This week, after much deliberation, Republican Arizona Gov. Jan Brewer vetoed a so-called religious freedom bill that would have allowed secular, for-profit businesses in the state to use religion as an excuse to legally refuse service to anyone. The bill was largely seen as a way for social conservatives who are freaked out over rapidly advancing marriage equality to legalize discrimination at the state level as a way to try and avoid having to deal with equality at the federal level. But despite the fact that Gov. Jan Brewer vetoed the measure, it’s still perfectly legal to engage in some forms of discrimination in Arizona and at least 17 other states as well. So what, then, was all the fuss about with the Arizona bill and Brewer’s veto? The answer lies in part in the political and legal challenges to the Affordable Care Act.
In many ways, this latest battle over discriminating in the name of religious liberty started more than 20 years ago with the 1990 Supreme Court decisionEmployment Division, Department of Human Resources of Oregon v. Smith. That case involved two members of a Native American church who were fired from their jobs as drug counselors after illegally using peyote; they were subsequently denied unemployment compensation by the State of Oregon. They challenged their firing and the denial of unemployment benefits by arguing prohibitions on peyote use violated their religious liberty rights. The Supreme Court disagreed. In the opinion, written by Justice Antonin Scalia, the Court held that a person’s religious beliefs can’t be used as a shield to prevent them from abiding by laws that are neutral and not designed to restrict religious freedom. To do so, the Court wrote, would “make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself.”
While the Court’s conclusion may have been logical enough, the decision was seen by social conservatives as a blow to religious liberty rights, since the Court concluded that the Smith decision meant that the free exercise clause could be used only against laws that specifically target religion. In response, Congress passed the Religious Freedom Restoration Act (RFRA), a federal law designed to ensure that any laws that potentially burden the free exercise of religious rights—not just those that specifically target religion and religious practices—be reviewed by courts under the “strict scrutiny” standard.
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This strict scrutiny standard is the toughest constitutional standard courts can apply to government conduct that affects constitutional rights. And while the Supreme Court, in City of Boerne v. Flores, would later strike down the RFRA as applying to state or localities, on the grounds that Congress had exceeded its authority under the 14th Amendment in trying to make it apply beyond the federal government, the decision left in place RFRA at the federal level and opened the door for a myriad of state-level mini-RFRA’s to pass. And pass they did. Within three years of the Flores decision, 11 states, including Arizona, had passed their own versions of the RFRA.
Arizona’s original RFRA covers individuals and religious entities, such as churches, but the version vetoed by Gov. Brewer would have expanded those protections to other organizations, like corporations, and would have made the state RFRA applicable in private litigation between persons, like the bakers who are refusing to bake cakes for same-sex couples. Specifically, the Arizona bill looked to expand that state’s RFRA by changing the definition of “person” entitled to religious exemption from complying with state anti-discrimination laws. Importantly, the bill never used the words “gay” or “sexual orientation” in limiting the basis for business owners to discriminate because of their religious objections. That means the law would have been able to compromise existing state civil rights protections, including those based on race, sex, ability, and others—which was part of the point.
If Arizona’s law sounds familiar, that’s because the arguments at its core are nearly identical to those currently before the Supreme Court in the Hobby Lobby and Conestoga Wood Specialties cases challenging the contraception mandate in the Affordable Care Act on the grounds that it violates the federal Religious Freedom Restoration Act.
“The nation is just getting a peek at this extreme agenda designed to give corporations a license to discriminate, and they don’t like what they see,” said Cecile Richards, president of Planned Parenthood Action Fund, in a statement. “What’s clear from the Arizona debate is that this is not a fight about religious liberties. It is about corporations who want a license to discriminate against people by denying services, taking away birth control coverage, and blocking access to health care.”
Tony Perkins, president of the conservative Family Research Council, confirmed Richards’ point in his own statement following Brewer’s veto of the bill. “Under the amended Religious Freedom Restoration Act, what was legislative intent (but ignored by certain courts) would have been clear: individuals do not have to trade their religious freedom for entrance into public commerce,” he said. “In other words, whether it’s a wedding vendor, whose orthodox Christian faith will not allow her to affirm same-sex ‘marriage,’ or a business like Hobby Lobby or Conestoga Wood, whose faith bars them from providing drugs that have the potential to end a pregnancy, the provisions of RFRA would apply.”
As both the Arizona law and the legal challenges to the contraception mandate under RFRA make clear, these cases and bills have very little to do with religious liberty and everything to do with expanding corporate power and advancing Christian patriarchy. In North Dakota, for example, social conservatives tried and failed to pass Measure 3, a ballot initiative that critics warned would have made it more difficult to prosecute abusers by allowing those accused of domestic violence to claim that it was their “sincerely held religious belief” that they should be allowed to “discipline their wife and children as they see fit,” and could undermine everything from child protection laws to the minimum wage.
Which leads us back to the Supreme Court and the oral arguments in March in the Hobby Lobby and Conestoga cases. One of the goals of those challenging the mandate in those cases is to get the Supreme Court to rule that for-profit companies should be considered “people” under the RFRA and thus covered by its protections the same way it protects individuals. This is the expansion religious conservatives sought to the Arizona law, and which Brewer vetoed after significant public and corporate pressure to do so. But what about the Roberts Court? As Cecile Richards noted, “If Gov. Jan Brewer can see that this way is too extreme, surely the U.S. Supreme Court can, too.”
That sounds like a fair enough conclusion: that the Roberts Court should be at least as reasonable as the very conservative Gov. Brewer. The problem with that conclusion, though, is that when it comes to expanding corporate power at the expense of employees, the Roberts Court knows no bounds. At every opportunity—whether making it harder for employees to sue for harassment or equal pay—the conservative majority on the Roberts Court has sided with employers. It’s hard to see them passing up yet another opportunity to do so in the Hobby Lobby and Conestoga cases.
But it’s also hard not to grasp the political reality of Brewer’s veto, that the veto of SB 1062, along with the defeat of similar measures in Ohio and Kansas, is a genuine victory. The public is largely not buying the discrimination in the name of religious liberty argument—at least when the case is framed as a gay rights issue. Even so, as of the publication of this piece, Missouri, Mississippi, Oklahoma, and Georgia either had or were considering similar bills, and at last count religious conservatives had filed more than 100 lawsuits challenging the contraception mandate on religious liberty grounds. And let’s not forget the 18 mini-RFRA’s already on the books.
That means we’re reaching another apex of sorts in the battle for equality—another point where the politics of religious conservatism clashes with the evolution of our constitutional promises of equal treatment under the law. Gov. Brewer’s veto and the unstoppable advance of marriage equality show the political battle is largely over. This summer, when the Roberts Court issues its decision in the Hobby Lobby and Conestoga cases, we’ll see about the legal battle.
The first nationwide study exploring the average wait time between an abortion care appointment and the procedure found most patients are waiting one week.
Seventy-six percent of patients were able to access abortion care within 7.6 days of making an appointment, with 7 percent of patients reporting delays of more than two weeks between setting an appointment and having the procedure.
In cases where care was delayed more than 14 days, patients cited three main factors: personal challenges, such as losing a job or falling behind on rent; needing a second-trimester procedure, which is less available than earlier abortion services; or living in a state with a mandatory waiting period.
The national findings come amid state-level research in Texas indicating that its abortion restrictions forced patients to drive farther and spend more to end their pregnancies. A recent Rewireanalysis found states bordering Texas had reported a surge in the number of out-of-state patients seeking abortion care.
“What we tend to hear about are the two-week or longer cases, or the women who can’t get in [for an appointment] because the wait is long and they’re beyond the gestational stage,” said Rachel K. Jones, lead author and principal research scientist with the Guttmacher Institute.
“So this is a little bit of a reality check,” she told Rewire in a phone interview. “For the women who do make it to a facility, providers are doing a good job of accommodating these women.”
Jones said the survey was the first asking patients about the time lapse between an appointment and procedure, so it’s impossible to gauge whether wait times have risen or fallen. The findings suggest that eliminating state-mandated waiting periods would permit patients to obtain abortion care sooner, Jones said.
Patients in 87 U.S. abortion facilities took the surveys between April 2014 and June 2015. Patients answered various questions, including how far they had traveled, why they chose the facility, and how long ago they’d called to make their appointment.
The study doesn’t capture those who might want abortion care, but didn’t make it to a clinic.
“If women [weren’t] able to get to a facility because there are too few of them or they’re too far way, then they’re not going to be in our study,” Jones said.
Fifty-four percent of respondents came from states without a forced abortion care waiting period. Twenty-two percent were from states with mandatory waits, and 24 percent lived in states with both a mandatory waiting period and forced counseling—common policies pushed by Republican-held state legislatures.
Most respondents lived at or below the poverty level, had experienced at least one personal challenge, such as a job loss in the past year, and had one or more children. Ninety percent were in the first trimester of pregnancy, and 46 percent paid cash for the procedure.
The findings echo research indicating that three quarters of abortion patients live below or around the poverty line, and 53 percent pay out of pocket for abortion care, likely causing further delays.
Jones noted that delays—such as needing to raise money—can push patients later into pregnancy, which further increases the cost and eliminates medication abortion, an early-stage option.
Recent research on Utah’s 72-hour forced waiting period showed the GOP-backed law didn’t dissuade the vast majority of patients, but made abortion care more costly and difficult to obtain.
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.