Since 1984, women have been the majority of the total vote in every presidential election. This year, millions of women will stand in line and prepare themselves to decide who will serve in state legislatures and in the U.S. Congress. They will decide who sits on the local school board and who becomes the next President of the United States. They will also decide who shapes the future of reproductive health and rights for all women in this country. The power to preserve and expand reproductive rights is inextricably tied the right to vote.
But what is power if your ability to leverage that power is stripped away?
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That’s just what Republican-led state legislatures across the country are poised to do. Since 2010 state legislatures with Republican majorities have introduced and passed restrictive laws with the potential — and many argue the intent — of forcing widespread voter suppression, and to disenfranchise women, people of color, students, the elderly, and low-income communities.
The overall strategy has included efforts to:
Pass laws that require voters to produce proof of citizenship;
Make the voter registration process more difficult by eliminating Election Day registration and creating new restrictions on voter registration drives;
Cut early and absentee voting periods;
Make the restoration of voting rights more difficult;
Require eligible voters to possess current and valid state issued photo ID
Brennan Center for Justice.
These voter suppression tactics are not new, our nation has faced this type of encroachment before. During the civil rights movement African-Americans, women, students, and allies all fought together to gain access to the vote for all citizens. Now, Republican-led state legislatures across the nation are working to roll back hard-earned progress.
What happens if this strategy succeeds?
According a Brennan Center for Justice study, approximately one in ten, or 21 million, Americans do not currently possess valid and current government-issued photo ID. Many of those voters are women whose last names changed with marriages.
The same study found that since the beginning of 2011, at least 180 bills restricting voting rights were introduced in 41 states. Due to this well-funded and well-organized GOP-led effort, 16 states succeeded in passing restrictive voting laws. These states account for 214 electoral votes, or nearly 79 percent of the total needed to win the presidency. If these restrictions are enacted, an estimated 5 million eligible voters could be turned away from the polls in 2012.
Republican state legislators are not pushing this agenda alone. A corporate-funded conservative group called the American Legislative Exchange Council (ALEC) — whose membership includes legislators and major corporations — created model voter ID legislation. Then, legislators and corporations worked together to introduce and push the model voter ID legislation in several states under the guise of preventing voting fraud.
According to the American Civil Liberties Union (ACLU), “proponents of such voter suppression legislation have failed to show that voter fraud is a problem anywhere in the country.” Right-wing politicians and groups including ALEC are leveraging the right to vote against a problem that doesn’t exist.
Brennan Center for Justice.
What’s happening in states?
Florida has a long history of disenfranchising its eligible voters. Florida Governor Rick Scott’s attempt to purge more than 180,000 Floridians from voter rolls just before a key election is a prime example the GOP’s effort to disrupt the voting process and disenfranchise eligible voters. In the 2000 presidential election, thousands of ballots from African American voters were rejected and tossed out. George Bush’s victory was hinged upon the decision of Florida election officials, he won by just 573 votes. Every single vote counts.
Some Republican officials are transparent about the intent behind their efforts to rig the 2012 elections. Last month, Pennsylvania House Majority Leader Mike Turzai (R) openly stated that voter ID “is gonna allow Governor Romney to win the state of Pennsylvania.” As a result of Pennsylvania’s new voter ID law, over 758,000 eligible voters now face disenfranchisement because they lack an acceptable form of ID. Over 186,000 of these voters live in the urban center of Philadelphia — home to nearly half of all African Americans in Pennsylvania.
In Mississippi the photo ID referendum has proved to be especially cumbersome. In order to obtain the required photo ID, voters have to have a birth certificate. To obtain a birth certificate, voters most have a state photo ID. See where this gets sticky?
The Texas voter ID law will accept gun licenses — but not student IDs — as proof of identification in lieu of a photo ID. Fortunately, like Mississippi, Texas is required to undergo federal review for any changes to its voting laws due to a history of discriminatory practices.
There are several factors that contribute to a person not having a current and valid photo ID. They expire. Some voters live in areas where driving is not necessary, therefore a state-issued drivers license is not necessary. Voters move and are unable to obtain new ID prior to registration or election day. College students who live away from home and only possess a student ID are also at risk of being turned away for the polls in some states.
The latest available figures show that only 48 percent of voting-age women with ready access to their U.S. birth certificates have a birth certificate with their current legal name. The same survey showed that only 66 percent of voting-age women with ready access to any proof of citizenship have a document with their current legal name.
Ultimately, these measures make the voting process more confusing and place additional burdens on groups who each had to struggle to obtain the right to vote and the right to access quality & affordable reproductive health care.
What are leaders in the movement saying?
“If you can’t access the ballot box, how do you ensure access to reproductive health care?” — Aimee Thorne-Thompson, Advocates for Youth
For reproductive justice advocates, voter suppression is a reproductive justice issue. Many groups like the Religious Coalition for Reproductive Rights (RCRC) and NYC Reproductive Justice Coalition (NYC RJC, formerly SisterSong NYC) and Advocates for Youth work year-around to educate communities on the issues and mobilize them to vote for progressive candidates and ballot measures.
Spiritual Youth for Reproductive Justice Director at RCRC, Angela Ferrell-Zabala says voter suppression has the potential to affect down ballot measures and local races in states like Florida.
“Down ballot issues like Amendment 6 will open the state’s constitutional privacy laws and make it very difficult for women to seek abortion care’’ Ferrell-Zabala states.
If Amendment 6 is passed, politicians will be allowed to intrude on personal medical decisions and take away access to healthcare that many women who are Florida public employees currently have.
There is much at stake and “we have to look at the repercussions, it all leads back to reproductive justice. Accessing healthcare and education — making informed decisions about your sexual health and family planning.” Ferrell-Zabala explains.
This is about agency and the power to transform communities.
“To limit the agency of women and youth who are disenfranchised by the social conditions of our race, gender, age and socio-economic status is unacceptable at best, and a direct violation of our human rights at its worst.” says Jasmine Burnett, NYC RJC lead organizer.
Gloria Feldt, author and past president and CEO of Planned Parenthood Federation of America argues that “the young, the poor, the women struggling to make ends meet for their families are most vulnerable to disenfranchisement yet have the most to lose if right-wing perpetrators of voter suppression succeed.”
The power of the women’s vote can only be effectively leveraged if every woman who is eligible to vote is able to enter the voting booth and have her vote counted. If they are not counted in 2012 then, “reproductive rights, health, and justice would be among the first freedoms to go, and economic justice not far behind.” said Feldt.
The implementation of voter ID laws and other restrictive measures have the potential to shape whose votes are cast and counted in this year’s presidential election, but we must think long-term. What happens after the next presidential inauguration takes place on the steps of the U.S. Capitol?
Local races will occur where the individuals on the ballot stand to gain the power to decide what happens in women’s lives. They will have the power to decide what health centers receive funding, or whether the personhood of a woman is valued over the interests of a fertilitized egg… laws passed by elected officials who will never be in the position to choose. More often than not, these decisions affect women of color and women with low-incomes the most.
“The reproductive health, rights and justice movement must work with organizations doing voter education and civic engagement work to defeat these bills and ballot measures. Otherwise, all of our other rights are at risk.” says Thorne-Thompson.
As America’s democracy grows older and its citizenry becomes more diverse, our elected officials should focus on reducing barriers to voting and developing a more modern voting process. We must create a more streamlined and effective registration process and improve our use of technology in the voting process in order to realize full voter-participation. The power of the vote depends on this and our democracy is dramatically weakened — indeed completely undermined — without it.
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.
A federal judge in Wisconsin on Tuesday ruled that voters unable to comply with the state’s photo ID requirement be allowed to vote in November, striking a blow to conservative efforts to drive down Democratic voter turnout in the state.
Tuesday’s decision, issued by Judge Lynn Adelman, did not strike the law, but instead carved out an exception, ruling that voters who are unable to obtain an ID be permitted to sign an affidavit testifying to that inability and receive a ballot to vote. “Any voter who completes and submits an affidavit shall receive a regular ballot, even if that voter does not show acceptable photo identification,” according to Adelman’s decision. “No person may challenge the sufficiency of the reason given by the voter for failing to obtain ID.”
Conservatives in Wisconsin, including former Republican Party presidential candidate Gov. Scott Walker, proposed the measure, arguing it was necessary to prevent voter fraud.
Republican lawmakers in other states, like Ohio, have turned up almost nothing during lengthy investigations into claims of voter fraud.
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“Although most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who can’t obtain qualifying ID with reasonable effort,” Adelman wrote. “The … affidavit option is a sensible approach that will both prevent the disenfranchisement of some voters during the pendency of this litigation and preserve Wisconsin’s interests in protecting the integrity of its elections.”
Adelman declined to apply the photo ID exception to the state’s August primary, ruling state officials would not have enough time to prepare for it.
The fight over Wisconsin’s voter ID law goes back to 2011, when attorneys from the American Civil Liberties Union and National Law Center on Homelessness and Poverty sued, arguing the law violated both the U.S. Constitution and Section 2 of the Voting Rights Act.
Adelman initially blocked the law, but the Seventh Circuit Court of Appeals reversed that decision and sent the case back to Adelman for another look. That left the requirement in place for Wisconsin’s presidential primary in April.
Tuesday’s ruling means those who were unable to comply with the photo ID requirement can still cast a ballot in the November 8 presidential election.