Given the content of my previous two posts, it felt appropriate to repost the first two entries from my old blog. It's been a long time since I wrote these, but sadly, they can't really be considered outdated.
------ Post #1 - April 2, 2016 ------
Another piece of legislation (HB1840) has passed to protect 'religious freedom.'
I’ve posted the full text at the end of this document, but here are the highlights of HB1840:
No counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the counselor or therapist; provided, that the counselor or therapist coordinates a referral of the client to another counselor or therapist who will provide the counseling or therapy.So, a counselor or therapist (and the bill provides the loosest possible definition of those fields) can unload the responsibility of a client or patient on someone else, with no criteria for how soon they must do it after starting sessions, whether they must be upfront or even consistent in their policies, or whether the referral has to be for a better mental health provider.
Under this law, you could wait months to see a counselor or therapist, pay a substantial sum for an initial session, possibly some subsequent sessions, and then find out that, because of who you are, the provider won't help you. Not can't - just won't. After delivering that emotional kick in the gut, the provider will 'coordinate a referral' to push treatment onto another provider but (a) there're no standards established for what that entails, and (b) that doesn't get your time and money back. Nor will anything else - the counselors and therapists are protected from loss of state benefits, contracts, or licenses, criminal prosecution, and even civil action.
But disregarding vague wording of the law, the emotional damage to the client, the lost time and money for the client, I just want to consider the serious impact this will have on the availability of treatment for some of us.
To give an impression of the severity of impact:
I live in Knoxville, one of the largest cities in Tennessee. In all of the city of Knoxville, and the surrounding 10 miles, there are only three counselors that accept my insurance.
THREE.
Think about that, in the context of any other service, and remember that I don’t mean, ‘I have three good counselors to choose from,’ I mean, ‘I have THREE counselors to choose from.
Imagine living in a city with a population 183,000 people, and only having three food providers - the McDonalds 4.5 miles from your home, the Wendy’s 3.7 miles from your home, and the Burger King that’s a few blocks away. Want to go to a grocery store? Too bad, none of the grocery stores in your area are covered - better start waiting in line at Wendy’s, or better gas up the car to go to the next town (bare in mind, only three stations in town will fill up your car).
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| And one of them's going out of business soon. |
- If I was seeking treatment for bipolar disorder (like 4.4% of the US population), only 1 of the 3 counselors in my area could/would treat me for that.
- If I were picky about credentials, only 1 of the 3 has a PhD.
- If I had an emergency, only 1 of the 3 could see me tomorrow.
- If I had to work during the day, only 1 of the 3 could see me in the evenings.
- If I felt I needed to speak to a male counselor, I'd be entirely out of luck - all 3 are women.
- If I had difficulty communicating in English, I'd be in trouble - all 3 speak English only.
- If my ethnic/racial background were non-white, and I wanted to talk to someone like me, nope - all 3 are white.
Now, start adding in limitations due to "Sincerely Held Beliefs" (and bear in mind, most practitioners don't provide information about their beliefs upfront):
- Based on my religion, any non-Christian counselor (e.g., Atheist, Muslim, Jewish) and many Christian counselors (e.g., Catholics, Evangelicals, Mormons) could eventually refuse to treat me.
- I'm ‘straight’, but I’m pro-LGBT+ rights, so anyone whose religion condemns any form of relationship other than the definition of marriage as a monogamous union between a cisgender male and a cisgender female, could eventually refuse to treat me.
- I believe in using medication to treat mental disorders, so I can't expect to be treated by a Scientologist.
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| On the other hand, a Scientologist would probably only prescribe Speed. |
And that seems to be a point that a lot of people are missing. Anti-LGBT legislation is unacceptable as is, marginalizing and derogating a group of Americans that have as much right to service and care as any other American, but this reaches beyond even that, giving bigots a blank check for discrimination.
According to HB1840, I can be denied treatment based on the very broad criteria of my "goals, outcomes, or behaviors." The only thing that’s really omitted there are my own beliefs, which are only protected in so far as they do not influence my goals, outcomes, or behaviors - essentially, my moral/religious beliefs are only protected so long as I do not act on them.
A straight person who advocates for LGBT rights can be denied service if the counselor is 'sincerely' homophobic for religious reasons. A woman who's had an abortion can be denied service if the counselor is 'pro-life' for religious reasons. An interracial couple can be denied service if the counselor's religion prohibits 'mixing of the races'. Cohabiting partners can be denied service if the counselor’s religion condemns extramarital sex. Single mothers, women who want to leave an abusive marriage, women who are not planning to marry or have children, even women who show up without a male escort can be denied service. PEOPLE WHO EAT BACON, can be denied service.
And the law is both vague and subjective, placing the power of decision entirely in the service-provider’s hands. Extramarital sexual intercourse certainly violates some people’s beliefs - does it need to have been consensual for a counselor to reject someone for it? Or what if consent were given at one time and withdrawn at another (like when people break up)? And do our laws for consent even matter, if the care provider’s religious beliefs trump everything else? Think about the scope of the ramifications there.
A teenage girl who’s been raped by her boyfriend can be denied service by her high school’s guidance counselor.
Will people be denied service?
Probably only a few of us at first. Most people who've become Counselors or Therapists have been trained as professionals, trained to detach their personal beliefs from the services they offer to their patients (and do you really want a counselor who isn't?), and have committed themselves to ethics that prohibit discrimination.
Of course, you might hope the "free market" will weigh in; turning away customers is bad business, after all, and eventually the counselors will have to choose between their pocket book and their holy book, but in many areas, there aren't enough counselors to go around anyway. Would either of the two counselors I can potentially go to be significantly hindered if they turned me away? Probably not - it's a seller's market.
And while the mental healthcare professionals currently practicing in Tennessee may believe in fair treatment and tolerance, we can expect that to change as they are phased out by new generations of counselors. Individuals that might have said, "Hey, counseling's not for me, because I can't be that detached; maybe I should consider seminary," will instead say, "You know what Tennessee needs? More counselors that can help conservative Christians deal with the anxiety of liberal ****s trying to steal Christmas from them."
In the future, I won't be choosing between two or three white women for my mental health care needs, I'll be bouncing from referral to referral, and driving 50 miles to find the one counselor in Tennessee that'll see a liberal Christian. And her receptionist probably won't let me in, because it would violate his religious beliefs to allow me access to health care.
---------------- Full Text of HB1840 -----------------
(a) No counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the counselor or therapist; provided, that the counselor or therapist coordinates a referral of the client to another counselor or therapist who will provide the counseling or therapy.
(b) The refusal to provide counseling or therapy services as described in subsection (a) shall not be the basis for: (1) A civil cause of action; (2) Criminal prosecution; or (3) Any other action by this state or a political subdivision of this state to penalize or withhold benefits or privileges, including tax exemptions or governmental contracts, grants, or licenses.
(c) For purposes of this section, "counseling or therapy services": (1) Means assisting an individual, through the counseling relationship, in a manner intended to facilitate normal human growth and development, using a combination of mental health and human development principles, methods, and HB1840 008574 -2- techniques, to achieve mental, emotional, physical, social, moral, educational, spiritual, or career development and adjustment throughout the life span; and (2) Includes services described in subdivision (c)(1) provided by any person, whether or not such person is licensed, registered, or otherwise regulated by this state. SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.
------------ Post #2 - April 3, 2016 ----------
I published a post the other day that discussed the problem of allowing counselors and therapists to discriminate in taking clients based on the counselor or therapist's religious beliefs. The basic thrust of the argument was that, due to the essential role of mental health care providers and the barriers to access already present, the law would do real harm to people seeking mental health care resources.
The law sets only minimal standards for action and justification. A provider may terminate a patient or client’s care if the client has “goals, outcomes, or behaviors that conflict with a [provider’s] sincerely held religious belief.” No standards are set for whether a provider must maintain a consistent record of service denial, or make that record publicly known, so a provider may see you for any number of sessions, taking your time and money, before informing you that he or she cannot treat you any longer for religious reasons. The law requires only that the provider make a referral before terminating care of the patient, and sets no standards for the referral being made - it does not require that patients be referred to local providers, providers covered by their insurance, or even (because the law is so broad in its definition of of what constitutes a counselor or therapist) legitimately licensed providers.
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| I’m sorry, Tina, I can’t help you file a sexual harassment charge against your boss because you're a lesbian, but here’s the number of a life coach in Maui. :-) - Jill in HR |
In response to my post on Facebook, one person asked, essentially:
‘Isn’t there a constitutional amendment that protects our right to discriminate based on religion?’
That’s a commonly enough mentioned defense that it seems worth addressing.
The simple answer is:
No.
The long answer is:
There is no constitutional amendment which protects your right to discriminate against others based on your religious beliefs.
The confusion on this matter comes from the “Free Exercise Clause” of the first amendment, which along with the “Establishment Clause” generally governs the separation of church and state in the United States. The first amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Establishment Clause is the first part, “Congress shall make no law respecting an establishment of religion,” which basically says that the government cannot prohibit a religion or in any way endorse one religion over another (that’ll be important later).
The Free Exercise Clause is essentially, ‘Congress shall make no law ... prohibiting the free exercise [of religion].’ So, congress can’t pull a Cromwell and cancel Christmas.
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| Unfortunately, nothing overrules the Hallmark Claus. |
The ambiguity of the Free Exercise Clause leads some people to make up interpretations as they please, and to generally treat religion as a blank check that covers any bad behavior they want. However, the reality is that the Supreme Court settled this matter over one hundred years ago when it ruled on Reynolds v. the United States.
Reynolds v. the United States addressed the issue of polygamy in 1878, and whether or not a person’s religious beliefs exempted them from laws against it. The supreme court had to grapple with multiple issues, including whether or not the government had the right to pass laws concerning marriage, and whether or not the government was required to permit exemptions for religious freedom. This latter issue is what we contend with now. So again:
Do your religious beliefs entitle you to special protections under the law?
The simple answer was:
No.
The long answer was extremely long, but one of the key points was this -
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
So you can believe whatever you want, but you still have to obey the same laws as everyone else. The Supreme Court reasoned that providing special exceptions to the law based on religion is unfair to people who do not belong to that particular religion. Individuals of particular religions would be given special rights, privileges, and protections which other individuals would be denied. So, depending on your religion, the government would be granting you different advantages and freedoms over other citizens. That would basically be the definition of governmental favoritism, and that, of course, would violate the previously mentioned Establishment Clause. So, here’s a major point to remember:
When you cite the second clause of the first amendment as justification for getting special treatment under the law, you’re ignoring the first clause of the same amendment, the same sentence, which explicitly denies you that special treatment.
The other point the Supreme Court made in 1878 was that ignoring the Establishment Clause in deference to the Free Exercise Clause would be catastrophic for America. Allowing people to ignore established laws on the premise of religious freedom would basically annihilate the concept of government altogether:
To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
Laws are intended to protect the welfare of the people, individually and collectively. Breaking the law compromises that welfare, so, effectively, allowing the Free Exercise Clause to usurp the Establishment Clause would set precedent allowing citizens to inflict any form of harm upon each other in the name of their religious beliefs. In fact, the Supreme Court specifically cites human sacrifice and ritual suicide as examples of harmful actions which would be permitted if the Free Exercise Clause were not limited by observing the Establishment Clause.
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| 8 out of 9 Supreme Court justices believed hearts should stay in people's chests. |
The constitution must apply to all citizens, regardless of religion or lack thereof.
While your sincerely held religious beliefs may not support murder, if the Free Exercise Clause was given primacy over the Establishment Clause, any American member of ISIL would be well within his or her rights to come into your home and behead you for being a Christian. For that matter, a comet worshiper could poison your drink to ‘help’ you ascend, or an extremely devoted Warhammer fan could spill your blood for the blood god.
And the Supreme Court’s ruling in 1878 doesn’t just prohibit murder in the name of religion, it prohibits any infraction of the law in the name of religion, and we should be thankful.
- It prohibits Catholics (and everyone else) from driving people from their homes to build cathedrals.
- It prohibits Fundamentalists (and everyone else) from marrying 14 year old children.
- It prohibits Puritans (and everyone else) from dragging people into their churches to try them for witchcraft.
- It prohibits the Amish (and everyone else) from sabotaging our power grid to free us all from the shackles of modern technology.
- It prohibits Quakers (and everyone else) from avoiding taxes that might be used to fund our military.
- It doesn’t prohibit neopagans (or anyone else) from spamming our Facebook feeds to remind us of the non-Christian roots for most of our holidays, because that’s not a crime.
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| It’s just annoyingly repetitive and a little desperate. |
So, here’s the second major point to remember:
American citizens do not have a right to harm others, and religion does not give someone that right, no matter who they’re harming.
The constitution does protect your freedom of choice, though.
You have the choice to be a doctor. You have the choice to be a small business owner. You have the choice to be a civil servant. You have the choice to be a therapist. You have the choice to be a state legislator or governor. In your life time, the government has never and can never force you to choose, pursue, and engage in a career which will require doing tasks which conflict with your religious beliefs (even draftees can apply for conscientious objector status).
So if you were one of those people that felt that your faith in Christianity compels you to deny important mental health care to an LGBT teen being tormented by the bullies at his school, stop and consider this:
Were LGBT Americans your problem? LGBT people didn't suddenly appear after you started your job - they've always been here - and they only want to be treated like everyone else.
Was the government your problem? The government didn't make you responsible for the well-being of LGBT Americans, you took that responsibility on yourself when you chose your career, and the government isn’t treating you any differently from how it’s treating anyone else.
Was your religion your problem? No one can tell you whether your religion is right or wrong, because that’s your decision.
You are the problem. You believe strongly enough in your religion to hurt someone by marginalizing them and denying them things they need, but you don't believe strongly enough in your religion to take any risks yourself.
You want other people to make sacrifices for your religion, because in the end your pocket book is more important to you than The Holy Book.
So, either own up to the responsibilities you assumed when you took office, or own up to the beliefs you embraced when you chose your religion. Either do your job, or stop pretending to be a martyr and file your two weeks notice.
Just don’t expect anyone to show up for your last supper.
James N. McDonald is a "liberal academic" born and raised in Missouri and residing in Tennessee. He holds one degree in history, two degrees in psychology, but loves writing fiction. His first, completed novel, The Rise of Azraea, Book I, is a high fantasy story with elements of comic fantasy and satire targeting present day, real world issues such as economic inequity, and sexual and racial discrimination. It is currently available on Amazon.
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