The Texas Supreme Court’s decision this June in Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007) [No. 04-0838] is the subject of this case note in the December issue of Harvard Law Review..

An excerpt from the case note’s analysis:

Recently, in Westbrook v. Penley, the Texas Supreme Court held that a civil court lacked subject matter jurisdiction over a claim against a pastor and state-licensed professional counselor who released information he learned in a counseling session to church elders for the purpose of disciplining a congregant-counselee.
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Although the court was appropriately concerned about the effect liability would have on internal church disciplinary procedures, it inadequately protected Penley’s confidences and set a precedent that allows the improper disclosure of private information. Instead, the court should have recognized that Westbrook himself decided what set of standards should prevail when he chose to accept state certification as a professional counselor. By accepting state certification, Westbrook voluntarily assumed a duty of confidentiality and therefore should have faced liability notwithstanding the Free Exercise Clause, just as others assuming similar duties may face reduced protection of their free speech rights.

(Via Concurring Opinions.)