Can North Carolina create a state licensing board specifically for Christian counselors, and require Christian counselors to be licensed by it, without violating the First Amendment's separation of church and state?
Plain-English summary
Senator James Forrester sent AG Michael Easley a draft bill that would have created a NC Board of Examiners of Professional Christian Counselors and Therapists. The board would license counselors who held themselves out as Christian counselors, applying standards developed in consultation with named institutions (the American Society of Christian Therapists and Carolina University of Theology). Forrester asked whether the bill would survive a First Amendment challenge.
The AG's analysis was structured around the standard Establishment Clause test from Lemon v. Kurtzman: government action is unconstitutional if it lacks a significant secular purpose, has the primary effect of advancing or endorsing religion, or fosters excessive entanglement with religion. The bill probably satisfied the first prong (consumer protection for counseling clients is a secular purpose), but it ran into serious problems on the other two.
On the "advancement or endorsement" prong, the AG flagged that singling out Christian counselors for a dedicated licensing board sends a message that the state favors Christianity over other religions. Allegheny County v. ACLU (1989) held that any state action conveying favoritism toward one religion is forbidden. The bill's reference to "biblical principles of faith in God and obedience to God's will" reinforced that endorsement message. A reasonable observer would conclude the state was elevating uniquely Christian counseling methods.
On the "entanglement" prong, the AG identified two distinct problems. First, the bill linked Board approval to specific religious institutions (Carolina University of Theology and the American Society of Christian Therapists), pulling the state into an endorsement of those institutions' theology. Second, the Board would necessarily have to decide what counts as "Christian" counseling, which means deciding contested doctrinal questions. Are Unitarian counselors Christian? Mormon counselors? Quaker counselors who do not focus on biblical exegesis? The Board would be drawn into doctrinal adjudication forbidden by Presbyterian Church v. Hull Memorial Presbyterian Church (1969).
On the Free Exercise side, the analysis depended on whether licensure would be mandatory. The bill's exemption for "any Rabbi, priest, or clergy of any religious denomination" performing regular ministerial duties without separate charge implied that licensure was otherwise mandatory. If so, an unlicensed clergyman, Christian or not, would be barred from giving paid counseling, counseling outside their own religious group, or doing other usual ministerial duties. That would burden the free exercise of religion for clergy who declined to seek licensure or could not satisfy the Board's standards.
The AG closed with a contrast to a 1991 NC statute: the Fee-Based Practicing Pastoral Counselors Certification Act (G.S. § 90-380 et seq.). That act created a NC State Board of Fee-Based Practicing Pastoral Counselors, but with three crucial design choices that made it constitutionally durable. First, certification was voluntary: the only prohibition was on using the title "certified fee-based practicing pastoral counselor" without certification. Second, the act covered pastoral counselors of any religion (not just Christians), drawing on the IRS Code's definition of recognized denominations. Third, the act stayed out of religious doctrine and internal religious affairs.
The 1991 act is, in effect, the AG's roadmap for how to build a constitutional pastoral counseling licensing scheme. The 1993 proposed bill departed from all three of those features and consequently faced serious constitutional problems.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Establishment Clause doctrine has evolved significantly since Lemon. The Supreme Court has moved toward a "history and tradition" framework in some cases (American Legion v. American Humanist Ass'n, 588 U.S. 29 (2019); Kennedy v. Bremerton School District, 597 U.S. 507 (2022)), although other cases still apply versions of the Lemon framework. Employment Division v. Smith (cited in this opinion) remains the rule for neutral and generally applicable laws but was significantly limited by Tandon v. Newsom, 593 U.S. 61 (2021), and other recent cases. Anyone drafting a current religion-specific licensing scheme should consult current Establishment Clause doctrine, not just Lemon.
Background and statutory framework
The First Amendment's Religion Clauses (the Establishment Clause and the Free Exercise Clause) apply to NC through the Fourteenth Amendment. NC's own Constitution, Article I, Section 13, has been read as coextensive with the federal Religion Clauses (Heritage Village Church v. State, 1980). So the analysis under both sources of law is functionally one analysis.
The Lemon test that the AG used was the dominant Establishment Clause framework in 1993. It asked three questions: Does the law have a significant secular purpose? Is its primary effect to advance, prohibit, or endorse religion? Does it foster excessive entanglement between government and religion? A law failing any of the three is unconstitutional. The Supreme Court has since moved away from rigid Lemon application in some cases, but in 1993 Lemon was still the workhorse.
The bill in question would have created a Board of Examiners of Professional Christian Counselors and Therapists. Several features made it constitutionally fragile:
- The Board was specific to Christian counselors, not pastoral counselors generally. That singled out one religion for a dedicated state regulatory apparatus.
- The bill referenced "biblical principles of faith in God and obedience to God's will," embedding a particular theological position in the statutory text.
- The bill required licensure to be supplemented, after July 1, 1997, by the American Society of Christian Therapists and Carolina University of Theology for applicants with academic inadequacies. That linked Board approval to named religious institutions.
- The bill contained a narrow exemption for "Rabbi, priest, or clergy" performing regular ministerial duties without separate charge, implying that licensure was otherwise mandatory for paid counseling.
The AG worked through each Lemon prong:
Secular purpose. Yes, plausibly: consumer protection for counseling clients is a secular goal, and Wallace v. Jaffree held that a law fails the purpose prong only if it has no secular purpose at all. So the bill could clear the first hurdle.
Primary effect. No, it fails. Allegheny County v. ACLU held that government action sending a message of favoritism toward one religion violates the Establishment Clause. A board specifically for Christian counselors, with statutory references to biblical principles, conveys that message.
Entanglement. No, it fails. The bill would require the Board to decide what counselors count as "Christian," which is a contested doctrinal question. Presbyterian Church v. Hull Memorial Presbyterian Church (1969) prohibits state adjudication of religious doctrine. The bill's links to specific religious institutions deepen the entanglement.
The Free Exercise analysis depended on whether licensure was mandatory. Under the framework of Cantwell and Murdock, the state can regulate religious conduct only when the regulation is necessary to keep peace and order or when there is a compelling state interest. The bill's mandatory licensure for paid counseling would burden the free exercise of clergy who declined to seek licensure, who counsel persons of other religions, or who provide other ministerial services. That burden would require justification by a compelling state interest, which a religion-specific licensing scheme is unlikely to satisfy.
The AG noted that Employment Division v. Smith (1990) had cut back on Free Exercise protection when the burdened conduct is incidental to a neutral and generally applicable law. But a Board of Examiners of Christian Counselors is precisely not a neutral law; it is religion-specific by design. So Smith would not save it.
The 1991 NC Fee-Based Pastoral Counselors Certification Act is the constitutional contrast. It addresses the same area (pastoral counseling) but solves the constitutional problems by being voluntary (only the title is regulated), being religion-neutral (any denomination), and avoiding doctrinal involvement. The AG attached a 1991 opinion on the constitutionality of that act for reference.
The opinion is one of the cleaner examples in the NC AG corpus of the analytical move from a religion-specific regulatory proposal to its likely Establishment Clause infirmity. Anyone drafting a religion-related licensing or regulatory scheme can use the contrast between the 1993 proposal and the 1991 statute as a design guide.
Common questions
Does this opinion mean NC cannot license counselors who happen to be Christian?
No. The opinion is specifically about a state board that singles out Christian counselors as a regulated profession. NC has general counseling licensure schemes (for licensed professional counselors, licensed marriage and family therapists, licensed clinical mental health counselors, etc.) that apply regardless of religion. Christian counselors can hold those general licenses without constitutional problem.
What is the difference between licensure and certification?
Licensure means a person cannot perform the regulated activity without the license, with criminal or civil penalties for unlicensed practice. Certification (in the title-protection sense) means the regulated activity can be performed by anyone, but only certified individuals can use the protected title. The 1991 NC Pastoral Counselors Certification Act is title-protection certification, which is much less constitutionally restrictive than licensure.
Why is the Board having to decide what counts as "Christian" an entanglement problem?
Because there is no neutral civil definition of "Christian" that the Board can use. Christianity is a contested theological category. Are Mormons Christians? Jehovah's Witnesses? Unitarians? Members of denominations with non-Trinitarian theology? Presbyterian Church v. Hull Memorial forbids state courts and state agencies from adjudicating doctrinal questions, because that involvement is the kind of state intervention in religion the First Amendment was meant to prevent.
Could NC create a Board of Pastoral Counselors that covers all religions?
Yes, with care. The 1991 NC Fee-Based Pastoral Counselors Certification Act does exactly that, by drawing on the IRS Code's denomination definitions and avoiding doctrinal involvement. A licensing version (mandatory for paid practice) would face harder constitutional questions because it would burden religious practice across all denominations, but the doctrine-neutrality piece is achievable.
What is the Lemon test, and is it still good law?
The Lemon test (from Lemon v. Kurtzman, 1971) was the standard Establishment Clause test for decades. It asked whether a challenged law had a secular purpose, whether its primary effect was to advance or inhibit religion, and whether it fostered excessive entanglement with religion. The Supreme Court has since moved away from rigid Lemon application in some contexts, with American Legion v. American Humanist Ass'n (2019) and Kennedy v. Bremerton School District (2022) emphasizing historical practice and the original meaning of the Establishment Clause. Lemon is still cited in many lower courts, but anyone drafting a current religious-regulation scheme should consult current Supreme Court doctrine, not just Lemon.
Source
- Landing page: https://ncdoj.gov/opinions/north-carolina-board-of-examiners-of-professional-christian-counselors/
Original opinion text
March 11, 1993
The Honorable James Forrester
The Senate of North Carolina
State Legislative Building
Raleigh, North Carolina 27601-1096
Re: Proposed Legislation Establishing a North Carolina Board of Examiners of Professional Christian Counselors and Therapists; Constitutionality Under the First Amendment to the United States Constitution and the Religious Liberty Guarantee of the North Carolina Constitution
Dear Senator Forrester:
This letter is in response to your letter of February 25, 1993, to Attorney General Michael F. Easley. With that letter, you enclosed a proposal for legislation that would establish a North Carolina Board of Examiners of Professional Christian Counselors and Therapists. You asked this Office for an advisory opinion as to the constitutionality of this proposed legislation. We are happy to provide you with this opinion, and will deal individually with the specific questions you have raised.
l. Would the establishment of such a licensing board violate the Establishment Clause of the First Amendment to the United States Constitution by singling out Christian counselors for their own separate licensing board?
The First Amendment to the United States Constitution provides, in pertinent part: "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof …." This prohibition has been made applicable to each of the States by the Fourteenth Amendment to the Constitution. The Establishment Clause has been interpreted by the United States Supreme Court to prohibit governmental action or laws that do not have any significant secular purpose; that have the primary effect of advancing, prohibiting, or endorsing religion; or that foster excessive governmental entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745, 755 (1971). Although the Supreme Court has deviated from and altered this Lemon test in specific cases over the years, the test remains, for the most part, the exclusive yardstick by which the Supreme Court and other federal courts have evaluated Establishment Clause questions. Applying the Lemon test to the proposed legislation you have provided us, it would appear likely that this legislation would be found to violate the Establishment Clause.
In all probability, this legislation would be found to have a genuine and significant secular purpose: the protection of the consuming public by ensuring that persons who offer certain professional counseling services are adequately trained to do so. The first prong of the Lemon test, therefore, could probably be met, inasmuch as the Supreme Court has held that a governmental act will be struck down only if it has no secular purpose at all. Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). The second prong, however, requires that the legislation not advance, prohibit, or endorse religion. It is our opinion that the proposed legislation does not satisfy this component of the Lemon test.
As you have noted, the legislation could easily be viewed as endorsing the value of Christian counselors or therapists over counselors of other religions or of no specific religion. The Supreme Court has held that government action violates the Establishment Clause if such action sends the message to a reasonable observer that the government favors one religion over another or the practices of one religion over the practices of others. Allegheny County v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). The likelihood that a court might find this legislation to constitute an endorsement of uniquely Christian methods and principles of counseling becomes stronger in light of the language used in the proposal for legislation to the effect that Christian counseling includes "biblical principles of faith in God and obedience to God's will."
Likewise, this proposed legislation appears likely to violate the third prong of the Lemon test by causing excessive governmental entanglement in religious affairs. For example, the proposed legislation provides that, after July 1, 1997, any academic inadequacies at the time of application "shall become the responsibility of the American Society of Christian Therapists in conjunction with Carolina University of Theology until inadequacies are completed …." This link with a specific religious training institution might be said not only to endorse the beliefs of that institution, but also to involve the government, through the Board, in excessive and impermissible ties to that institution. Likewise, the provision that provides that the act does not prevent "any Rabbi, priest, or clergy of any religious denomination from engaging in activities within the scope of the performance of their regular or specialized ministerial duties, and for which no separate charge is made, and which is made under the auspices or sponsorship of an established and legally recognizable church or denomination, and when the person remains accountable to the established authority thereof" poses the danger that the Board will be drawn into determinations of when a person is acting in accordance with the practices of his or her own religious group. The Board's passing of judgment in such internal religious questions could be viewed as excessive entanglement.
Perhaps more fundamentally, this proposed legislation invites the government to become involved in questions of doctrinal orthodoxy by placing the Board in the position of deciding what counselors and methods are "Christian" and what counselors and methods are not. Such questions could become very complicated. For example, counselors who belong to some religious groups, such as Unitarians and Mormons, might consider themselves Christian, while others might not consider these bodies to be Christian bodies. The proposed legislation contemplates that the Board will evaluate doctrine and determine which practices include "biblical principles of faith in God and obedience to God's will." Entanglement in such questions are clearly prohibited by the Establishment Clause. See gen. Presbyterian Church in the United States v. Mary Elizabeth Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969).
It is the opinion of this Office, therefore, that the proposed legislation creating a North Carolina State Board of Examiners of Christian Counselors and Therapists would, in all likelihood, be found by a court to violate the Establishment Clause of the First Amendment.
- Would the establishment of such a licensing board violate the Free Exercise Clause of the First Amendment to the U.S. Constitution or the religious liberty guarantee of the North Carolina Constitution (Art. I, Sec. 13) by controlling or interfering with the free exercise of religion?
As noted above, the First Amendment to the United States Constitution provides that "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof…." In general, this clause prohibits the government from taking any action to proscribe, regulate, or favor, either directly or indirectly, any particular religious beliefs, although in certain circumstances the government may regulate or prohibit conduct based on those beliefs. See Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Typically, however, government regulation of conduct has been approved only when the regulation is necessary to keep peace and order in the community, while actual infringement of religion has been tolerated only where the government can show a compelling state interest. See Swaggart v. California Equalization Board, 493 U.S. 378, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
Similarly, Article I, Section 13, of the North Carolina Constitution provides that "[a]ll persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience." This provision has been interpreted by our courts as being coextensive with and providing the same protections as the First Amendment to the United States Constitution. See Heritage Village Church & Missionary Fellowship, Inc. v. State, 299 N.C. 399, 263 S.E.2d 726 (1980).
It is difficult to tell exactly what the status of the proposed legislation would be under the free exercise of religion guarantees of the two constitutions. The proposal does not specifically indicate whether licensure by the Board would be mandatory or voluntary. If licensure is mandatory, the proposal does not indicate what persons would have to be licensed by the Board. The proposal also does not indicate what penalties, if any, would be incurred by those who engage in practice without a license. The resolution of these issues has a definite bearing upon whether a person is harmed by not being licensed.
We note that the proposed legislation states that it does not prevent "any Rabbi, priest, or clergy of any religious denomination from engaging in activities within the scope of the performance of their regular or specialized ministerial duties, and for which no separate charge is made, and which is made under the auspices or sponsorship of an established and legally recognizable church or denomination, and when the person remains accountable to the established authority thereof." This language, coupled with the fact that the legislation would call for licensure rather than certification, however, would tend to indicate that licensure would be mandatory. Assuming that licensure is, indeed, mandatory, then it appears possible that a court would find this legislation to violate the Free Exercise Clause to the extent that it prohibits an unlicensed clergyman, Christian or non-Christian, from rendering counseling for any kind of remuneration, from counseling persons outside his or her own religious group, or from exercising other usual ministerial duties. It could also be found to violate the Free Exercise Clause to the extent that it prevents a practitioner of any particular religious group from receiving the counseling services of a clergyman of that group.
It is likely that these same issues of classification and regulation on the basis of religion would give rise to challenges for violation of equal protection and due process rights under the Fourteenth Amendment to the United States Constitution.
It should be noted, however, that a court in these instances might find the legislation to be unconstitutional as applied in the specific situation, rather than unconstitutional on its face. Moreover, the Supreme Court has indicated that the Free Exercise Clause might not be violated if prohibiting the free exercise of religion is not the object of the legislation. See Employment Division v. Smith, ___ U.S. ____, 110 S.Ct. 1595, 103 L.Ed. 2d 876 (1990).
In short, the proposed legislation's possible infringement of the free exercise of religion would depend, to a large degree, on the actual provisions and implications of the legislation. It is not difficult, however, to imagine cases in which defense of the legislation from a free exercise challenge would be tenuous at best.
As you noted in your letter, the General Assembly in 1991 passed the Fee-Based Practicing Pastoral Counselors Certification Act. G.S. 90-380 et seq. This act creates the North Carolina State Board of Fee-Based Practicing Pastoral Counselors and allows for the voluntary certification by the Board of Pastoral Counselors who charge for their professional counseling services. You asked for any comments that this Office might have on the constitutionality of this act. For your reference, we enclose a copy of an opinion rendered on July 10, 1991, on this subject to Senator J. Clark Plexico.
Three salient points should be noted about this act as compared to the proposed legislation for the Board of Examiners of Christian Counselors and Therapists. First, certification under the Fee-Based Practicing Pastoral Counseling Act is voluntary. The only prohibition imposed by this act is that no person may represent himself or herself as a certified fee-based practicing pastoral counselor without Board certification. Otherwise, the act does not prohibit the activities of any counselor or therapist. Second, certification by the Board is not restricted to Christian therapists. Indeed, the act relies on the Internal Revenue Code's definition of recognized denominations for the purpose of making the act applicable to the clergy of any religious group. Finally, the Fee-Based Practicing Pastoral Counseling Act does not in any way involve the Board in questions of religious doctrine or in the internal affairs of any religious group.
We trust that this letter fully answers your questions on this matter. Please do not hesitate to contact us if we can be of any further assistance.
Ann Reed
Senior Deputy Attorney General
Alexander McC. Peters
Assistant Attorney General