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Back in 1991, Christian fundamentalists remained happily silent when Canada passed a law allowing religions to engage in voluntary remediation of legal disputes under their own religious laws. They were content to watch this happen because Jewish and Catholic groups were the ones to place their subjects under religious law, and that was apparently OK. It was only in 2005 that Christian fundamentalists howled their opposition, when a former Canadian Attorney General proposed that Muslim religious organizations be able to enforce Islamic sharia law in matters concerning Muslim families, such as divorce, child custody and the division of assets. All of a sudden, the Christian fundamentalists came out of the woodwork denouncing the proposal (which was rejected by the Canadian government, by the way). The fundamentalists’ problem wasn’t with theocracy — it was with Islamic theocracy.

Fast forward to the summer of 2007, when the Texas Supreme Court rejected the lawsuit of Peggy Lee Penley against Pastor and licensed professional counselor Buddy Westbrook. Penley had approached Westbrook for marital counseling, and in that counseling session told Westbrook she’d had an extramarital affair. Licensed professional counselors are legally obliged to maintain confidentiality, and in its ruling the Supreme Court of Texas accepted Penley’s claim that her disclosure occurred within the context of Westbrook’s non-religious professional counseling. And yet the Supreme Court of Texas wrote in its ruling:

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.

In other words, when a person’s secular obligation conflicts with church law, church law wins. If you need it spelled out more clearly, here’s some more of the text of the ruling:

It is true that Penley pins Westbrook’s liability in this case, at least in part, on his breach of a secular duty by disclosing Penley’s confidential information to the church elders in the first instance. However, this disclosure cannot be isolated from the church-disciplinary process in which it occurred, nor can Westbrook’s free-exercise challenge be answered without examining what effect the imposition of damages would have on the inherently religious function of church discipline. Subjecting CrossLand’s pastor to tort liability for engaging in the disciplinary process that the church requires would clearly have a “chilling effect” on churches’ ability to discipline members, and deprive churches of their right to construe and administer church laws…

We conclude that the secular confidentiality interest Penley’s professional-negligence claim advances fails to override the strong constitutional presumption that favors preserving the church’s interest in managing its affairs. Penley voluntarily became a member of the church body and agreed to abide by the church constitution; indeed, she expressed that she did so “willingly.” That constitution outlined the disciplinary process that would be followed if a member engaged in conduct that the church considered inappropriate. As CrossLand’s and Penley’s pastor, Westbrook assumed an obligation to Penley and to the congregation to follow the church’s constitution. Although Penley contends pastoral counseling is not at issue because she did not receive marital counseling from Westbrook in his capacity as a member of the clergy, the publication about which Penley complains was made in the course of the church disciplinary process and communicated by Westbrook pursuant to the requirements of that process. And even though Penley’s suit is now against Westbrook and no longer the church, it is well-settled that “[t]he interaction between the church and its pastor is an integral part of church government,” Simpson, 494 F.2d at 493 , and “[t]he relationship between an organized church and its ministers is its lifeblood.” McClure, 460 F.2d at 558.

Even if Westbrook’s dual roles as Penley’s secular counselor and her pastor could be distinguished, which is doubtful, Westbrook could not adhere to the standards of one without violating the requirements of the other. Any civil liability that might attach for Westbrook’s violation of a secular duty of confidentiality in this context would in effect impose a fine for his decision to follow the religious disciplinary procedures that his role as pastor required and have a concomitant chilling effect on churches’ autonomy to manage their own affairs.

The Texas Supreme Court has ruled that once a person willingly joins a religious institution, the prerogatives of that religious institution to implement and enforce its religious law upon its members supercedes and overrules the right of individual members to be protected by secular laws. This is an implementation of American theocracy, placing religious law above secular law. But you won’t find Christian fundamentalists crying foul over this instance of theocracy; indeed, Christian fundamentalists funded Westbrook’s legal defense. That’s because, as was showing in the case of Canada, Christian fundamentalists don’t have a problem with theocracy — as long as it’s their religion that gets the power. Theocracy is only objectionable to the Christian fundamentalist movement if it is the theocracy of a competitor religion.