April 6, 2009

When Religious Freedom Protects Prejudice

I've written before, on many occasions, that there are only two kinds of prejudice that seem widely socially acceptable anymore in the United States -- that directed against gay people, and that directed against atheists. Both sorts of prejudice take their roots in religion, which is to say that the bigots who hold and act on their prejudicial beliefs justify themselves by using their religion -- almost always some form of protestant or evangelical Christianity -- as a shield.

This is not to say that all Christians, all protestants, or all evangelicals are prejudiced bigots. Indeed, my experience is that many of the people I have met who use those terms to describe themselves are very nice, pleasant people who, when confronted with a homosexual person, an atheist, or someone who speaks up for a homosexual or an atheist, will refuse to engage in a value judgment, sometimes explicitly stating that such a thing is for God and not them to do.

So now that this is out of the way, here's the issue. The law protects against religious discrimination as much as it does against other kinds. Indeed, in some states, the law protects against religious discrimination more than it does discrimination against homosexuals. For instance, the lawsuit I came across today. In Ward v. Eastern Michigan University, which was filed Thursday by my bete noire, the Alliance Defense Fund, we find the plaintiff, a graduate student in Eastern Michigan's counseling program, who was apparently doing very well in her program, until...

[¶ 3] ...Defendants dismissed Ms. Ward from their Graduate School Counseling Program solely because her religious beliefs and expression regarding homosexual behavior contradicted the views of the EMU counseling department. Ms. Ward is a Christian who derives her fundamental beliefs and moral values from the Bible. ... (Further, from ¶ 18: "...Based on her sincerely held religious beliefs, Ms. Ward believes that homosexual behavior is immoral sexual conduct, and cannot affirm or validate that behavior, or otherwise use her counseling skills and abilities to encourage or facilitate homosexual behavior, without violating her sincere religious beliefs.")

[¶ 4] The EMU counseling department requires students to affirm or validate homosexual conduct (specifically, homosexual sex) within the context of a counseling relationship, and prohibits students from advising clients that they can refrain from homosexual conduct.

[¶ 5] ... The third client assigned to Ms. Ward was seeking counseling regarding a homosexual relationship. Because EMU’s requirement that Ms. Ward affirm and validate this client’s homosexual conduct would require Ms. Ward to violate her religious beliefs and express a viewpoint that she disagreed with, Ms. Ward called Defendant Callaway, her supervisor, and asked whether she should see the client and refer if necessary, or refer the client to a different counselor prior to the initial appointment. Defendant Callaway advised Ms. Ward to have the client referred to a different counselor.

So you've got a Christian student counselor, in a clinical setting, who refuses to treat a homosexual patient on religious grounds, and instead seeks to refer the patient to a different counselor. Because of this she gets disciplined and ultimately expelled from her program.

Now, we don't know what the University's side of the story is. It may well be that its version of events does not describe a student counselor acting professionally and appropriately in the face of a dilemma; perhaps their claim will be that she said and did things that were harmful to the patient, or that there was an 'escape mechanism' available to her which she unreasonably refused to avail herself of. We ought not to draw very many conclusions after only hearing one side of the story.

My initial reaction is to have sympathy for the patient here. The patient came to the program expecting some help with something that was apparently so serious as to have required counseling in the first place. That patient should be able to get that counseling instead of what was pretty obviously a value judgment. But the lawsuit isn't about the patient. It's about the relationship of the student counselor to her school.

And I really find the counselor's response to having a homosexual patient to be distasteful. People seek counselors for all sorts of things, things which others find immoral. Would she refuse to treat a spouse responding to an emotionally-painful divorce -- if the patient had initiated the divorce? After all, the Bible teaches that divorce is wrong. (Except in the case of the wife failing to sexually please her husband; Deuteronomy 24:1-2.) One tends to think not. Seems to me that she may well be using her religion as a pretext to pick and choose the kind of conduct she is willing to deal with and that which she is not.*

As much as I would like to see her irrational condemnation of a morally neutral act rebuked legally, the legally correct answer is -- assuming the contents of the complaint are true, her expulsion is inconsistent with the Constitution and the Civil Rights Act and therefore would demand relief from the court. I emphasize here that this would be my conclusion if the plaintiff proves the facts in her case by a preponderance of the evidence.

Now, in the real world, as a counselor, the plaintiff is going to encounter people who have been in homosexual relationships and who consider themselves to be homosexuals. At the very minimum, she should be trained to treat these people with a modicum of compassion. Refusing to treat them is sort of the opposite of that, at least depending on how she handles the situation.

But on the other hand, in the real world, she will be able to at least seek a job where she can accept or decline patients as she chooses. If she doesn't want to deal with patients who have problems arising out of their homosexual relationships, or some sort of similar or related issue, in the real world, she won't have to take all comers (unless she takes certain kinds of jobs, which she can avoid applying for). She can reject patients for nearly any reason she wants. Even in a state like California that protects homosexuality as a protected class, she does not forfeit her right to religious self-expression; she can refuse to form a counselor-patient relationship with a gay patient. About the only obligation I can see incumbent upon her in a situation like that is to refer the gay patient she won't accept to a counselor who she reasonably believes can help -- which, at least according to the complaint, is something that she tried to do in this situation.

In the meantime, she sincerely subscribes to a religion that morally condemns homosexuality and no one can tell her not to believe in and behave consistently with that religion. She certainly has that right. So on the face of it, it looks like a valid complaint against the University. The student ought not to have to act in a manner contrary to her own religion to pass the class or to graduate. She might not be entitled to an "A" in the class or even a passing grade in this exercise. But she shouldn't be expelled or otherwise treated differently than any other student because she acted in a fashion consistent with her sincere religious beliefs.

That's the principled result. She gets to re-take the exercise, she gets to practice her religion without penalty. Legally, they can't force her to act contrary to her religious beliefs. It leaves a bad taste in my mouth to say it, but if the plaintiff's allegations are true, then her distaste for homosexuality and refusal to deal with a homosexual patient is protected by her right to be free from discrimination based on her (discriminatory interpretation of her) religion.

That doesn't mean I have to like the result morally. When the law is used to protect bigots, it always leaves a bad taste in the mouth. Yes, the Illinois Nazis have free speech rights and protecting their rights is valuable -- because if we don't give rights to the Illinois Nazis, then the rights held by the rest of us are meaningless. That doesn't mean I have to like what they say even as I affirm their right to say it. I don't have to like the way Julea Ward chose to invoke her freedom of religion.† But she ought to have the right to believe, and as long as she does not hurt anyone else in so doing, act on her beliefs.

I want that right for myself, so I have to allow her to use that same right even if I disagree with the way she used it. I cannot allow my distaste for the specific result here to get in the way of the principled result. It's too bad, but the law sometimes protects bigotry; it has to, in order to protect those who would put their rights to more noble uses.

Hat tip to Prof. Howard Friedman, whose blog is a seemingly endless reservoir of interesting legal issues.


* In her defense, she may claim that the homosexual had no intention of changing his immoral behavior, while, for instance, a child molestor seeking treatment from her would at least be claiming a desire to reform his ways. She could say that the patient's desire to change an immoral course of conduct is what matters to her, rather than the immorality of the conduct itself.

† "Freedom of religion" is not a phrase found in the Constitution. It is, nevertheless, an important concept which does and ought to enjoy Constitutional protection, as expressed through the Free Exercise and Establishment Clauses.

4 comments:

David Schraub said...

"I've written before, on many occasions, that there are only two kinds of prejudice that seem widely socially acceptable anymore in the United States -- that directed against gay people, and that directed against atheists."

Transgendered individuals? They might be in an even weaker position.

Transplanted Lawyer said...

I'd agree with you, but I see their struggle as very similar to and ultimately intertwined with that of homosexuals. Indeed, many people do not know to distinguish transgendered people from homosexual people, thinking that one must necessarily be gay to seek or wish for a gender identity reassignment -- or that the desire for sex with the same gender is the same thing as a desire to be the opposite gender. So while I see that there are substantively different challenges that transgender people face which gay people do not, improving gay rights will have a direct benefit to transgender people -- and improving understanding and tolerance for gay people will also increase understanding and tolerance for transgender people.

trumwill said...

Indeed, many people do not know to distinguish transgendered people from homosexual people, thinking that one must necessarily be gay to seek or wish for a gender identity reassignment -- or that the desire for sex with the same gender is the same thing as a desire to be the opposite gender.

I disagree. I lost my discomfort with homosexuals a long, long time ago. Transgendered people, though, are a separate internal struggle altogether.

Your humble author said...

So you've got a Christian student counselor, in a clinical setting, who refuses to treat a homosexual patient on religious grounds, and instead seeks to refer the patient to a different counselor. Because of this she gets disciplined and ultimately expelled from her program.

Now, we don't know what the University's side of the story is. It may well be that its version of events does not describe a student counselor acting professionally and appropriately in the face of a dilemma; perhaps their claim will be that she said and did things that were harmful to the patient, or that there was an 'escape mechanism' available to her which she unreasonably refused to avail herself of. We ought not to draw very many conclusions after only hearing one side of the story.

My initial reaction is to have sympathy for the patient here. The patient came to the program expecting some help with something that was apparently so serious as to have required counseling in the first place. That patient should be able to get that counseling instead of what was pretty obviously a value judgment.


Actually, there is a lot of documentation, such as the transcript of the disciplinary hearing, available here. According to the letter denying her appeal to the Dean of Education, the cause for dismissal was transgression of the requirement that students "conduct themselves in a responsible and professional manner at all times" and "adhere to the code of ethics of the American Counseling Association."

Not being a member of the ACA, I can't speak to its ethics code. But as a clinical social worker, I know that therapists of all stripes are obligated to refer clients elsewhere when they are aware that they would not be able to render their best service to that client. So if someone wants to see me professionally who, say, has abused her child in the same way my mother abused me, it is the most professional and ethical thing for me to do to suggest some other professionals who may be in a better position to serve that client than I. If I am an atheist with bad memories of clergy and someone wants to see me who is working out adjustment problems as they enter a religious order, it may serve them best to refer them elsewhere. It is not a judgment -- it is a combination of good sense and responsible service to the client.

The student consulted with her faculty supervisor before she met with the client. The supervisor instructed her to refer the case to another student. The supervisor, then, instituted disciplinary action against the student. Given the student's religious convictions, what was a more responsible action for her to take? As far as is apparent, the client in question never became aware of the situation -- in what way were divergent values imposed on him or her?

It is not a step forward for the gay-lesbian-transgendered community if those of its members seeking counsel see counselors who did not have the option of recusing themselves if they felt unable to give them the quality of service they deserve.