“How the hell did this become a Christian crisis?”

In NIFLA v. Becerra the Supreme Court ruled last month that pro-life pregnancy centers cannot be compelled by California to advertise the availability of free or low-cost abortions. Ultimately the court ruled that it is compelled speech.

Mad Mat Staver has claimed, with some certitude that the decision in NIFLA means that bans on conversion therapy are an unconstitutional violation of free speech rights under the First Amendment. Zack Ford has expressed his concern.

I had a chance to discuss this matter with a very smart lawyer on Wednesday. She received her law degree from the University of Pennsylvania (ranked 8th by U.S. News). On the other hand she specializes in family law. We argued back and forth; she playing Devil’s advocate. She reminded me that the “right” argument is not necessarily the winning argument at the Supreme Court, particularly if Trump gets another Scalia on the Court. She said: “Who the hell ever promised that common sense would prevail?”

We start with NIFLA which requires (bear with me) a visit to Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio.

In Zauderer, the Court ruled, essentially unanimously, that the state could require an advertiser to provide “purely factual and uncontroversial disclosures.” Early in his opinion, Justice Thomas writes (emphasis as written):

Unlike the rule in Zauderer, the licensed notice is not limited to
“purely factual and uncontroversial information about the terms under
which . . . services will be available,” 471 U. S., at 651. California’s
notice requires covered clinics to disclose information about
state-sponsored services—including abortion, hardly an “uncontroversial”
topic. Accordingly, Zauderer has no application here.

I hate to agree with Thomas but that makes perfect sense. Zauderer, however, should be controlling in matters of conversion therapy bans. These regulate professional conduct.

Thomas goes on to write:

Nor is the licensed notice a regulation of professional conduct
that incidentally burdens speech.

Thomas then becomes Thomas. He asserts that the required notice is not about informed consent while requiring abortion providers to make disclosures is about informed consent. As the dissenters point out, that is hypocritical. Zack Ford explains it best:

In short, the state can only mandate what medical providers say when they are being honest, not when they’re trying to deceive their clients.

The problem that California was trying to solve is that these crisis pregnancy centers give women the impression that they are abortion providers or that they will help the woman obtain an abortion provider. In point of fact they exist to shame women out of having an abortion. California might have avoided this ruling by simply requiring the “clinics” in question to post a sign that they neither perform abortions nor refer clients to abortion providers. That would be a purely factual statement that is not controversial in any way whatsoever.

Enter Mad Mat Staver (according to CBN):

Liberty Counsel President Mat Staver called the NIFLA ruling a “prize,” especially when it comes to the California debate.

“That statue <sic> that they’re considering will be DOA,” he told CBN News. “The handwriting is already on the wall. SOCE cases are going to be a thing of the past.”

Staver said Liberty is prepared to file suit against the bill should it be enacted into law. California senators could vote on the bill, already passed by the state assembly, as early as Thursday. Staver said he has a number of plaintiffs for the case, including licensed counselors, non-profit ministries that work with people struggling with same-sex attraction and clients that want to receive help.

Staver is looking for a rerun of Pickup v. Brown with likely the same plaintiffs. Staver lost (more below).

Staver has said that his hate group, Liberty Counsel will file suit in every state with conversion therapy bans. Staver joins Pacific Justice Institute (another hate group) threatening to sue if California’s AB-2943 (which deems conversion therapy consumer fraud) becomes law. A third legal group, Tyler & Bursch, claims that they are in the process of preparing multiple law suits. It is a small firm in Murrieta, CA. It controls a 501(c)3 nonprofit: “Advocates For Faith & Freedom” with revenues of about $200,000 for the year ended June, 2017. Perhaps Robert Tyler or Jennifer Bursch want some attention.

My argument is that just because conversion therapy is talk therapy that does not mean it is constitutionally protected speech. In cases in California and New Jersey, the Ninth Circuit and the Third Circuit have upheld the bans on appeal as permissible regulation of professional conduct (more on these two cases below). The Supreme Court has declined to hear these cases three times; California twice and New Jersey once.

How the hell did this become a Christian crisis?

Christians might comprise two-thirds or more of society. However, potential clients of reorientation crackpots comprise a very small percentage of the small percentage of citizens who are LGBT. More people like the taste of milk of magnesia.

Why would anyone want to subject anyone else to something that has no scientific basis, is potentially toxic, isn’t effective and is opposed by every mainstream medical peer association? There are several reasons:

  1. Conversion therapy exists to “prove” that sexual orientation is not immutable which is intended to undermine nondiscrimination laws and marriage equality. In other words, it exists to justify discrimination.
  2. Restricting conversion therapy is, in the view of fundamentalist Christians, chipping away at what they call religious freedom (which is really Christian privilege). The fact that it affects a tiny group of people is irrelevant to them.

The folks at Tyler & Bursch are like to oppose these bans on religious freedom grounds. Their basis is probably Church of the Lukumi Babalu Aye v. City of Hialeah which held that an ordinance banning animal sacrifice was unconstitutional. Can these religious zealots sacrifice real human beings on the altar of religious literalism?

Brad Dacus at Pacific Justice Institute probably believes his own bullshit about Bible banning and other “outrages.”

Mat Staver is a unique piece of work. In 2012, Liberty Counsel and specifically Mat Staver represented David Pickup and a number of others in the California case, Pickup v. Brown. Staver lost at the Ninth Circuit. The Supreme Court rejected the case, twice.

In 2013 Liberty Counsel and specifically Mat Staver represented Tara King, NARTH, Christian Counselors, and a number of others in the New Jersey case, King v. Governor of New Jersey. Staver lost again. This time at the Third circuit. No help from SCOTUS.

Staver takes every loss to appeal because he has no paying client controlling expenses. He also believes (seriously) that he is in the service of his deity and is entitled to win his cases.

The Supreme Court declined to hear both cases and Staver has been fuming ever since. Mad Mat probably thinks that he can get another bite at the same apple. In a few years he might be able to get a case to the Supreme Court. He becomes irrational when he loses and sees the ruling in NIFTA as a gift from his god (seriously).

Staver is a young Earth creationist. He actually believes that Earth is less than 10,000 years old. For Staver, science is utterly irrelevant unless it confirms one of his beliefs. Staver probably believes that sexual orientation and sexual identity are bad choices that can be corrected with the right approach. He is not influenced by the lack of evidence. For Staver religious belief is everything. Belief is based on faith which does not require evidence.

Depending upon the constitution of the Supreme Court in a few years, the direction of prevailing winds, the phase of the moon, the height of tides and perhaps cumulative rainfall in the District of Columbia, Staver could prevail. As my friend said: “Who the hell ever promised that common sense would prevail?”

California’s proposed measure, AB-2943, protects children and adults. The state already has a law protecting children. I am content with the latter. I am satisfied if we protect children from the thoroughly misguided actions of parents who are in the religious bubble. They believe that sexual orientation and sexual identity are choices.

Oddly enough, conversion therapy blames, in part, those same parents for causing what they believe is a choice. To effect a change (that will not occur), the kid is shamed until he or she relents. The child is still gay or suffering from gender dysphoria but children learn to lie in order to obtain relief from the pressure. And that passes for family values.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.