Concerns Regarding Implementation of Idaho Code 54-3405A
relative to
Licensing of Pastoral Counselors
for consideration by the
Idaho State Counselor Licensing Board

May 5, 1998

In a letter of opinion requested by Representative Bill Sali and dated February 3, 1998, Matthew J. McKeown of the Idaho Attorney General s Office outlined certain problems with Idaho Code 54-3405, indicating that:

1. "the plain language of the statute establishes criteria that have the potential to favor one religious denomination over the other"; that

2. "the state may have put itself in the position of imposing religious rules and endorsing religious norms" and that if a reviewing court finds that to be true, "then that court will probably rule that Idaho Code 54-3405A violates Art.1, sec. 4 of the Idaho Constitution and the First Amendment of the U.S. Constitution."; and that

3. "the optional nature of the license" does not solve its constitutional problems:

54-3405A essentially "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... 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 the establishment clause."'

Subsequent to that opinion and following a vote in the House to repeal 54-3405A, the Senate sponsor of that law acknowledged its failings as he put forth SB-1537, the stated purpose of which was "to change Idaho Code 54-3405A to answer the objections of an Attorney General's Opinion questioning the constitutionality of part of that Code section."  The Statement of Purpose claimed to satisfy the concerns of the Attorney General's Opinion and went on to express a further intent of the bill when it said, "This change removes that objection and removes unnecessary language which should be in the rules and regulations." Thus, the constitutional problems with the law's implementation would have been moved from the statutory realm to the regulatory realm.

At the request of the bill's sponsor, Senator Bruce Sweeney, Deputy Attorney General Matthew J. McKeown then issued another opinion, indicating that if Idaho Code 54-3405A were amended in accord with SB-1537, '"a reviewing court is likely to rule that, on its face, Senate Bill 1537 would not constitute an "unnecessary entanglement" of government and religion."' In that opinion he made specific mention that the proposed amendment would have avoided one particular pitfall which remains in 54-3405A: "Unlike Idaho Code 54-3405A, Senate Bill 1537 does not involve the American Association of Pastoral Counselors (AAPC) in the development of curricula or any other standard." Also, it is important to note that the second opinion was only a prima facie examination of the bill's language and did not address the problems inherent in a functional application of the law.

While the problems of 54-3405A are evident as it stands in its yet to be implemented state, when examined in light of Docket 24-1501-9701, Rules Governing the Idaho Counselor Licensing Board, it is evident that the concerns of the Attorney General's Office would have remained even if the law were to have been changed in accord with the failed Senate Bill 1537 which would merely have moved the objections from the face of 54-3405A and passed them off on the regulatory function of the Counselor Licensing Board.

Representative Robert Schaefer will soon present to the Attorney General a request for an opinion on specific constitutional questions relative to the application of any Statute or Regulation with regard to the licensing of the religious title "pastoral counselor" and its inherently religious function.

Given the fact that the Senate refused the practical solution to the constitutional shortcomings of 54-3405A (SB-1537, as amended) which was passed by the house, the matter is sure to be revisited in the next legislative session.

Finally, the problems of 54-3405A are further compounded by a new law invoked by the passage of SB-1419 which stands as the clearest and most recent declaration of legislative intent with regard to the licensure of "faith-based" counselors. That law amends Idaho Code 54-3402 (4) to include, "Nothing in this chapter shall be construed to apply to the activities and services of any religious denomination or sect or faith-based counseling of any kind." It is clearly evident that 54-3405A stands at odds with these newest counselor license provisions for the following reasons:

1. Because the statement in 54-3402 (4) is stipulated to apply to the whole of "this chapter" (i.e., Chapter 34, Professional Counselors for Independent Practice), it must necessarily apply to 54-3405A which is part of that same chapter of the Code.

2. Since the term "pastoral counselor" is, by definition, a religious title which denotes an intrinsically religious (i.e., "faith-based") function, 54-3402 (4) must be understood to forbid any application of Chapter 34 to such "pastoral counselor" "activities and services". This intent is further clarified by the fact that the Legislature removed from the scope of this new law any references to the term "pastoral counselor" which had been included in the original draft of SB-1419.

Questions for the Licensing Board:

The stated purpose for the creation of a special license for pastoral counselors was that counselors with religious credentials did not qualify for licensure under the then existing law. Was any applicant ever refused a license under the implemented (secular) portion of the counselor license law because his/her degree from a religious institution was deemed inadequate? If not, what is the need for implementation of 54-3405A?

Does the Board have an obligation to implement a law that has specific constitutional problems which have been readily acknowledged?

Does the Board have a mechanism whereby it can deal with the problems which may result for counselors who are licensed under the provisions of 54-3405A if this law is implemented and is later declared invalid either by the Attorney General or as a result of a constitutional challenge, or if it is stricken by corrective legislation?

These observations and questions are submitted with the most genuine concern for the proper constitutional application of the laws in the State of Idaho, especially as they relate to the cherished principles of religious freedom which are integral to the preservation of our blessed quality of life here in this great state and nation.

Sincerely,