Last night, the voters of North Dakota decisively defeated a ballot initiative that one news outlet called an "ecclesiastical mugging." By a margin of 64 percent to 36 percent, voters said "no" to an effort to impose religious doctrine on health care, social policy, and law in the state.
An error contained in this article was corrected at 1:07 pm on Wednesday, June 13th, 2012. The correction, of the percentage share of the vote against Measure 3, appears in the article.
For all the hand-wringing in national polls about what share of the population identifies as “pro-choice” and what share “pro-life,” large majorities of voters in one conservative state after another have shown, resoundingly, that they have no desire to interfere in the personal health concerns or religious decisions of their neighbors.
Voters in South Dakota have twice rejected attempts to impose abortion bans via ballot initiatives. In 2010, voters in Colorado decisively rejected efforts to define a fertilized egg as a person, a step that would have conveyed more rights onto a fertilized egg before pregnancy was even established than on the woman in whose body it floated. A similar so-called personhood initiative was also soundly defeated in Mississippi last fall, again by a large majority of voters.
Now, another conservative state has delivered a huge win in the effort to keep religious ideology out of personal medical decisions. Yesterday, by a margin of 69 66 percent to 34 percent, voters in North Dakota could not have been clearer in rejecting Measure 3, a ballot initiative promoted by, among others, the United States Conference of Catholic Bishop (USCCB), whose Orwellian campaign to promote “religious freedom” actually seeks to impose strict Catholic doctrine on everyone, no matter their professed religious affiliation (or lack thereof), via state and federal law. An editorial on Measure 3 in the North Dakota news site, Inforum, called the effort by the USCCB to pass it “an ecclesiastical mugging.”
Like This Story?
Your $10 tax-deductible contribution helps support our research, reporting, and analysis.
Laws such as Measure 3 are being pursued by religious fundamentalists throughout the country, and they have profound implications for the health and rights of individuals, and for public health. Measure 3, for example, would have allowed physicians, nurses, and pharmacists to refuse to provide care and medication which “conflicts with their religious beliefs,” and would have extended “conscience protections” to virtually any employee of any medical facility, ensuring that one reilgious belief could prevail over another in the realm of health care. Measure 3, according to NARAL Pro-Choice America, would also have allowed “a man to claim that domestic-violence and child-abuse laws don’t apply to him because his religion tells him he has the right to discipline his wife and children as he sees fit,” and would have allowed employers to use their personal religious beliefs to discriminate against their female employees by denying contraceptive coverage under insurance plans.
Proponents of the measure insist the language is clear and ironclad. But respected lawyers and retired jurists who have analyzed the language disagree. They have concluded the measure is so vague and so broad that it opens the door wide to individual and organizational interpretations of “religious liberty” that would result in dire consequences.
And like many other such efforts by the far right to pass laws, Measure 3 was “a dangerous solution in search of a nonexistent problem,” according to the Inforum editorial.
When pressed to cite one – just one – example of denied or even attenuated religious liberty in North Dakota, measure supporters come up empty. There are few states where religious liberty is practiced as openly and frequently as North Dakota. Churches and religious-based organizations do vital and excellent work every day in adoption, refugee resettlement, missions, health care, community service and faith-based education. The spiritual lives of North Dakotans who chose a spiritual life – as most do – are sound and secure.
Measure 3 threatens that honorable heritage and history. It’s a self-serving scheme that has the potential to deeply divide people of faith, and thus undermine religious liberty, not protect it. Vote “no.”
The win in North Dakota, noted NARAL, “marks the 10th pro-choice victory out of the 11 ballot measures affecting reproductive rights that have appeared before voters since 2005.”
“The message to anti-choice groups is clear,” stated Nancy Keenan, president of NARAL Pro-Choice America, “voters are tired of your divisive attacks that undermine the fundamental American values of freedom and privacy.”
The results are no less important because they come on the eve of the USCCB’s “Fornight for Religious Freedom,” during which the Bishops intend, incomprehensibly, to reprise their role as long-suffering victims of religious discrimination if they are not enabled by law to exert complete control over the health care and reproductive choices of individual women and their families.
After the results were in, Sarah Stoesz, President of the Planned Parenthood Minnesota, North Dakota, South Dakota Action Fund, stated:
“Tonight, North Dakotans – with a strong and clear NO vote – affirmed that religious liberty is securely protected in the US Constitution. Measure Three was divisive, unnecessary and could have had dangerous consequences. Tonight’s vote protects state laws against child abuse or neglect, laws against domestic violence, laws that affect access to health care, including birth control, and laws that ensure equal opportunity in the workplace.”
“We applaud North Dakotans Against Measure Three for working tirelessly to educate voters about the dangerous consequences this amendment could have had for women and families in the state.”
Planned Parenthood joined with a number of organizations to defeat Measure 3, including ND Healthy Families Opposing Measure 3, Choice USA, Feminist Majority, and the National Organization for Women. NARAL Pro-Choice America launched a nationwide public-education campaign.
And just as in Mississippi, South Dakota, and Colorado before, North Dakota voters decided that “religious freedom” isn’t compatible with laws mandating that one religious view govern the very health and lives of every person, and most especially women.
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.
Like This Story?
Your $10 tax-deductible contribution helps support our research, reporting, and analysis.
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.
On the eve of the Democratic National Convention in Philadelphia, Rep. Debbie Wasserman Schultz (D-FL) resigned her position as chair of the Democratic National Committee (DNC), effective after the convention, amid controversy over leaked internal party emails and months of criticism over her handling of the Democratic primary races.
Wasserman Schultz told the Sun Sentinel on Monday that she would not gavel in this week’s convention, according to Politico.
“I know that electing Hillary Clinton as our next president is critical for America’s future,” Wasserman Schultz said in a Sunday statement announcing her decision. “Going forward, the best way for me to accomplish those goals is to step down as Party Chair at the end of this convention.”
“We have planned a great and unified Convention this week and I hope and expect that the DNC team that has worked so hard to get us to this point will have the strong support of all Democrats in making sure this is the best convention we have ever had,” Wasserman Schultz continued.
Just prior to news that Wasserman Schultz would step down, it was announced that Rep. Marcia Fudge (D-OH) would chair the DNC convention.
Donna Brazile, vice chair of the DNC, will step in as interim replacement for Wasserman Schultz as committee chair.
Wasserman Schultz’s resignation comes after WikiLeaks released more than 19,000 internal emails from the DNC, breathing new life into arguments that the Democratic Party—and Wasserman Schultz in particular—had “rigged” the primary in favor of nominating Hillary Clinton. As Vox‘s Timothy B. Lee pointed out, there seems to be “no bombshells” in the released emails, though one email does show that Brad Marshall, chief financial officer of the DNC, emailed asking whether an unnamed person could be questioned about “his” religious beliefs. Many believe the email was referencing Sen. Bernie Sanders’ (I-VT).
Another email from Wasserman Schultz revealed the DNC chair had referred to Sanders’ campaign manager, Jeff Weaver, as a “damn liar.”
As previously reported by Rewire before the emails’ release, “Wasserman Schultz has been at the center of a string of heated criticisms directed at her handling of the DNC as well as allegations that she initially limited the number of the party’s primary debates, steadfastly refusing to add more until she came under pressure.” She also sparked controversy in January after suggesting that young women aren’t supporting Clinton because there is “a complacency among the generation” who were born after Roe v. Wade was decided.
“Debbie Wasserman Schultz has made the right decision for the future of the Democratic Party,” said Sanders in a Sunday statement. “While she deserves thanks for her years of service, the party now needs new leadership that will open the doors of the party and welcome in working people and young people. The party leadership must also always remain impartial in the presidential nominating process, something which did not occur in the 2016 race.”
Sanders had previously demanded Wasserman Schultz’s resignation in light of the leaked emails during an appearance earlier that day on ABC’s This Week.
Clinton nevertheless stood by Wasserman Schultz in a Sunday statement responding to news of the resignation. “I am grateful to Debbie for getting the Democratic Party to this year’s historic convention in Philadelphia, and I know that this week’s events will be a success thanks to her hard work and leadership,” said Clinton. “There’s simply no one better at taking the fight to the Republicans than Debbie—which is why I am glad that she has agreed to serve as honorary chair of my campaign’s 50-state program to gain ground and elect Democrats in every part of the country, and will continue to serve as a surrogate for my campaign nationally, in Florida, and in other key states.”
Clinton added that she still looks “forward to campaigning with Debbie in Florida and helping her in her re-election bid.” Wasserman Schultz faces a primary challenger, Tim Canova, for her congressional seat in Florida’s 23rd district for the first time this year.