Gay Rights and Anti-Gay Liberties

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An openly gay student seeking a graduate degree in counseling at a state university is expelled for refusing to agree that homosexuality is immoral and declining to enter an anti-gay indoctrination program.  An openly gay high school guidance counselor speaks out in favor of same sex marriage and is brought before a state licensing board to answer complaints against her filed by marriage opponents.  If you're a gay rights advocate or liberal civil libertarian, you're probably outraged by such gross violations of freedom of speech and conscience.  Now ask yourself if you're equally outraged to learn that the victims in these cases were not your friends and allies but your opponents -- conservative Christians who have been targeted for their beliefs about the immorality of homosexuality and same sex marriage, respectively.  

Julea Ward had nearly completed a graduate degree program in counseling at Eastern Michigan University (EMU) when she was dismissed for refusing to affirm homosexual behavior as morally acceptable and then refusing to enter a "remediation" program designed to demonstrate the "error of her ways."  It should be stressed that Ward was not asserting a prerogative to counsel gay clients in spite of her views; instead, she was relying on the option of referring them to other therapists, and she had done so in a clinical program.  Still, she was dismissed for violating EMU policies, which incorporated American Counseling Association ethical codes and included an obligation to "tolerate different points of view," as well as prohibitions on "unethical, threatening, or unprofessional conduct" or discrimination on the basis of sexual orientation, (among other characteristics, including religious belief).  Ward has sued EMU in federal court (the case is pending, awaiting a ruling on cross motions to dismiss); she is represented by the Alliance Defense Fund, (and this summary of facts derives from the ADF brief). 

Donald Mendell is a licensed high school guidance counselor in a Maine public school who appeared in a tv ad supporting the successful 2009 ballot initiative to repeal Maine's equal marriage law.  (I contributed financially to the Maine Equality campaign opposing repeal.)  Citing his appearance in this ad, another guidance counselor filed a complaint against Mendell with the state licensing board.  (Mendell is also represented by ADF, and the complaint against him is pending.)  It alleges that he violated the National Association of Social Worker's code prohibiting social workers from encouraging or engaging "in any form of discrimination" based on sexual orientation and requiring social workers to "act to prevent and eliminate domination of, exploitation of and discrimination against" any group.  "Don Mendell's recent appearance in the Vote Yes commercial makes more public his opposition to the support of GLBTQ issues," the letter complains.  "His negative statements regarding homosexuality help contribute to an environment of negativity that already exists among students.  Our schools work hard to promote respect and dignity for all, regardless of one's personal beliefs."  That Mendell was expressing his personal beliefs was an irony apparently lost on the complainant, whose commitment to respecting individual belief seems rather selective.  

The conviction that some beliefs (and the people who harbor them) are more worthy of protection and respect than others helps explain both the licensing board action against Mendell and EMU's dismissal of Julea Ward.  Both Mendell and Ward were also accused of violating rules established by private professional associations.  State agencies adopt these rules voluntarily and must enforce them in accordance with constitutional guarantees of free speech.  But Alliance Defense Fund attorneys claim that they're beginning to see a spate of cases involving complaints to state boards against counseling professionals who consider homosexuality immoral.  They cite a complaint filed (unsuccessfully) against Texas therapist whose name appeared on the website of Exodus International, a Christian ministry devoted to "healing" and re-programming gays and lesbians: "We believe that God wants to heal homosexuals through His church.  Our goal is to equip you for that task!"

Are therapists who offer their services through Exodus International and similar organizations unqualified to practice their professions?  Should they be denied state licenses?  I understand the argument that a therapist who offers to "cure" people of homosexuality is guilty of malpractice.  I'm cognizant of the long, hard struggle to change the view of homosexuality as a disease or disorder and eliminate it from the DSM.  I would defend the prerogatives of private professional associations to decline to certify or otherwise sponsor people who do not comply with their standards and rules.  But it is not the prerogative of the state to withhold or withdraw licenses from people on the basis of their religious beliefs, except in extraordinary cases, for compelling reasons: a teacher whose religious beliefs prevent her from teaching girls or gay students or ethnic minorities should not be licensed to teach in public schools.   

Why don't the cases of Julea Ward or Donald Mendell offer equally compelling reasons to discipline them?  Mendell was not accused of refusing to counsel gay students or of trying to convince them that they were abnormal or sinful by virtue of being gay.  His offense was expressing his view of same sex marriage in a public debate.  (In fact, his ad opposing same sex marriage was preceded by a pro marriage ad in which another public school teacher appeared; as far as I know she has not been dragged before any licensing boards.)  Mendell was not accused of misconduct; he was accused of mis-speak.  

Julea Ward was not accused of misconduct either, and she had complied with policies directing counselors whose values conflicted with prospective clients to refer the clients elsewhere.  She was dismissed from EMU for mis-belief.  She might properly be denied a public school counseling job if she could not in good conscience counsel gay and lesbian students without expressing her strong disapproval of them, (and if the school employed no other counselors sympathetic to the students).  But she has a clear constitutional right to practice her profession privately, and denying her a degree is also a disservice to Christian patients (of any and every sexual orientation) seeking counselors who share their religious values and beliefs.

The targeting of Julea Ward and Donald Mendell reflects a tendency to confuse speech or belief with conduct and to seek reprisals against people or groups whose views are equated with actual discrimination.  But equating speech with action is also a semantic dodge for people who prefer not acknowledging (even to themselves) that they support censorship and restraints on freedom of conscience.  In the Ward and Mendell cases, "complainants are wielding the canons of professional ethics as if they were blasphemy codes for the state church and you have to punish these people as heretics," Alliance Defense Fund attorney Jordon Lorence asserts.  "Who's being the narrow minded fundamentalist and who's being the civil libertarian in these discussions?"  

The conflict between liberty and equality is familiar, and civil rights movements often grapple with it, as feminist fights over pornography and sexual harassment have demonstrated.  Recently, the drive for gay rights has produced some speech and belief policing: consider the series of cases involving Christian student groups denied official recognition at their schools because of their constitutionally protected membership policies that discriminate against active, "unrepentant" gay and lesbian students, along with heterosexual "fornicators."  (I've written about these cases here; in my view, the associational rights of private student groups should prevail over school anti-discrimination policies, and I suspect that the Supreme Court, which will soon decide the question, will agree.)

Of course the gay rights movement (like the feminist movement) includes internal disputes about the wisdom or justice of infringing on First Amendment rights.  In Maine, for example, leaders of the campaign for equal marriage publicly opposed the complaint against Donald Mendell.  But, with the notable exception of the non-partisan Foundation for Individual Rights in Education, which defends the rights of all students, regardless of their views, advocacy groups tend to focus on defending the liberties of people with whom they agree.

Not surprisingly, the right wing, anti-gay Alliance Defense Fund is perhaps the primary defender of First Amendment rights in cases involving the anti-gay speech and belief of conservative Christians.  ADF receives (and perhaps desires) little assistance from the ACLU, an increasingly unreliable defender of speech and belief that conflict with its gay rights agenda: while the ACLU aggressively defended the rights of students to wear t-shirts to school celebrating gay rights, for example, it stayed out of an important federal case, Harper v Poway, involving a Christian student punished for wearing an anti-gay t-shirt, even when the case reached the Supreme Court.  National and state spokespeople for the ACLU, once a staunch defender of freedom of conscience, have pointedly ignored an invitation to comment on Julea Ward's federal case, although they might simply have pointed out that liberty cannot be secured for some without securing it for all. 
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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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