My boyfriend gets a little annoyed when I proclaim that I
don’t really care much about gay marriage.
I am sorry, I just don’t.
The issue that makes my heart race, the reason I crawl out
of my crypt every morning and stay in the office way too late, is gay men’s
health – LGBTI health – and I am frustrated that so much of our community’s
attention is given over to marriage rights, an issue that has, somehow, been
collectively anointed the most important, the most critical (and woe to the
ones who dare to criticize this narrow focus), sucking energy – and resources –
away from health advocacy.
To all of you who say “we can do both” – prove it!
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Of course I think marriage rights are important, and no, I
wouldn’t turn down a shiny rock on my finger and going to the chapel of love
with my honey – legal or not (hint hint darling). But hello, health and
well-being is for ALL of us – the marryin’ kind and for those of us who
organize our loves, lusts, friends and relationships with different models.
Health and healthcare access is a fundamental human rights
issue. We must put the same activist fervor and creativity into support for
comprehensive, culturally competent, quality, responsive healthcare. How many
of us share LGBTI health issues on Facebook, tweet them on Twitter, blog them?
When was the last time (was there a first) when you marched and rallied and
yelled long and hard for healthcare that counts us, respects us, and provides the care and prevention services we
need and deserve.
Let’s just look at the “G” for a moment. In these United
States, gay men and other men who have sex with men have AIDS at a rate more
than 50 times greater than women and non-gay/bi men. Gay black men suffer
from HIV rates similar to those found in sub Saharan Africa.
We smoke, experience anxiety and depression, engage in
self-harm, and feel suicidal at higher rates than non-LGBT people and we face pervasive
societal and structural homophobia that limit – and prohibit – resources and
access to healthcare.
But I am not going to lay out a laundry list of problems
here. We have been deficit-based too long, have looked at ourselves, and
allowed ourselves to be examined, as damaged, as sick, as reckless. Our
community has a wealth of assets – creativity, intelligence, resilience – to address
the challenges we encounter around our physical, emotional, sexual and
We created safe sex for heavens sake. No public health
authority did that – it was queers and drag queens!
At the 2009 National LGBTI Health Summit held in Chicago
August 14 – 18, I was delighted with the vigorous discussion around the Gay
Men’s Health Agenda
and the steps we need to take to move it forward at the local, state, and
The Agenda was created through a lengthy process throughout
much of 2008 in which we (a group of gay men’s health leaders) solicited input through
posts and comments on the LifeLube blog, a
plenary session at the 2008 Gay Men’s Health Summit, teleconferences, and via a
number of social networking tools. “What is your vision for a gay men’s health
agenda?” we asked.
The Agenda was unleashed on the world in February of this
year, and it lays out eight priority areas of work. Included in that list is
the pressing need to expand social, behavioral, and biomedical research –
especially among African American and Latino communities, as well as
Asian/Pacific Island, Native American and other communities of color, and the
impacted youth of those populations, all transgender men, and men outside urban
centers – all of whom are often unacceptably absent from the data and
statistics we do have on gay men.
Calling for national campaigns to combat homophobia,
biphobia and transphobia, the Agenda also demands the immediate elimination of
“no promo homo”- namely Section 2500 of the federal Public Health Service Act
(42 U.S.C. Section 300ee(b), (c), and (d)), which does not allow the
“promotion” of any type of sexual behavior – heterosexual or homosexual. This
language debilitates programs that are funded to reach sexually active adults
of all backgrounds. It does not
allow us to discuss sex in any ways other than disease prevention – and even
there we have to tread carefully.
I don’t know about you, but the idea that “keeping it real”
language around sexual behavior “promotes” sex is laughable. We are an
extremely successful species in part because sex has never needed ANY promotion.
Did you start getting horny because you read or pamphlet or was it the
inexplicable release of hormones? The fact that we can’t talk about sex being
pleasurable (at least with the Fed’s money) turns off the very people we need
to reach with accurate information. They know sex is more than the absence, or
management, of disease.
As our Administration and Congress addresses health care
reform, leaders of the gay men’s health movement are partnering with the National Coalition for LGBT Health and
other allies to advocate for these and other policies and resources described
in the Agenda to advance the health and well being of gay, bisexual, and
Gay men’s health – and LGBTI health – must be part of the
health discussions happening right now.
Go to a town hall and LGBTI-it-up – make sure the discussion
counts us, includes us, and highlights us, if only to provide some sanity in a
“debate” around “death panels” and keeping government’s “dirty hands off my
Join the over 127 organizations and 203 individuals in
endorsing the Agenda. [mailto:email@example.com]
You will be added to the list and looped in on local, national, and
international activities underway to push the Agenda.
Take the Agenda to your organization and begin working on
the issues locally. Encourage community leaders who work on other issues
(youth, political equality, homelessness, poverty) to include LGBTI health in
their work. And include their issues in yours.
Talk to your elected officials at the state and federal
level – let them know that HIV/AIDS continues to ravage gay male communities.
Show them that resources (too) often don’t match the epidemic because of
political calculations and institutionalized homophobia that devalue our lives.
At the same time, tell them that gay men’s health needs are more than “navel to
knee” and demand culturally competent substance abuse treatment and mental
Hold everyone in power accountable. Hold yourself
Gay men, and all LGBTI people, deserve healthy lives. As a
gay man living with HIV for the last 14 years, slightly bipolar, rather
asthmatic and decidedly allergic to cats, I want the ability to walk down that
aisle with a spring in my step if and when the wedding bells ring.
The Kochs are poised to play a momentous role in financing hundreds of candidates across the country and launching attacks on those who oppose their goals. Given their network’s penchant for funding anti-choice politicians and causes, that's something that should deeply concern reproductive rights advocates.
Over the weekend, Charles and David Koch’s network of ultra-wealthy donors and the politicians they fund convened in Colorado Springs, Colorado, to strategize about how to push their message across the country—a meeting that should signal cause for alarm for those concerned with big money in politics.
At the event, Charles Koch, joined by at least 300 donors who had each committed at least $100,000 annually to the network, reportedly outlined plans to get those with similar political ideologies elected to office and to “cultivat[e] conservative leaders at the state level,” according to the Washington Post.
During the 2012 election cycle, the Kochs’ network raised an estimated $407 million to influence races. As the Post‘s Matea Gold noted in a 2014 report, that level of funding gave the Kochs and their supporters expansive and almost unparalleled room to try to exert political influence.
As Adele Stan reported for Rewire in 2013, such influence extended in part to anti-choice groups, who received millions from Koch-connected organizations during the 2010 midterm and 2012 presidential election cycles. In addition, Koch-linked organizations gave tens of millions of dollars to candidates who were almost entirely opposed to abortion rights.
“The resources and the breadth of the organization make it singular in American politics: an operation conducted outside the campaign finance system, employing an array of groups aimed at stopping what its financiers view as government overreach,” explained Gold in another article. “Members of the coalition target different constituencies but together have mounted attacks on the new health-care law, federal spending and environmental regulations.”
In 2015 the Kochs revealed during their annual winter donor retreat that their network planned to spend up to $900 million on the 2016 election cycle, according to the New York Times—a number so high that it “would put [the network] on track to spend nearly as much as the campaigns of each party’s presidential nominee.” Conservative news outlet National Review, however, reported in May that the billionaires had intended to scale back the scope of their electoral funding, instead “steering their money and focus away from elections and toward a slew of the more intellectual, policy-oriented projects on which they have historically lavished their fortune.”
Still, the Kochs are poised to play a momentous role in financing hundreds of candidates across the country and launching attacks on those who oppose their goals. The extent of their contributions is carefully concealed by the web through which they funnel money—consisting of political action committees, issue-advocacy groups, nonprofit organizations, and the like—but what has been reported thus far offers a small glimpse into their political influence.
Though the allocated total spending was downgraded, the Koch network is nevertheless on track to spend almost $750 million this election cycle, with about $250 million going to politics and the Koch groups that work on policy issues, including Americans for Prosperity and the Freedom Partners Action Fund.
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“The [Koch] network is and will continue to be fully engaged in 2016’s political and policy battles. We want to maximize the number of freedom-oriented Senators,” James Davis, a spokesman for the Koch network, told the Hill in June amid news that the network was moving to spend $30 million on ad buys. “We see that on a number of issues, particularly free speech, the current majority is far preferable to the alternative.”
According to the Center for Responsive Politics’ OpenSecrets.org, which provides a comprehensive record of federal campaign contributions, the dark money group Americans for Prosperity—a 501(c)(4) that focuses on “citizen advocacy”—has spent at least $2,422,436 thus far on federal elections this cycle, investing in key Senate races in Nevada, Ohio, Pennsylvania, and Wisconsin.
Most of that money, more than $1.9 million, has been spent in Ohio to oppose the state’s former Democratic governor, Ted Strickland, in his race against incumbent Sen. Rob Portman (R). The two politicians have been locked in a tight battle for a critical seat that could help determine which party takes control of the Senate. The Koch-backed group launched a seven-figure ad buy last August focusing on Strickland’s tax policies as governor of Ohio.
Freedom Partners Action Fund, a super PAC founded by the Kochs in 2014 to which they have directly given $6 million so far this cycle, has invested even more into opposing Strickland, spending more than $9.4 million in independent expenditures, according to the Sunlight Foundation’s Influence Explorer. As was the case with Americans for Prosperity’s spending, much of that funding went directly to gigantic television and digital ad buys, again hitting Strickland’s tax policies.
In Wisconsin, Americans for Prosperity has spent $66,560 in opposition to Democratic Senate candidate Russ Feingold in his race against incumbent Republican Sen. Ron Johnson. Freedom Partners Action Fund’s spending in that same race, meanwhile, totals $2,102,645 in independent expenditures to oppose Feingold. The latter group also spent another $5,500 in support of Johnson.
However, just after Johnson spoke at the Republican National Convention in late July, Freedom Partners Action Fund pulled the $2.2 million worth of airtime they had reserved for the candidate. The ads were slated to begin airing on August 3.
James Davis, speaking on behalf of the organization, claimed the decision did not mean the group was no longer backing Johnson. “We are realigning our television advertising strategy to ensure maximum impact across key Senate races,” Davis told the Huffington Post. “We will continue direct citizen outreach through our grassroots activists, volunteer phone calls, digital media and direct mail. Last weekend alone Network grassroots organizations made almost half a million contact attempts to targeted audiences.”
Americans for Prosperity has thus far spent $63,233 in Pennsylvania’s key Senate race opposing Democratic candidate Katie McGinty, who is running against incumbent Sen. Pat Toomey (R), while Freedom Partners has spent $3,518,492 in independent expenditures doing the same.
And in Nevada, Americans for Prosperity has spent $16,074 opposing Democratic candidate Catherine Cortez Masto, who is running against Republican Rep. Joe Heck for the seat being vacated by Senate Minority Leader Harry Reid (D). Freedom Partners Action Fund has thus far spent $3,899,545 there opposing Cortez Masto. The group used much of that money pushing ads which were deemed by fact-checkers to be “mostly false,” alleging that as attorney general of the state, Cortez Masto had killed jobs by “driving” Uber out of Nevada. In truth, said Politifact, Uber only left temporarily and the ad “takes things out of context.”
Though the Kochs have seemingly failed to put much effort into House races thus far through Americans for Prosperity and the Freedom Partners Action Fund, there have been a few notable exceptions.
In early July, Americans for Prosperity geared up to launch a campaign aimed at aiding the re-election of Rep. Mike Coffman (R-CO), according to the Washington Post. The organization is reportedly not investing in paid media for the race, but it will be sending hundreds of staffers out to spread its message door to door. The Post reported that the 501(c)(4)’sgoal in Colorado is to “help preserve the Republican majority by targeting districts where [Americans for Prosperity] already has staff and resources and can most efficiently affect voting outcomes, according to the group.” The group expects to spend six figures in the Colorado race.
Americans for Prosperity has already spent $62,384 thus far opposing the Democratic candidate for the House, state Sen. Morgan Carroll, in her race against Coffman.
The nonpartisan Rothenberg & Gonzales Political Report, which analyzes U.S. House, Senate, and gubernatorial campaigns, rates the Colorado 6th Congressional District as a toss-up, though it leans Republican.
Earlier in the year, Americans for Prosperity also spent $190,973 to defeat Rep. Renee Ellmers (R-NC) in her failed bid for re-election. Ellmers lost her primary race for North Carolina’s 2nd Congressional District in early June to her Republican colleague Rep. George Holding after redistricting in the state led the two to run against each other. Her defeat came amid targeting from anti-choice groupslooking to unseat the representative despite her opposition to abortion, for reportedly speaking out against language in the House of Representatives’ 2015 20-week abortion ban that would have required rape victims to formally report their assault to police in order to be exempted from the law.
Koch Industries Inc. Political Action Committee (KOCHPAC), the political action committee for Koch companies, has invested almost all of its $1,209,900 in contributions to House Republican candidates. In total, the PAC has given $1,050,900 to 165 Republicans running for House seats and $8,500 to Democrats. The group has also given a total of $181,500 to 23 different Republicans running for the Senate, including Sen. Kelly Ayotte (NH), Sen. Marco Rubio (FL), Sen. Rand Paul (KY), Sen. Roy Blunt (MO), and Sen. Mike Lee (UT).
What was outlined above is probably just the tip of the iceberg. In addition to other Koch-connected groups not listed here, there are likely also other forms of spending by the groups discussed that has gone undisclosed.
Take, for example, some of the Kochs’ state-level work. As the Brennan Center for Justice explained in a recent report on money in politics, “it is at the state and local levels that secret spending is arguably at its most damaging,” and that is where the Kochs are now shifting some of their attention.
Though “dark money” 501(c)(4) groups, including Americans for Prosperity, are not required to disclose all of their spending, media reports indicate that the organization’s affiliates are investing in local races. According to the Brennan Center’s analysis of six states with available spending data, “on average, only 29 percent of outside spending was fully transparent in 2014 in the states we examined, sharply down from 76 percent in 2006.” Yet, the report notes, “dark money surged in these states by 38 times on average between 2006 and 2014.”
Exact numbers may be elusive, but there is no doubt the Kochs will have major influence on the 2016 election cycle. According to Rewire‘s analysis, spending from just three of the key Koch groups—Freedom Partners Action Fund, Americans for Prosperity, and KOCHPAC—has already occurred in congressional races in 43 states across the country. Given the network’s penchant for fundinganti-choice politicians and causes, that’s something that should deeply concern reproductive rights advocates.
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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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 attemptsto challengebans 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.