Tuesday, February 28, 2012

Circuit Split Watch: Counseling Standards v. Religious Values

This article first appeared in the February 27, 2012, issue of the National Law Journal’s Supreme Court Insider.

The U.S. Supreme Court may soon have the chance to review conflicting decisions about students who have been expelled from state university counseling programs for requesting not to counsel gay clients or wanting to “convert” them.

In both cases, the students allege violations of their First Amendment free speech and expression rights, while the university defendants allege student violations of the American Counseling Association standards.

Counselors and clients can have very different outlooks. As Will Meyerhofer, a therapist and lawyer who regularly contributes to Above the Law, writes, “I’ve worked with clients who collect guns, and eat meat and live for professional sports,” while he, the counselor, is “a gun control-espousing, vegetarian esthete.”

But, what about differing religious values?

Although she had not yet entered the one-on-one phase of her counseling program, Jennifer Keeton, a Christian student at Augusta State University in Georgia, had actively espoused “conversion” to heterosexuality for gay clients.

“Every profession has its own ethical codes and dictates,” explained Judge Rosemary Barkett for a three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Keeton v. Anderson-Wiley, which rejected the student’s appeal. “Lawyers must present legal arguments on behalf of their clients, notwithstanding their personal views. Judges must apply the law, even when they disagree with it. So too counselors must refrain from imposing their moral and religious values on their clients.”

Judge William Pryor, a conservative appointee of President George W. Bush, was part of the unanimous panel.

In the 6th Circuit, on the other hand, the student won. Judge Jeffrey Sutton, another conservative Bush appointee, wrote for the unanimous three-judge panel in Ward v. Polite. Sutton recently made news for crossing party lines to uphold President Obama’s health care law.

Julea Ward, a counseling student at Eastern Michigan University who is a Christian, asked that a gay client seeking relationship counseling be referred to someone else. Ward’s supervisor allowed the referral, but disciplinary proceedings followed.

“Tolerance is a two-way street,” Judge Sutton stated, finding that the case should go to a jury. The relevant professional standards do “not require an atheist counselor to tell a person of faith that there is a God if the client is wrestling with faith-based issues.” Sutton indicated that Ward’s referral was in the client’s best interest because he “would receive treatment from a counselor better suited to discuss his relationship issues.”

Sutton distinguished the 11th Circuit decision in Keeton, noting that the student there intended “to engage in conversion therapy,” which “all agree” is a violation of professional standards. Rather than “insisting on changing her clients, Ward asked only that the university not change her—that it permit her to refer some clients in some settings.”

Sutton’s blessing of Keeton, along with Pryor’s joining in it, may forecast how some conservatives on the Supreme Court could view the case; namely, as an easier call than Ward. Others would argue, though, that the distinction Sutton draws is not meaningful, because requesting not to counsel a gay client and planning to proselytize to that client are fruit from the same tree, and both need to be reviewed.

The Supreme Court could soon have that opportunity. The 11th Circuit recently denied rehearing en banc in Keeton, so a petition for certiorari could be filed shortly. The 6th Circuit is currently considering whether to grant a petition for rehearing en banc in Ward.