religion

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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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.

How should religious therapists handle gay and lesbian clients?

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Counselors and therapists with strong religious beliefs sometimes refuse to treat gay and lesbian clients. Some even refuse to offer referrals. Can they do that?                                                                                                               

Homosexuality symbolsSo-called “conscience clauses” are common in health care. They allow professionals to refuse to provide a service within their scope when that service would conflict with the professional’s moral or religious values. In reproductive health, for example, this allows gynecologists to refuse to perform abortions, and allows pharmacists to refuse to distribute birth control, if they find these objectionable.

Such provisions are controversial. The Obama administration has moved to (mostly) end them in federally-funded facilities, and there have been several instances where patients have been harmed — and then filed lawsuits — over treatment refusals based on conscience clauses.

The debate is now coming to mental health, as a result of religious therapists and students taking a stand against treating gay and lesbian clients. These cases point to an interesting contradiction in professional ethical codes:

  • Mental health professionals do not discriminate based on sexual orientation.
  • Mental health professionals do not treat clients outside of their scope of competence.

Though the specific wording varies, versions of those statements can be found in the ethical codes of every major mental health association. When a religious therapist, whose beliefs suggest that homosexuality is immoral[*], is asked to treat a gay or lesbian client (or couple), what should the therapist do?

Offering treatment would abide by the non-discrimination sections of professional ethical codes, but could lead to ineffective — or even harmful — treatment. Religious therapists who, perhaps by their own choosing, lack the training and experience to work effectively with gay and lesbian clients then should not ethically be treating those clients. On the other hand, refusing to treat a client based on the client’s sexual orientation seems to be quite clearly discriminatory.

On issues like this where different parts of a code of ethics conflict, the ethical codes generally do not indicate which standards should take precedence over others. (They also do not allow exceptions based on the therapist’s religious beliefs.) The NASW Code even includes a clear statement that it does not prescribe such an ethical hierarchy, as ethical decision-making is centered around process more than outcome. So no one really knows whether it is ethical for a therapist to refuse to treat clients in same-sex relationships.

Again, allowing a health care provider to refuse to treat clients based on the provider’s religious beliefs is common in other fields (Pharmacy | Medicine), but it comes with an important caveat: The provider usually must give the patient a referral to another provider who would offer the treatment in question. In theory, that should resolve the issue; patients get the services they need while providers maintain their religious convictions. In practice, it only works if that other provider is close at hand. Patients refused services based on religious “conscience clauses” in rural areas, as well as those needing to be treated immediately for the treatment to be effective, are left without options when their provider refuses to treat them for religious reasons — which is precisely why many states put exceptions in their “conscience referral” legislation or simply do not allow such referrals.

Some states already have “conscience clause” laws on the books that do not require any referral at all, which has drawn protest from professional associations who worry that they allow a health care provider’s religious beliefs to “run roughshod over the profession’s code of ethics.”
In the Lincoln (Nebraska) Journal-Star, Rev. Christopher Kubat presented the case that religious therapists should be able to turn away same-sex couples without offering referrals:

Since the Catholic Church teaches that sexual relations are meant for one man and one woman in the context of marriage, if a same-sex couple requests therapy to support, validate or enhance their sexual relationship or something akin to marital therapy, it would be inappropriate to provide that specific, narrow service or make a referral for it, as referring for something considered inappropriate or immoral would itself be inappropriate and immoral because of the element of cooperation.

That strikes me as blatantly discriminatory and harmful to those in need of treatment. It also is theologically consistent.

This is the debate I wish had taken place in CAMFT’s rightly-maligned (and eventually disowned) same-sex-marriage issue of The Therapist. I think there is a legitimate concern on both sides. Religious therapists have an ethical obligation not to refuse treatment based on a client’s sexual orientation. But how can that treatment possibly in the client’s best interests when the therapist’s religion precludes them from in any way supporting the client’s romantic relationship? It seems unlikely. Is there a workable middle ground?

Proposed legislation in California would attempt to at least partially resolve this issue by ensuring all mental health professionals receive training in working with LGBT populations. That may be helpful when it comes to establishing competence, but likely will not change anyone’s religious beliefs.

I do not pretend to have the answer here, though I am optimistic such an answer exists. I wish all clients, regardless of sexuality, could receive competent and accepting treatment anywhere they seek it. I also do not want any of the talented religious therapists I know to feel like they need to betray their religious beliefs to work as mental health professionals. I just wish there were a place for honest, genuine, respectful debate on this issue that could land on some ethics code language on which both sides could agree. Is there a place for that?

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* – For clarity’s sake, of course not all religious therapists believe that homosexuality is immoral, or would refuse to treat gay or lesbian clients. I personally know many strongly religious therapists who see no conflict at all in offering their professional services to clients regardless of sexual orientation.