Suit challenges clergy's counseling role. Ministers and scholars say California case threatens church freedom

For centuries, pastoral counseling has been an integral part of organized religion. Now, a ``clergy malpractice'' ruling in California has church officials worried about government intrusion into this very private aspect of religion. The concern stems from a California Court of Appeal decision last month that reinstated a $1 million lawsuit against a church brought by a couple whose son committed suicide. The couple blame incompetent counseling by four ministers for their son's death in 1979.

The case has attracted widespread attention in religious and legal circles because it is believed to be the first to claim that clergy can be held liable for malpractice, similar to the way doctors and other professionals can. A number of ministers and church-state scholars fear the decision could lead to ministers, rabbis, and other religious counselors being sued for not referring troubled persons to psychiatrists or psychologists.

They are gearing up to fight what they say represents a major blow to freedom of religion.

``The bell tolls for everyone on this one,'' says the Rev. Franklin Littell, president of the Hamlin Institute and a professor emeritus at Temple University. ``Every pastor, priest, and rabbi is in jeopardy as a result of this ruling.''

The suit has been dismissed twice by trial judges. A third trial was interrupted at midpoint by the defense's petition to the Second District Court of Appeal. But in its 2 to 1 decision last month, which it made final Oct. 16, the appeals court said counselors have a special responsibility to prevent suicide, ``whether those counselors are affiliated with a religious institution or not.'' The ruling, which sends the case back for trial, is being appealed to the California Supreme Court.

The lawsuit was filed seven years ago by Walter and Maria Nally of Tujunga, Calif., against the Grace Community Church of Sun Valley. The Nallys allege that the four ministers of the fundamentalist church aggravated their son's emotional problems by burdening him with guilt and failed to insist that he receive psychiatric help when they realized he was suicidal. The church has said the son was seen by at least eight physicians and mental health professionals in the last two months of his life.

In the majority opinion for the appeal court, Justice Earl Johnson rejected the notion that the case involved clerical malpractice. Instead, he said the basis for the suit should be more accurately construed as ``negligent failure to prevent suicide and intentional or reckless infliction of emotional injury causing suicide'' which ``happen to have been committed by church-affiliated counselors.''

He added that principles of California law impose a ``duty of due care on those who undertake a counseling relationship with suicidal individuals....'' Judge Johnson further said, ``The First Amendment [to the United States Constitution] does not immunize the church's counselors from liability for failing to meet this standard of care....''

Some clerics contend the ruling marks a dangerous intrusion by the government into a fundamental religious practice.

``The whole matter of liability for one engaging in pastoral counseling is frightening, indeed,'' says Dr. James Wood of Baylor University, the founding editor of Church-State magazine.

``The recent ruling would act to place an entire aspect of religious life ... under the scrutiny and judgment of the government,'' adds Dr. J. Gordon Melton, a professor at the University of California Santa Barbara and director of the Institute for the Study of American Religion.

Some First Amendment lawyers contend the ruling could have a ``chilling effect'' on anyone engaged in religious counseling. Barry Fisher, a Los Angeles lawyer, says it may force churches to ``arm themselves with a shrink [a psychiatrist], a lawyer, and an insurance agent.'' He worries the decision could be broadened to make churches liable for anyone suffering from ``mental anguish.''

Some scholars say the ruling in effect forces church counselors to have people seek treatment from psychiatrists or similar therapists even though it may violate the church's religious beliefs.

Yet not everyone agrees with these characterizations. Edward Barker, attorney for the Nallys, says the ruling does not force church counselors to send people to psychiatrists. ``All the decision says is that a counselor who undertakes to counsel a suicidal person has the responsibility to do a competent job,'' he says.

Some two dozen clergy and lawyers met here this week to discuss what they see as a ``growing threat of clergy malpractice suits.'' The group hopes to convene a major conference early next year.