Richard Cohen – Page 2 – Warren Throckmorton

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.

Reparative Therapy Makeover Continues: JONAH Responds to SPLC Suit

A group called Freedom of Conscience Defense Fund has taken on the defense of Jews Offering New Alternatives to Healing (JONAH) against a suit filed by the Southern Poverty Law Center. The SPLC complaint alleges that JONAH violated New Jersey’s consumer fraud law by promising sexual reorientation to clients without success. The complaint is here.

It is very discouraging to see the JONAH complaint framed as a freedom of conscience case. As the complaint outlines, the techniques alleged by the plaintiffs have been discredited within the mainstream mental health community and as such should be confronted. Please see this post on the “oranges therapy” and this one on the use of nudity by JONAH counselors.

Furthermore, it is misleading for JONAH to describe what it does in the following manner:

For over twelve years, JONAH has helped hundreds of people live the lives that they want, consistent with their personal values. JONAH’s mission is to give all people the opportunity to explore their internal conflicts around sexuality and other values in a caring, non-judgmental environment.

As I have noted elsewhere, reparative therapists are beginning to use the language of the sexual identity therapy framework to describe what they do. However, reparative therapy is inconsistent with the SIT Framework.

Dr. Oz’s Reparative Therapy Adventure

You can watch what Dr. Oz puts on his website here.

On the show, International Healing Foundation’s Chris Doyle said what he does is mainstream therapy and he said IHF doesn’t discourage gayness. This is astounding. Let’s remember what IHF does:

IHF and other reparative therapists tell clients that their same sex attraction is due to abuse or trauma at the hands of the same sex parent. I have seen families literally ripped apart by this kind of “intervention.” There is nothing supportive about these interventions.

Later Julie Hamilton came on and said that reparative therapists don’t stigmatize same-sex attraction. One of the opposing guests (Brad Lamm) said she was not being honest. He is certainly closer to correct. Just check out a few articles on the NARTH website:

Health Risks: Fisting and other Homosexual Practices – Assumes the health risks of certain practices are associated with sexual orientation.

Interview with Andy Comiskey – SSA is a pathology

Fathers of Male Homosexuals – The problem is with the father.

Homosexuality 101 – Julie Hamilton’s article blaming fathers

Reparative therapists on this show tried to make what they do about choice of a benign option. However, their model of homosexuality renders that strategy less than honest. When one teaches that same-sex attraction is always wrapped up in abuse, and/or a dysfunctional family, one cannot expect to be taken seriously or calmly.

Reparative therapy subject of Dr. Oz Show

The Dr. Oz Show today will feature Chris Doyle from the International Healing Foundation, Julie Hamilton from NARTH and Rich Wyler from People Can Change arguing in favor of sexual orientation change efforts. You can see teasers for the show here. Others will take the alternative point of view as well and you can see some of their views at the Dr. Oz website.

This show comes as Cohen’s methods and allies at JONAH are being sued by the Southern Poverty Law Center for consumer fraud.

International Healing Foundation Strikes Gold with School Project

After years of reporting meager income from operations of the International Healing Foundation, Richard Cohen reported over $600,000 in revenue on his 990 form for 2011. Most of that total – $540,000 – was revenue related to an IHF “special school project.” See below:

The IHF website is silent about this project but it seems likely that this is the educational initiative Cohen described in his Fall 2007 newsletter. After lamenting what he considered to be school indoctrination relating to homosexuality, Cohen provided his solution:

To fill in the blanks left by the public school systems’ strictly gay-affirming curricula, the International Healing Foundation is set to produce a short DVD. This film is designed to be part of the schools’ health education courses, and clearly shows that people can change and come out of homosexuality. The film will feature the true story of a young man and his parents, as well as interviews with several other men and women who have made the change from gay to straight. Half the film’s $40,000 budget has been raised. The International Healing Foundation needs your help in raising the remaining $20,000 to make this film a reality. Please help save our children, and set the record straight!

Once this project is completed, an additional one million dollars will be needed to send a copy of the DVD to every school district in the country. We will urge them to provide a DVD for each of their schools, so the complete story of homosexuality can be told. This historical film will have the power to turn the tide of strictly gay affirmation by proclaiming the truth about change. Millions of students will then have the opportunity to decide for themselves the kind of life they choose to live.

As improbable as it might seem, it appears that IHF has found a donor or several donors willing to fund this effort. The project appears to be moving forward. According to the 990, IHF has spent over $180,000 on expenses relating to the “special school project.”

Yesterday I reported that Unification Church president, Hyung Jin Moon considers IHF founder Richard Cohen to be a member of the Unification church movement and the foremost expert on homosexuality in the church. With this school project, Cohen apparently wants to bring his “expertise” to the nations’ schools. Given the volatile climate of public schools related to anti-gay bullying, I am nervous about the impact of schools showing a video from IHF to students.

While I doubt these clips are a part of the school video, it is worth remembering how Cohen approaches sexual reorientation. First from a CNN appearance:

and then from the documentary, Chasing the Devil:

UPDATE: Another more likely possibility for the video expenses is the underwriting of Acception Productions (another hat tip to David Hart for reminding me of this). This video purports to be about bullying prevention but adds a “U” (for unwanted) to the usual GLBT designation of same sex orientation. Thus, IHF attempts to straddle the fence – claiming to support kids who are same-sex attracted but also supporting reparative therapy interventions which pathologize them. How ironic. Initially, Cohen claimed that gays were using the schools to advance ideological ends and now he is doing it for the same purpose.

Here is a description of the initial showing of their video to public school staff:

The event also featured a talk by Betsy Gallun, Supervisor of Health Education, Prince George’s County, MD and a panel discussion of middle and high school students from the Washington, DC area that was moderated by WHUR’s Molette Green.

Here is the trailer for the video:

In the curriculum booklet which accompanies Acception is this gem which is supposed to be discussed with students:

Group 5: Innate and Developmental Characteristics. – We are all born with unique personalities. We also develop specific characteristics through familial and environmental factors. In Acception, the cartoon “Are People Born Gay?” examines the scientific evidence surrounding homosexuality, and concludes with the American Psychological Association that: “Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles; most people experience little or no sense of choice about their sexual orientation.”49 With your group, discuss some of the characteristics people are born with, as well as other characteristics that are acquired. What do you think we can and cannot change about ourselves? Share your thoughts with your classmates, and remember to accept and appreciate everyone’s opinion.

And then this claim is made regarding sexual orientation change:

Group 9: Respecting Choices. – While most people experience little or no choice in their sexual attractions, many people make decisions based on their personal, religious, and/or cultural values when it comes to their sexual behavior. For example, some individuals who experience same-sex attraction may find their feelings are at odds with their values and choose not to engage in homosexual behavior. Others, still, may actually experience a shift or change in their sexual feelings throughout their lives due to a variety of experiences; in fact, emerging research is finding that sexuality is somewhat fluid for certain individuals, and should not be viewed as fixed or permanent.52,53,54,55,56

I think it will be clear to most long time observers of IHF that this video is simply a means of getting the “change is possible” message in the schools. While I have no problem with the idea that some people choose to align their behavior with religious beliefs, it is another thing entirely to give students false hope and then route them to religiously oriented ex-gay programs which use bizarre methods to try to reorient sexuality.

Hat tip to David Hart.