Lakeland, FL - In the first reported opinion on the clergy-penitent (confidentiality) privilege in Florida, a unanimous three-judge panel of the Second District Court of Appeals ruled that pastors have an absolute right to keep counseling details confidential. The State of Florida sought disclosure of the details of pastoral counseling sessions for use in a criminal case. After a Florida trial court ordered Dr. Joseph Nussbaumer, Jr., Pastor of Groveland Free Church, to testify in court and give his notes to the State, Liberty Counsel filed an appeal of the decision. Dr. Nussbaumer is represented by Mathew D. Staver, President and General Counsel of Liberty Counsel, and Erik W. Stanley.

The State of Florida filed criminal charges against Lowell Bloom alleging child sexual abuse. Mr. Bloom had received spiritual counseling from Pastor Nussbaumer, and instead of the State proving its case by corroborating evidence, the State sought to compel the pastor to divulge the details of the counseling. Pastor Nussbaumber refused. While other counselors are afforded confidentiality except in child abuse counseling, attorneys and clergy may not reveal such counseling unless the confider consents. The right to keep counseling confidential belongs to the confider, not the clergy. The clergy must abide by the confidential requirement unless the confider agrees to make the counseling public. The Court found that (1) Pastor Nussbaumber is a member of the clergy, (2) the confider sought him for spiritual counseling, (3) in the course of the pastor's duties, and (4) the counseling was private and not intended for disclosure.

The State argued that Pastor Nussbaumer should be considered a psychotherapist and not exempt from disclosure rather than a clergy because (1) the pastor held an advanced [Ph.D.] degree in counseling, (2) the counseling "may" have included secular counseling aspects, and (3) the confider was not a member of the pastor's church. The Court rejected these arguments, noting that pastors often obtain advance degrees, the State was prohibited from inquiring into pastoral counseling to divide the secular aspects from the sacred, and one need not be a member of the pastor's church so long as the pastor was sought by the confider for spiritual counseling.

Instead of proving its case by corroborating evidence, the State sought to undermine clergy confidentiality. That is why Liberty Counsel got involved. Had the State won, the precedent would result in undermining clergy confidentiality. The State's position was that a pastor with a higher education degree is not a pastor for purposes of counseling, that the State has the right to determine which counseling is religious and which is not, and that pastors may only counsel church members. The Court rejected all the State's arguments in its precedent-setting opinion.

Staver stated, "The State of Florida's attempt to undermine pastoral counseling has been soundly defeated. The State has no right to eavesdrop when a pastor gives spiritual counseling. Those who seek spiritual counseling must have the assurance that what they say in private will remain confidential and nor shouted from the rooftop or paraded around in court."