Missing: The “Right” Babies

Kathryn Joyce

Europe is failing to produce enough babies--the "right" babies--to replace its old and dying. It's "the baby bust," "the birth dearth" : modern euphemisms for old-fashioned race panic as low fertility among white "Western" couples coincides with an increasingly visible immigrant population across Europe.

Steve Mosher is telling me about wolves returning to the streets of European towns. Not as part of some Vermont-model wildlife-recovery scenario but as emblems of a harsh comeuppance mankind is due–they're stalking out of the forests like an ancient judgment, coming to claim mankind's ceded land. We're sitting in a sunny Main Street cafe in Front Royal, Virginia–a beautifying ex-industrial town in the Shenandoah Valley that, as the far edge of DC's suburban sprawl, is lately home to a surprising number of conservative Christian ministries. Mosher, president of the Catholic anticontraception lobbyist group Population Research Institute (PRI), describes his grim vision of Europe's future: fields will lie fallow and economies will wither. A great depression will sink over the continent as it undergoes "a decline that Europe hasn't experienced since the Black Death." The comeuppance has a name, one being fervently hawked among a group of Christian-right "profamily" activists hoping to spark a movement in secular Europe. It's called the "demographic winter," a more austere brand of apocalypse than doomsayers normally trade in, evoking not a nuclear inferno but a quiet and cold blanket of snow in which, they charge, "Western Civilization" is laying itself down to die.

How so? Europe is failing to produce enough babies–the right babies–to replace its old and dying. It's "the baby bust," "the birth dearth," "the graying of the continent": modern euphemisms for old-fashioned race panic as low fertility among white "Western" couples coincides with an increasingly visible immigrant population across Europe. The real root of racial tensions in the Netherlands and France, America's culture warriors tell anxious Europeans, isn't ineffective methods of assimilating new citizens but, rather, decades of "antifamily" permissiveness–contraception, abortion, divorce, population control, women's liberation and careers, "selfish" secularism and gay rights–enabling "decadent" white couples to neglect their reproductive duties. Defying the biblical command to "be fruitful and multiply," Europeans have failed to produce the magic number of 2.1 children per couple, the estimated "replacement-level fertility" for developed nations (and a figure repeated so frequently it becomes a near incantation). The white Christian West, in this telling, is in danger of forfeiting itself through sheer lack of numbers to an onslaught of Muslim immigrants and their purportedly numerous offspring. In other words, Mosher and his colleagues aren't really concerned about wolves.

Another profamily soldier banging the drum about demographic winter, Christine de Vollmer, head of the US-funded Latin American Alliance for the Family, says that thanks to "obstinate antifamily policies, the end of European civilization can be calculated in years." Such predictions are winning the ear of top US conservatives, with Mitt Romney taking time during his campaign exit speech on February 7 to warn that "Europe is facing a demographic disaster" due to its modernized, secular culture, particularly its "weakened faith in the Creator, failed families, disrespect for human life and eroded morality." With this, the American Christian right has hit on a potent formula: grafting falling Western birthrates onto old morality arguments to craft a tidy cause-and-effect model that its members hope will provide their ideology an entry into European politics.

The imminent demise of Europe is a popular prediction these days, with books such as Catholic scholar George Weigel's The Cube and the Cathedral, Melanie Phillips's Londonistan, Bruce Bawer's While Europe Slept and Pat Buchanan's Death of the West all appearing since 2001. The 2006 film Children of Men sketched a sterile, dystopian world thrown into chaos for lack of babies (though with less blatant antiabortion implications than the Christian allegorical P.D. James novel on which it was based). The media increasingly sound the alarm as Eastern European countries register birthrates halved since the last generation. And on February 11, the Family First Foundation, a profamily group in the same movement circles as Mosher and de Vollmer, released a documentary dedicated to the threat: Demographic Winter: The Decline of the Human Family.

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What was a conservative drumbeat about Europe's death has become mainstream media shorthand, complementing ominous news items about Muslim riots in France; Muslim boycotts in London; Muslim "veil" debates in Denmark; and empty European churches transformed into mosques, with calls to prayer replacing church bells. Evangelical luminary Chuck Colson, head of the vast Prison Fellowship ministry and a close ally of George W. Bush, espoused a conspiracy theory in which he construed an Islamic Council of Europe handbook for Muslims trying to keep the faith abroad as a "soft terrorism" plot for takeover. The late Oriana Fallaci lambasted Europe's transformation into a Muslim colony, "Eurabia." And in a recent political match in Switzerland, a campaign poster depicted a flock of white sheep kicking a black sheep out of their pasture, "For Greater Security." The refrain is that the good-faith multicultural tolerance approach of the Netherlands has been tried and has failed, which is arguably a few polite steps from Mosher's summary of the problem: that Muslim immigrants are simply "too many and too culturally different from their new countries' populations to assimilate quickly…. They are contributing to the cultural suicide of these nations as they commit demographic suicide." Or, as he declared while rallying a gathering of profamily activists last spring in Poland, "I want to see more Poles!"

Or more Russians, or more Italians, as the case may be. The fever for more "European" babies is widespread. The last two popes have involved themselves in the debate, with John Paul II pronouncing a "crisis of births" in 2002 in an anomalous papal address to Italy's Parliament and Benedict XVI remarking on the "tragedy" of childless European couples and beatifying an Italian peasant woman for raising twelve children.

At the national level, in 2004 Italian Prime Minister Silvio Berlusconi offered a "baby bonus" of about $1,000 to parents who had a second child, and Russia, which has a history of pronatalist policies, including its 1980s-era "motherhood medals," sweetened the offer to its citizens with several birth initiatives for hesitant couples, including an $8,900 award to families who produce a second child and a stipend of 40 percent of salary to women who leave work to become stay-at-home moms. One Russian province made novelty news worldwide with its Day of Conception on September 12, when residents of Ulyanovsk got time off work to "conceive a patriot" for the country. Prizes for successful delivery nine months later include refrigerators and cars. The theme is present enough in the popular consciousness that a Swedish underwear company cashed in on the anxiety with a provocative ad campaign featuring a cast of Nordic men wearing EU-type lapel pins, commanding Swedes to Fuck for the Future and Drop Your Pants or Drop Dead.

The nativist motivations for such campaigns move beyond the subliminal at times. Elizabeth Krause, an anthropologist and author of A Crisis of Births: Population Politics and Family-Making in Italy, tracked that country's population efforts over the past decade and found politicians demanding more babies "to keep away the armadas of immigrants from the southern shores of the Mediterranean" and priests calling for a "Christian dike against the Muslim invasion of Italy." The racial preferences behind Berlusconi's "baby bonus" came into embarrassing relief when immigrant parents were accidentally sent checks for their offspring and then asked to return the money: the Italian government hadn't meant to promote those births.

The American Christian right, increasingly seeking influence abroad, has recognized that this anxiety over shifting national identities creates fertile terrain for spreading its ideology of traditional sexual morality as a quick fix for a postmodern age.

In the documentary Demographic Winter, the imagery of a frosty End of Days, accompanied by a foreboding, skeletal piano score, is played for full effect over somber interviews with conservative scholars, activists and European politicians. "One of the most ominous events of modern history is quietly unfolding," the film promises. "We are headed toward a demographic winter, which threatens to have catastrophic social and economic consequences. The effects will be severe and long-lasting and are already becoming manifest in much of Europe."

As Allan Carlson, president of the Illinois profamily think tank the Howard Center, discusses the "demographic winter of Western societies," a flurry of snow covers the United States, then Europe and finally the rest of the world. Catholic activist de Vollmer talks about the intergenerational collapse family planning will bring: an echo of her charge that contraception, by splitting sexuality from procreation and rejecting potential offspring, leads to generations of damaged, alienated children "like Bucharest orphans," who will later refuse care to their own aged parents. As she describes a dysfunctional global family where the elderly are too many to care for and the young too few to run the trains, the camera cuts to a lonely street shot of pastel European row houses framing a desolate walkway, and a confused grandfather left untended and alone. As a Latvian legislator describes the devastating impact of demographic winter on countries with already small populations, a child playing on a swing set disappears and snowflakes start to fly.

Another commentator, Phillip Longman, is a deliberately counterintuitive face for demographic winter: a policy writer for the center-left Democratic Leadership Council and author of The Empty Cradle: How Falling Birthrates Threaten World Prosperity and What To Do About It. Longman consistently aligns himself with the far right on population issues, which warns that Europe is becoming a continent of the elderly, with death rates exceeding birthrates on the scale of nuclear war. Words for extended family members, he warns–uncle, aunt, even sibling–will disappear as shrinking families render them obsolete. In the rosiest endgame he allows, Longman predicts that the fertile faithful will inherit the earth and that "those who remain will be committed to God." That is, committed to neo-orthodox profamily doctrines condemning contraception as an "abortifacient" and a rejection of God's greatest blessing, children: a theology gaining ground among all branches of Christianity. It's a point Carlson makes frequently, supplementing his "airtight" social science case for traditional values with praise for religious orthodoxy as the "yeast" that will make the family movement rise: compelling people to sacrifice their individual goals to raise large families. In this light, Carlson says, "Secularism is a societal death wish." Or, as Longman puts it, delivering a mournful cosmic punch line to gratified Christian-right audiences, "Your children won't grow up to be secular humanists."

As for those secular humanists–a "sterile" elite Longman sees as too self-absorbed to reproduce–he delivers an ominous ultimatum. Though it's tough for a generation educated to fear the population bomb and value women's rights, gay rights and environmentalism to accept these trends, unless they temper their 1970s notions of individual fulfillment, they'll be among the "certain kinds of human beings" who "are on their way to extinction." Just what the putatively liberal Longman intends by these threats seems to depend on the rationale behind his allegiance to the profamily/demographic winter coalition. While ostensibly he's warning liberals to get in line with "traditional" family morality or else, his presence at the helm of the movement seems targeted toward the conservative choir, reminding them that they have two foes in this battle, two enemies within: a tangible human population expanding within their borders and a sexually liberal frame of mind endemic to modern society.

As Rick Stout and Barry McLerran, producers of Demographic Winter, argue, "Only if the political incorrectness of talking about the natural family within policy circles is overcome will solutions begin to be found. These solutions will necessarily result in policy changes, changes that will support and promote the natural, intact family." The rhetoric of the "natural family" is significant. Stout, a Brigham Young University graduate, and McLerran, executive director of the Family First Foundation, a grant-making organization based in the aptly named Salt Lake City suburb of Bountiful, are among the hundreds of Mormon profamily activists who have made common cause with conservative Catholic and evangelical ideologues. In fact, it was the collaboration of Mormon and evangelical activists that birthed one of the guiding documents of the movement, The Natural Family Manifesto–a conservative call to arms co-written by Paul Mero, head of the Mormon think tank the Sutherland Institute, and Allan Carlson, the grandfatherly evangelical academic at the forefront of the cause.

Carlson is a compelling conservative historian who uses secular arguments to craft a social science rationale for the necessity of large patriarchal families, or the "natural family," as he calls it in his manifesto–a correction of Marx that aims to turn America and the Western world away from the perils of liberal modernity and back to the "natural family" model, where fathers lead and women honor their highest domestic calling by becoming "prolific mothers." In this scheme, families are the fundamental unit that society and government should be concerned with promoting, and individual rights are valued insofar as they correspond with pronatalist aims. Thus Carlson and Mero qualify their "wholehearted" support of women's rights: "Above all, we believe in rights that recognize women's unique gifts of pregnancy, childbirth, and breastfeeding."

The interdenominational alliance of Mormon, Catholic and evangelical "profamily" advocates, as well as the token link between this pan-Christian front and a handful of Orthodox Jewish and Muslim representatives, is the hallmark of Carlson's work, whether with the Howard Center, the Family First Foundation–of which he is also a director–or as secretary and co-founder of the World Congress of Families (WCF), an international, interfaith profamily conference. Carlson's influence is largely behind-the-scenes, writing policy for ultra-right Senator Sam Brownback and Representative Lee Terry of Nebraska and, increasingly, spreading his "natural family" ideal through theories of a looming population crisis facing the West.

The WCF is just one channel for this goal: a locus for heavyweight US conservative actors such as the Heritage Foundation, the Family Research Council, Concerned Women for America and James Dobson's Focus on the Family–a Who's Who of the American Christian right–to network with representatives from the Vatican, conservative Christians from developing nations and a smattering of Muslim groups seeking allies to fight gay and women's rights at the United Nations. The result is the spread of US culture-war tactics across the globe, from the Czech Republic to Qatar–where right-wing Mormon activist and WCF co-founder Richard Wilkins has found enough common cause with Muslim fundamentalists to build the Doha International Institute for Family Studies and Development.

Arguably, the greatest impact profamily efforts such as the WCF have is in helping conservative European leaders hone a common message about the "natural family" as a necessary counter to demographic anxieties.

The fourth conference of the WCF, in Warsaw last May, provided much of the commentary for the Demographic Winter film. And little wonder: besides Carlson, Family First Foundation's board of directors is composed entirely of WCF leaders and speakers, all of whom gathered in Warsaw's grand Palace of Culture and Science, the old Polish Communist Party headquarters, with more than 3,000 other religious conservatives, to hear predictions about Europe as a sinking ship, a Titanic nearly lost to the repercussions of the sexual revolution. But for the first time in a long time, the "natural family" has a white knight in Europe: brave Poland, the anti-Sweden. Following Pope John Paul II's philosophy that particular countries can change the course of Europe, Poland has been heralded in US profamily literature as the likely salvation of the continent: a heavily Catholic bastion of conservatism amid the gay-friendly EU. Under the leadership of the Kaczynski brothers–extremist twins in office as president and prime minister–the country has shifted far to the right, embracing a social conservatism that aggressively targets gays, Jews, women's rights and foreigners, and that in 2006 went so far as to propose that Jesus be named honorary king of Poland.

To Carlson, this proves Poland is "an island of profamily values" amid the tides of "Christo-phobic" "population-control types" who dominate the rest of the continent. Poland, he says, could provide an important counterbalance to European modernity and become a launching point for "a profamily resistance," and thereby "save Europe again": a not-so-coded reference to the Battle of Vienna in 1683, where Polish King John III Sobieski led a "Holy League" army of Christian soldiers against the Ottoman Empire, culminating in a decisive victory for Christendom over the invading Muslim troops. The profamily movement's bald reference to this ancient holy war informs new conservative foot soldiers who see today's immigration conflicts as "a new phase of a very old war." And so the WCF chose Poland as the site of last spring's massing of the troops, drawing thousands of leaders from across the spectrum of religious-right activism: from US evangelical and Catholic nonprofits to Eastern European Catholic and orthodox antiabortion and anti-gay rights groups, to bureaucrats from European, EU and US governments, taking policy notes to bring back home.

The architects of the WCF have persuaded traditionally isolationist American conservatives to care about the fate of secular, impious Europe with two main arguments: one, that Europe is a bulwark against a Muslim "invasion" of America–"If Europe is lost to demographic winter and radical secularism, much of the world will go with it," Carlson warns–and two, that global trends, such as the normalization of gay and women's rights, can impact life at home.

If Europe has a "sickness of the soul," the WCF claims to have "the cure." Specifically, that cure is a version of the practice of American women living Allan Carlson's "natural family" vision of having "full quivers" of children. These are families of eight, ten, twelve or more children. It is a vision packaged for popular culture: encouraging families to become "Great Families," with three to four children each, enough of an increase to stave off the winter [see Joyce, "Arrows for the War," November 27, 2006].

"The new view is that in order to create and defend a profamily culture, we also have to have a friendly international environment," says Carlson. "So you see something fundamentally new: the social conservative movement going global."

Austin Ruse, head of the ultraconservative Catholic UN lobbyist group C-Fam and organizer of Washington's National Catholic Prayer Breakfast, says the WCF is just one expression of an ever-growing conservative coalition. Its hatred of liberalism, feminism and the sexual revolution outweighs theological differences, and it is branching out worldwide. C-Fam is opening offices in Brussels to lobby the EU directly.

Ruse's goals for EU activism are likely in line with his accomplishments at the UN, where he gained notoriety for his incendiary rhetoric (his lobby is a "plague of locusts" descending on women's rights) and political theater, which, even with few allies, effectively stalled progress on a number of women's movement initiatives. Christian-right watchers agree that demographic winter appeals to struggling new EU countries in devout Eastern Europe could have "serious" results. Ruse himself, not given to understatement, imagines the global Christian profamily alliance is "unlike anything we've seen since the Reformation." A bloc like this, he boasts, is capable of mayhem: "Picture the documentaries about Africa: the hyenas going after the wildebeest. You're just surrounded. We are everywhere, doing everything."

Jennifer Butler, author of Born Again: The Christian Right Globalized and a witness to the havoc that Ruse brought to the UN during the 1990s, has tracked the rise of the international Christian right with apprehension. "I felt that nobody else knew what they were up to. You can't underestimate what they can do."

What they are up to now is on full display for interested observers: a battle on many fronts against what they call "the autonomy revolution" of the 1960s–a worldview shift far broader than a mere sexual revolution. The minutiae of the "natural family" revival they intend is being addressed by hundreds of conservative activists. Paige Patterson, an architect of the conservative takeover in the Southern Baptist Convention, has lamented the high percentage of female university students as an impediment to stay-at-home motherhood. In August he fought the trend by instituting a homemaking curriculum for female students attending his Texas seminary. Carol Soelberg, president of the Mormon group United Families International and mother of thirteen, advocates women realizing their true mission in the home. Paul Mero encourages early marriage by declaring bachelors over 30 "a menace to society." And Carlson and Mosher continually seek ways to turn tax law into a vehicle for rewarding fertility and interpreting population stability laws as pronatalist measures.

How far they can go with it depends in part on how convincing their population threats–and solutions–seem to countries grappling with cultural growing pains, as well as how deftly the proponents of demographic winter navigate their own abundant internal contradictions.

Despite the lip service the profamily movement gives to uniting all the "children of Abraham" against common enemies, the sense of a more tangible foe–Muslim immigration–bleeds through their cooperative rhetoric. Farooq Hassan, a Harvard law professor and one of the few Muslim representatives in this profamily movement, chastised his colleagues for their transparent appeals to nationalism: "The rest of the world doesn't have the same problems as Europe. The Western world wants more people in Europe, but you don't care if there are more families in the Third World. You want less families there."

As if to demonstrate Hassan's point, Mosher's PRI claims to fight population control on behalf of women in developing nations–lumping instances of real abuse, such as the history of coerced sterilizations performed on developing world women, together with all efforts to expand family planning options–but reveals the limits of his professed concern for women's rights when he tells me that Israel relinquished Gaza because, as "Yasir Arafat said, the best weapon of the Palestinians is 'the womb of the Arab woman'": an example of fertility that Mosher finds "very sobering if you're concerned about the future of Israel."

In the context of the competing narratives conservatives hope to bend to their purposes, Mosher's slightly off-message slip is understandable. Another instance of this took place when a presenter at the Congress in Warsaw, an American OB/GYN lecturing against contraception, told the largely Polish audience that birth control was a continuation of an old evil, child sacrifice–a fraught evocation in post-Holocaust Poland, where anti-Semitic slurs against the nearly destroyed Jewish population, including the old blood libel charging Jews with ritual child murder, are far from forgotten. The inference isn't much of a stretch in a country where the government blames shadowy "webs of influence" for Poland's lagging economy; where sociologists describe a widespread conceptualized anti-Semitism that casts gays, feminists and secularists as symbolic "Jews" in a country with few actual Jews left; and where Jews are blamed for Communism and abortion, both of which are widely reviled. (Such associations aren't limited to Poland's profamily movement: Fr. Paul Marx, the founder of both Mosher's PRI and Human Life International, the parent group of Austin Ruse's C-Fam, likewise charged that Jews control the abortion "industry.")

These relics of demagogy–blurring the lines between the various enemies of Polish nationalism, whether Jewish, secular or Muslim–have helped foster a climate in which Poland widely accepts demographic winter, and all it entails, as truth. Members of the right-wing ideological youth brigade, the All Polish Youth, refine their politics by reading Pat Buchanan's The Death of the West, in which he describes a generalized "Western" diaspora, including Australia, Canada, the United States and Russia–as a "vanishing race." Meanwhile, to reverse the winter, Poland is enshrining Catholic doctrine into law: relegating contraception and sex ed to private clinics, and crafting laws to ban discussions on homosexuality in public schools and to prosecute abortion as murder.

Jon O'Brien, president of the liberal reproductive-rights group Catholics for a Free Choice, tells me that Poland is "a classic example of what you can expect if the World Congress of Families' fantasy came true."

This is where O'Brien, generally skeptical of the profamily movement's international appeal, sees a dangerous opportunity for its extremist patriarchal ideas to bloom: in Eastern European countries new to democracy and more accustomed to totalitarian traditions and an ultranationalism born of fear, poverty and porous borders. "When you have someone powerful like Putin talking to people in these circumstances about the necessity of Russian women giving birth, then you have to worry about it–how that could be turned into policy."

To Adrienne Germain, president of the International Women's Health Coalition, the profamily movement's new demographic focus is a logical extreme. "To me, it was obvious that they'd reach this point. It just seems early," she says. The worrying thing is that whether countries push pro- or antinatalist policies, "the first thing down the drain is a woman's ability to control her body."

And this, of course, is the (largely unacknowledged) rub with the profamily movement's focus on procreation: it requires a world of women to dedicate their lives and wombs to demographic battle. "The shadow of Fascism still hovers over demographic science," Krause tells me, and lends a chilling factor to "moralizing" language that pathologizes the childless as sick or, in Italy, as anorexics refusing to eat. Indeed, when Pope John Paul II raised his demographic concerns to the Italian Parliament, it was unprecedented since Fascist years, evoking a painful social memory of Mussolini's fertility project, which attacked bachelors, rewarded mothers of many children, criminalized abortion and banned contraception.

Of course, such programs weren't limited to Italian Fascism. A similar trajectory occurred in wartime Germany, writes historian Claudia Koonz, author of Mothers in the Fatherland. Other nations in Depression-era Europe grew concerned about falling birthrates, but under Fascism's extreme gender divisions and the escalating sense of crisis pervading the country, early eugenic motherhood schools and rewards for fertile women morphed by war's end into the brutalizing demographic demands of the Lebensborn breeding program. Designed to mass-produce more Aryan soldiers and factory hands as part of the "motherhood crusade," Lebensborn castigated "selfish" women who weren't doing their part to guarantee the increase and preservation of the race.

The implication of current pronatalist policies, that women are the source of population problems, may be less extreme, argues Krause, but it is still deeply troublesome. "To state that women's interests are at odds with those of babies is to stake out a moral ground on which women's primary role is as a biological reproducer for the nation–much as it was during the Fascist years." Furthermore, Krause says, calling for Italian women to begin having three or four children "erases the trauma of peasant women who've historically borne large families in crushing poverty" and labels women's decisions to limit their families a disease in need of a cure.

These things are quickly forgotten in the panic for more white babies.

As for cultural identity, Krause delivers a salient reminder that some multicultural liberal truisms hold and that what unifies a population is often a deliberate decision to welcome and integrate new elements into society rather than clinging to ever-shifting notions of "true" European heritage and race. To wit, the very insults hurled at today's Muslim immigrants in Italy are themselves repurposed echoes of old slurs that Northern Italians made against their Southern countrymen up to a short decade ago, deriding them as too dark and too foreign to qualify as "authentically" Italian. The population that is being banded together against a new outsider was, until very recently, fractured within itself, still struggling after more than 150 years to forge a common identity out of the many regional groups that make up the state. "One of the famous quotes from [newly unified] Italy in the 1860s," Krause recalls, "was, 'Now that we've made Italy, we need to make Italians.' Making Italians, Russians, Americans is a constant project."

But such slow-slogging and fragile projects of community-building are jeopardized by the hasty purity standards implied by the Great Family "cure" for demographic winter, in which belonging is defined by ethnicity alone and demographic winter itself begins to seem just a prelude: for a new cold war, a "clash of civilizations" to be fought through women's bodies, with the maternity ward as battleground.

This article was first published by The Nation.

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.

Roundups Politics

Campaign Week in Review: Sanders Vows to Continue the ‘Political Revolution’

Ally Boguhn

Sen. Bernie Sanders (I-VT) seemingly signaled he is not yet ready to concede the nomination to Hillary Clinton, and he promised to help push for reforms within the party while working to keep presumptive Republican nominee Donald Trump from winning the White House.

Sen. Bernie Sanders (I-VT) isn’t bowing out of the race for the Democratic nomination after the close of the presidential primaries, and Hillary Clinton took to the Huffington Post to talk about campus sexual assault and whether women should have to sign up for the draft.

“The Political Revolution Must Continue”: Sanders Vows in Thursday Night Address to Push for Party Reform

Sanders addressed supporters Thursday night after the 2016 presidential primary season ended earlier this week. He seemingly signaled he is not yet ready to concede the nomination to Hillary Clinton, and he promised to help push for reforms within the party while working to keep presumptive Republican nominee Donald Trump from winning the White House.

“Election days come and go. But political and social revolutions that attempt to transform our society never end. They continue every day, every week, and every month in the fight to create a nation and world of social and economic justice,” Sanders said during the address, which was live-streamed online. “Real change never takes place from the top on down or in the living rooms of wealthy campaign contributors. It always occurs from the bottom on up, when tens of millions of people say loudly and clearly ‘enough is enough’ and they become engaged in the fight for justice. That’s what the political revolution we helped start is all about. That’s why the political revolution must continue.”

“The major political task that we face in the next five months is to make certain that Donald Trump is defeated and defeated badly,” Sanders continued, vowing to soon begin his role in ensuring the Republican doesn’t make it to the White House.

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“But defeating Donald Trump cannot be our only goal,” he added. “We must continue our grassroots efforts to create the America that we know we can become.”

Expressing his hope that he could continue to work with Clinton’s campaign, Sanders promised to ensure that supporters’ “voices are heard and that the Democratic Party passes the most progressive platform in its history and that Democrats actually fight for that agenda.”

That agenda included raising the minimum wage to $15 an hour, ending the gender pay gap, defending reproductive rights, and protecting marriage equality in the United States, among other things.

Sanders’ speech came just after campaign manager Jeff Weaver said the campaign is “not currently lobbying superdelegates” and doesn’t “anticipate that will start anytime soon” during an interview on Bloomberg Politics’ With All Due Respect Thursday. The next day, Weaver told the hosts of MSNBC’s Morning Joe that Sanders is still “an active candidate for president.”

Clinton Weighs in on Stanford Sexual Assault Case, Women Joining the Draft

Hillary Clinton took a stand on two notable issues during an interview with the Huffington Post this week, telling the publication that she supported a measure in the Senate to require women to sign up for the draft and her thoughts about the Stanford sexual assault case.

“I do support that,” Clinton told the publication Wednesday when asked about the Senate’s approval of the National Defense Authorization Act, a military policy bill that would require women to sign up for the military draft once they turn 18, earlier in the week.

“I am on record as supporting the all-volunteer military, which I think at this time does serve our country well,” said Clinton. “And I am very committed to supporting and really lifting up the men and women in uniform and their families.”

As the New York Times reported, under the bill, “Failure to register could result in the loss of various forms of federal aid, including Pell grants, a penalty that men already face. Because the policy would not apply to women who turned 18 before 2018, it would not affect current aid arrangements.”

Though the U.S. Supreme Court previously ruled that women weren’t required to register for the draft as they were not allowed to serve in combat, the Times continued, “since Defense Secretary Ashton B. Carter said in December that the Pentagon would open all combat jobs to women, military officials have told Congress that women should also sign up for the draft.”

The draft registry has not been used by the United States since 1973, but requiring women to sign up for it has nevertheless been an issue on the campaign trail this election season. Sen. Ted Cruz (R-TX) called requiring women to register for the draft “nuts” in February prior to dropping out of the race for the White House, while other then-Republican presidential candidates Sen. Marco Rubio (FL), New Jersey Gov. Chris Christie, and former governor of Florida Jeb Bush all signaled they would support it.

During her interview with Huffington Post, Clinton also voiced her support for the survivor at the center of the controversial Stanford sexual assault case, saying she was “was struck by” the “heartbreaking power” of the letter the survivor wrote detailing her experiences.

“It took great courage and I think she has done an important service for others,” Clinton said. “What I’ve heard about this case is deeply concerning. It is clear campus sexual assault continues to be a serious problem. And I’ve said before and I will continue to say it is not enough to condemn it. We must find ways to end it.”

The presumptive Democratic nominee had previously released a platform for addressing the national crisis of campus sexual assault, which promises to “provide comprehensive support to survivors;” “ensure fair process for all in campus disciplinary proceedings and the criminal justice system;” and “increase sexual violence prevention education programs that cover issues like consent and bystander intervention, not only in college, but also in secondary school.”

What Else We’re Reading

Trump’s “endgame” could be launching a “mini-media conglomerate,” Vanity Fair reports.

“He was always very open about describing women by their breast size,” a crew member for Trump’s reality show The Apprentice told Slate of the presumptive Republican nominee. “Any time I see people in the Trump organization say how nice he is, I want to throw up. He’s been a nasty person to women for a long time.”

In the wake of the mass shooting in Orlando at an LGBTQ club, the Southern Poverty Law Center’s deputy legal director of the LGBT Rights Project, David Dinielli, noted that “candidates on the campaign trail-and even the presumptive nominee of the Republican Party-elevate radical anti-LGBT leaders.”

Fact-checkers at the Washington Post took on both Clinton and Trump’s speeches on national security after the massacre in Orlando over the weekend.

“Regardless of your politics, it’s a seminal moment for women,” said Oprah, who offered her endorsement to Clinton on Wednesday, when speaking about the presumptive Democratic nominee. “What this says is, there is no ceiling, that ceiling just went boom! It says anything is possible when you can be leader of the free world.”

CNN’s Jim Sciutto, Tal Yellin, and Ryan Browne offer a look into the implications of Trump’s proposed plan to “suspend immigration from areas of the world when there is a proven history of terrorism against the United States, Europe or our allies.”

Univision penned an open letter on Tuesday expressing their concern over Trump’s decision to revoke press credentials for the Washington Post.

Republicans may have fewer women in the House next year after the election season wraps up.

Texas has already spent $3.5 million fighting multiple lawsuits over the state’s restrictive voter ID law, in what an attorney helping plaintiffs in one of the suits deemed a “shameful waste of taxpayer money.”

Ohio Gov. John Kasich (R) moved to make voting in the state easier for some this week, signing legislation that will allow residents with driver’s licenses and state IDs to register to vote online. What’s the catch? According to ThinkProgress, “the option will not be available until early next year, after the presidential election, despite the Republican Secretary of State’s insistence that the Ohio could implement the policy immediately.”