Is a Ban on Reparative Therapy a Violation of the First Amendment, Part One

Does a ban on reparative therapy infringe on the First Amendment rights of reparative therapists?

This question is at the heart of the debate (and a couple of lawsuits) regarding California’s law banning reparative therapy for minors. The law was set to take effect tomorrow but has been postponed pending a full hearing.

According to Eugene Volokh, the issue of professional-client speech has not been well-defined by the courts. In 2004, Volokh offered an excellent summary of issues relating to what the state can do to regulate professional speech to clients.  In the post, Volokh noted that professionals are subject to speech restrictions that other do not experience. For instance, the state can impose penalties when health care professionals offer harmful advice. Outside the professional context these expressions would be protected opinions.

According to Volokh, the Supreme Court has not been specific about important aspects of professional-client speech. He wrote:

Such restrictions and compulsions may in fact be properly upheld: There may be something in a professional-client relationship that would justify such extra regulation. But the Court has never explained (1) exactly what speech restrictions and speech compulsions would be allowed in such a situation, or (2) exactly when this reduced protection would be triggered. In Lowe v. SEC, 472 U.S. 181 (1985), a three-Justice concurrence (written by Justice White and joined by Chief Justice Burger and Justice Rehnquist) suggested this rule (paragraph break added):

One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession. Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional’s speech is incidental to the conduct of the profession. If the government enacts generally applicable licensing provisions limiting the class of persons who may practice the profession, it cannot be said to have enacted a limitation on freedom of speech or the press subject to First Amendment scrutiny.

Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment’s command that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

Then Volokh offers a problem which seems relevant to the issues active in the current debate over conversion therapy.

b. Problem: Counseling That Advocates Race-Based Decisions

A state has long required all marriage and family counselors — defined as “any person who offers advice related to marriage and family matters in exchange for money” — to be licensed, and to follow rules prescribed by the state’s Marriage and Family Counseling Licensing Board.

The Board learns that some marriage and family counselors are advising clients not to enter into interracial marriages or interracial adoptions. Some are even advising clients who are in interracial marriages that the interracial nature of the marriage may be a source of the problem, and are suggesting in some instances that divorce may therefore be the only solution.

The Board believes that such advice is offensive, and harmful to the patients. It therefore enacts the following rule: “Any marriage and family counselor who uses the patients’ race, or the race of the patients’ spouse, children, or prospective adoptive children or stepchildren, as part of the basis for the counselor’s recommendation, shall have his or her license suspended for six months.”

Based on this rule, Mary Moe, a counselor who had engaged in such advice, has her license suspended. Her former patients, Laura Loh and Richard Roe, who divorced each other partly on Moe’s advice (Loh is East Asian and Roe is white), but who have since reconciled, sue Moe for emotional distress caused by her advice, which they claim constituted malpractice. The judge awards them $100,000 in a bench trial. One of the judge’s findings of fact is that Moe’s advice was unreasonable by the standards of the profession, and the sole evidence that the judge relies on is the Board’s rule.

What should be the proper analysis be under the First Amendment?

Did Mary Moe suffer a violation of her First Amendment rights?

When reparative therapists tell minor clients that they can change sexual orientation if they engage in deep emotional therapy, are they offering unreasonable advice which can be regulated by the state? When reparative therapists tell clients that homosexuality is a disorder of gender identity, can the state intervene? Should the state intervene when licensed therapists tell clients that pounding a pillow with a tennis racquet while screaming will help them get in touch with repressed memories underlying their homosexuality?

In this post, I want to raise the issues and generate some discussion. In part two, I will write about my views on the matters.

MercatorNet Posts Op-Ed Critical of Reparative Therapy

Remarkably, Mercator Net posted an article critical of reparative therapy earlier this month. The piece by Melinda Selmys has generated many comments at MercatorNet and for good reason. The article is well written and provides Selmys opinion on the California law banning reparative therapy for minors.

Selmys writes:

That said, it is not impossible for a homosexual to have a happy marriage with an opposite-sex spouse. My own experience speaks to that: I am same-sex attracted, but have chosen heterosexual marriage for a combination of religious and personal reasons. I would not say, however, that I have achieved orientation change. I am not attracted to men, I am in love with a man. This is typical of the real experience of “ex-gays”: usually what changes is not the underlying pattern of attraction but rather the sort of relationship that a person chooses to pursue.

Well said.

She appears to favor the California law which bans reparative therapy for minors, saying

Adults who have chosen to undergo therapy are in a position to change therapists or to abandon treatment if they find that the therapy does more harm than good. Minors who are forced into therapy by adult authority figures do not have this option. Even if young people are theoretically seeking treatment under their own power, many feel intense pressure to overcome homosexual desires in order to please their parents, and some fear punishment or recrimination if they fail. Unscrupulous therapists often market their services primarily to parents and guardians, preying on the hopes and fears of those who have the ability to place adolescents in treatment.

Moreover, conscientious therapists openly state that conversion therapy does not have any real chance of working unless it is freely chosen by the client. Teenage dependents are not in a position to make a free choice of this kind.

I have seen a fair number of SSA teens over the years and generally I find that their concern is parental rejection and/or abandonment. They are not really in a position to question parental wishes. On the other hand, I have met some who did not want to engage in sexual behavior and expressed gratitude for support to avoid that.

Currently, the Pacific Justice Institute is soliciting reparative therapists for minor clients to join the lawsuit against the state of California. It seems inevitable that such requests will put even more pressure on a minor who may already be going along with parental wishes in order to keep peace.

While it is obvious that NARTH is under fire, an article like this on the MercatorNet website has to be considered a real setback.

Check out Melinda Selmys blog.

David Barton Controversy in World Magazine’s Top 25 Stories for 2012

At #3 and #5 of the top 25, two of the articles on David Barton’s book, The Jefferson Lies, brought World Magazine lots of traffic in 2012.

The third most read article was The David Barton Controversy and the fifth was Lost Confidence which reported the removal of The Jefferson Lies from publication by Thomas Nelson publisher.

Watch for more on this story in early January.

Top Ten Posts in 2012

The ten 2012 posts with the most views are listed here.  These posts were all posted since the last top ten list in 2011. Some posts prior to 2012 received more views. However, here I am listing just those posts written from 12/28/11 to today.

The post with the most views in 2012 was written in 2011: The Trail of Tears Remembered. In fact that post about Trail of Tears is by far the most popular post of all time on my blog.

1.  Alan Chambers: 99.9% have not experienced a change in their orientation

2.  Monumental Question: Did Signers of the Declaration and Constitution Finance a Bible for Every American Family?

3.  Ron Paul touts endorsement of pastor who defends death penalty for gays, delinquent children & adultery

4.  My Response to David Barton

5.  Note to Kirk Cameron: If you don’t want a fight, then don’t start one

6.  Barton, Birther featured in Kirk Cameron’s new Monumental movie

7.  Kirk Cameron’s Monumental Revision of Thomas Jefferson

8.  Founders’ Bible Rewrites Exodus 18 to Fit Christian Nation Narrative

9.  Rick and Kay Warren condemn the denial of link between HIV and AIDS as promoted by the AFA’s Bryan Fischer

10. David Barton’s whitewash of Thomas Jefferson as a slave owner

Thanks for reading. Also thanks for the regular group of commenters who show up and support my fact checking efforts.