Conflicting California Cases on Sexual Orientation Therapy Ban

The U.S. District Court for the Eastern District of California has recently issued two decisions testing a California law that prohibits mental health providers from providing “sexual orientation change efforts with a patient under 18 years of age.” Such efforts include

any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

In Welch v. Brown there were three plaintiff-counselors, two of whose beliefs are described as follows:

Duk is a Catholic and, with patients that share his faith, he discusses tenants of the Catholic faith, including that homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.”… Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

The court analyzed whether the statute in question abridged the plaintiffs’ First Amendment rights to freedom of speech.  Because the regulation targets a particular kind of speech, the regulation would have to pass the rigorous test of “strict scrutiny” to be constitutional.  The government rarely wins when strict scrutiny is applied, and this case would be no exception.

The First Amendment, the court explained, is a protection for unpopular opinions:

 That public perception in favor of this law may be heightened because “it appears that homosexuality has gained greater societal acceptance . . . is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not.”

Accordingly the court granted the plaintiffs a temporary injunction against enforcement of the regulation.

The key to the conflicting ruling in Pickup v. Brown was that court’s refusal to apply strict scrutiny to the regulation.  The government only had to have an easily met “rational basis” for the law because

plaintiffs have not shown they will be able to establish that SOCE therapy is expressive speech and thus within First Amendment purview…Plaintiffs also are not likely to succeed on the merits of the therapists’ First Amendment claims, given judicial recognition of the state’s role in regulating the medical profession.

The Pickup case found that the state has broad powers to regulate professions, including the power to regulate mental health providers as it did here.

The most significant difference between the two cases may be the position on whether this therapy is speech protected under the First Amendment.  The regulation in question proscribes “any practices by mental health providers that seek to change an individual’s sexual orientation.” [italics added]  The Welch court applied strict scrutiny – and consequently ruled against the regulation – because it  found that “at least some forms of SOCE, such as ‘talk therapy,’ involve speech and the Ninth Circuit has stated that the ‘communication that occurs during psychoanalysis is entitled to First Amendment protection.’” Pickup, on the other hand, held that the regulation proscribes actions, not speech; that would seem to be an extremely limited understanding of “any practices” a mental health provider may employ.

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10 responses to “Conflicting California Cases on Sexual Orientation Therapy Ban

  1. darrelltoddmaurina

    Thank you for monitoring and analyzing this.

    • DTM, I’m wondering where this kind of thing ranks among your socio-political concerns. I tend to be on the free speech side of matters like this, especially as this kind of issue might impact something along the lines of traditional pastoral counsel. But much of this therapy doesn’t resemble that. The Pickup decision gives some examples:

      Modern day SOCE can be categorized as either aversion or nonaversion treatments, with some practitioners utilizing techniques from both. Aversion treatments include practices “such as inducing nausea, vomiting, or paralysis; providing electric shocks; or having the individual snap an elastic band around the wrist upon arousal by same-sex erotic images or thoughts. Other examples of aversive behavioral treatments include covert sensitization, shame aversion, systematic desensitization, orgasmic recondition, and satiation therapy.”… NARTH’s own treatment guidelines recommend avoiding some aversion treatments. See id. (“. . . in light of current research and professional ethics, some interventions for unwanted same-sex attractions and behavior are not recommended. These include shock therapy and other aversive techniques, so-called reparenting therapies, and coercive forms of religious prayer.”).

      That kind of stuff is pretty distant from what the pastor does from the pulpit and in his counseling office. It very much could be harmful quackery, and I would hesitate to defend it on Christian grounds per se.

      • darrelltoddmaurina

        I hadn’t intended to get into this in detail because I don’t want to speak about details of a law from another state that I have not analyzed. Let’s just say Missouri became the first state in the nation to bad homosexual marriages under the leadership of the woman who is now our congresswoman in our district (a Republican Mennonite, of all things) and we don’t have these problems here.

        On the basic principles, however, I know more than a little bit about this issue, considering that my wife is a clinical psychologist and I was a member for many years of a church with a significant number of ex-gays in the membership and a formal ex-gay counseling group. But the devil is in the details and without knowing the details of how state law in California would affect non-licensed counselors I need to be careful speaking about things I have not studied..

        What follows addresses only the general principles.

        A key part of the problem is that when the state licenses a profession it acquires legitimate regulatory authority over how licensed professionals will practice and what the standards are for that profession. An ordained minister who is a licensed clinical psychologist or a licensed marriage and family therapist has more complications in a pro-homosexual state than a nouthetic counselor who chooses to avoid state certification or a pastor who has no formal training or licensing.

        Furthermore, if a state or an insurance company wants to refuse to pay for a certain therapy, that’s a legitimate issue between a customer and a businessperson.

        Can the civil government say that a licensed professional, as part of their practice, will not provide therapies that have not (in the judgment of the state) been proven effective? Legally the answer is yes. So all the counselor **SHOULD** need to do is schedule an appointment outside office hours, or perhaps in the church building, and say that the ex-gay therapy being provided is part of his activities as an ordained Christian pastor or elder, or his or her activities as a Christian layperson, and the government has no more authority to regulate what the counselor is doing than the government has to regulate his golf game or hiking trip or Sunday morning worship selection of hymns.

        A comparable situation I would consider legitimate would be if an ordained part-time Pentecostal minister conducts an exorcism on a psychiatric patient who he is seeing in the course of his full-time work in a private practice in clinical or counseling psychology, he probably should not be billing Medicare for the exorcism session.

        Obviously, avoiding billing for ex-gay therapy or having that therapy done outside office hours is not the intent of the California law. The intent is a lot more serious — barring people with professional licenses from performing certain types of therapy they believe are permitted or even required by their religious beliefs.

        That crosses the line and is unacceptable from both a Constitutional and a biblical standpoint.

        Now if you ask me what I’d like to see done with Gov. Brown and the California legislature — well, let’s just say I sincerely hope I’m not going to find that there are evangelical Christians in the state legislature who voted to ban ex-gay therapies. Given the realities of California, I’m afraid I’m going to find the answer is not what I want to hear.

      • You’ve said some helpful things about the key role of licensing and government control.

        As the years pass I am more and more dubious about the idea of legislative “intent.” What is a lizard’s intent when an insect flies within striking range? Legislators do what pleases their voting block and/or key lobbyists; I don’t think there’s a lot of thought going on. It’s good to know that “there is no authority except that which God has established.”

        So, concerning your position on this, I see a mix of 1) letting the free market decide what therapy it wants, 2) anything rooted in Christian tradition – good or bad – should be allowed, and 3) something akin to pastoral counseling should be allowed. Is that right? Does the concept of Free Speech resonate with you? This is another way of asking about the relative importance of maintaining and promoting our constitutional structure.

      • darrelltoddmaurina

        One more comment — as a Reformed Christian, these types of aversion therapies may seem strange to you, or outside the realm of standard pastoral practice.

        Spend some time in Wesleyan Holiness circles, or Pentecostal circles, and such things will be considerably more common. Read Martin Luther’s account of his penitential practices as a monk and you’ll see things which are far outside accepted pastoral practice in Reformed circles, but which are sometimes still practices as “self-mortification” in conservative Roman Catholic communities.

        I am extremely hesitant to forbid pastoral practices focusing on physical bodily mortification which have a long history in the church. There are a lot of things I don’t like or don’t agree with that I won’t forbid because in doing so I will have to condemn a lot of things dating back to the earliest days of the Christian church.

        That does not mean I support such things. The Reformation happened for a reason, and too much of what I see in Holiness and Pentecostal circles looks very much like medieval Christianity. But in saying that, I open myself up to accusations by Pentecostals that I am proving my Calvinistic coldness and focus on the mind rather than a “whole body” concept of sin. The truth is far less than the Pentecostals claim, but we do need to remember that the whole body is totally depraved, not just the brain.

  2. darrelltoddmaurina

    Mikelmann, you’re right in seeing:

    a mix of 1) letting the free market decide what therapy it wants, 2) anything rooted in Christian tradition – good or bad – should be allowed, and 3) something akin to pastoral counseling should be allowed.

    The “mix” is there because I’ve neither fully articulated my positions on this nor adequately explained the underlying rationales behind my positions. To do that requires a detailed evaluation of the California law and that’s something I haven’t yet done.

    In brief, my principles of religious toleration are tied directly to Kuyperian views of sphere sovereignty. I routinely work with Christian people in non-ecclesiastical contexts of Christian endeavor who do things in their own churches that are completely unacceptable from a Reformed perspective. The three spheres are distinct with different rules governing each.

    While I am not going to tolerate unconfessional nonsense going on in a Reformed church, I am very hesitant to condemn what other people are doing in their own churches if they’re being faithful to their own traditions, or to say the civil government should be prohibiting or regulating things which have been part of the historic Christian tradition as it would have been understood by the framers of the Constitution. (Actually, I’d go beyond that and speak of the Judeo-Christian tradition given the considerable respect for Judaism that was clearly present with a number of the Founders, which was rewarded with strong support by American Jews for the Revolutionary War since both Jews and Roman Catholics correctly thought they would be treated better by an independent United States than by continued British control, but that’s not relevant to this subject.)

    You say, quite correctly, that is is often difficult to discern legislative intent. That’s less of a problem in dealing with our founding documents because our Founding Fathers wrote extensively and in great detail on the intent behind their words, and the state legislatures discussed their pros and cons in considerable detail during their ratification debates on the Constitution and the various amendments to it. Words mean things, and I think it is a fair statement that words meant much more to the highly educated and classically literate political classes which existed in the late 1700s and early 1800s than they do in today’s television culture. Jacksonian models of “mobocracy” simply did not exist in the 1780s.

    You also asked whether “the concept of free speech” resonates with me. In a civil context, absolutely — and not only because of the First Amendment. I will ground my position in views taken by Reformed people all the way back to Cromwell’s Commonwealth — not every error is worthy of punishment by the state, and in nearly all cases of civil affairs, even from a Christian perspective, it is better to let truth and falsehood grapple — to allude to the phrase of a certain official in Cromwell’s administration who is better known for his literary than his political role. It is not irrelevant that the acquittal by jury nullification of a newspaper publisher, who was also an organist in a Dutch Reformed congregation in colonial New York City, gave us the principles that underlie our First Amendment.

    I am extremely hesitant, however, to apply that principle of free speech as some sort of absolute good and then take it outside the civil sphere. In the ecclesiastical sphere, we have the twin principles of Christian freedom and the regulative principle, and they may look like “free speech” because there are important limits on what orders the elders can give to their members. However, I am reminded of a local fundamental Baptist minister who somehow got the idea from Reformed people visiting his church that Christians somehow have “academic freedom” to teach whatever they want in his church’s Sunday School classes. That simply is not true, and either the fundamental Baptist pastor misunderstood what the Reformed visitors were telling him or the Reformed people were still in the “cage phase” and had misunderstood Reformed concepts of Christian freedom.

    There is no such thing as free speech in a confessionally Reformed church or a Christian college where professors and elders have taken subscription vows to affirm the confessions, and members have taken vows to obey their elders so long as they act in accord with the the church order, the confessions, and the Word of God. I’ve seen tremendous damage done by application of a legitimate principle of the sphere of civil government to the ecclesiastical sphere.

    Is that of any help?

  3. Pingback: Conflicting California Cases on Sexual Orientation Therapy Ban « Christian in America

  4. BEWARE: This study does include a nude picture on one of the pages. For that reason, I will not provide a link but only the title and leave it to you to look up at your own discretion. The picture is there because the study involved, among a few other things, taking a picture of a nude male and, over an extended period of time, slowly fading that picture into a picture of a nude female in order to slowly change the association of attraction from a male photograph (for homosexual males) into a female photograph. The title is “Fading to increase heterosexual responsiveness in homosexuals” and it was a study done by David H. Barlow and W. Stewart Agras in the Fall of 1973. So far as I know, it was entirely secular, though some of the participants were Roman Catholics who wanted to marry rather than become celibate.

    It is a fascinating line of study that was the first of its kind in an effort to steer clear of aversion “therapy.” Given modern developments in the knowledge of neuroplasticity, it seems likely to me that it would be a viable form of treatment. Sadly, despite the study’s results, this line of research was nipped in the bud by the APA’s removal of homosexuality as a mental disorder that very same year. Thus, any further research would have been impossible. The nature of the treatment would raise some interesting questions among Christians because it requires the use of lust to steer that lust to be fixated upon the appropriate gender.

    • Luke, that really is interesting, and not in the Midwestern dismissive sense of “interesting.” There are various angles there that I’ll be mulling over for a while. Strictly as a matter of power and authority it seems that the magistrate does have the power to regulate that kind of thing whereas the magistrate would be acting outside of its rightful authority should it attempt to ban something more along the lines of nouthetic counseling.

      Edit: it would be legal under one case and illegal under the other case.

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