sin? Specifically, what happens when an adulterer discusses her adultery with a pastor? Does she become immune from accountability before Christ’s church for ongoing sins merely because she did not want the pastor ever to reveal facts related to unrepentant and ongoing sins to others? Can professing Christian members of local churches demand what is essentially a “get out of discipline and accountability free card” when they counsel with or are confronted by their pastors?
Answer: No. First, there is no such thing at law as a “pastoral confidence”— (i.e. a communication with church leaders by a congregant engaged in sin that then requires the church leaders to be silent and refrain from honoring their duties as commanded by Christ.) Biblically, the opposite is true. Shepherds have an affirmative duty to instruct, admonish, and even reproach members for unrepentant moral sins before the body.
Bob Renaud has written a very helpful overview of this important, unanimous decision by the Texas Supreme Court. This is important reading for pastors, lawyers, Christian students and families in general who want to see the integrity of Christ’s church spared harassment from those who would persecute Christ’s church, including left wing attorneys, hate-mongering feminists, and vindictive rebels.
On June 29, 2007, the Texas Supreme Court rendered a unanimous opinion in the case of Westbrook v. Penley that affirmed the biblical doctrine of the separation of church and state. This decision is landmark because it is the first time a modern court has clearly and convincingly articulated the limited jurisdiction of the state as it pertains to matters of a church’s authority to exercise discipline apart from civil interference.
The background of this case is as follows: Peggy Lee Penley sued her former pastor, C.L. Westbrook, Jr., in November 2001 over issues arising from the exercise of church discipline against her. Westbrook, in the dual role of licensed marriage counselor and pastor, had learned in a personal counseling session that Penley was engaging in a “biblically inappropriate” extramarital sexual relationship. Westbrook initiated disciplinary actions, culminating when he published a letter to the congregation of CrossLand Community Bible Church urging church members to shun Penley for her unrepentant violation of biblical principles. Penley sued Pastor Westbrook, and the appeal reached the state supreme court.
Before we analyze the court’s opinion, we must first establish a biblical and historical overview of the biblical doctrine of the separation of church and state. This is necessary because there is no phrase in public policy parlance today more misinterpreted, misquoted, and misapplied on both Christian and secular sides of the debate than “the separation of church and state.
Biblical Principles, Historical Application
“Render therefore unto Caesar the things which be Caesar’s and unto God the things which be God’s.” With this statement, Jesus Christ answers one of the most defining legal and jurisdictional questions of the ages: What authority may be rightfully exercised by a civil magistrate? By His authoritative Word, Christ has denied to the civil ruler absolute power over the citizens. The Scripture teaches that only God has absolute sovereignty. Psalm 24:1 declares: “The earth is the LORD’s, and the fulness thereof; the world, and they that dwell therein.” Clearly then, Caesar cannot be lord over all. Only Christ can make that claim.
The biblical doctrine of the separation of church and state has its origins in Old Testament passages such as 2 Chronicles 26:18:
And they withstood Uzziah the king, and said unto him, It appertaineth not unto thee, Uzziah, to burn incense unto the LORD, but to the priests the sons of Aaron, that are consecrated to burn incense: go out of the sanctuary; for thou hast trespassed; neither shall it be for thine honor from the LORD God.
Here we see that the king was not allowed to burn incense before the Lord. This right was reserved only for the “priests the sons of Aaron.” Thus, King Uzziah could not exercise his power as king in the temple of the Lord. The Temple and its services were within the jurisdiction of the priests by the command of God. Jesus Christ was reiterating the Old Testament doctrine of the jurisdictional separation of the church and state when he answered His disciples’ question whether it was lawful to pay tribute to Caesar or not.
The Theology of Church and State
Theologically, the doctrine of the separation of Church and State was carefully articulated during the Reformation by such reformers as John Calvin, John Knox, and Theodore Beza and then later by great Puritan divines such as Richard Baxter, John Cotton, and George Gillespie. Gillespie wrote Aaron’s Rod Blossoming, a major treatise that is one of the definitive works on the biblical doctrine of separation of church and state. In that work, Gillespie stated:
The Jewish church was formally distinct from the Jewish state. I say formally, because ordinarily they were not distinct materially, the same persons being members of both; but formally they were distinct, as now the church and the state are among us Christians.
Calvin, in his magnum opus, The Institutes of the Christian Religion, spent considerable time dealing with the proper view of church-state relations. Calvin stated his belief that church discipline should “be altogether distinct from the power of the sword [the power of civil government].” Calvin explained:
Christ’s spiritual kingdom and the civil jurisdiction are things completely distinct.
Calvin believed in an independent church supported and reinforced by a godly civil magistrate. He stated, “Christ’s spiritual kingdom and the civil jurisdiction are things completely distinct.” Calvin believed that the church and the state coexisted as two forms of government separated from one another, but both under God and subject to his law-word. As church historian Dr. Joe Morecraft has explained:
[Calvin] also made a clear distinction between church and state — institutionally, functionally and jurisdictionally — without separating Christianity from the state, which, equally with the church, is accountable to the triune God.
Common Law Heritage
As a precursor to the Reformation, the English common law had long recognized this distinction between “temporal” and “spiritual” matters. According to legal scholar Herb Titus:
Even before Calvin wrote his study that called for limited authority both in the church and in the state, the English common law had been developed in such a way as to recognize such limits in principle. In the fourteenth century, Bracton claimed that the common law courts had jurisdiction over “temporal” matters, and the ecclesiastical courts had authority over “spiritual” matters. For several centuries, English judges battled over whether cases involving marriage, tithes, inheritance of property, and the like were “temporal” or “spiritual.” Whatever the merits of these claims and counterclaims, this principle was established: Some “wrongs” were not within the jurisdiction of the civil government courts that enforced the common law but were within the jurisdiction of the ecclesiastical courts and vice versa; moreover, some wrongs were not within the jurisdiction of any human court.
Gary DeMar has stated the historical doctrine of the separation of church and state quite well:
In the simplest terms, separating Church and State means that the institution and the ecclesiastical jurisdiction of the Church is separate from the institution and the civil jurisdiction of the State. The Church as an institution cannot mingle in the institutional affairs of civil government. Neither can its officers. In the same way, civil government cannot disturb the ministry and operation of the Church by tampering with the Church’s doctrines or courts.
This principle of the separation of church and state was even be articulated by members of the United States Supreme Court! In 1875, while an Associate Justice, Presbyterian William Strong delivered two lectures at Union Theological Seminary in New York on the nature of church/state relations. He stated:
Again, the law recognizes the right of every church to determine finally who are, and who are not its members. Herein is a marked difference between churches and other organizations...But a church is allowed to determine for itself, construing its own organic rules, whether a member has been cut off; and no civil court will inquire whether the amotion was regularly made, or issue a mandamus to compel a restoration. It [the civil courts] accepts the decisions of church courts upon questions of membership as not subject to civil law review.
Five years ago, Chief Justice Roy Moore of the Supreme Court of Alabama wrote an incisive opinion in Yates v. El Bethel Primitive Baptist Church,explaining the proper jurisdictional separation of church and state. The Alabama high court had involved itself in a church election dispute, and Justice Moore dissented. He explained that the court not only should not interfere with church government, but lacked the jurisdictional power to do so:
The church — as an institution — does not have authority over the affairs of civil government, and the state — as an institution — does not have authority over the affairs of church government . . . . Acknowledgment of this separation comes from a recognition that God is the source of all power.
Because of this jurisdictional separation, the civil government cannot claim the power to second-guess the decisions of church government:
[A] common misconception is the belief that the state is merely the less preferred ‘power’ for determining ecclesiastical and religious matters, or that the power of state may be wielded in the religious sphere whenever it is thought to be necessary or expedient. On the contrary, the state is simply without jurisdiction in such matters: “It belongs not to the civil power to enter into or review the proceedings of a spiritual court.”
These basic principles concerning the jurisdictional separation of church and state are foundational to a proper understanding of the First Amendment. Justice Moore’s articulate exposition of this subject was a dissenting opinion, but it was squarely in line with a considerable body of law that properly recognizes the inability of civil government to interfere with church government. For the latest decision in this line, we turn to the Texas Supreme Court which has recently provided us with a landmark decision based squarely on the principles Justice Moore articulated five years ago — and as the Reformers articulated four centuries ago.
Westbrook: The Tradition Continues
To be clear: In applauding the holding of Westbrook, we do not necessarily mean that we agree with every detail of the way the pastor handled the situation from beginning to finish, nor do we agree with every detail of the court’s reasoning and arriving at its conclusion. Whether or not everything was handled properly is irrelevant to the central issue of this case, namely, the independence of church government from the interference of the civil government in its own affairs. We thank God that the Texas Supreme Court upheld the biblical doctrine of separation of church and state.
With this caveat in mind, we affirm that the court’s decision has much to teach us. The court begins with an overview of the jurisdictional issue at the heart of the case:
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.
Daring to Discipline
CrossLand Community Bible Church described itself as a “‘Christ-centered church,’ operated according to biblical principles and practices described in the church’s constitution and statement of faith.” The church constitution contained the following disciplinary policy:
We believe that one of the primary responsibilities of the church is to maintain the purity of the Body. We are directed by God to be holy. In recognition of the importance of this obligation, the elders will biblically and lovingly utilize every appropriate means to restore members who find themselves in patterns of serious misconduct. When efforts at restoration fail, the elders will apply the Biblical teaching on church discipline, which could include revocation of membership, along with an appropriate announcement made to the membership (Matt 18:15-17; I Cor 5:1-5; Gal 6:1, 2; 2 Thes 3:6).
Crossland Church had a firm commitment to the often neglected (and often unpopular), but biblically commanded, duty of a local church to exercise church discipline over its members where appropriate. Crossland’s constitution states that if one “violates Biblical standards, or which is detrimental to the ministry, unity, peace or purity of the church,” and the member is unrepentant, “the elders will follow our Lord’s instructions from Matthew 18:15-20.” When joining the church, Mrs. Penley, like all members, had agreed to be held accountable according to these standards. In response to a request to “[a]ffirm your willingness to abide by the constitution of this church,” Penley answered, “[s]ure, I can abide by the church constitution ... willingly.”
In the course of marriage counseling with Penley, Westbrook learned of her involvement in an adulterous relationship and initiated the church discipline procedure, following the sequence in Matthew 18. After personal confrontation, and a confrontation involving both Westbrook and his wife, Penley left the church. Nevertheless, Westbrook went to the elders, and they jointly decided to rebuke Penley before the church.
“Secular” Duty or Church Issue?
Mrs. Penley sued the pastor, the church, and the elders, but in a series of procedural moves, all claims were dismissed except for the claim of professional negligence against Westbrook for his role as a professional counselor. The appellate court looked at the fact that Westbrook was a licensed marriage counselor, and declined to recognize any ecclesiastical immunity. The Supreme Court disagreed.
Penley’s whole theory rested on the fact that Westbrook was a professional counselor not just a pastor, and this moved the issue out from the ecclesiastical immunity and into civil liability. Penley argued that Westbrook was a licensed counselor with a professional duty of confidentiality, and that he breached this duty by disclosing Penley’s information to the elders of the church, and that this breach of a “secular” duty took the case out of the church autonomy protection. The fact that the court did not take this position shows the very high value the court placed on church autonomy:
When a pastor who holds a professional counseling license engages in marital counseling with a parishioner, the line between the secular and the religious may be difficult to draw. In that instance, secular rules that govern the professional relationship may conflict with or impinge upon religious tenets or standards of conduct to which the church and its members have voluntarily bound themselves. Deciding which should yield requires a careful analysis of the respective interests sought to be protected.
Westbrook was immune, the court stated, because “this disclosure [of confidential information] cannot be isolated from the church disciplinary process in which it occurred.” Because of this, the court could not intervene — even though the professional negligence claim was a strong one when considered alone. They stated: “Churches have a fundamental right ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’”
“Spheres of Sovereignty”
The Texas Supreme Court “recognizes two spheres of sovereignty when deciding matters of government and religion. The religion clauses are designed to ‘prevent, as far as possible, the intrusion of either [religion or government] into the precincts of the other,’ and are premised on the notion that ‘both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.’”
As an aside, the Westbrook court relied entirely on the First Amendment to the U.S. Constitution, applied to the states through the incorporation doctrine of the Fourteenth Amendment. This doctrine has been the subject of considerable controversy itself, but for our purposes that is beside the point. The court would have reached the same result under the Texas Constitution without any reference to the U.S. Constitution. In doing so, the issues of principle — the jurisdictions of church and state — would have been the same.
Continuing its exposition of the jurisdictional differences, the court noted:
It seems to be settled law in this land of religious liberty that the civil courts have no power or jurisdiction to determine the regularity or validity of the judgment of a church tribunal expelling a member from further communion and fellowship in the church. Membership in a church creates a different relationship from that which exists in other voluntary societies formed for business, social, literary, or charitable purposes.
The Texas Supreme Court continued its brilliant analysis of the doctrine of the separation of church and state by reinforcing the fact that both the church and the state are separate entities and must maintain their distance:
Church relationship stands upon a different and higher plane, and the right of a church to decide for itself whom it may admit into fellowship or who shall be expelled or excluded from its fold cannot be questioned by the courts, when no civil or property rights are involved.
Penley urged the court to use a “neutral-principles approach” test in determining her professional-negligence claim against Westbrook. The court dismissed this plea by stating:
A church’s decision to discipline members for conduct considered outside of the church’s moral code is an inherently religious function with which civil courts should not generally interfere. Courts have no jurisdiction to “revise or question ordinary acts of church discipline” and “cannot decide who ought to be members of the church, nor whether the excommunicated have been justly or unjustly, regularly or irregularly cut off from the body of the church.”
They continued by stating:
This is because “the judicial eye cannot penetrate the veil of the church for the forbidden purpose of vindicating the alleged wrongs of excised members; when they became members they did so upon the condition of continuing or not as they and their churches might determine, and they thereby submit to the ecclesiastical power and cannot now invoke the supervisory power of the civil tribunals.”
The Court discussed the issue of disgruntled parishioners trying to sue church members for holding them accountable to the very standards they agreed to be held to:
Disgruntled parishioners cannot circumvent ecclesiastical immunity by suing church members rather than the religious body itself...else such immunity “would be an empty protection” and “there would be an inappropriate chilling effect on the ability of churches to discipline their members.”
The court noted that “the autonomy of a church in managing its affairs and deciding matters of ‘church discipline...or the conformity of the members of the church to the standard of morals required of them’ has long been afforded broad constitutional protection.”
It is significant that the court used the term “church autonomy” in speaking of the church being outside the jurisdiction of the court. Use of the new term makes it crystal clear that the court is not keeping out of the church matters just as an exercise of discretion; it is keeping out because it lacks the jurisdictional power to interfere at all.
Penley’s petition to the court sought to emphasize the fact that she was no longer a member of Crossland Church, and on that basis to argue that Westbrook could no longer disclose any information about her sins to the church. In rejecting this claim, the court upheld the biblical duty of the local church to “break fellowship with” Penley because she was unrepentant. The court properly concluded:
Penley’s voluntary forfeiture of her membership did not, in CrossLand’s or Westbrook’s view, forestall the church’s duty under its constitution to “tell it to the church” and admonish church members to “break fellowship with [Penley].” Their decision to so proceed was based on their interpretation of Matthew 18:15-20, an inherently ecclesiastical matter. We hold that court interference with that decision through imposition of tort liability in this case would impinge upon matters of church governance in violation of the First Amendment.
Westbrook: A Message of Encouragement
The decision in Westbrook is landmark. Rarely in recent times have we seen a court so clearly uphold the jurisdictional distinctions between church and state when it comes to restraining state power — rarer still when it is the highest court of the state. For the decision to be unanimous (which Westbrook was) is virtually unheard of.
The decision in Westbrook should be encouraging to Christians for many reasons. First, pastors should be encouraged that biblical church discipline can be carried out under the authority of church government, without fear of being overturned in civil court. Second, historians should be encouraged that there is a court which remembers the almost-forgotten historical meaning of “separation of church and state.” And third, Christian citizens should be encouraged that the court had the understanding to respect this historical principle of jurisdiction, a principle grounded ultimately in the Scriptures themselves.
Finally, the Reformers (e.g., Calvin, Knox, Beza, Gillespie) would have been pleased. As the great Puritan Richard Baxter wrote in his classic work, A Holy Commonwealth:
God doth not communicate all that Power in kind which is Eminently and Transcendently in himself to any one man, or sort of Officers; but distributeth to each their part; Civil Power to Civil Rulers, and Ecclesiastical to Church-Rulers.
We are grateful that this theological truth lives on as a legal reality today.