[1996/oagheade.htm]

OAG 96-15

March 5, 1996

Subject: Certification of Pastoral Counselors

Written By: Diane Schuler Fleming

Requested By: Don Cetrulo

Syllabus: To avoid conflict with the First Amendment, a statute must have a secular legislative purpose, its principal effect must be one that neither advances nor inhibits religion, and it must not foster excessive government entanglement with religion.

Statutes Construed: House Bill 385

Constitutional Provisions Cited: United States Constitution, First Amendment

OPINION OF THE ATTORNEY GENERAL

The Office of the Attorney General has been asked to render an opinion regarding proposed legislation. Specifically, we address whether 1996 House Bill 385, an Act relating to the certification of pastoral counselors, violates constitutional provisions governing the separation of church and state. The Attorney General provides this opinion on a public question of law submitted by a member of the legislature. KRS 15.025(2).

I.

House Bill 385

If enacted, House Bill 385 would create thirteen new sections of KRS Chapter 335, entitled Social Workers; Marriage and Family Therapists. Specifically, it would create a board, to be known as the Kentucky Board of Certification of Pastoral Counselors, which would be comprised of five members to be appointed by the Governor. The board would be given several duties, including:

� approve or deny applications for certification;

� approve, administer and grade the examination for certification;

� review applicants' credentials for recertification;

� adopt a code of ethics for certified pastoral counselors; and

� promulgate administrative regulations.

The board is also empowered to investigate suspected violations, and to institute actions to restrain or enjoin persons who violate the certification provisions.

In addition, House Bill 385 sets the standards for certification, and the penalties which may be imposed for violation of the provisions. Proceedings for suspension or revocation of a certificate are also provided. Finally, it requires the board to deposit all funds received with the State Treasurer for investment.

II.

Separation of Church and State

The First Amendment to the Constitution of the United States states in relevant part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” For decades, the courts have wrestled with interpretation of this phrase. In Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), the Supreme Court opined that the Establishment Clause was intended to afford protection from three main evils: “sponsorship, financial support, and active involvement of the sovereign in religious activity.”

One year later, in Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Court developed a three-part test to be used when analyzing questions of law in this area.

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.” [Citations omitted.]

Id. at 612 - 613.

Since the Court's decision in Lemon, this tripartite analysis has been the most widely used standard against which issues involving the Establishment Clause have been measured.

III.

Analysis

The first prong of the Lemon test requires a statute to have a secular legislative purpose. A mere “avowal” by the General Assembly that the legislation has a secular purpose is insufficient to avoid conflict with the First Amendment. Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 193-194, 66 L.Ed.2d 199 (1980). Generally speaking, however, the courts have agreed that a complete and total separation of church and state is impossible. As the Court stated in Lemon:

Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.

Id. at 614, 91 S.Ct. at 2112. Such weighing and balancing of circumstances can be a difficult challenge for the courts.

In Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989), the Supreme Court reviewed a Texas statute which exempted from sales and use taxes periodicals published or distributed by a religious faith, consisting wholly of writings promulgating the teachings of the faith, and books consisting wholly of writings sacred to a religious faith. While examining whether or not the statute had a secular purpose, the Court opined:

It does not follow . . . that government policies with secular objectives may not incidentally benefit religion. The nonsectarian arms of government and the interests of religious groups often overlap, and this Court has never required that public authorities refrain from implementing reasonable measures to advance legitimate religious groups of costs they would otherwise incur.

Id. at 10, 109 S.Ct. at 897.

This reinforces the notion that an absolute wall cannot be erected between the affairs of church and state. Indeed, incidental benefits to religion can and will be tolerated to some degree. However, the primary question remains, is there a secular purpose.

House Bill 385 does not state the purpose for which it is to be enacted. While it would appear to be consumer protection oriented, we simply cannot base our determination of the bill's constitutionality on an assumption. Therefore, because a secular legislative purpose cannot be determined with any degree of certainty, we find that House Bill 385 fails the Lemon test and as such is unconstitutional.

Conclusion

For a statute to withstand a constitutional challenge it must have a secular legislative purpose, its principal effect must be one that neither advances nor inhibits religion, and it must not foster excessive government entanglement with religion. We have been unable to determine with any degree of certainty whether House Bill 385 has a secular legislative purpose. Thus, this legislation fails the first prong of the Lemon test and therefore is unconstitutional.

A. B. CHANDLER

ATTORNEY GENERAL

DIANE SCHULER FLEMING

ASSISTANT ATTORNEY GENERAL