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STATE OF IDAHO
OFFICE OF THE. ATTORNEY GENERAL
ALAN G, LANCE
February 3, 1998
The Honorable William T. "Bill" Sali Idaho House of Representatives Statehouse Boise, Idaho
Re: Constitutionality of Idaho Code § 54-3405A
Dear Representative Sali:
Your letter questioning certain provisions of Idaho Code § 54-3405A has been forwarded to me for review. Idaho Code § 54-3405A sets out criteria for obtaining a license as a pastoral counselor.
First, you ask whether Idaho Code § 54-3405A contains an impermissible delegation of legislative authority. One of the requirements for obtaining a pastoral counselor's license contained in Idaho Code § 54-3405A is that the applicant must:
Hold... a master of divinity (M.Div.) degree or doctoral degree with a major in pastoxal cou. nseling from an accredited university or religious institution with a requirement of sixty (60) semester credit hours of counseling related courses in a minimum of eight (8) of the following eleven (11) areas with the areas of study being specified by the American Association of Pastoral Counselors (AAPC):
(a) Theories of personality and personality development; (b) Theories of counseling and psychotherapy; (c) Marriage and family dynamics and counseling; (d) Group dynamics and counseling; (e) Personality, culture and ethics; (f) Psychology of religious experience; (g) Pastoral assessment and treatment; (h) Psychopathology; (i) Theories of pastoral care; (j) Research methods; (k) Orientation to the helping professions.
Idaho Code § 54-3405A(1)(a)-(k) (emphasis added). You ask whether the reference to study areas "being specified by the American Association of Pastoral Counselors (AAPC)" is an unlawful delegation of legislative authority in violation Art. 3, sec. 1 of the Idaho Constitution.
The leading case of Sun Valley Co. v. City of Sun Valley, 109 Idaho 424, 427-28, 708 P.2d 147 (1985), contains an excellent discussion of the Idaho Supreme Court's approach to the delegation of legislative power:
Historically, [Art. 3, sec. 1] . . . has been interpreted to limit the delegation of legislative authority to other branches of government. United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85, 53 S.Ct, 42, 44, 77 L.Ed. 175 (I932). The non-delegation doctrine, as it is called, traditionally required that laws delegating legislative authority to either the executive branch or the judiciary contain meaningful "standards." These standards were to insure that decision makers in the other branches, who were not publicly accountable through the election process, would not act arbitrarily, capriciously or discriminatorily. However, because of the irapracticality and the inflexibility of such a requirement, the nondelegation doctrine has long been dead in the federal courts, 1 K. Davis, Administrative Law Treatise § 3.2 (1978), and has since been recast in many state courts. Id. § 3.14. The modern view is that broad delegation of legislative authority is proper and indeed necessary. Id. § 3.15 (Supp. 1980) Instead of requiring standards to control discretion, the current view is that the legislation itself or the agency's internal guidelines should provide meaningful safeguards against arbitrary decision making; for example, a fight to a hearing or judicial review of agency decision making. See Warren v. Marion County, 222 Or. 307, 353 P.2d 257 (1960).
As an initial matter, it is not clear that Art. 3, see. 1, is invoked at all. This is because Idaho Code § 54-3405A does not delegate any authority to another branch of government. Instead, the statute adopts standards that have been developed by a particular private entity. Art. 3, sec. 1, does not prevent the legislature from adopting standards that may have been initially developed by another entity.
Even if the adoption of the AAPC criteria is considered a delegation of legislative authority, the legislature has provided a safeguard against possible arbitrary action by AAPC. The statute specifically enumerates the types of courses that potential applicants are required to take. A decision by the AAPC to change its specified course of study could not change the language of section 54-405A(1). Therefore, a reviewing court is likely to rule that Idaho Code § 54-3405A does not violate Art. 3, sec. 1 of the Idaho Constitution.
Next, you ask whether Idaho Code § 54-3405A violates Art. 1, sec. 4 of the Idaho Constitution. Art. 1, sec. 4 states, in pertinent part:
The exercise and enjoyment of religious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political fight, privilege, or capacity on account of his religious opinions; . . . No person shall be required to attend or support any ministry or Place of worship, religious sect or denomination, or pay tithes against his consent; nor shall any preference be given by law to any religious denomination or mode of worship.
Idaho Courts interpreting Art. 1, sec. 4 have generally interpreted it as providing the same protections as the first amendment to the United States Constitution. Therefore, both Idaho and federal cases invoking religious freedom typically fall into either "establishment clause" cases or "free exercise clause cases."
In Gregersen v. Blume, 113 Idaho 220, 223, 743 P.2d 88 (Ct. App. 1987), the Idaho Court of Appeals explained the difference behveen the two types of cases:
A First Amendment claim may invoke either the establishment clause or the free exercise clause. The establishment clause prohibits government sponsorship of religion. It requires that government neither aid nor formal!y establish a religious faith. The free exercise clause is a negative corollary of the establishment clause. It bars the government from prohibiting any religious belief and it requires the government to make some accommodation for religious practices when it pursues secular ends that incidentally affect religion.
Since your question raises the possibility that Idaho Code § 54-3405A may create a "preference" for a certain "mode of worship or denomination," your (sic) are asking whether Idaho Code § 54-3405A violates the establiskment clause.
Idaho Courts have adopted the federal test for determining whether a statute violates the establishment clause:
A law, or scheme of laws, will pass muster under the establishment clause it': (1) it has a secular purpose; (2) it has a primary secular effect; and (3) it does not thrust the government into an excessive entanglement with religion. E.g., Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971),
Gregerson, 113 Idaho at 223; see also, State v. Bissett, 116 Idaho 477, 776 P.2d 1196 (Ct App. 1989).
Applying the first prong, the Statement of Purpose accompanying section 54-3405A (attached) states:
The purpose for this legislation is to provide an opportunity for qualified pastoral counselors to become licensed under the existing Board of Counselors. The provisions of licensed pastoral counselors shall be the same as the licensed professional counselors with the exception of allowing candidates to substitute a masters of divinity (M. Div.) degree in place of a masters of counseling degree.
It is difficult to determine from the language of the Statement of Purpose whether or not the primary purpose of Idaho Code § 54-3405A is secular. However, the minutes from the Senate Health and Welfare Committee (attached) shed additional light on the purpose of section 54-3405A.
The sponsor of section 54-3405A stated that "in some instances a pastoral counselor must be licensed in order to receive payment from a third party." This office assumes that, in most cases, the third party referred to by the sponsor is an insurance provider. Therefore, the purpose of section 54-3405A appears to be to allow pastoral counselors to obtain a license that may be a prerequisite for obtaining reimbursement from insurance companies. A reviewing court would most likely conclude that this is a primarily secular purpose.
The next prong of the test is to determine whether section 54-3405A has a "primarily secular effect." The materials attached to your letter suggest that the effect of the criteria set out in section 54-3405A may be that some members of recognized faiths will be unable to conform to the licensing criteria due to their religious beliefs. For example, many denominations do not have specific educational requirements for those individuals acting as counselors. Other denominations may have beliefs that are incompatible with the views adopted by the AAPC. In terms of effect, it is clear from the language of the statute that members of some recognized faiths will be eligible for a license while members of other recognized faiths will not. It is highly questionable whether this effect can be considered "primarily secular."
The uncertainty created by the second prong of the establishment clause test may be resolved by apply/rig the final prong to section 54-3405A. A legislative enactment satisfies the final prong of the establishment clause test if it "does not thrust the government into an excessive entanglement with religion." The most analogous case addressing this issue is Ran-Dav's County Kosher v. State ,608 A.2d 1353 (N.J. 1992). In Ran-Dav, the State of New Jersey adopted a comprehensive set of regulations intended to ensure that food labeled as "kosher" conformed to established guidelines. The plaintiffs argued that there was no single set of kosher guidelines. Rather, what is or is not kosher is a source of on-going religious debate within the Jewish community. Ran-Dav, 608 A.2d at 1356. Therefore, the plaintiffs contended that the regulations violated the establishment clause because they favored one side over another in a disagreement over religious doctrine.
The New Jersey Supreme Court observed that the establishment clause is intended to prevent the state from placing its "imprimatur" on certain religious practices or ideas. Ran-Dav, 608 A.2d at 1360. "Under the Establishment Clause, the State can neither impose religious rules nor endorse religious norms." Id. Finally, the court adopted the U.S. Supreme Court's observation that "[t]he government may not 'lend its power to one or the other side in controversies over religious authority or dogma.'" Id., quoting Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 877 (I990). The New Jersey Supreme Court applied these rules to the kosher regulations and held that the regulations were unconstitutional to the extent that they adopted a particular religious doctrine because such an endorsement of a particular set of religious beliefs would violate the establishment clause. Ran-Dav, 608 A.2d 1366.
Applying these rules to Idaho Code § 54-3405A, the plain language of the statute establishes criteria that have the potential to favor one religious denomination over the other. Taking the example you raise, there is another entity that is similar to the AAPC called the International Association of Biblical Counselors (IABC), Making an assumption for the purposes of your question, there may be "controversies over religious authority or dogma" that place the IABC and the AAPC at odds with each other. There may even be fundamental differences of opinion between the two organizations as to the appropriate qualifications for a pastoral counselor.
Both the Idaho and federal cases interpreting the establishment clause make it plain that the state cannot "lend its power to one or the other side" in a debate between the IABC and the AAPC over matters of religious doctrine. By including the AAPC in the statute, while excluding other similar groups, the state may have put itself in the position of imposing religious rules and endorsing religious norms. If a reviewing court determines that Idaho Code § 54-3405A does indeed put the "imprimatur" of the State of Idaho on a particular set of religious ideas, at the expense of a rival set of ideas, then that court will probably rule that Idaho Code § 54-3405A violates Art. I, sec. 4 of the Idaho Constitution and the First Amendment to the U.S. Constitution.
Finally, you ask whether the optional nature of the pastoral licensing scheme has any effect on Idaho Code § 54-3405A's constitutionality. As the statement of purpose, and other legislative history suggest, Idaho Code § 54-3405A is intended to give pastoral counselors the opportunity to obtain a license so that they can receive insurance reimbursements more easily. Assuming that it is difficult to receive insurance reimbursements without a license, section 54-3405A forces every pastoral counselor to either comply with the criteria in the statute or forego the potential benefits of a license. This would be an extremely difficult choice if the criteria established by section 54-3405A are inconsistent with the "religious authority or dogma" of a given denomination or sect. Therefore, a reviewing court probably would not rule that the optional nature of the license scheme remedies any potential conflict with establishment clause.
I hope this letter is helpful. If you have any additional questions or comments, please feel free to contact me.
Very truly yours,
MATTHEW J. McKEOWN
Deputy Attorney General
Intergovernmental and Fiscal Law Division
MJM:tj
Attachments
Intergovernmental & Fiscal Law Division
P.O. Box 83720, Boise, Idaho 853720.0010
Telephone: {208) 334-2400, FAX: (208) 334-2530