Potential SCOTUS Review of DOMA Presents Potential Pivotal Moment for Gay Rights in America
On Friday this week, the US Supreme Court judges are expected to announce which, if any, cases related to gay rights they will review. At stake are not only the right to marry and federal recognition of marriage-related financial benefits for same-sex couples who are already married.
On Friday, November 30th (or today as you read this), the US Supreme Court judges are expected to announce which, if any, cases related to gay rights they will review. At stake are not only the right to marry and federal recognition of marriage-related financial benefits for same-sex couples who are already married. The cases before the Court touch upon our understanding of “the family” as an essential building block of society, and whether we can reasonably expect individuals to put part of who they are on hold in order to be considered worthy citizens.
The Supreme Court has been asked to review the constitutionality of the Defense of Marriage Act (known as DOMA), a piece of legislation which was signed into law by Bill Clinton in 1996, and which forbids the recognition of same-sex marriages for the purposes of federal benefits such as tax breaks, social security survivor benefits, and estate tax.
DOMA also prohibits married same-sex couples from benefitting from the same immigration rights as married opposite-sex couples, leading to the summary denial of green cards to foreign spouses of U.S. citizens and permanent residents merely because they are not straight. But in June this year, the US Board of Immigration Appeals sent four such cases back to immigration authorities to determine whether the marriages are valid under state law and whether those marriages would qualify for immigration purposes in the absence of DOMA.
Those decisions follow Obama’s early 2011 announcement that his administration would no longer defend the constitutionality of DOMA. In fact, the Board of Immigrations Appeals’ decision appear at least in part to be made in preparation for a, hopefully not too distant, post-DOMA world. But until this law is declared unconstitutional by the Supreme Court, or repealed by Congress, DOMA will remain force.
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Opponents of the federal recognition of same-sex marriage benefits at times phrase their view as a defense of “the family” as the basic building block of society, implicitly or explicitly noting that only opposite-sex couples with or without children also are worthy of state protection as inherently “good.”
And several international and regional human rights documents do, indeed, establish the “family” as a fundamental group unit of society, and, in particular, as essential in the upbringing of children and the protection of the rights of the child.
However, the definition of what a family might look like to qualify for state protection is deliberately broad and inclusive. In 2006, the United Nations Committee on the Rights of the Child clarified that when it talks about “family,” it means any number of arrangements, including same-sex families. In February this year, the Inter-American Court on Human Rights expressed a similar notion: “The Court confirms that the American Convention does not define a limited concept of family, nor does it only protect a “traditional” model of the family.”
Of course, this is not about marriage in the abstract, but rather about the benefits we assign to married couples, concretely, through the law. It is precisely because marital relationship are prioritized in law that same-sex couples would benefit tremendously from being allowed to marry in the first place, and to obtain federal tax, social security, and inheritance benefits when they do. If no marital relationships were given special status under the law, the impact of DOMA might be less stark on both adults and children.
It is unlikely that the Supreme Court judges will challenge this general privilege in law. But we can hope they decide to look at the suffering its unequal implementation causes.
Helen Gurley Brown was a publishing giant and pop-culture feminist theorist. But according to her latest biographer, she was a mass of insecurities even as she confidently told single people, especially women, to take charge of their sex lives.
Like all of us, Cosmopolitan magazine’s longtime editor Helen Gurley Brown lived with conflicting drives and desires. But Gurley Brown’s ideas and insecurities had a public platform, where she championed sex for singles while downplaying workplace sexual harassment and featured feminist voices while upholding the beauty ideals that made her own life difficult.
A workhorse who played hard, Gurley Brown, who died in 2012, is presented as an often contradictory heroine and an unexpected success story in journalist Gerri Hirshey’s new 500-page biography, Not Pretty Enough: The Unlikely Triumph of Helen Gurley Brown.
Helen Gurley Brown’s life and example—almost a classic Horatio Alger “rags to riches” tale—affirms that the American idea of surmounting humble origins is sometimes possible, if improbable. But Gurley Brown’s story also illustrates both personal grit and endurance. Wily, willing to take risks, and sexually audacious, she might be a questionable role model for 21st century women, but her amazing story, as told by Hirshey, will nonetheless inspire and entertain.
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Born in 1922, Gurley Brownled Cosmopolitan for 32 years. She moved the magazine, which had been published continuously since 1886, from relative obscurity into the limelight. Known for its brash cover chatter and how-to articles on heterosexual man-pleasing, Cosmo is the world’s highest-selling women’s magazine, with 61 print editions. Its long history—alongside Helen Gurley Brown’s personal story—offers a fascinating window into the intersection between U.S. publishing and burgeoning 20th-century feminist ideologies.
Hirshey (whose earlier books include Nowhere to Run: The Story of Soul Music and We Gotta Get Out of This Place: The True, Tough Story of Women in Rock) presents Gurley Brown as a mess of pushes and pulls: insecure, brilliant, bold, self-effacing, loyal, independent, jittery, and frugal to the point of deprivation. Indeed, Hirshey’s revealing and detailed biography describes the pioneering editor as someone hungry for experiences; a sophisticated New Yorker with deep roots in rural America; and a writer of guidebooks who had trouble taking advice. In short, Helen Gurley Brown was limited by a host of personal issues, but that did not stop her from trying to push societal boundaries and shatter sexual propriety.
A native of small-town Arkansas, Helen’s childhood was marred by tragedy. Her father died in an accident when she was 10; several years later, her older sister, Mary, contracted polio, which left her partially paralyzed. Helen’s mother, Cleo, was overwhelmed and often depressed. Nonetheless, she scrambled to keep the creditors at bay, and the family lived in numerous decrepit rentals during Helen’s childhood.
Poverty was not the only obstacle Helen faced. According to Hirshey, “By the time Mary and Helen were school age, Cleo had begun her steady warnings that pretty girls got the best in life.” While Cleo never used the word “plain” to describe her offspring, it was clear that she did not think them comely. Helen was devastated. What’s more, the fear of being unattractivedogged her for her entire life and she had multiple surgeries to correct “flaws.” She also starved herself and exercised compulsively—and would likely now be labeled as having an eating disorder—to keep her weight at an unwavering 105 pounds.
Her success, Hirshey writes, was the result of luck, tenacity, and sheer chutzpah.
It started in the 1940s, shortly after she finished high school and secured the first of a string of secretarial jobs. During her tenure as a typist and stenographer, Helen cozied up to her male bosses and slept with some of them.
“It was the first time she truly observed and understood that sex is power,” Hirshey writes. “Helen had come to realize that sex was a surprising and thrilling equalizer between the sheets.” Gurley Brown pooh-poohed the idea that people should wait until marriage to have sex and had no problem dating men who were cheating on their wives. The same went, Hirshey writes, for racists and overt anti-Semites. Since she was giving a large part of her earnings to her mother and her sister, it was the size of a man’s bank book, rather than his politics, that evidently curried her favor.
Nevertheless, being a mistress had a downside, and Helen’s diary reveals that she felt like a “little bird … expected to stay in her cage, always available yet always alone.”
Her fortunes turned shortly after her 26th birthday, when she became secretary to Don Belding, chairman of the board at prestigious ad agency Foote, Cone, and Belding. Belding paid Helen $75 a week and treated her like a long-lost daughter; she considered him a surrogate father.
Alice Belding, Don’s wife, took a particular interest in Helen and, after reading something she’d written, persuaded her husband to give Helen a chance as a copywriter. He did, making her one of the first women to break into the field.
Meanwhile, there were men. Lots of men. “Certainly, men love beautiful women,” Hirshey writes. But Helen realized that when “the lights went out, Miss Universe might just as well be the poor, sooty match girl if she couldn’t make him shout hallelujah.” She loved the power sex gave her, but was hurt during a group therapy session when another participant dubbed her a slut. “Spoken with venom, it had the effect of a gut-punch,” Hirshey writes. Still, it proved clarifying for Helen, allowing her to formulate the idea at the heart of her 1962 book, Sex and the Single Girl: There is nothing shameful about unmarried people having sex as long as it’s consensual.
Helen met David Brown, a high-profile movie executive, in 1958, when she was 36. David was 42, twice married and twice divorced, and had no interest in returning to the altar anytime soon. This was fine with Helen. Nonetheless, as they spent more and more time together, they formed a strategic partnership. Yes, there was love, but Helen Gurley craved financial security, which David could provide. They wed in September 1959.
At that point, David suggested that Helen take a professional detour and write “a guidebook of sorts for single women.” Hirshey reports that he envisioned “something along the lines of ‘How to Have a Successful Affair’” and ticked off possible subjects, including how to snare a guy and dress for conquest. He also wanted the manual to include concrete sex tips. Helen loved the idea and the pair began to work on it, she as writer, he as editor.
Sex and the Single Girl told the truth as Helen saw it. Hirshey notes that the book was meant as a practicum, “and was never intended as an overtly feminist tract. Systemic change was not at all on her radar; she addressed herself to bettering the small, quotidian lives toiling within the status quo, of those, herself included, she would come to call ‘mouseburgers.’ Sexism was not even in her vocabulary.”
Her message was quite simple: Sex needed to be decoupled from marriage. As for gender roles, she was fine with women playing coy. In fact, she explicitly advised women to go out with men only if they could pay for everything, from dinner and drinks to “prezzies.”
There were of course, detractors, but Sex and the Single Girl sold millions of copies and made Helen Gurley Brown a household name. She appeared on countless TV talk shows and was the first woman featured in Playboy’s famous centerpiece interviews.
In the throes of her success, however, David was offered a job in New York and the couple decided to leave California, where they’d both lived for decades. David, Hirshey reports, knew that Helen needed to work, “that Helen unemployed would be Helen unhinged.” Together, they developed a prototype for a monthly women’s magazine that would popularize and expand upon the ideas in Sex and the Single Girl. They called it Femme and floated the idea to every publisher they knew. No one liked it.
Eventually, Hearst Corporation suggested “superimposing” the format on one of the corporation’s least successful publications, Cosmopolitan, with Helen Gurley Brown at the helm.
It worked, not only boosting sagging sales but catapulting “The Cosmo Girl” to prominence. Sexual freedom, Gurley Brown enthused, was in–but apparently only for heterosexuals, since the magazine rarely acknowledged the existence of same-sex relationships or bisexuality.
Nonetheless, the first few issues tackled then-risqué themes, as these titles suggest: “The Bugaboo of Male Impotence”; “I was a Nude Model (and This is What Happened)”; “Things I’ll Never Do with a Man Again”; “The Astonishingly Frank Diary of an Unfaithful Wife”; and “How to Make a Small Bosom Amount to Something.”
As the “sexual revolution” of the 1960s took hold, Cosmo flourished, albeit steering clear of coveringracial unrest, the Vietnam War, or the counterculture and anti-militarism movements. Likewise, if Gurley Brown had any thoughts about the civil rights or peace movements, Hirshey neglects to mention them. She does note that for Helen, “readers of color scarcely registered.” It’s too bad this is not probed more deeply in Not Pretty Enough, and why the editor remained above the fray—was it fear, disinterest, or hostility?—remains unclear.
The women’s movement of the 1960s and 1970s did capture Helen’s interest, though, and she considered herself a devout feminist, with a particular passion for promoting reproductive rights. She wrote numerous articles about the need to overhaul abortion policies pre-Roe v. Wade, openly declaring that “it’s a shame that girls have to go to Mexico or Europe to be operated on.” At Cosmo, she cheered the arrival of the birth control pill in 1960; hailed the 1965 Supreme Court decision in Griswold v. Connecticut that gave married heterosexuals access to birth control; and was exuberant when Eisenstadt v. Baird gave unmarried couples the same right to control their fertility in 1972.
Sexual harassment, on the other hand, was befuddling to her. Remembering her days as a secretary, she dubbed slaps on the ass and sexually suggestive comments to be harmless fun. “When a man finds you sexually attractive, he is paying you a compliment,” she wrote in a monthly Cosmo column. “When he doesn’t, that’s when you have to worry.”
Small wonder that Kate Millett picketed Cosmo for its “reactionary politics” or that Betty Friedan slammed it for its sexism and preponderance of inane articles on keeping men happy.
Despite disagreeing with these thinkers, Helen Gurley Brown marched down New York City’s Fifth Avenue to celebrate the 50th anniversary of women’s suffrage in August 1970 and published articles written by prominent feminists as the 1970s unfolded.
Then, at the height of the AIDS crisis, Gurley Brown stepped in it. In early 1988, Cosmo ran an article that minimized the possibility of heterosexual transmission of HIV and made it sound as if straight women were immune from infection. Equally horrifying, the author, psychiatrist Dr. Robert E. Gould, was overtly racist. “Many men in Africa take their women in a brutal way,” he wrote, “so that some heterosexual activity regarded as normal by them would be close to rape by our standards.”
Oy. Readers were aghast, and Gurley Brown was roundly and deservedly criticized. Even Surgeon General C. Everett Koop weighed in, saying the article did “such a disservice” by suggesting that the risk of contracting the virus was low for heterosexual women. Hirshey reports that, inexplicably, the article was never retracted or corrected.
By this point, however, Helen was showing signs of dementia—she had periodical temper tantrums in public and was becoming less reliable and sharp—so Hearst Corporation brought in several new editors, albeit without firing Helen. She continued going into the office until shortly before her 2012 death. She had done paid work for 71 years.
Hirshey’s sources range from primary documents and in-person interviews with people who knew Gurley Brown, including Gloria Vanderbilt and Barbara Walters. Correspondence and recorded talks between her and friends such as Jacqueline Susann and Joan Rivers provide incisive, funny, and poignant anecdotes. These interviews give the book reportorial gravitas and intimacy. And although Hirshey had only a passing acquaintance with her subject—she had interviewed Gurley Brown decades earlier for an article about marriage proposals—she nonetheless manages to show Gurley Brown as a regular Jane who spoke openly about her nagging doubts.
Many readers will feel as if they can relate to Gurley Brown’s struggles and triumphs. Throughout the book, I felt sad for her, but also wished we’d met.
In fact, I closed the book wanting more; among other things, I wanted to better understand what it was like for her to move between near-poverty and the upper crust. Did she feel like an impostor? Did her lifelong conviction that she was not pretty enough or smart enough keep her from feeling connected to others? Did she ever feel truly secure?
Perhaps Gurley Brown’s self-doubts are what kept her from becoming arrogant or abusive to others; even those who hated Cosmopolitan or were frustrated by her racial and political blind spots admired her kindness. Similarly, these doubts did not prompt her to disguise her eccentricities—among them, pilfering from petty cash and always taking public transportation rather than cabs. Indeed, whatever GurleyBrown felt about her own appeal, Hirshey’s biography presents Helen Gurley Brown the woman as quirky, humble, and utterly fascinating.
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.