California appeals court UPHOLDS prohibition of 'sexual orientation change efforts'

by Gregory Tomlin |

(REUTERS/Shannon Stapleton)A counselor works with a child using reading and therapy dog.

SAN FRANCISCO (Christian Examiner) – The Ninth Circuit Court of Appeals in Northern California has upheld a controversial state law that places the state between mental health counselors and young people dealing with same-sex attractions.

Senate Bill 1172, passed in 2012, prohibits state-licensed counselors, many who are working in church-related or church-based ministries, from employing "sexual orientation change efforts" – which are many times rooted in a discussion of religion.

On Aug. 23, the court rejected the claim of the Pacific Justice Institute (PJI) and the counselors it represented that the law's primary effect was prohibiting counselors from engaging in discussions with some minors who actually sought to change because of their religious convictions. It also ruled that the motivation for the change did not matter.

The court today simply rewrote legislative history to avoid the uncomfortable reality that the California Legislature unabashedly targeted religious beliefs with this bill.
- Kevin Snider, Pacific Justice Institute attorney

The court said the law has the "secular purpose of preventing harm to minors."

According to the law, "California has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts ... ... Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age."

Just after the law was passed, the PJI won a preliminary injunction against the state when it argued that the state was curtailing the free speech of counselors when sex is discussed. It also said the free exercise of religion was at stake.

The Ninth Circuit overturned the injunction, arguing that any "informed and reasonable observer would conclude that the primary effect of SB 1172 is not the inhibition (or endorsement) of religion."

PJI's attorney said the court was being disingenuous in its ruling.

"The court today simply rewrote legislative history to avoid the uncomfortable reality that the California Legislature unabashedly targeted religious beliefs with this bill," attorney Kevin Snider said in a press release.

Brad Dacus, president of Pacific Justice Institute, also said the ruling was a "giant step backwards for religious freedom."

"A government that can tell a pastor what he can and cannot say during counseling is a government that can tell a pastor what parts of the Bible are off-limits. The court also reminded us today that this law lays the groundwork for further restrictions on parental rights."

In its ruling, the appellate court said the plaintiffs were "in no practical danger of enforcement outside the confines of the counselor-client relationship."

The court also said the state had repeatedly rejected the idea that the law targeted pastors. The court said the law "does not apply to members of the clergy who are acting in their roles as clergy or pastoral counselors and providing religious counseling to congregants."

PJI and its attorney remain unconvinced. They are weighing an appeal to the U.S. Supreme Court.