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California Bill AB 2943 and What It Means for Religious Freedom

The Controversy: An Unclear Definition

The Christian Broadcasting Network published an article this week titled “One Step Closer to Law: Could a California Bill Ultimately Lead to the Banning of Bibles?”[1] The bill in question, AB 2943, is intended to outlaw the sale of “sexual orientation change” therapy. However, Christian attorneys argue that the bill’s language is so broad that it could be used to restrict the sale of not only therapy, but also Christian books and lectures—including potentially the Bible. The concern is greatly exaggerated, but not completely crazy.

AB 2943 outlaws the sale of “sexual orientation change efforts.”[2] It extends an earlier law (Senate Bill 1172), which banned mental health professionals from performing sexual orientation change efforts on children under the age of 18. That law defined sexual orientation change efforts as “any practices by mental health providers that seek to change an individual’s sexual orientation.”

In that definition, it’s pretty obvious that we’re talking about therapy, not the sale of books. The problem with AB 2943 is that it removes the phrase “mental health providers” from the definition. This is meant as a clarification that it’s unlawful for anyone to sell sexual orientation change therapy as a commercial service, not just for mental health providers to do so. But unfortunately the change of wording creates a new unclarity as to whether the sale of goods and services besides therapy would be included in the definition, which is why Christians are freaking out.

The phrase “sexual orientation change efforts” is a technical term from an American Psychological Association (APA) report on therapeutic techniques. Indeed, the whole preamble to AB 2943 consists of quotations from researchers about the ineffectiveness and risks of sexual orientation change therapies. In this context, it’s pretty clear that the bill is targeting the sale of therapies, not the sale of books.  It would be nice if the bill made that more explicit, but the unclarity is unlikely to become an issue in practice. Banning books is not the bill’s intention, and anyway books are protected under the First Amendment to the US Constitution.

The unclarity of the bill’s definition of sexual orientation change efforts has led to wildly different assessments of its implications.

On one side, Alliance Defending Freedom attorney Matt Sharp writes that “California AB 2943 makes it unlawful for any person to sell books, counseling services, or anything else that helps someone overcome unwanted same-sex attraction or gender identity confusion, . . . perhaps including the Bible itself.”

On the other side, Sacramento attorney Anthony Samson told Snopes.com that the bill would prohibit sexual orientation change therapy “as a commercial service in exchange for monetary compensation,” and that “It does not apply to the sale of books or any other kind of goods, and it does not prevent anyone from speaking or writing on the subject of conversion therapy in any forum.”

A court would likely rule in favor of Samson’s interpretation. However, the California legislature could easily put Christians’ concerns to rest by clarifying the definition of sexual orientation change efforts before passing the law.

The Context: Sexual Orientation Change Therapy

It’s important to put AB 2943 in context. Sexual orientation change therapy has a sordid history, and research suggests that it is ineffective and even harmful to patients.

In 2009, a task force assembled by the American Psychological Association reviewed the scientific literature on sexual orientation change efforts (SOCE). The task force’s report found that “participants in this body of research continued to experience same-sex attractions following SOCE and did not report significant change to other-sex attractions that could be empirically validated.” In other words, these therapies don’t work.

Furthermore, “We found that there was some evidence to indicate that individuals experienced harm from SOCE. . . . These negative side effects included loss of sexual feeling, depression, suicidality, and anxiety.”

The APA report goes on to offer a brief history of SOCE. A few therapists used gentle techniques, such as hypnosis, dating training, cognitive reframing, and cognitive redirection. However, most others used some form of aversion therapy, which involved imposing punishment whenever a patient experienced same-sex attraction. Today, psychologists consider the use of punishment in behavior therapy to be unethical and ineffective not only in changing sexual orientation, but also in changing other types of behavior. But as recently as two or three decades ago, punishment was a popular therapeutic technique.

Punishments ranged from mild—snapping an elastic band against the wrist—to outright torture, such as “providing electric shocks” or “inducing nausea, vomiting, or paralysis.” This was made worse by the fact that patients typically did not truly consent to the procedures; they participated due to pressure from family or social institutions.

In a 1996 documentary titled Legacies, an interviewee named Ray describes his participation as a therapist in a particularly troubling program at Brigham Young University (BYU) in the late 1970s. According to Ray, BYU administrators gave students caught in homosexual acts a choice between expulsion and electroshock therapy.  During the therapy, patients had electrodes strapped to their groin, thigh, chest and armpits. They then looked at gay pornography while the therapists monitored their breathing and heart rate. If patients’ heart rate increased, indicating arousal, therapists turned a dial to administer an electric shock.

And if they were a new patient then the current would be very low. . . . And from the reaction that I saw and also the muscle spasms that went on, I’m sure that it was painful. . . . When we got into the higher voltage with the people who had been doing it longer, you could see burn marks on the skin. And quite often they would also throw up during the therapy. . . . We did have some people who became completely asexual after undergoing the therapy. But no, we never changed anyone from gay to straight. . . . We had several people who committed suicide during the therapy. We had three different people who hung themselves in the Harris Fine Arts Center from the balcony.

Historian Connell O’Donovan recalls meeting a gay man in 1988 who had undergone the BYU therapy.

He requested that I remain at least six feet in distance away from him. He then rolled up his shirt sleeves and showed me his arms. The deeply-scarred skin on the inside of his arms looked like raw hamburger and I almost vomited from the sight. He informed me that he had participated in electric shock therapy at BYU in 1977 and had been allowed to turn up the voltage as high as he wanted to. The results were badly burned arms and a complete inability to come physically close to any male without him emotionally breaking down from the trauma.

Understanding this history helps explain why California Democrats want to ban sexual orientation change efforts, and why this is not a simple issue of religious freedom.

The Rub: Religious Freedom in California

Interestingly, the California bill does contain language that may targeted at religion:

California has a compelling interest in protecting the physical and psychological well-being of lesbian, gay, bisexual, and transgender individuals.

California has a compelling interest in protecting consumers from false and deceptive practices that claim to change sexual orientation and in protecting consumers against exposure to serious harm caused by sexual orientation change efforts.

To understand why this passage is relevant to religious freedom, you need to know a little history.

In 1878, a Mormon who had been arrested and charged for practicing polygamy (which was against federal law) challenged the law’s validity before the Supreme Court. The Court upheld the law, ruling that the right to religious freedom applied only to religious belief. The government could regulate action however it wanted.

That changed with the 1963 case Sherbert v. Verner, which held that the free exercise of religion does include action. Religious freedom still is not absolute, but if the government wants to restrict religious freedom, it must have a “compelling interest” in doing so.

Things changed again in 1990, with the case Employment Division v. Smith. The majority opinion, written by conservative darling Antonin Scalia, struck down the “compelling interest” standard and ruled that the government only needed to have a “rational basis” to regulate religious behavior. This much weaker standard made religious freedom claims virtually impossible to sustain in court.

In 1993, Democratic Congressman Chuck Schumer introduced a bill called the “Religious Freedom Restoration Act” which restored the “compelling interest” standard. The bill passed, and President Bill Clinton signed it into law. However, the Supreme Court struck back in 1997, ruling that the RFRA could only apply at the federal level; it did not apply to state laws.

Since 1997, many states have passed their own versions of the RFRA. Conceivably California might pass one in the future, but it does not currently have one. For now, the much weaker “rational interest” standard prevails in California.

So when AB 2943 declares that the state has a “compelling interest” in protecting gay and trans people from harm, it may be hedging its bets against a scenario where California passes an RFRA, and a Christian mental health provider who has been convicted for performing conversion therapy defends himself on religious freedom grounds. He might lose that claim if the courts rule that California’s stated interest in protecting gay and transgender people is compelling enough to justify the limitation of his religious freedom.

The Call to Action: A California RFRA

California Christians who are still concerned about the implications of AB 2943 might do well to contact their state legislator and ask that the legislature clarify the definition of sexual orientation change efforts. The change isn’t really necessary, but if it helps you sleep better, more power to you.

Christians who are concerned about religious freedom in California more broadly may want to focus their efforts on passing a California RFRA. The original RFRA at the federal level was a Democratic initiative, so the left-leaning California legislature may be open to the idea. Alternatively, California citizens can put an RFRA on the ballot directly through the initiative process and pass it by a popular vote.

 

Notes

[1] Hint: usually when a headline asks a question, the answer is “no.”

[2] Here’s the relevant text from AB 2943: “The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful: . . . Advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual.”

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Comments

  1. Thanks for the somewhat fair article. The vague language justifies the outrage from the standpoint of those who oppose the bill; its intent has more teeth in terms of regulating even wholesome counsel from the standpoint of faith groups who will not be compromising their consciences and shrugging off the severity of the consequences for sexual perversion and license. That said, I’m sure that we have not really understood the other side of the narrative in terms of the negative effects of bad therapies (none of which happen in a pastoral counseling situation). The fact remains, however, that the groundswell of antipathy towards this bill is from those who know how regulation like this plays out against churches, associated schools and universities, and Christian ministry professionals in general..

  2. Rebecca Byers says:

    I almost thought this would be an unbiased explanation. Almost. Pardon me, your agenda is showing…

  3. Welcome to my blog, y’all. Also, welcome to the world of essays. This is a work of analysis. It takes a perspective. This is how adults write and communicate. Saying “your agenda is showing” while no attempt to hide the author’s perspective is made…shows that you need to get out more.

  4. David Smedley says:

    There is a lot to say about how far this 2943 bill could be extended, but it seems simple enough to me that the sale of the Bible or what the specific content of scripture states is not hate speech. God loves us ALL. God does not necessarily love everything we do though. That is all between God and the individual.

  5. Let my religious freedoms belong to me, keep your believes to yourself.

  6. Summar Real says:

    When is this law expected to pass?, If it does?

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