California’s state assembly recently passed legislation that would amend consumer law to classify “conversion therapy” to overcome unwanted same-sex attraction or gender dysphoria as a fraudulent business activity.
Nationwide, “LGBT” activists have secured laws that bar so-called conversion therapy in nine states and 34 cities and counties. Most of these laws prohibit the provision of these services for minors, and some provide exemptions for pastoral counseling, but not for licensed therapists. Although these efforts attempt to control practices that exploit the vulnerable and fuel discrimination, vague, overly broad language often plagues the legislation. The message seems clear: No one is allowed to talk about same-sex attraction or gender dysphoria unless they want to retain these feelings. Such laws are about stopping specific conversations between therapists and patients — a radically intrusive violation of free speech.
The California measure has the potential to take this First Amendment intrusion a step further.
After the bill passed the state assembly in April, Christian groups and religious-freedom advocates warned that the measure, Assembly Bill 2943, could lead to a ban on the sale of Bibles, particularly if they were flagged as a resource for faith-based therapists helping patients address sexual orientation or gender-identity issues.
The bill’s supporters have pushed back and say that fears of a statewide ban on Bibles are overblown. Many legal specialists agree with this assessment.
But as the California Senate takes up the bill, constitutional experts agree that a number of thorny issues have not been addressed in the language of the bill, and they deserve much more attention than they have received thus far.
The bill prohibits “advertising, offering to engage in or engaging in sexual-orientation-change efforts with an individual.” The measure also targets efforts designed to overcome sexual “behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”
California already bars licensed therapists from providing such services to minors. The new measure would penalize the provision of such services to adults, as well.
The most obvious problem with the bill is not in dispute. It attempts to “subvert the autonomy of consensual patient-counselor relationships,” stated Adam MacLeod, a professor of law at Faulkner University’s Thomas Goode Jones School of Law, in an essay on The Public Discourse website. “We need not speculate that the bill will have that effect. It is designed to prevent counselors and mental-health professionals from providing some services to their patients.”
The Catholic bishops of the Golden State have signaled their opposition to the measure, citing a range of concerns.
“The bill may violate the rights of adults to seek the counseling they may desire, may subject professional counselors to lawsuits and harassment, and may implicate religious speech and liberty concerns,” Ned Dolejsi, the California Catholic Conference’s executive director, told the Register.
Dolejsi expressed uncertainty about the bill’s impact on the sale of religious materials, including the Bible.
Mark Brumley, the CEO of Ignatius Press, the San Francisco-based Catholic publisher, is watching the bill closely, but could not confirm whether it could affect his company’s sales of books in its catalogue, like Ryan Anderson’s When Harry Became Sally: Responding to the Transgender Moment.
The bill “is a bad idea, regardless of whether it affects publishers’ ability to exercise their rights to freedom of speech,” Brumley told the Register, as he noted the conflicting analyses of the bill’s likely impact. “However, it is of concern that reasonable discussions of topics, such as same-sex attraction and gender identity, may be affected, if not by the law itself, then by courts and other institutions that may find it in their political interests or within their ideological agenda to suppress discussion and debate on points of view they dislike or disagree with.
Politifact, the fact-checking website, took up the most disturbing question posed by some critics: Would A.B. 2943 “ban the sale of the Bible?” A sweeping ban on the Bible is unlikely, said Eugene Volokh, a top constitutional scholar at the University of California Los Angeles Law School. But he took the question seriously and told Politifact that the law could affect sales of the Bible if it was tied to “a practice that seeks to change the person’s behavior.”
Other specialists contacted by Politifact challenged the notion that “every paid effort to dissuade a person from homosexuality meets the legal definition of a sexual-orientation-change effort,” and they noted that the law sought to police constitutionally protected speech, and so would likely trigger legal challenges.
“The law can’t constitutionally apply to many forms of speech that have the purpose of persuading people not to act on, or enabling them not even to feel, same-sex attraction,” said Jefferson Powell at Duke Law School. “But the bill’s language displays no concern to tailor its scope to avoid those situations.”
California Assemblyman Evan Low, the author of the bill and the leader of the LGBT Caucus in the state Legislature, said the measure would provide legal recourse to people harmed by conversion therapy. But in news interviews, Low did not highlight actual cases of abusive therapy.
Instead, he framed such services as a threat to his own identity as a “gay” man, and, still, he insisted that the bill did not target churches and would not impact the sale of books.
Christian and religious-freedom groups are not reassured. At the very least, they fear the law will marginalize faith-based therapists and religious teachings that help believers live in accord with the precepts of their faith.
“California law would intrude directly on [Christian] teaching, by prohibiting even the argument that, regardless of sexual desire, a person’s sexual behavior should conform to biblical standards,” contended David French in an analysis of the state law for National Review Online.
Thus far, legal opinion suggests opponents of the bill will get their day in court, if it becomes the law as written.
But much of the damage will already be done, as reasonable conversations between therapists and patients troubled by unwanted feelings are smeared as a form of consumer fraud and individuals are discouraged from seeking or providing help.
For now, at least, there are many solid reasons for opposing this bill — even if a ban on Bibles isn’t one of them.