Washington, Texas, Arizona, Michigan weighing “conscience clause” laws

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Far-reaching laws would appear to place therapists’ religious values above anti-discrimination rules.

The Washington State Capitol
The states of Washington, Texas, Arizona, and Michigan have joined a growing list of states considering so-called “conscience clause” legislation, that would allow health care providers (including therapists) to refuse to treat specific types of clients based on the therapist’s religious beliefs. Kansas governor Sam Brownback signed such bill into law in March, and a Kentucky bill was passed into law earlier this year through an override of the Governor’s veto.

While some states have designed such bills specifically for health care settings, most of the recent conscience clause bills apply to all work settings that require state licensure or other involvement of state government. They use language very similar to that of the successful Kentucky bill:

“Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A ‘burden’ shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.”

As I mentioned in my earlier discussion of the Kentucky law, such language in any state would make it exceedingly difficult for marriage and family therapy graduate programs (if they receive state funding) to discipline or expel students who plainly state their intent to discriminate when providing therapy services. It would also mean that state licensure boards would have a high burden when attempting to discipline the license of a therapist who was discriminatory in their practice.

While written to protect religious freedom in broad terms, it can be argued that these laws are emerging with a more specific, if not directly spoken, purpose in mind: to allow religious business owners and health care providers to freely discriminate against gay and lesbian clients. That has certainly been a concern with the Kentucky religious freedom law. The Washington law, meanwhile, arose in response to a consumer protection lawsuit that the state’s Attorney General filed against a florist who had refused to provide flowers for a gay couple’s wedding (same-sex marriage is legal in Washington). The lawsuit argued that the florist, who cited religion in refusing to serve the couple, was illegally discriminating on the basis of sexual orientation.

The text of the proposed conscience clause legislation in Washington makes the target of the law clear once you know what the bolded language here means (emphasis added):

Nothing in this section may burden a person or religious organization’s freedom of religion including, but not limited to, the right of an individual or entity to deny services if providing those goods or services would be contrary to the individual’s or entity owner’s sincerely held religious beliefs, philosophical beliefs, or matters of conscience. This subsection does not apply to the denial of services to individuals recognized as a protected class under federal law applicable to the state as of the effective date of this section. The right to act or refuse to act in a manner motivated by a sincerely held religious belief, philosophical belief, or matter of conscience may not be burdened unless the government proves that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.

Federal law currently prohibits discrimination against a variety of protected classes. Discrimination based on race, gender, disability, or nationality is prohibited under federal law, for example. But gays and lesbians are not a protected class in federal law. So the main impact of this bill would be to allow discrimination, based on religious belief or matters of conscience, against gay and lesbian clients.

Still, the broad wording of these laws allows for much farther-reaching impact. A commentary on the Washington proposal in the (Salem, OR) Statesman-Journal suggests that it could revive religious objections to mixed-race couples. The group Americans United for Separation of Church and State describes other acts that these bills appear to legalize:

A pharmacist could refuse to provide Plan B drugs to a rape victim. The owner of an apartment building could refuse to rent to an unmarried couple.

These examples and more can be applied to therapists and their clients, with the therapist either as discriminator or victim. A therapist under these laws may refuse to treat gay and lesbian clients. In states that leave out the federal law stipulation that Washington included, that therapist may also refuse to treat Mexicans, or Mormons, or any other group they see fit to turn away. Therapists working at hospitals, in group practices, or in other settings as employees might also be discriminated against at the moral whim of their employers, who would be able to summarily fire therapists who have premarital sex (or who don’t, if the employer decides that their personal morals favor premarital sex), or who identify as gay or lesbian. Each of these would be of questionable legality even under the new laws, because of the potentially overriding impact of federal anti-discrimination law, but they would appear to be clearly illegal in most instances under current law. Bringing the legality of such acts into question — inviting lawsuits to sort out the underlying issues, and placing a high burden on the state to justify any restriction of acts of morality or conscience — seems to be the idea.

Ultimately, if these and similar laws continue to pass around the country, the non-discrimination clause in the AAMFT Code of Ethics may best be considered moot. Any therapist with moral or religious beliefs that declare some people to be unequal could freely discriminate on the basis of race, gender, nationality, or any other basis without fear of any repercussions against their license. AAMFT could still act on an ethics complaint, even removing a therapist from the association. But the therapist would never need to inform clients that the complaint had happened, and could freely continue in practice as the state could not discipline their license.

Bills similar to the ones enacted in Kansas and Kentucky, and proposed in Washington and Tennessee, are now pending in several other states:

  • In Texas, a religious-freedom act already exists in state law, but Texas Senate Joint Resolution 4 would make that law part of the state Constitution.
  • Nevada Senate Bill 192 is similarly broad and has advanced through the Senate to the state Assembly.
  • In Arizona, Senate Bill 1178 has been amended from a bill on long-term disability into a broad religious-freedom measure.
  • And in Michigan, where religious-freedom legislation proposed in response to the Julea Ward case failed last year, a broader bill on religious freedom in health care (Michigan Senate Bill 136) is making progress. Among other changes, the Michigan bill would (quoting a Senate Committee Analysis) “Prohibit an employer from penalizing a health provider and prohibit a university, college, or educational institution from refusing admission to an individual or penalizing a student or member of its faculty or staff for expressing a conscientious objection or requesting an accommodation to avoid participating in a health care service.”

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Your comments are welcome. Post in the comments section below, by email to ben[at]bencaldwell.com, or through my Twitter feed.

Updated: BBS legal opinion improves, doesn’t fix, child abuse reporting issue

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California mandated child abuse reporters would no longer need to discriminate against gay or lesbian youth. But the legal opinion is just that: An opinion.                                                                                                                                                                                                                                                                                                            

A legal opinion announced on Thursday by the California Board of Behavioral Sciences appears to go partway to resolving the problem of discriminatory reporting of child abuse.

The opinion, prepared at BBS request by legal counsel for the Department of Consumer Affairs, essentially says that oral sex, anal sex, and object penetration should be treated the same as vaginal intercourse when considering abuse reporting. If two minors of similar ages (as defined by the law; see the age combination descriptions in this earlier post) engage in consensual acts without evidence of coercion or other signs of abuse, those acts are not reportable.

BBS Executive Director Kim Madsen announced at Thursday’s Policy and Advocacy Committee meeting that she would make the full legal opinion public. While the opinion does not carry the weight of law, it should be helpful for therapists seeking to understand when the BBS expects child abuse reports to be made, and when the therapist can rely on their own judgment as to what is abusive.

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Your comments are welcomed. You can post them in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.

Relationship education: Scott Stanley responds

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Stanley, one of the developers of the popular PREP program, offers a more optimistic view of the Building Strong Families study’s Oklahoma City data.                                                                                                                                                                                                                                                                                                            

People in Bad MergentheimI posted last week about the disappointing 3-year results of the Building Strong Families study, a major study of relationship education involving more than 5,000 families at nine sites around the country.

Scott Stanley, one of the developers of the PREP relationship education course and a (quite deservedly) well-respected name in relationship and marriage research, wrote me in response, offering a more optimistic look at the site-specific data from the study’s Oklahoma City location. He kindly granted permission for me to post his letter, in its entirety, here. The emphasis added is mine and I’ve plugged in some links, but otherwise left his writing unchanged:

Dear Ben,

Just read your post on BSF in OK. You raise important points like those raised by others.

I wanted to argue the other side a bit, particularly about the Oklahoma finding at 36 months in the BSF study. I won’t take the space to do it fully in this comment, but I would refer your readers to a blog post I did on the 36 month findings in light of a similar critique by Andrew Cherlin in the last week of 2012. The piece (my blog piece) links to Cherlin’s critique and several other interesting pieces that your readers may appreciate. Andrew Cherlin has read my piece on his critique, and I believe he has changed his mind about the importance of the stability finding in OK at 3 years out. (see links here and below)

The key point is simply this: As I explain in my piece, what you refer to a small difference in family stability is actually a 20% increase in family stability for these most vulnerable families 3 years later (49% in the program group vs. 41% in the control group, of families where the children born lived continuously with both parents over the three year follow-up period, which is a 20% improvement of the intervention group over the control group).

What you, as so many others, are likely unaware of is that the evidence for most government social programs (or other programs for that matter) is dismal (I also make this point in my piece). I give some suggestions for how people can look such things up in my piece as well.

This OK BSF finding is actually rather extraordinary, and it is unlike findings in most all evaluations of government programs, especially evaluations of initial efforts–it is significant, relatively large (this is not a small difference on such an outcome in a policy study), and it is on what is easily argued the single most important type indicator relevant to this study context and family policy. It is also not at all unusual to get earlier impacts on things that can change more immediately that may (as in this case) set up longer term, more important outcomes.

You may not be impressed with that finding, but there are those who know government evaluations quite well who find it remarkable. However, it is true that among people who have been critics of these fledgling efforts, the desire has clearly mostly been to focus on the pooled results across sites where the story is not positive.

In addition to the points I make in my blog in commenting on Andrew Cherlin’s piece, I would add these points here about the finding you dismiss: This impact on a hard indicator of an outcome (family stability) of prime interest three years after the intervention (1) happened in the only program to deliver a substantial dose of intervention to a high percentage of couples in the intervention group, (2) happened in the only program to have many significant impacts on relationship quality variables at the intermediate stage of evaluation, and (3) happened in the only site that also had a stability findings at the prior time point.

The link to my comment on Andrew Cherlin’s piece is here:
http://slidingvsdeciding.blogspot.com/2013/01/family-stability-and-relationship.html
[There is also a full disclosure comment at the end of that blog piece.]

The link to a resent presentation where you can see Andrew Cherlin’s comment on the OK finding is here:
http://www.brookings.edu/events/2013/03/20-knot-yet-marriage#ref-id=20130320_CCF_fullevent_pt1

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My thanks to Dr. Stanley for his thoughtful email and the permission to repost it here.

Your questions and comments are similarly welcomed. You can post them in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.

Major national study: Relationship education doesn’t help low-income parents

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In a study of 5,000 couples, a structured program of relationship enhancement not only failed to help poor, unmarried parents. It appeared to make a few things worse.

People in Bad MergentheimAlmost three years ago, I posted on the Building Strong Families (BSF) project, a first-of-its-kind national study of relationship education (also sometimes called premarital education, marriage education, relationship enhancement, or simply RE). The study involved more than 5,000 couples at nine sites around the US, all of whom were low-income, unmarried parents. In theory, such couples could especially benefit from effective programs to improve couple and family functioning. Couples in BSF were offered relationship skills groups, individual support from assigned “family coordinators,” and referrals as needed to specialized services such as mental health counseling, housing assistance, legal services, and child care.

My initial post had focused on 15-month follow-up data, which was not promising, but gave reason to hold out for longer-term data. Late last year, the BSF program released its final report, which included a 3-year follow-up. It was a spectacular failure.

The executive summary was appropriately blunt (emphasis added):

After three years, BSF had no effect on the quality of couples’ relationships and did not make couples more likely to stay together or get married.

The first piece there, that the program did not impact the quality of couples’ relationships, should startle those therapists who use or recommend relationship enhancement programs. Even in the absence of long-term outcome data, these programs have often highlighted the studies that appear to demonstrate that they offer at least a short-term improvement in relationship satisfaction. (A good current summary of such studies can be found in this Journal of Marital and Family Therapy article, subscription or payment required.) In the BSF study, any such gains had evaporated even before the 15-month follow-up, unlikely to ever return. Couples who had gone through the program were no better than control-group couples on measures of relationship happiness, supportiveness and affection (treated as one variable), faithfulness, or conflict management.

The executive summary continued (again, emphasis mine):

BSF had no effect on couples’ co-parenting relationship; it had small negative effects on some aspects of father involvement. […] BSF had no effect on the family stability or economic well-being of children; however, the program led to modest reductions in children’s behavior problems.

Fathers who went through the BSF program were spending significantly less time with their children at the three-year follow-up than control-group fathers. At the same time, children of couples who participated in the program did experience significantly fewer behavior problems; that was the only variable, of 20 studied, to show a desired outcome from the program. Neither the executive summary nor the full BSF report clarifies whether these two findings are more directly connected. It is at least plausible that these families were making rational decisions about the level of father involvement, if such involvement was likely to be detrimental to the child. It is also certainly plausible that the two findings are unrelated. I hope the study makes its full dataset available to other researchers for additional analysis.

Perhaps most disappointing in the three-year dataset is the failure of the study’s Oklahoma site to maintain its strong standing over time. In Oklahoma City, the BSF program used a well-established curriculum based largely on the popular PREP program, engaged many more families in participating than other sites, and showed much better outcomes at 15 months. However, most of the positive impacts observed there at the 15-month follow-up had faded away by 36 months. The only positive impact unique to Oklahoma City that remained was a small improvement in family stability, an impact that had not been present in the earlier data. But this positive result was offset by another program site in Florida, where the 36-month data newly demonstrated negative impacts on relationship status and quality, father involvement, and family stability.

I suggested in my earlier post that perhaps the BSF program was not failing, but rather it was not drawing enough participation:

It would be more accurate to say that couples didn’t finish the programs than it would be to say that the programs didn’t work; with the exception of the project’s Oklahoma site (which performed much better than other sites in a variety of ways), only 9% of couples completed at least 80% of the relationship enhancement curriculum offered to them. That’s a big problem.

However, the program’s own executive summary suggests that the participation issue should not be reason to dismiss their overall conclusion that BSF largely failed (emphasis added):

Across the eight programs, only 55 percent of couples assigned to the treatment group attended a group relationship skills session. However, analysis of BSF’s impacts among couples who did attend found little evidence of effects on relationship outcomes. Thus, it does not appear that low participation rates explain BSF’s limited success in improving couples’ relationships.

Unfortunately, the field of relationship education is now left with not one but two major problems. 1, How can we design a program to teach family skills such that low-income couples with children would actually be able to make use of it? If the low participation rate was because of difficulty arranging transportation or child care, or other life stressors, programs must find ways to address those stressors first. (See also Maslow’s hierarchy of needs.) 2, Even if we could address all of the circumstances that keep couples from participating in these programs, what could we offer them that would actually make a difference in the long term? Three years and many millions of dollars after the launch of BSF — the average cost of treatment was about $11,000 per couple — we are no closer to an answer to that question.

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The next wave of data on relationship education will come from a separate five-year study, the Parents and Children Together (PACT) program, which will examine programs that provide both relationship skills and employment services. The BSF report suggests that PACT may ultimately be more effective, given some research findings that fathers are more involved with their children when they see themselves as economically successful.

Your questions, comments, and predictions about future studies are welcomed. You can post them in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.

Kentucky passes, and Tennessee considers, “conscience clause” legislation

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Bills would allow religious therapists to refuse treatment to gay and lesbian clients.
                                                                                                                                                                                                                                                                                                           

Kentucky state capitol buildingIt has been a big week for court cases on the rights of gays and lesbians, with California’s Proposition 8 and the federal Defense of Marriage Act both debated at the US Supreme Court. In the mental health world, over the past few months, Eastern Michigan University settled the Julea Ward case without admitting wrongdoing, the “Julea Ward Freedom of Conscience Act” languished in the Michigan legislature, and Jennifer Keeton lost her discrimination case against Augusta State. At a glance, it appears that gay and lesbian clients are making progress toward equality under the law and protection from discrimination in mental health care.

Kentucky and Tennessee, however, appear to be going in a different direction. Both states have moved to protect those therapists who would choose not to treat gay and lesbian clients based on the therapist’s religious beliefs.

Kentucky

In Kentucky, the state legislature has enacted a broadly-worded law to protect religious belief, even overriding the Governor’s veto to do so. The entirety of the new state law:

“Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A ‘burden’ shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.”

While the law is broad, it seems to me that it would clearly apply to a future case similar to Ward’s or Keeton’s; a student therapist refusing to treat gay and lesbian clients (in the language of the law, “refus[ing] to act”) based on a sincerely held religious belief could not be removed from their university (“exclusion from programs”) or even disciplined in any way (“assessing penalties”). Yes, the “unless” clause creates a possible exception, but it also creates a very high bar for that exception. And although the bill applies specifically to government, the state’s major family therapy programs — at Kentucky, Western Kentucky, and Louisville — are all housed in public (state-government-funded) institutions, so courts would be likely to apply the new law to any actions taken by these programs.

It is also notable that the Kentucky bill is so broad that it would apply in any setting, not just universities, so licensed therapists working in public mental health settings also appear to be granted the freedom to discriminate in client care based on their religious beliefs, without fear of repercussions.

Tennessee

Tennessee, meanwhile, is considering a much more specific bill modeled after last year’s unsuccessful effort at conscience clause legislation in Michigan. The Tennessee bill, which would allow students in counseling, psychology, or social work programs to refuse to treat clients based on the student’s religious beliefs so long as they refer to a therapist willing to serve the clients, has moved forward in the state legislature despite objections from psychology faculty at the University of Tennessee. Those faculty members argued that the bill would allow

“a Hindu, opposed to killing animals, refusing to counsel a hunter; a Christian refusing to provide counseling to a Jew; [and] a student who opposes alcohol consumption refusing to counsel someone with a drinking problem.”

The professors went on to argue that, by allowing therapists to make the kinds of choices described above, the bill would force educational programs to allow their students to violate professional codes of ethics. This, they argue, would threaten the programs’ accreditation status. (As I’ve mentioned before, accreditation has been a handy cudgel for those on both sides of the debate.)

The bill (SB514) has passed the Tennessee Senate and is currently awaiting hearing in the state House of Representatives.

Other states

There seems to be some confusion (especially in the Tennessee legislature) about whether the Michigan bill (HB5040 and SB518, in 2011) passed; as best as I can tell, it never made it out of that state’s Senate Education Committee. A similar Arizona bill, however, was successful, so these proposals seem to be batting about .500 so far.

As I have said previously, the underlying issues are complex. It is of course true that every mental health profession’s code of ethics prohibits discrimination on the basis of sexual orientation. But many of those same codes also require therapists to place the client’s values above their own — and to make referrals when the therapist is unable to do that, or if the therapist is unable, for any reason, to provide competent treatment. Religious therapists who have strong beliefs against homosexuality are placed in the difficult position of balancing the ethical requirement that they not discriminate with the ethical requirement that they provide competent services, without letting their own values interfere. What seems to be clear is that if mental health professional groups cannot better clarify these issues on their own, some state legislatures are quite willing do it for them.

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Your comments are welcome. Add to the discussion in the comments below, by email to ben[at]bencaldwell.com, or — if you are better at brevity than I am — through my Twitter feed.