Hate Crimes Laws: A Conspiracy to “Eradicate” the Christian Right?

Jodi Jacobson

That weak and long-suffering entity known as the Christian Right is claiming that efforts to outlaw targeted hate crimes against homosexual persons through legislation constitute "a guarded effort to 'eradicate' their beliefs."

Did you know that the passage of hate crimes laws is actually a conspiracy to squelch religious freedom?

Yes….that weak and long-suffering entity known as the Christian Right is claiming that efforts to outlaw targeted hate crimes against homosexual persons through legislation constitute "a guarded effort to ‘eradicate’ their beliefs."

Stephen Webster of The Raw Story reports that:

A Christian group in Michigan has filed a lawsuit alleging that a
package of hate crimes laws named after murder victim Matthew Shepard
is an affront to their religious freedom.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

Webster reports that the suit was:

"filed by the Thomas More Law Center
— which bills itself as the religious answer to the American Civil
Liberties Union — [and] the complaint claims that protecting gay, lesbian,
bisexual and transgendered people "is an effort to eradicate religious
beliefs opposing the homosexual agenda from the marketplace of ideas by
demonizing, vilifying, and criminalizing such beliefs as a matter of
federal law and policy."

The suit was placed on behalf of American Family Association of Michigan president Gary Glenn, along with pastors Rene Ouellette, Levon Yuille and James Combs. 

Matthew Shepard was a 21-year-old gay man from Wyoming who was tied to a fence and beaten to death in 1998. A foundation carrying his name played an important role in helping to broaden hate crimes definitions to cover LGBT people.  President
Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes
Prevention Act in 2009. The Thomas More lawsuit, filed in a U.S.
district court in Michigan, names Attorney General Eric Holder as a
defendant.

Claiming
"there is no need" to extend hate crimes definitions, Thomas More chief
counsel Richard Thompson attempted to minimize the impact of violent
crimes against homosexuals.

"Of
the 1.38 million violent crimes reported in the U.S. by the FBI in
2008, only 243 were considered as motivated by the victim’s sexual
orientation," Thompson wrote on the group’s Web site.

"The sole purpose of this law is to criminalize the Bible and use the
threat of federal prosecutions and long jail sentences to silence
Christians from expressing their Biblically-based religious belief that
homosexual conduct is a sin."

Let me get this straight: The Christian Right is arguing that basic principles of humanity, and the rights to freedom from violence and discrimination should be decided on the basis of numbers of crimes against a minority group?

Or…that protecting the rights of one group of Americans abrogates their own rights, so we should just keep looking the other way as people are strung up on ranch fences for the "crime" of being gay?  And by the way, let’s just forget that the hate speech about homosexuality spewed by these religious organizations contributes to the problem in the first place.

Maybe their religious principles lead them to believe they get to determine who is in fact a human being deserving of basic human rights?

As Webster points out, they are crying wolf in any case: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act clearly stipulates that it does not apply to constitutionally protected speech.

(3)
CONSTITUTIONAL PROTECTIONS- Nothing in this Act shall be construed to
prohibit any constitutionally protected speech, expressive conduct or
activities (regardless of whether compelled by, or central to, a system
of religious belief), including the exercise of religion protected by
the First Amendment and peaceful picketing or demonstration. The
Constitution does not protect speech, conduct or activities consisting
of planning for, conspiring to commit, or committing an act of violence.

(4)
FREE EXPRESSION- Nothing in this Act shall be construed to allow
prosecution based solely upon an individual’s expression of racial,
religious, political, or other beliefs or solely upon an individual’s
membership in a group advocating or espousing such beliefs.

But you know what they say: Why let the facts stand in the way?

It may shock to find out that Webster found the Thomas More Law Center’s argument is "eerily similar to a fundraising letter
circulated by the Family Research Council at the end of 2009, in which
the conservative group claimed that extending workplace
non-discrimination rules is really Obama’s secret plot to "impose"
homosexuality on America."

I have a question: What is the homosexual agenda by the way?  My understanding has always been that people who are homosexual–in that they are human beings and all–have the same rights as anyone else, and that this "agenda" involved the struggle to have those rights recognized, protected, and promoted by the state….same as everyone.

And since we are a "tolerant society" we’d still leave members of homophobic, racist, sexist religious organizations free to practice their faith in peace, as long as they don’t violate federal laws, infringe on the human rights of individuals, or use federal money in the process. 

Indeed, I think we protect these "religious" groups just fine.  According to the Leadership Conference on Civil Rights,
"[the non-discrimination rule] exempts all religious organizations,
which includes corporations, associations, and religious societies. In
addition, all educational institutions are exempt if the educational
institution is at least substantially controlled or owned by a
religious organization or if the institution’s curriculum is directed
towards the propagation of a religion."

But the Christian Right is constantly engaged in rewriting history.  The Thomas More suit, for example, goes even further than just challenging hate crimes protection
for LGBT people; it challenges the findings of the Matthew Shepard
investigation.

"Thomas More attorneys make the case that the
perpetrators of the murder of Matthew Shepard were subject to more
several criminal penalties under existing state criminal law than under
the new federal Hate Crimes Act," religious news outlet Christian Post notes.
"They also say there is evidence demonstrating that the senseless and
brutal attack on Shepard was not motivated by hate or bias; rather, it
was motivated by money and drugs."

Webster quotes writer Timothy Kincaid, blogging for the Box Turtle Bulletin:

"[Because]
the law has no effect on their rights to belief or expression of
belief, the only logical conclusion is that these four Christians wish
to plan for, conspire to commit, or commit an act of violence," he
opined.

"Or, perhaps," continues Kincaid, "this is just another example of folks who
think that because ‘homosexual acts, according to Scripture, are acts
of grave depravity that are intrinsically disordered and are contrary
to the natural law’ then their religion trumps civil law."

I could not say it any better.

Read the 27-page Thomas More complaint (PDF link), courtesy of The Raw Story.

Investigations Media

The ‘HUSH’ Documentary: Another Secret Recording Inside an Abortion Clinic

Sharona Coutts

HUSH relies almost exclusively on interviews with renowned anti-choice “experts” whose work has been discredited. They trot out many of the worn theories that have been rejected by medical and public health experts. The innovation of HUSH, however, is that it has reframed these discredited ideas within the construct of a conspiracy theory.

Another day, another secret recording made in an abortion clinic.

At least, that’s the very strong impression given by some of the scenes contained within the documentary film HUSH, which premiered late last year and is currently making the rounds of film festivals and anti-choice conferences in the United States and internationally, including the National Right to Life Convention that took place in Virginia last month.

The film is the creation of Mighty Motion Pictures and Canadian reporter Punam Kumar Gill, who says in the film that she is pro-choice, a “product of feminism.” It purports to tell the story of “one woman,” Gill, who “investigates the untold effects of abortion on women’s health.”

HUSH—which claims in the film’s credits to have received support from the Canadian government—attempts to cast itself as neither pro-choice nor “pro-life,” but simply “pro-information.” The producers insist throughout the film, in their publicity materials, and in private emails seen by Rewire that their film is objective and balanced.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

That’s how they pitched it to Dr. David Grimes, a highly respected OB-GYN and a clinical professor in the Department of Obstetrics and Gynecology at the University of North Carolina School of Medicine, who agreed to do on-camera interviews for the film. Grimes now says the producers and reporter misled him about their intentions.

“There was no balance,” Grimes told Rewire. “It’s a hatchet job. It’s obvious.”

Indeed, HUSH relies almost exclusively on interviews with renowned anti-choice “experts” whose work has been discredited, many of whom are featured in Rewire‘s gallery of False Witnesses. They trot out many of the worn theories that have been rejected by medical and public health experts—namely, that abortion is linked to a host of grave physical and mental health threats, “like breast cancer, premature birth, and psychological damage.”

The innovation of HUSH, however, is that it has reframed these discredited ideas within the construct of a conspiracy theory.

When Anti-Choice “Science” Goes Conspiracy Theory

As a piece of propaganda, the use of the conspiracy theory has the advantage of removing the debate over abortion’s safety from the realm of logic. In HUSH‘s topsy-turvy world, the medical establishment becomes the scare-quoted “Medical Establishment,” and the more distinguished or authoritative a person or organization, the more suspect they become.

For reasons that remain murky, the film’s thesis is that the world’s leading reproductive and health organizations—including the National Cancer Institute, the American Cancer Society, the American Congress of Obstetricians and Gynecologists, and the World Health Organization, along with all of their staff, contractors, and affiliated experts—have been hiding information about the risks of abortion.

This is most apparent when the reporter, Gill, tells the viewers that “if women have the right to abortion, they should also have the right to know” about the risks she believes she has identified.

Later, the film shows graphics highlighting the states that have various informed consent laws—some of which are literally called “A Woman’s Right to Know” acts—that force providers to give patients false information about the safety of abortion. Rather than concluding that the authority of the state has been used to mandate that doctors provide medically unsound “counseling” using the very junk science that Gill presents throughout the film, she hews to the back-to-front logic of all conspiracy theories. In her view, the existence of these laws shows that the risks are real, but that the faceless, nameless “they” still won’t let women in on the their deadly secrets.

In Gill’s world, the unwillingness of organizations to speak with her becomes evidence that they are hiding something.

The American Congress of Obstetricians and Gynecologists tells Gill that it won’t fulfill her requests by giving her an interview because the science is settled; Gill sees this as a sign of conspiracy.

“This is where I started to feel equally suspicious of those denying any link,” Gill tells the viewer, her voice floating over inky footage of the U.S. Capitol at night. Lights from the Capitol dance on the velvety surface of the Lincoln Memorial Reflecting Pool, and Gill confides: “I felt like I was digging into something much deeper and darker.”

A comical scene ensues where Gill is astonished to find that turning up with a film crew on the grounds of the National Cancer Institute does not suddenly persuade it to grant her an interview with one of its experts.

“What was going on here?” says Gill in her voiceover. “It was like they really didn’t want any questions being asked.”

In fact, the National Cancer Institute had replied to Gill’s multiple requests with links to its website, which contains the conclusive studies that have long since dispelled the notion that any link exists between abortion and breast cancer. The film shows footage of those emails.

Furthermore, Grimes provided Rewire with copies of emails he had exchanged with the film’s producers during its production, in which he gave them citations to relevant studies and warned them that the work of the anti-choice “experts” they had approached had been thoroughly debunked.

After seeing the film, Grimes emailed the producers inquiring why they hadn’t simply asked him to connect them with additional experts.

“Had you truly wanted more pro-choice researchers to speak to these issues, I could have named scores of colleagues from the membership of the Society for Family Planning and Physicians for Reproductive Health who would have been happy to help,” Grimes wrote in a note he shared with Rewire. “You did not ask. That some organizations like the National Cancer Institute did not want to take part in your film in no way implies a reluctance on the part of the broader medical community to speak about abortion research.”

It seems that Gill—whose online biographies give no indication that she is a scientist—would not have been satisfied in hearing about existing research. She tells the viewers that, in her view, “more study is needed to determine the extent of the abortion-breast cancer link,” and concludes that “to entirely deny the connection is ludicrous.”

In an interview with Rewire, Grimes noted that doing such research would be viewed as unethical by reputable scientists.

“That issue is settled, and we should not waste limited resources that should be directed to urgent, unanswered questions, such as the cause of endometriosis and racial disparities in gynecologic cancers,” he said.

Grimes made his dissatisfaction clear to the producers. He wrote to them: “My inference after viewing the film is that you are suggesting a large international conspiracy of silence on the part of major medical and public health organizations, the motivation for which is not specified.”

The corollary to the suspicion cast over the most reputable research and representative bodies is that the film transforms the marginal status of the anti-choice “experts” into a boon.

Seen through HUSH‘s conspiracy theory lens, the fact that the work of people like Priscilla Coleman, David Reardon, and Angela Lanfranchi is rejected by the medical establishment becomes proof not of the unsoundness of their ideas, but rather that a conspiracy is afoot to silence them.

Instead of presenting this small but vociferous group of discredited activists as outliers—shunned because their theories have no scientific basis, or because they lack any credentials relevant to reproductive or mental health, or because they have repeatedly mischaracterized data—HUSH paints them as whistle-blowing renegades determined to set the truth free.

A tearful Lanfranchi recounts the story of patients who came to her with aggressive breast cancer in their 30s. Lanfranchi says she strove to understand “why this was happening,” and realized that each of these young women had had abortions, which she then concluded had caused their cancer. Lanfranchi said her hopes that the public would learn of this risk were dashed over time.

“Over the years I’ve realized that, no, it didn’t matter how many studies there were,” she tells viewers. “That information was not going to get out.”

Joel Brind says that he has worked with a colleague whom he says he later discovered was pro-choice, but that their views on abortion never came up. “This is about science,” he tells Gill. “This is about the effect on women and whether or not abortion increases the risk of breast cancer. Period.”

Gill asks both Lanfranchi and Brind whether they are trying to “stop abortion,” or whether they “want abortion to go away.” Both answer that all they want is for women to be informed when they exercise their choice.

The film makes no mention of the fact that both have been anti-choice activists for decades; they have each testified in support of anti-choice laws in both legislative and judicial proceedings, and both have participated in the extreme right-wing, anti-choice, anti-LGBTQ World Congress of Families.

To the extent that HUSH acknowledges these activists’ bias, it is couched in a softer light that is linked, implicitly, to their religious views—a reality raised by Grimes in his on-camera interview, in which he notes, accurately, that the anti-choice “intellectuals” often lack the relevant medical or scientific qualifications to do the type of work they purport to do, but that they do tend to share religious convictions that lead them to oppose abortion and contraception.

That allows the producers to imply that the False Witnesses are perhaps victims of discrimination; to suggest that their work is being discounted because of the activists’ religious beliefs, and not because the work itself has been thoroughly debunked. Play the ball, not the man, appears to be the producers’ plea.

It’s a conspiracy theory twilight zone: where medical groups withhold information for reasons so cloudy that they cannot be articulated, but where people who have for years worn their beliefs on their sleeves cannot be evaluated with those political views in mind.

After asserting that she is, herself, pro-choice, Gill says she “finds validity” in the claims of the anti-choice advocates, and that she finds it “sickening” that the “media and health organizations have spent their energies closing the case and vilifying those who advocate in favor of the link, instead of investigating any and all reasons why breast cancer rates among young women have increased and women are dying.”

The producer, Joses Martin, did not answer Rewire’s questions about the experts he and his team had selected, other than to say, “We are very proud of the balanced approach that we’ve taken in this documentary that is neither anti-abortion nor pro-abortion.”

Another Instance of Secret Recordings Made in Abortion Clinics

What troubles Grimes most about the film is not so much that he was cast as the face of an international conspiracy by virtue of being the sole pro-choice physician to appear on camera, but that he may be associated with people who appear to have made secret recordings in at least one abortion clinic.

The footage and audio in question have been heavily edited, and it is difficult to discern what is real from what has been staged or spliced to give certain effects.

Early in the film, Gill is shown standing in the entry path to what the producers identify as a “Seattle abortion clinic.” As she makes her way inside, the footage swaps to guerilla-style, hidden camera shots, which capture wall artwork that appears in some Planned Parenthood clinics. Viewers see Gill’s face in the waiting room, as well as blurs of other people there. The film then swaps to audio recordings without any video footage. Gill can be heard posing as a patient, receiving counseling from a woman who is identified as a “health center manager.” This audio is used twice more during the film.

In Washington state, it is a crime to make audio or video recordings of people without their consent. Similar laws are in place in California, Florida, and Maryland, states where David Daleiden and his co-defendants from the Center for Medical Progress made their surreptitious videos of Planned Parenthood employees and members of the National Abortion Federation.

Grimes asked the producers whether they had obtained permission to make any of those recordings; Rewire asked the producers whether the recordings were in fact made in Seattle.

The producer, Joses Martin, replied to Grimes that he would “not be disclosing the name or location of the clinic or the name of the individual recorded to yourself or anyone else.”

“We have kept this information undisclosed and private both in the film and out of the film to not bring any undue burden on them. We’re certainly not implicating anyone involved of wrong doings, as was the goal in the Center For Medical Progress case,” Martin wrote in an email shared with Rewire.

In an email to Rewire, Martin did not answer our specific questions about the recordings, but asserted, “We did not break any laws in the gathering of our footage.”

Planned Parenthood had no comment on whether the crew had obtained consent to film inside its clinics, or whether Gill had misrepresented herself throughout her conversation with the counselor. Nor did the organization comment on the increasing use of secret recordings by anti-choice activists within its clinics. In a federal suit, Planned Parenthood has sued Daleiden for breaches of similar laws in California, Florida, and Maryland.

The branch of the Canadian government that the producers credited with supporting the film was less sanguine when informed about the apparent use of secret recordings made in American abortion clinics.

The film’s credits say that it was produced “with the assistance of the Government of Alberta, Alberta Media Fund,” but when Rewire contacted that Canadian province to learn why it had funded a piece of anti-choice propaganda, a spokesperson distanced the fund from the film.

“We have entered into conversations with the production company but we do not at this point have a formal agreement in place, and we were not aware that the production had been completed,” the spokesperson said. “We’re not able to comment on any funding because to date we have not funded the project. Thank you for bringing the use of our logo to our attention and we’ll be in touch with the producers to discuss.” The producers did not reply to Rewire’s question about their use of the logo.

Ironically, while the producer, Martin, did reply to emails from both Grimes and Rewire (albeit without answering specific questions), the reporter, Gill, remained silent. She never answered questions about what she knew about the backgrounds of the False Witnesses to whose work she lent such credence. She didn’t respond to our questions about whether she obtained permission to record video or audio within abortion clinics, or where those clinics were located. And she didn’t reply to our questions about the nature of her relationship with the extreme anti-choice group Live Action, who also received a credit at the end of the film.

To a reporter such as Gill, such silence would surely have been deeply suspicious.

Rewire Investigative Reporter, Amy Littlefield, contributed to this report. 

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.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

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.

credo_rewire_vote_3

Vote for Rewire and Help Us Earn Money

Rewire is in the running for a CREDO Mobile grant. More votes for Rewire means more CREDO grant money to support our work. Please take a few seconds to help us out!

VOTE!

Thank you for supporting our work!