[EDITOR’S NOTE: The following article was written by A.P. staff writer Matt Vega, who received his doctorate from Yale University Law School.]
A new California law bars licensed counselors and therapists from helping anyone under 18 to change their sexual orientation. The law states: “Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age, regardless of the willingness of a patient, patient’s parent, guardian, conservator, or other person to authorize such efforts“ (S.B. 1172, 2012).
The law, which takes effect January 1, 2013, targets so-called “reparative,” “conversion,” or “reorientation” therapy. Conversion therapy can involve a variety of techniques ranging from aversive treatment to psychoanalytic therapy to social skills training and participation in prayer and other support groups (Hicks, 1999). However, regardless of the particular methods employed, all of these treatments remain controversial because they are based on the a priori assumption that a homosexual patient can and should change his or her sexual orientation, or should at least try to change his or her sexual behavior (Lieu, 2012).
Proponents of the new California law insist that homosexuality is a natural variation of human sexuality and should not be regarded as a pathological condition (Lieu). Because they believe homosexuality is biologically determined, they argue that efforts to help a child avoid homosexual behavior are misguided and will only produce guilt, depression, and decreased self-esteem. As a result, Democratic State Senator Ted Lieu, the bill’s sponsor, claims reparative therapy amounts to “psychological child abuse” and “quackery” (Lieu). Despite the critics, however, there are success stories of individuals who claim that conversion therapy has helped them deal with sexual confusion and the problem of unwanted same-sex attraction (cf. Leland and Miller, 1998).
There are at least two significant legal grounds for challenging the new law. First, this law violates the right of parents to direct the upbringing of their children. This crucial civil liberty includes the parental right to direct a child’s education, health care, lifestyle, regimen, religious observance, and discipline. The U.S. Supreme Court has affirmed the “fundamental” nature of the right of parents to raise their children, but the contours of that right are not always clear. This can make it sometimes difficult to determine exactly when the state oversteps its bounds.
For example, the Supreme Court in Wisconsin v. Yoder (1972) showed great deference to Amish parents, based on their right to control the upbringing and direct the education of their children, and based on the free exercise of religion, to exempt 14 and 15 year olds from compulsory school attendance. On the other hand, the Court held in Price v. Mass (1944) that parental rights can be interfered with by the state if “necessary to protect the child.” In that case, the Court allowed the state to apply child labor laws to prohibit a parent from directing a nine-year-old child to solicit for Jehovah Witnesses.
Today, few would deny the right of a parent to seek professional counseling for a child with impulse control disorders like kleptomania or compulsive gambling, or for a child abusing drugs or alcohol. We even respect the right of parents to get help for their children who are caught up in pornography or other sexual addictions. The California law, however, prohibits parents from obtaining professional help for a son or daughter dealing with same-sex attraction issues.
To date, two lawsuits have been filed in federal court seeking to have a federal judge strike down S.B. 1172 as unconstitutional (Wetzstein, 2012). Whenever a statute infringes upon fundamental parental rights, the Supreme Court held in Troxel v. Granville (2000) that the law should be subject to the strictest scrutiny. In the instant case, this means that the California state government will have to show a compelling state interest in preventing parents from seeking any form of conversion therapy for their child. Even if the state could show that some parents might abuse their power and force their children to undergo more aggressive, questionable therapy techniques that might harm the mental health of the child, the Supreme Court in a similar case involving the power of a parent to institutionalize a child, Parham v. J.R. Parham, rejected the “notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect [their] children.”
Under the strict scrutiny test, California will also have to meet two additional requirements in order to survive a constitutional challenge. Even if the state government could show a compelling state interest in preventing all forms of conversion therapy (which it cannot), this particular law must be narrowly tailored and the least restrictive means of discharging the government’s so-called compelling interest. S.B. 1172 fails on both counts because, at a minimum, it fails to exempt ministerial or spiritual efforts to change unwanted sexual behavior. There is no evidence that teaching a child how not to act on same-sex attractions poses any more harm to his or her physical or mental health than does teaching a child how to wait until marriage before having heterosexual relations.
This is not the first law to threaten parental rights. In recent years, several states have passed privacy laws that deny parents access to important information about their children. For example, North Dakota allows 14-year-olds to be treated for sexually transmitted diseases without parental consent, and allows the health care provider discretion about whether to disclose medical records concerning the treatment to the parents (N. Dakota Stat. 15.1-24-04). Similarly, in Minnesota a child can request that information be withheld from his or her parents or guardian if it is deemed in the child’s “best interest” (Minn. Stat. 13.02 et seq.). In Connecticut, Wisconsin, and other states, communication relating to alcohol or drugs between a student and certain school personnel, such as a school nurse or school counselor, need not be disclosed to the parents (Conn. Stat. 10-154a; Wis. Stat. 118.125, 126).
FREEDOM OF RELIGION
This law also likely violates the First Amendment free exercise and free speech clauses. By prohibiting licensed professional counselors from treating same-sex attraction as anything but normal and desirable, the law unconstitutionally infringes on Christian counselors’ freedom of religion. The California law does not contain any exception for ministerial or spiritual counseling. For example, if a young Christian is experiencing conflict between his or her sincerely held religious beliefs and same-sex attractions, this law would prevent a minister, who is also a trained and licensed counselor or therapist, from helping that child to overcome “sexual immorality” or “unnatural desire” (Jude 1:7, ESV) and to keep his or her body under control (1 Thessalonians 4:4; 1 Corinthians 10:27).
In such cases, the California law would intrude on the freedom of religion of both the counselor and the counselee, by forcing the counselor to violate his or her own ethics and refuse service to underage counselees seeking help for their sexual issues. In addition, S.B. 1172 infringes on free speech rights by forcing counselors and therapists to parrot only one viewpoint on homosexuality.
Unfortunately, modern First Amendment jurisprudence has made it much easier for the government to enact facially neutral laws and regulations that burden religion, and to a lesser extent, free speech. The Supreme Court in Employment Division v. Smith (1990) held that, so long as a law is “generally applicable” and does not target a particular religion, it does not violate the free exercise clause. Although Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to restore the “compelling interest” standard in religious freedom cases, the Court later struck down portions of that federal law that would have forced state and local governments to abide by it. In the instant case, since the California law is a state law and purports to regulate all mental health providers—an already heavily licensed profession—to protect the physical and mental health of children, a court could feasibly uphold the statute under a lower level of constitutional scrutiny.
However, the California law infringes upon both the free exercise of religion and fundamental parental rights. Therefore, it should be treated as a so-called “hybrid” case. Hybrid cases are generally subject to strict scrutiny. Regardless, even under this more rigorous standard, any constitutional challenge of the California law will be a long, protracted, uphill battle.
ANY PRACTICAL SOLUTIONS?
Are there any practical solutions in the interim? One practical solution may be for Christian counselors to make the difficult decision to forego state licensing and only offer “Christian or pastoral counseling” services. Throughout the country, many counseling accrediting bodies already dictate that a “licensed professional counselor” refrain from imposing his or her moral or religious values on a client. State regulations often require that a “licensed professional counselor” adhere to strict so-called “ethical” standards that forbid the professional counselor from praying, from referring to the Bible, and from counseling against things such as homosexuality or abortion. However, the California law goes a step further by preventing a client under the age of 18, or his or her parents, from consenting to a Christian-based approach to counseling regarding sexual orientation. In contrast, most state ethics rules still permit a state licensed counselor to involve Christian principles, practices, or instruction if the counselee initiates or requests counsel in this area.
Of course, if all Christians capitulate and remove themselves from the pool of licensed professional counselors, then it will be increasingly difficult for Christian students to secure the necessary education and training in the field. Many public universities already routinely discriminate against students in counseling, social work, or psychology programs if the student refuses to endorse homosexuality as normal and healthy. This problem is likely to only get worse as fewer and fewer Christians lead or participate in the profession.
At least one state—Michigan—has recently passed legislation to try to accommodate the religious beliefs of future counselors. On June 12, 2012, the Michigan House passed H.R. 5040, the “Julea Ward Freedom of Conscience Act,” which prohibits a public university from disciplining or discriminating against a student that “refuses to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the student, if the student refers the client to a counselor who will provide the counseling services” (H.R. 5040, 2012). This bill would go a long way towards creating a safe harbor in higher education for future Christian counselors. While the bill faces a great deal of political opposition and may never be signed into law, it does illustrate how the law can be used to advance rather than attack religious freedom in this country.
Regardless of the outcome of either S.B. 1172 or H.R. 5040, Christian counselors and parents must continue to try to find lawful ways to help young people struggling with same sex attraction issues. All of us have a moral and civic obligation to encourage our legislators and judges to support, rather than to try to undermine, those good faith efforts. In the final analysis, if and when a municipal or state government, or even the federal government, reaches the point where it requires Christians to act inconsistent with the commandments of God, “we must obey God rather than men” (Acts 5:29).
S.B. 1172 (2012), Sexual Orientation Change Efforts, California, signed into law September 30.
H.R. 5040 (2012),Julea Ward Freedom of Conscience Act, passed by the Michigan House on June 12, and currently pending in the Senate.
Hicks, Karolyn Ann (1999), Reparative Therapy: Whether Parental Attempts to Change a Child’s Sexual Orientation Can Legally Constitute Child Abuse, 49 Amer. U. L. Rev. 505.
Leland, John and Mark Miller (1998), Can Gays “Convert”?, Newsweek, August 17.
Lieu, Ted W. (2012), Press Release on S.B. 1172, Senator Lieu Web site, September 30, http://sd28.senate.ca.gov/news/2012-09-30-california-become-first-state-crack-down-bogus-'gay-cures-minors.
Wetzstein, Cheryl (2012), “Second Suit Filed Against California’s Gay-Change Therapy Ban,”The Washington Times, October 4.