Analysis Family

Why Adoption Needs to Play a Bigger Role in the Reproductive Justice Conversation

Andrea Grimes

A recent proposal by a Texas state senator that would mandate pre-abortion adoption counseling has given reproductive justice advocates a unique opportunity to show what real, meaningful adoption industry reform could look like.

This summer, reproductive rights supporters in Texas descended upon their rose-hued state capitol, day after day, through two special legislative sessions, to rally against an omnibus anti-abortion bill that is expected to drastically reduce access to safe, legal abortion in the state.

Texas Democrats ultimately failed to block the bill, despite a historic fight that catapulted Sen. Wendy Davis into the national spotlight, as HB 2’s passage was all but guaranteed by the state’s right-wing legislative majority. But even some Democrats voted to pass the law, which could shutter all but the six abortion clinics in the state that are currently able to meet the standards of ambulatory surgical centers.

One of those Democrats, 30-year state senate veteran Eddie Lucio, added insult to injury when, as the second special session wound down, he filed a last-minute bill that would require Texans seeking abortions to take three hours of adoption counseling before their procedures, putting yet another obstacle between pregnant Texans and legal abortion. The state already requires such Texans to undergo forced ultrasounds and a 24-hour waiting period.

Lucio knew his bill wouldn’t go to a vote that session, but it wasn’t meant to. It was meant to be a prelude to the 2015 legislative session, when he plans to lobby hard for state-mandated, directive adoption counseling. (Lucio later filed a slightly different version of the bill, mandating “resource awareness” counseling that specifically highlights adoption.)

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“I’m hoping that we can save a few lives by having the woman think about the possibility of allowing her child to go through the birth process and giving it up if necessary so she can continue to go through her life as maybe she has planned,” Lucio told Texas Public Radio in early August.

While Lucio, who waxed theological on the issue of “personhood” and abortion for several minutes before ultimately voting to pass HB 2 this summer, may be coming from a well-meaning place, his bill shows a deep ignorance about the reality of adoption, and a fundamental misunderstanding of the reasons why it is not an alternative to abortion, but rather an alternative to parenting. Research shows that the vast majority of pregnant people who seriously consider adoption never considered abortion as a viable option in the first place, and Lucio’s bill would serve predominantly to detain, and perhaps shame, pregnant people who are already in a time crunch, and who are already facing logistical hurdles to obtaining legal abortions.

Lucio is not alone in his ignorance, and as an anti-choice senator, it’s hardly unusual that he would champion adoption despite the basic illogic of his own bill, as adoption has become almost exclusively the purview of the anti-choice community, while reproductive rights supporters are compelled to concentrate instead on fighting other, mostly abortion-related battles in state legislatures.

But reproductive justice advocates who Rewire spoke to say there is plenty of room for adoption in the larger conversation about reproductive rights, and in light of Lucio’s proposed bill and growing awareness about the coercive practices of a largely unregulated domestic and international adoption industry, it is not an issue they can afford to ignore.

“On the pro-choice side, they’ve kind of handed adoption over to those in the ‘pro-life’ arena,” said writer and social worker Amanda Woolston, an adoptee herself and author of The Declassified Adoptee. “We need to take it back and say that anybody who cares about women and children and families needs to have an opinion.”

Even though the question of being able to choose when and whether to parent, and whether resources exist to support those options, is central to any adoption decision, adoption tends to be overshadowed by abortion in the reproductive justice arena, for a variety of reasons: Abortion is more politically volatile, countering explicit legislative attacks on abortion access demands a great deal of time and resources, abortion is significantly more common than adoption, and adoption is an under-researched area, perhaps in part because it is by and large understood in our culture to be a social good that needs little oversight.

“I think [adoption] is a crucial part of the reproductive rights conversation,” said Kathryn Joyce, a journalist and author of The Child Catchers, an investigation into the international trafficking of adoptees by American evangelicals. “It’s part of the larger conversation about not just the right to choose when you parent, but to choose to be a parent. That’s a fundamental right that is absolutely, beyond question part of reproductive justice.”

According to critics of adoption as it is practiced today, even after the “Baby Scoop Era,” during which single women were shepherded away to maternity homes to deliver their children in secret, many of the common accusations leveled at the so-called abortion industry by anti-choice reproductive rights opponents—specifically, that coercive “abortionists” are solely interested in creating and maintaining demand for their services for the singular purpose of making money off hoodwinked and/or ignorant clientele—could be aptly applied to the largely unregulated domestic and international adoption industry.

“Ironically, some of the same things that the anti-choice side will accuse abortion rights supporters of doing seem to be kind of actually happening in some adoption counseling scenarios,” said Joyce, who also wrote about “shotgun adoptions” for The Nation in 2009, detailing the lengths to which crisis pregnancy centers and some religious-affiliated adoption agencies go in order to convince women to relinquish children to what they’re often told are sure to be better homes than those they themselves could provide.

If reproductive justice is about freedom from coercion and the ability to make affirmative choices with appropriate and sufficient resources, the adoption industry deserves all the attention those in the movement can give it.

“Adoption, the issue, is just really under-talked about and really under-explored,” said Katie Klabusich, a writer and reproductive justice activist living in New York. An adult adoptee, she says “we need to do everything we can do to make sure [adoption] is an affirmative choice.”

That means, in some cases, going up against adoption agencies that have not only an ideological investment in increasing adoptions, but a financial one. In 2012, Midwest-based Bethany Christian Services took in $82 million from adoption fees, investments, contributions, and “reimbursement for children’s services,” while Texas’ Gladney Center for Adoption reported over $37 million in net assets for the same year.

These agencies do all they can to ensure that women who consider adoption follow through on their plans. Gladney offers a kind of all-expenses-paid new-wave maternity home for women considering adoption, while Bethany places pregnant women in private homes with families who encourage them not to change their minds. Critics say this separation from family and social networks engenders a sense of isolation and helplessness, prompting those facing unplanned pregnancies to feel reliant on adoption agencies and indebted to them for support. In return, they may feel obligated to relinquish their babies despite their misgivings.

Joyce says adoption counseling can be a “very socially engineered” conversation, with adoption “presented as, ‘This is the responsible way you can take responsibility for your bad decision of having premarital sex and getting pregnant.'”

At the Gladney website, pregnant women are told that while adoption may initially cause them “pain,” it will “someday [be] replaced by strength.” The page on Bethany’s website aimed at people considering abortion advises them that “taking the time to look at your other choices may prevent you from making a decision you will later find hard to live with,” implying that abortion is a guaranteed path to regret.

But research shows that adoption can indeed be an option that pregnant people later find hard to live with. According to the Center for American Progress, those who choose to relinquish children for adoption often experience grief and profound loss, along with relief. For many in the triad of adoptees, birth parents, and adoptive parents, adoption it is not unilaterally the joyful exploration of loving kindness presented by agencies and messaging campaigns like Gladney-affiliated Brave Love, which aims to communicate “the heroism and bravery” of adoption.

Woolston, the “Declassified Adoptee,” said adult adoptees live with frustration and guilt when they’re reminded that “what our lives could have been before adoption would have been so much more terrible, that once adoption comes into the picture, we have nothing to complain about.”

And Claudia Corrigan D’Arcy, an outspoken critic of the adoption industry who relinquished a child in 1987 when she was 19 years old, says birth mothers are often cast aside once they’ve relinquished their children, particularly when they have no legal means of holding adoptive parents accountable for open adoption agreements, or ensuring they get the post-adoption counseling so often promised by adoption agencies. “We’ll take away the baby,” muses D’Arcy, “but we’re going to leave you in the same crisis.”

As for birth fathers, Woolston said they’re treated as little more than a “roadblock” to adoption: “It’s another person with rights who we have to consider,” she said. “Fathers have largely been written out of policy for that reason.”

No credible research conducted by non-partisan, objective groups or experts has found that the adoption experience universally reflects the transformational journey of joy and selflessness put forth by many adoption agencies and crisis pregnancy centers. Instead, research suggests that adoption is as complicated and nuanced as the individuals involved, who experience a wide variety of emotions and outcomes.

Which is not to say that good cannot and does not come out of adoption—none of the adoption critics that Rewire spoke to oppose adoption as a concept—but the waters must be navigated carefully and ethically. A three-hour adoption counseling program that explicitly aims, as Sen. Lucio said his would, to encourage women to relinquish their children to adoptive families could not be anything other than, at best, deeply biased, or at worst, profoundly coercive.

Indeed, private agencies like Gladney are already using slick marketing campaigns to do what Lucio hopes his adoption counseling mandate would do: increase the available supply of adoptable infants. According to the Gladney website, Brave Love’s goal is to “drastically increase adoption rates in the U.S.” But how? The Brave Love website contains no information about how parents can adopt existing foster children. Instead, it is aimed at pregnant women who, according to a promotional video, will be “heroes” if they relinquish their infants for adoption.

However, Brave Love’s founder, Ellen Porter, who herself adopted a child through Gladney, told Rewire that her organization believes “increased adoption education is necessary across the board, not just for abortion-minded women,” for whom “adoption should be presented as an option so that women can make a well-informed decision when faced with an unplanned pregnancy.”

For the State of Texas to engage in similar practices aimed at talking pregnant women into relinquishing infants, glossing over the nuances of adoption in order to present the choice in the best possible light, is to wade into ethically questionable waters, said Katie Klabusich. To be frank, she said, Lucio’s proposal “freaks [her] out,” not only because she is an adoptee who believes her birth mother never was able to consider abortion as an option, but because she herself has also chosen to end a pregnancy.

“I feel like it cheapens the effect that the unplanned pregnancy had on my life,” she said. “It judges the decision that I made, and it also cheapens the way that I came into the world.”

Birth mother Claudia Corrigan D’Arcy called Lucio’s bill “really frightening.”

“Three hours is not at all a decent length of time to get adequate information,” she said, adding that she’s “sure the information that would be given would not be true information.” Instead, she says most adoption legislation, when lawmakers make any attempt to address the issue at all, is intended to benefit adoptive parents and adoption agencies, the most privileged players in an adoption situation.

Adoptive parents, says D’Arcy, “are, in the end, the paying customer and the ones the agencies are going after.” According to a 2011 report from the U.S. Department of Health and Human Services, private adoptions can cost anywhere from $5,000 to over $40,000.

“They want the moms to make the product,” said D’Arcy. But today, very few pregnant Americans choose adoption in the first place, with an estimated 14,000 domestic adoptions taking place each year, compared to some 175,000 in the 1970s, according to the U.S. Department of Health and Human Services. Before 1973, nearly 19.3 percent of never-married white women and 1.5 percent of never-married Black women relinquished children for adoption, whereas today, fewer than 2 percent of white women, and “nearly 0 percent” of Black women choose adoption.

Woolston told Rewire that what legislation has been passed has largely centered on enabling and encouraging would-be adoptive parents. Legislators ask, says Woolston, “‘How can we convince people to adopt?’ ‘What can we do to encourage them to keep adopting?’ And then, ‘How can we convince pregnant women to choose adoption instead of abortion?’ And then at the bottom they say, ‘What can we do for adoptees that doesn’t interfere with our plans?'”

In the end, says Woolston, “none if it is empowering to any of us, even at the top. We all have roles that have meaning in society, and we’re expected to play within those roles and stay contained.”

What, then, can reproductive justice advocates do if they want to ally with those in the adoption triad in addressing some of the problems facing the adoption industry today, and challenge what appears to be the industry’s increasing reliance on obfuscation and coercion?

Woolston suggested advocates start by looking at privilege itself, a concept central to any reproductive justice conversation: “In adoption, children tend to go from poorer homes into wealthier homes, and that really reflects traditional hierarchies of privilege,” she said. “We must ask ourselves, what circumstances place mothers and families in a position where they have to choose abortion, or between adoption and parenting? What can we do to address their needs? And how can we go a step further into the institution, to help those who live it?”

That could mean a variety of practical actions: increasing, rather than decimating, funding to food stamps, increasing the availability of affordable health care, and ensuring low-income families have access to prenatal care. But it also requires a shift in cultural conversations about parenthood, to one that doesn’t privilege some parents as being more worthy, or capable, simply because of their class privilege.

Often, when women are poor, pregnant, and considering adoption, they are told by crisis pregnancy center counselors and adoption agencies that their own selfishness, their poverty, and their general unpreparedness for parenthood will prevent them from raising a healthy, happy child.

In fact, the right-wing lobbying group the Family Research Council released a paper in 2000 intended to help crisis pregnancy center counselors direct more women to choose adoption, advising them to “emphasize the difficulties of parenting” and to tell pregnant people that “unprepared mothers” will parent children who “may very well live lives of pain and suffering.” The report, astounding in its open disdain for women with unplanned pregnancies, highlights women’s “level of selfishness” when they resist the idea of adoption. It scoffs, “[B]onding with their children, and the desire to keep them, matters most.”

The implication here, of course, is that an adopted child with a middle- or upper-class upbringing and two heterosexual, married parents will definitely fare better than a child raised in a low-income or single parent household, or one in which parents are not married.

“Ideally, no one wants to separate a mother from her biological child,” said Ellen Porter at Brave Love. But the Family Research Council’s report certainly seems to indicate that some adoption agencies and crisis pregnancy centers desire to do just that, in part by using the kind of redemption narratives and heroine-worship language used on Brave Love’s website. From the report:

Choosing adoption is a way for many women to regain their identities as responsible, caring adults. This allows them to feel they are making up for their past failures by doing the best they can for their babies whom they feel are the innocent parties in the situation. By acting responsibly and giving their babies to loving families, these women are able to see themselves as responsible and unselfish. They feel good about themselves because they are able to see beyond their own desires and strong emotional urges to keep the children regardless of what is actually the best thing to do.

It is as if, says D’Arcy, adoptive parents of means “are never going to get sick, lose jobs, get divorced.” But, she says, “they are the same as anybody else and have the same risks. The child is not guaranteed to have a happily ever after just because they’re adopted by wealthy parents.”

The “conversation about who is a legitimate mother,” said Kathryn Joyce, “feeds into so many other things about race and class and the whole broad history of coercion and reproductive history.”

From a policy point of view, adoption reform activists hope to achieve a number of goals, including opening adoptees’ original birth records and giving birth parents more legal recourse when adoptive parents choose to renege on open adoption agreements, which in many states are not legally enforceable.

Both of these issues serve to maintain adoption’s long history of secrecy. The Gladney-founded adoption lobbying arm, the National Council for Adoption, has long, and successfully, opposed opening adoptees’ birth records, and birth parents continue to be forced to rely on the honesty of adoptive parents when they agree to open adoptions.

“Once we actually have state laws allowing adoptees to access their original birth certificates,” says Claudia Corrigan D’Arcy, “we’ll know what’s actually happening,” as opposed to hearing only the agency-promoted “mythology” of adoption, which she says is also used to mislead adoptive parents into thinking birth parents are making affirmative decisions.

“They all get sold a total bill of false goods,” said D’Arcy. “They get told what they want to hear, so [agencies] get their money. Once you’re $5,000 in the hole, indebted to the agency, and it’s probably your only chance that you’re ever going to have a kid, it’s just sad.”

Until adoptees have the ability to identify their birth parents, and birth parents are able to maintain mutually agreed-upon presences in their children’s lives, the reality of adoption will continue to be couched in secrecy. In the meantime, said Woolston, “It’s keeping adoptees from being able to get the same documentation from the government that everybody else can get.”

D’Arcy and Woolston both said that birth parents’ rights need specific protection from the government. D’Arcy would like to see “uniform state laws” that clarify and extend the time period in which women can consent to relinquishing their child, and in which she can choose to parent if she changes her mind. Too often, she says, women are compelled to sign consent agreements in hospital rooms, when they are still recovering from labor.

And while Ellen Porter at Brave Love said that “birth mothers can have a relationship with the family, if desired,” D’Arcy says many of these kinds of promises that are made to birth mothers, or first mothers as many prefer to be called, are never followed through with after the adoption takes place, especially when the law does not compel adoptive parents to adhere to open adoption agreements.

As for biological fathers, Woolston said they “have very little ground to stand on,” and “if we actually had laws that acknowledged a child’s right to be raised by their father or their mother,” the “heartwrenching” legal battles between adoptive parents and biological fathers could be shortened or eliminated.

It is crucial to remember that even critics of adoption are not wholly opposed to the practice; rather, they are concerned about how adoption is currently handled by its largest players, and the ignorance surrounding and motivating much U.S. adoption policy, which they say is heavily biased toward making adoption easier for adoptive parents, to the exclusion of the needs of birth parents and adoptees themselves.

Research suggests, and much anecdotal evidence shows, that adoptees have complicated and mixed emotions about their experiences—they are, after all, whole human beings and not, as they are so often told and imagined to be, perpetually thankful children who owe a debt of gratitude—to society, to their adoptive parents, to their birth parents, to God—for their very existence. Research also suggests that parents who relinquish children experience a variety of emotions and outcomes dependent on the circumstances of their adoption, again, because they are whole people and not a choir of saintly martyrs saved by the power of selflessness.

What no research suggests, and what no adoptive parent, adoptee, or birth parent that Rewire has spoken to believes, is that three hours of government-mandated counseling is needed to convince or compel more pregnant people to relinquish their infants for adoption.

But if reproductive justice activists don’t educate themselves and each other about adoption’s role in their movement, proposed legislation like Sen. Lucio’s could become a reality in lieu of very real, very needed adoption industry reform. In a way, Lucio has done these activists a favor by showing his hand; he has given them a reason to incorporate more, and more serious, talk about adoption into the larger conversation around reproductive rights, and an opportunity to show lawmakers and the public what meaningful, lasting changes toward a more ethical adoption framework might look like instead.

Correction: A version of this article incorrectly noted that Texas law requires people seeking abortions “to undergo forced transvaginal ultrasounds and a 24-hour waiting period.” In fact, state law does not specify that the ultrasounds must be transvaginal, though in practice, many of the forced ultrasounds are likely to be transvaginal, as is routine practice for people in the early stages of pregnancy.

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.

News Economic Justice

Colorado Voters Could Get a Chance to Boost the State’s Minimum Wage

Jason Salzman

A campaign fact sheet cited an April survey showing that 59 percent of the 2,400 U.S. small businesses polled favor raising the minimum wage, and that about 40 percent of those polled already pay entry-level employees "far above" the required minimum wage in their location.

Colorado’s minimum wage would increase from $8.31 to $12 by 2020 if Colorado voters approve a ballot initiative that could be headed to the November ballot.

Patty Kupfer, campaign manager for Colorado Families for a Fair Wage told reporters Monday that Colorado Families for a Fair Wage, a coalition of groups, submitted more than 200,000 signatures to the Colorado secretary of state, more than double the number required to make the ballot.

Hundreds of volunteers and dozens of organizations collected signatures, Kupfer said.

“Raising the minimum wage is fair and it’s smart,” Kupfer said. “It’s fair because people working full time should earn enough to support their families. It’s smart because when working people have more money in their pockets, they spend it here in Colorado, boosting our economy and helping our community thrive.”

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Speaking at the news conference staged in front of stacked boxes of petitions, Marrisa Guerrero, identified as a certified nursing assistant, said she works seven days a week and still relies on subsidized housing.

“Making $300 a week is not enough to pay rent and buy groceries for a family like mine,” said Guerrero, adding that she’d “really like” to see an increase in the minimum immediately, but “2020 would work wonders.”

After 2020, the state’s minimum wage would be adjusted annually for cost-of-living increases under the initiative.

Tyler Sandberg, a spokesperson for Keep Colorado Working, an organization opposing the initiative, appeared at the news conference and told reporters that he was “especially” worried about the initiative’s impact on small businesses.

“The big corporations, the wealthy areas of Denver and Boulder, might be able to afford [it], but small businesses, rural and poor communities, cannot afford this,” Sandberg told reporters. “So you are going to put people out of work with this. You’re going to harm the same people you’re trying to help.”

“It’s one size that doesn’t fit all. It’s the same for a small business as it is for Pepsi Cola,” said Sandberg, whose organization includes the Colorado Restaurant Association, the Colorado Association of Commerce and Industry, and the National Association of Independent Business.

Asked by Rewire to respond to Sandberg’s argument against a higher wage, Kupfer said, “Research shows small businesses support increasing the minimum wage. The truth is, when workers make more, that means more customers in local Colorado businesses. Both in rural and urban parts of the state, when working people do well, our communities thrive.”

A campaign fact sheet cited an April survey showing that 59 percent of the 2,400 U.S. small businesses polled favor raising the minimum wage, and that about 40 percent of those polled already pay entry-level employees “far above” the required minimum wage in their location.

“In my company, we have customer service representatives being paid $15 per hour,” Yoav Lurie, founder of Simple Energy, told reporters at the news conference. “While others might choose to pay customer service reps minimum wage, we have found that higher pay leads to improved performance and better retention and better customer satisfaction.”

Workers who rely on tips would see their minimum hourly wage increase by about 70 percent, from $5.29 to $8.98, while other workers would get a 44 percent increase by 2020. The initiative states that “no more than $3.02 in tip income may be used to offset the minimum wage of employees who regularly receive tips.”

Colorado passed a constitutional amendment in 2006 that bumped the minimum wage to $6.85. It’s been raised according to inflation since then.  The federal minimum wage is $7.25 and has not been increased since 2009.

Colorado’s Republican legislators killed legislation this year to allow cities to raise the minimum wage.