Justice Antonin Scalia died from a heart attack this past weekend. His textual orientation to the Constitution guided his decision making on many issues, and one decision with which he made a lasting impact regarded religious liberty. Twenty-five years ago, he reasoned that due to an increasing diversity of religious opinions and an increasing diversity of opinions on the significance of religious liberty, legislatures answerable to the people should make decisions on the intersections between religion and free speech so that these matters would respond to the wishes of the people, instead of to five unelected justices of the Supreme Court who are appointed for life. Perhaps he foresaw decisions like this past summer’s in which the high court took from the people the decision about whether to guarantee civil endorsement for certain religious practices when they are redefined.
Such redefinitions are common throughout our culture, and often enforced in a way that is similarly unresponsive to the people’s will. Those who support these measures often call them “social justice.” As Jonathon Haidt reported in “The Yale Problem Begins in High School,” enforcing one group’s protection from fear of offense at what another might say if they actually did speak has silenced the voices of children by the time they’re in high school. This may not be a problem if you don’t value what a child might say if that child is found to be among the silenced group, if he’s a boy and not a girl, or if that child is white, or if that child is politically conservative; it may not be a problem if you don’t value the voice of a child you could have, or plan to have, who might be these things. This may not be a problem unless you find it somewhat unjust that these untouchables who’ve lost their voices often individually committed no particular offense against the ones insisting on their silence; would this multiculture have the children of those who committed crimes born into jail to serve out their parents’ sentences? This also may not be a problem if you wouldn’t mind living in a world like the dystopian Divergent in which there exists a class of people who do not meet the criteria of society to participate in meaningful work, and so are relegated to the margins of society, as is occurring to those with religious convictions in the counseling profession.
Recently, this competition for social justice occurred between feminists and Muslims in the wake of the systematic rapes of women in Tahir Square after the Egyptians’ Twitter revolution, and following New Year’s Eve when hundreds of German females were molested in public, video evidence frequently implicating many migrants from Islamic nations. Scalia’s critique is telling; could religious speech extend to cover this practice if such sexual behavior was found acceptable for Mohammed by revelation from Allah, as the Qur’an describes being a right against captive infidels? Has the Supreme Court gone so far toward political correctness that the only possibility of preserving rational free speech is to keep free speech out of the hands of these justices?
Joining the “social justice” crusade in the past few years is the American Counseling Association which creates the ethical standards for professional counselors nationwide; the ACA changed its ethical code to embrace the “some are more equal than others” approach which requires preemptively silencing the voices of those with religious convictions whose voices might be found offensive, in this case the voice of a Christian who identifies the Bible as the literal truth from God. The name of this particular anyone in response to whom the ACA altered their ethical code is Ms. Julea Ward, a counseling student working on her internship at a university counseling center.
The counseling center told her about a client who wanted counseling for their gay relationship. She asked for guidance from her supervisor, saying her Biblical Christian beliefs would keep her from endorsing a gay relationship, but she said that maybe she could counsel the gay client without endorsing the relationship. In the end, she decided that she could not counsel the client, fearing it might lead to a moment in which the client would feel discriminated against due to her own beliefs. The ACA ethics code at that time had maintained for more than ten years a prohibition against discriminating against a person for how they sexually identify.
Keep in mind, Ms. Ward had never met the prospective client…they’d never met her. There were other counselors who could see the client, and it’s likely that another counselor more open to their sexual identification would probably have been the one they selected if given the choice. Ms. Ward refused to compromise her Biblical beliefs, which are hardly uncommon (Gallup found in 2014 that 28% of Americans find literal truth in the Bible, which in the New Testament Book of Romans (1:26-27) describes homosexuality as shameful. Ms. Ward’s case was followed by a change in the ethical standards which banned referrals based on a counselor’s values for tens of thousands of professional counselors whose states require they adhere to the ACA’s professional code of ethics, despite the Appeals Court stating in their opinion that no harm had been done to her client due to their referral.
Ms. Ward’s faculty did their best to explain how she should believe differently if she were going to be a counselor, suggesting re-education to this purpose; and when Ms. Ward refused to alter her conviction, her faculty refused to allow her to graduate from the counseling program, despite her completing the vast majority of coursework and maintaining an excellent GPA. How different this is from the story of Brandon Ambrosino, a gay student who described for The Atlantic his experience at Liberty University which identifies the Bible as God’s literal truth. Mr. Ambrosino described receiving Christian counseling encouraging him to like himself, and he talked about how many professors at Liberty did everything they could to encourage him to stay after he decided to leave. Mr. Ambrosino said that he believed college president Jerry Falwell would personally have stood for him if anyone ever tried to hurt him, that Rev. Falwell would have told such people to go home and pray because they’re wicked.
Ms. Ward did not receive such acceptance or support, so she took her school to court after being kept from graduating, her school appearing to prevail in the first legal round; however, after the Sixth U.S. Appeals Court ruled, her university chose to pay Ms. Ward an out-of-court settlement. This higher court’s ruling and any opinion related to it are both noticeably absent from the American Counseling Association’s Ethics web page which after more than two years still boasts the ACA’s response to the lower court agreeing with their viewpoint, in the decision which the Appeals Court reversed.
For what reason did the Appeals Court rule for Ms. Ward and against the university, dismissing the Amicus brief from the American Counseling Association and citing its contradictions with previous statements? Perhaps this was best summarized by the Court’s opinion, stating, “Instead of insisting on changing her clients, Ward asked only that the university not change her….”
The Court described how students at public schools are given some guarantee of free speech, specifically prohibiting “the most aggressive form of viewpoint discrimination, compelling an individual to ‘utter what is not in [her] mind,’ and indeed what she might find deeply offensive,” which it compared to forcing students to recite the Pledge of Allegiance. The Appeals Court compared the university’s willingness to engage in viewpoint discrimination regarding Ms. Ward to requiring an atheist counselor to tell a faith-based client struggling with faith issues that there is a God, saying, “Tolerance is a two-way street. Otherwise, the rule mandates orthodoxy, not anti-discrimination.” The Court further stated that “A reasonable jury could find evidence of religious-speech discrimination” in the conduct of faculty attempting to enforce their “anti-discrimination” policy. The Court also lamented regulations which purport to be applied equally but in practice are veiled attempts to target a “faith-based practice.”
The American Counseling Association responded to this opinion by forbidding any counselor from referring a client based upon the values of the counselor. Does this answer the dilemma of an atheist counselor working with a faith-based client, which they’d be required to do? Does it provide the remedy of sensitivity training to address identified religious-speech discrimination by the counseling-program faculty? Will violations of the referral policy be enforced in an even-handed way, targeting atheists who refuse to counsel those of faith, or will those who engage in faith-based practices be disproportionately targeted when the evidence is examined by a disparity of effect?
What kind of diversity do these ethics create? Surely it is not an all-kinds-of-counselors-for-all-kinds-of-clients diversity, if it requires Christian, atheists, Muslims, and Jews with spiritual convictions to either endorse what they disbelieve or be forced out of their profession. Is it a diversity of silence? A survey of ACA members by Cashwell et al in the April 2013 edition of Counseling and Values indicated a silencing of spiritual and religious voices; the results of this study mirrored a 2015 survey of licensed clinical social workers. Both studies found the same treatment barrier, that many counselors and LCSW’s will simply not bring up spiritual and religious issues; they have become taboo.
Although the ACA makes an ethical code which is given the force of policy via statutes enacted by state legislatures, only counselors who wish to financially support the ACA’s social justice politics have the rights which come with membership. Thus, like a poll tax this disenfranchises all other counselors under a state of professional compulsion without representation. In Louisiana and other states, some remedy may be available to counselors who engage in faith-based referrals through our state’s Preservation of Religious Freedom Act, a policy created according to Justice Scalia’s approach which is answerable to the people of Louisiana who oppose religious discrimination, specifically requiring the government of Louisiana to act in a way that is “least restrictive of a person’s right to freely exercise [their] religious beliefs.”
In ancient Rome they said, “quis custodiet ipsos custodies?,” or “who will police the police?” Would its current version be, “who will protect us from discrimination by those who protect us from discrimination?” In two follow up articles, I will continue to address problems with the ACA’s choice to exclude those with spiritual convictions from counseling practice.