Author archives: Peter Sprigg

Times Op-Ed Admits Key Justifications for Gender Transition are False

by Peter Sprigg

November 28, 2018

As recently as ten years ago, it would have been unthinkable that The New York Times, the “grey lady,” the so-called “paper of record,” would run an article with the headline and sub-head, “My New Vagina Won’t Make Me Happy; And it shouldn’t have to.” But that’s what happened on November 25.

Andrea Long Chu was “born a boy” (don’t ban me, Twitter—this is what Chu said). Chu’s op-ed began, “Next Thursday, I will get a vagina.” In other words, this biological male will undergo gender reassignment surgery.

In a 1,200-word piece, Chu vigorously defends that choice. But by bluntly telling the truth about the prospects for patients after such surgery, Chu effectively debunks most of the mythology that underlies the transgender movement’s policy demands. There is nothing so dangerous to the sexual revolution as one of its advocates who admits the truth.

Ryan Anderson of the Heritage Foundation, author of the most definitive conservative book on the transgender movement (When Harry Became Sally), has written a lengthy and detailed response to Chu’s piece in Public Discourse. (Chu had attacked Anderson by name.) But here is a condensed summary of Chu’s remarkable concessions.

Myth: Gender reassignment surgery can make a man into a woman.

In the third sentence, Chu admits that this surgery will not magically make him a woman: “Until the day I die, my body will regard the vagina as a wound.” Chu also essentially admits it will not make him look like a woman, saying, “When she [“my girlfriend”] tells me I’m beautiful, I resent it. I’ve been outside. I know what beautiful looks like.”

Myth: Gender transition makes transgender people feel better.

Chu: “I feel demonstrably worse since I started on hormones.”

Myth: Gender transition alleviates “gender dysphoria.”

Chu: “Like many of my trans friends, I’ve watched my dysphoria balloon since I began transition.”

Myth: Allowing cross-gender hormone treatments and gender reassignment surgery is necessary to prevent transgender people from committing suicide.

Chu: “I was not suicidal before hormones. Now I often am.”

Chu also has a beef with the medical profession—practically all of it. Some doctors, like esteemed psychiatrist Paul McHugh of Johns Hopkins University, argue that gender transition treatments should not be offered because they fail to ease the suffering of transgender people. Others, who wish to affirm the latest ideologies, like those in the World Professional Association for Transgender Health (WPATH), argue these treatments should be available because they do ease suffering. Chu accuses both camps of “compassion-mongering”—“peddling bigotry in the guise of sympathetic concern.”

Chu directly and explicitly attacks a core principle of medical ethics, known as “nonmaleficence”—the idea that doctors should “first, do no harm.” In its place, Chu substitutes the philosophy that I believe is at the core of the entire LGBT movement—one of radical personal autonomy.

To Chu, the potential for harm from a gender transition is irrelevant: “I still want this, all of it. I want the tears; I want the pain. Transition doesn’t have to make me happy for me to want it.” Chu believes that “surgery’s only prerequisite should be a simple demonstration of want.”

Ironically, the world that Chu envisions—where desire is all that matters—is very close to the world we already live in. If Chu wants gender reassignment surgery, can find a doctor willing and able to perform it, and is willing to pay for it, he can obtain it. Although I believe that there are serious ethical concerns about such procedures, virtually no one is trying to erect any legal barriers to people obtaining them voluntarily at their own expense. (This is in notable contrast to how the Left approaches the issue of sexual orientation change efforts, and now seeks to prevent even adults with unwanted same-sex attractions from obtaining such care.)

The public policy concerns regarding transgenderism virtually all center around the efforts of the Left to force people to do things they do not want to do—affirm, celebrate, and subsidize (as payers of taxes or insurance premiums) such procedures. We can only hope that Chu’s admission that these procedures are elective and cosmetic—not “medically necessary,” as is usually claimed—will relieve the pressure for such a denial of the personal autonomy of those of us who choose not to publicly affirm the transgender movement.

Truth Obscured by Hollywood Take on Sexual Orientation Therapy

by Peter Sprigg

November 13, 2018

LGBT activists are pushing for an end to sexual orientation change efforts (SOCE)—the various forms of voluntary religious or secular counseling or therapy (referred to by critics and the media as “conversion therapy”) intended to help people with unwanted same-sex attractions to overcome those feelings or not act upon them. That campaign suffered a setback in August 2018 when an extreme version of a SOCE therapy ban, AB 2943, was withdrawn by its sponsor after strong resistance, especially from the religious community.

However, critics of SOCE are now hoping for a boost from the release of a new movie, Boy Erased, intended to dramatize the problems they associate with “conversion therapy.” The movie, starring Russell Crowe and Nicole Kidman as the parents of the college student sent to counseling, premiered in limited release on November 1, and is gradually being rolled out around the country.

The movie is based on a 2016 memoir with the same title by Garrard Conley. Conley was a 19-year-old Arkansas college student in 2004, when he attended one-on-one counseling and then an intensive two-week group program offered by Love in Action (LIA), a Memphis ex-gay ministry run by John Smid, a man who had testified to his own transformation from gay to ex-gay.

In anticipation of the movie’s release, I recently read the book on which it is based. On November 8, the first day the film was screened in the D.C. area, I went to see it. The first screening in downtown Washington was sold out, but I was able to catch a later screening in a nearly empty theatre in Bethesda, Maryland. What follows will address both the book and the movie, but I will focus primarily on the book.

Conley and Love in Action

I will say one thing in the book’s favor—it does not appear to be a complete fabrication. That is more than I can say for some testimony given in favor of state therapy bans—accounts which have either been proven false or are highly suspect. Love in Action was a real organization, and the approach Conley describes in the book is roughly consistent with group therapy used by some (not all) such ministries. According to Conley, his personal memories were augmented by LIA’s 274-page handbook—which he still has.

This means that in Conley’s account, there is no electric shock therapy; no application of heat or ice to create an aversion to homosexual stimuli; no deliberate exposure to heterosexual or homosexual pornography; in short, none of the horror stories one usually hears about outdated treatments that were abandoned 40 or 50 years ago. Although often raised in critiques of SOCE, no one has been able to prove that any of these methods have been used in this century.

Another common charge is that minors are coerced into therapy by their parents. Therefore, it’s important to note that Conley was not a minor when he went to LIA, and he states explicitly, “I was here by my own choice.” Despite its short term of two weeks, Conley’s program was not even a residential one—he spent evenings in a motel room with his mother. This was no “conversion therapy camp” as they are sometimes depicted.

What the book, and at least the first part of the movie, feature instead is lots of talking and lots of writing. This makes the book and first half of the movie, frankly, rather boring.

Smid (depicted in the film as “Victor Sykes”) and LIA approached homosexuality using an addiction model, and many of their techniques were borrowed directly from the Twelve Steps of Alcoholics Anonymous (AA). Different programs and different therapists use different methodologies—what unites SOCE is only the goal, not any particular technique. While AA and other twelve-step programs have their critics, as far as I know no one has ever tried to outlaw them.

For example, one exercise drawn directly from AA was the “Moral Inventory”—an effort to account in writing for as many past sins as the participant could recall. Another exercise was drawing a “genogram”—essentially a family tree noting patterns of sinful behavior by various forebears and relatives. These techniques may be questioned by some—but hardly constitute “torture,” or even stirring drama.

The Real Trauma

That’s not to say there are no traumatic events in Boy Erased—it’s just that most of them predate or are unrelated to the LIA program. In the book, Conley admits that in early puberty, he was so addicted to video games he would urinate on his bedroom carpet, rather than walk to the bathroom. (Later, in college, he would urinate in empty water bottles in his dorm, putting them under his bed to be discovered later.) In high school, he would “crouch on the toilet seat to hide from overcrowded lunch tables.” Conley, a runner, admits that in the summer before he started college, “my weight loss took an angry, masochistic turn that verged on anorexic”—something even a gay-friendly family doctor would call him on. Conley also admits several times to having suicidal thoughts. Note that almost all of these things happened before he went to LIA—and all were omitted from the movie.

If Conley had chosen to re-frame his story, it could have put an important male twist on the #MeToo movement. The worst thing that happened to Conley, and to the lead character in the film (renamed “Jared”), was that he was raped by a fellow male college student in a dorm room. (The under-a-blanket rape scene, as well as some strong language, are the main reasons for the film’s R rating.) The rapist then confessed to having done the same thing to a younger teen in the youth group at his church.

Conley told a pastor at his Presbyterian college about the latter crime—and was told “to stay quiet” because “there was nothing to be done.” However, he told no one—not the pastor, his parents, nor Love in Action counselors—about the assault he had suffered. He remained silent on this point even after the rapist was the one who “outed” him as “gay” to his parents. One is left to wonder whether his counseling might have had a different outcome if he had been more honest with the people who wanted to help him.

Family Dynamics

Family dynamics play an important role in Boy Erased—but this is one of several areas in which Conley appears to have misunderstood the theory behind some SOCE. It is true that many counselors have identified a pattern which is common (but not universal) among men with same-sex attractions, in which these men had strained relations with their fathers and male peers and unusually close relationships with their mothers.

This is the exact pattern evident in Conley’s description of his own life. With his father, a Christian car dealer who experienced a mid-life call to pastoral ministry, Conley had “moments of misunderstanding” that were “often damaging.” Sports is a common way for a boy to bond with his father or peers, but Conley admits, “It’s true that I was never any good at sports… I never liked to toss the ball with my father in the front yard.” (The film, however, makes “Jared” a high school basketball player.) With his mother, a glamorous Southern belle who married “in her sixteenth year,” he would go “to Memphis for weekends of shopping and movie binging.” In fact, when client Conley tells a counselor, “Yes, my mother and I were too close,” author Conley calls it his “first ex-gay utterance.”

The climax of both the book and the movie—and the incident that led to Conley walking out of LIA before the program was over—was an exercise called “the Lie Chair” (the name is puzzling, since it involves telling the truth). Conley was instructed to sit across from an empty chair “and imagine your father sitting across from you and you saying everything you’ve always wanted to tell him but couldn’t.” Conley says, “I tried working myself up into an angry fit,” but finally declared, “I’m not angry”—and walked out, never to return.

Conley seems convinced that the family dynamics theory did not apply to him, because his parents were not actually abusive—just once, “my father had raised his fist to strike me,” but thought better of it—and because he loves them. He does not seem to understand that there can be a deficit in meeting the developmental need for warm, non-sexual affection from the same-sex parent, even in the absence of any overt abuse.

Distorted Theology

Conley also seems to have a distorted view of Christian theology. For one thing, he (like many LGBT activists) seems obsessed with “Hell”—far more than any Christians I know, or any pastors I’ve ever heard preach. Even after having his horizons broadened by going to college, Conley declares, “I still believed that I would feel its fire licking my skin for all eternity if I continued on this path.” As an evangelical Christian myself, I also believe in hell (capitalizing the word, as Conley does, is unnecessary). Yet I’ve never believed—and know no one who teaches—that merely being (or becoming) straight is the key to avoiding it.

Critics of SOCE, including Conley, are also obsessed with “shame,” and a belief that such counseling operates by instilling a sense of shame over the client’s homosexuality. Yet every sexual reorientation therapist I have met has said the exact opposite—that one of the primary goals of such therapy is to overcome the shame that clients already feel when they begin therapy.

In fact, despite Conley repeatedly associating LIA and its teachings with terms like “self-loathing” and even “self-annihilation,” the actual quotations from LIA’s handbook and other materials express the opposite:

  • I believed many lies that I was worthless, hopeless, and had no future.”
  • I’ve learned that I am loved and accepted even though I have been involved in sexual addiction.”
  • I have worth. I am intelligent, funny, caring and strong.”

Film Fabrications

Because “moral inventories” and “genograms” don’t exactly make for compelling cinema, the filmmakers spiced up the last half of the film—by adding scenes that didn’t actually happen. The most dramatic—and most outrageous for its absurdity—is one in which an uncooperative LIA client is literally, physically beaten with a Bible (by family members including, apparently, his own little sister). Perhaps this is meant to be a metaphor for spiritual abuse, but some gullible viewers are likely to take it literally.

The character Jared’s “escape” from LIA is exaggerated in the film. Apart from having to ask a second time before his cell phone was returned, the book recounts no effort to physically prevent him from leaving or his mother from reaching him, the way the movie does. And the film’s biggest emotional gut punch is when we learn that the fictional victim of the fictional “Bible-beating” has committed suicide. (In his book, Conley reports no such event, but writes, “Various bloggers” have estimated that “twenty to thirty” suicides resulted from LIA, “though figures like these are impossible to pin down.” That’s probably because they are made up.)

One thing the film does somewhat better than the book is address the character Jared’s nuanced relationship with his parents after he left Love in Action. However, we have no way of knowing if the portrayal is a truthful one reflecting Conley’s actual experience, or merely a dramatic one serving Hollywood’s purposes. In the book, Conley addresses the decade after his LIA experience only cryptically, and somewhat confusingly. His father never followed through, apparently, on a threat to withdraw funding for his college education. Yet describing visits to his parents’ home, he declares, “I will refuse to even look at my father.” He concludes the Acknowledgments, though, by saying, “Thank you, most of all, to my mother and father, whose love has made all the difference.”

Love in Action—The Rest of the Story

In 2005, a year after Conley left Love in Action, the ministry was subjected to a storm of controversy after a teenager named Zach Stark complained on social media that his parents had sent him to LIA’s residential program for adolescents, called “Refuge.” (The Boy Erased film conflates this program with the adult-focused one, “The Source,” that Conley attended—a staffer in the film says, “Welcome to Refuge,” but the notebooks say “Source” on the cover.) This sparked a round of protests by LGBT activists, and investigations by Tennessee state officials.

State officials said LIA required a license because they were providing mental health treatment; LIA insisted it offered discipleship programs, which are exempt from state regulation. The Alliance Defense Fund (ADF, now known as the Alliance Defending Freedom) filed a federal lawsuit to protect LIA, and ultimately prevailed, with the state dropping its efforts to regulate the LIA ministry.

The controversy about the short-lived Refuge program seems to be the source of the mythology that there is a network of “conversion therapy camps” across the country holding teens against their will. The trailer on the film’s official website ends with the dramatic and absurd declaration, “77,000 people are currently being held in conversion therapy across America.” Yet the Refuge program—then already defunct—was the only such program identified in a 2009 American Psychological Association report on sexual orientation change efforts. Indeed, a 2015 Ph.D. dissertation agreed that “it is likely the media frenzy surrounding the story of 16-year-old Stark being forced into a conversion therapy residential program by his parents in 2005 led to these bans” on such therapy for minors.

The controversy took a toll on Smid, however, and on the ministry. In 2008, Smid resigned; he has since returned to living as a homosexual and married a man in 2014. Smid now has a gay-affirming ministry called Grace Rivers, and has apologized for the work he did with Love in Action. (LIA, under new leadership and with a completely new ministry model, changed its name to “Restoration Path” in 2012.)

Conclusion

The therapy bans enacted in fourteen states so far apply only to licensed mental health providers and only to clients who are minors. Since Garrard Conley was not a minor and Love in Action was not licensed by the state, his experience would not have been affected by such a law, even if one had been in place in Tennessee. Ironically, the passage of such laws, cutting off access to care consistent with their values from licensed providers, might only have the effect of driving desperate parents and clients into the hands of unlicensed religious programs such as Love in Action. For SOCE skeptics who see this as undesirable, therefore, such laws may actually be counter-productive.

California’s AB 2943, on the other hand, would have applied to any SOCE provider or program that charges a fee, even religious and unlicensed ones. This type of approach, however, raises constitutional questions even beyond those raised by the license restrictions.

Regardless of what one thinks of Conley’s story, its fictionalized film version, John Smid’s story, or the techniques of Love in Action, they all represent only anecdotes about a particular instance of sexual orientation change efforts. They cannot be taken as representative of all SOCE. The claim that SOCE in general has been shown to be ineffective and harmful is not supported by the scientific research.

Boy Erased is not particularly entertaining; and not at all informative for making policy regarding sexual orientation change efforts.

The Times En-“genders” Controversy with Ignorance of “Sex”

by Peter Sprigg

November 5, 2018

When I was a college student in the New York metropolitan area, I subscribed to the New York Times. For a while, I even set the goal of reading every article that appeared on the front page, no matter what it was about. I thought if it was important enough to be on the front page of the New York Times, it was important enough for me to read it. It was known, after all, as “the paper of record.”

Oh, how the mighty have fallen. On October 22, the Times published—on the front page—one of the worst-written, worst-edited newspaper articles I have ever read.

The article begins, “The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth . . .”

The fake news begins with the eighth word of the article—“gender.” It is simply untrue that the Trump administration is re-examining the definition of “gender.”

What is actually under consideration is the definition of the word “sex”—particularly where it appears in a law or policy that forbids discrimination on the basis of “sex.”

This is evident in the parts of the article that quote or directly cite a draft memo leaked to the Times from the Department of Health and Human Services, such as these (emphasis added):

  • Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo . . .
  • The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”
  • For the last year, the Department of Health and Human Services has privately argued that the term “sex” was never meant to include gender identity . . .

Despite this evidence from their own reporting, the Times reporters continued throughout the article to use the word “gender” instead. For example (emphasis added):

  • The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender . . .
  • The agencies would consider the comments before issuing final rules with the force of law — both of which could include the new gender definition.
  • The department would have to decide what documentation schools would be required to collect to determine or codify gender.

What’s wrong with this? Well, the very people who were stirred to outrage against the Trump administration by the Times article—transgender activists and their allies—are the ones who have been telling us for years that gender is not the same as sex! Yet the New York Times breezily assumes that the two words are synonymous. This mistake would not be tolerated in the average undergraduate term paper—yet somehow it slipped by the editors of the New York Times.

Unless it didn’t slip by at all.

In reality, there is little dispute that the word “sex” refers to biology. The American Psychiatric Association, for example—hardly a bastion of conservatism—defines “sex” as “Biological indication of male and female (understood in the context of reproductive capacity) …” Nor is there any dispute (even among conservatives) that the phrase “gender identity” commonly refers to a subjective, psychological state of, as the APA puts it, “an individual’s identification as male, female or, occasionally, some category other than male or female.”

The word “gender” standing alone, however, is ambiguous and contested ground. It has come to be used as a reference to someone’s essential “maleness” or “femaleness.” The cultural and social debate is about whether that is determined by a person’s objective “sex” (biology) or their subjective “gender identity” (psychology).

However, this debate is largely irrelevant in interpreting and applying current federal law—which is what the Times article was ostensibly about. Few federal laws or regulations even use the word “gender.” The key ones mentioned in the article—non-discrimination provisions in statutes regarding education (Title IX, 1972), employment (Title VII of the 1964 Civil Rights Act), and health care (the Obamacare law)—all use the word “sex,” not “gender.”

If the Times’ unjustified conflation of the words “sex” and “gender” did not arise from incomprehensible ignorance, it can only have arisen from inexcusable bias. Acting as though the clear-cut term “sex” is the same as the ambiguous term “gender” seriously tilts the playing field in favor of the Left’s preference for psychological rather than biological definitions. It assumes the very point that is in dispute.

This is bad logic—as well as bad journalism.

Allied for Truth and Freedom Regarding Unwanted Same-Sex Attractions

by Peter Sprigg

October 15, 2018

Some of the most compassionate and courageous—and least politically correct—people in the country are mental health providers who assist clients with unwanted same-sex attractions. I had the privilege of spending time with some of them on October 5 and 6 in Orlando, at the annual conference of the Alliance for Therapeutic Choice and Scientific Integrity (“The Alliance,” formerly known as the National Association for Research and Therapy of Homosexuality, or “NARTH”).

Although LGBT activists have been critical of sexual orientation change efforts (SOCE) for decades, the threat to such therapy has become an existential one only in the last six years, as several states have enacted laws prohibiting licensed mental health providers from engaging in SOCE (often referred to by critics and the media with an outdated term, “conversion therapy”) with minors. However, this year’s Alliance conference came in the wake of an unexpected win, when an even more extreme therapy ban proposal in California was withdrawn by its sponsor, Assemblyman Evan Low, on August 31 (the last day of the legislative session).

The conference featured a variety of presentations and workshops touching on medical, clinical, and cultural issues, as well as research. Attorney Geoff Heath gave an overview of the therapy bans—including several different arguments as to why they should be found unconstitutional. He touched on ways in which they infringe freedom of speech and the free exercise of religion, in addition to noting the more technical legal principle that they may be “void for vagueness.”

It is ironic that attacks upon such therapies have grown ever more extreme, even as the therapists themselves are becoming ever more scrupulous about following “best practices” that avoid the kind of behaviors (such as “coercion” of clients or “guarantees” of complete transformation) of which they are regularly accused. Christopher Rosik, Ph.D., introduced an updated set of Guidelines for the Practice of Sexual Attraction Fluidity Exploration in Therapy (or “SAFE-T,” an acronym coined by the Alliance to better describe the actual focus of such therapy). This carefully reasoned and thoroughly documented 62-page document (not yet available on the Alliance website, at last check—an older version is here) features 13 specific guidelines to ensure that client goals are respected, fully informed consent is obtained, and any potential harm is avoided.

Several sessions addressed research questions. Philip Sutton, Ph.D., gave an introductory presentation with the explanatory title, “Are Same-Sex Attractions and Behaviors (SSA) REALLY Innate, Inconsequential, and Immutable? What Research and Demonstrable Clinical Experience Does and Does Not Show.” Key research findings he explained show that:

  • SSA is not innate.
  • SSA is consequential (that is, it does have many significant negative consequences and co-occurring difficulties—undermining claims that it is a “normal, positive variant of human sexuality”).
  • SSA is mutable (that is, it can change).
  • Some intended and beneficial changes in SSA (often along a continuum) occur through professional and pastoral assistance.
  • Therapeutically assisted change is not invariably harmful.

One of the conference keynote speakers, the Rev. D. Paul Sullins, Ph.D., discussed several research questions. He described existing research showing that the genetic influence on the development of homosexuality is relatively small, while showing that the influence of being a victim of child sexual abuse on developing a later same-sex orientation is significant—both of which undermine the theory that people are “born gay.” He discussed follow-up research he has done (but not yet published) concerning children in same-sex or opposite-sex parent households. He also discussed findings regarding the crisis involving sexual abuse of minors by Catholic priests. (Dr. Sullins is a Catholic priest himself, albeit an unusual one—he is married, having been a married Episcopal priest before converting to Roman Catholicism.)

Carolyn Pela, Ph.D., provided useful training on how to evaluate published research studies. She noted the existence of several different types of studies—exploratory, observational, quasi-experimental, and experimental. Exploratory studies are just that—they simply explore a topic, often through anecdotal accounts, but are incapable of arriving at conclusions that can be generalized to a larger population. Ironically, an often-cited 2002 article on the potential harms of change therapies by Ariel Shidlo and Michael Schroeder was, by its own account, merely an exploratory study, and thus offered no conclusions about the actual prevalence or likelihood of such harm.

Observational studies can demonstrate correlations between variables (“A is often accompanied by B”), but cannot definitively prove causation (“A causes B”). However, correlational studies can still be highly important—the conclusion that smoking is associated with lung cancer was based on correlational studies, for example. Only an experimental design can scientifically prove a causal relationship, but that requires the existence of a control group and random assignment to the study group or control group (this is how studies of new drugs are conducted, for instance). But for some research questions, a truly experimental design is either not practical or not ethical—studies of parenting outcomes, for example, would require that children be randomly assigned at birth to parents! Pela also reviewed questionable research practices that can be found in the areas of recruiting, research procedures, and reporting of results.

One of the clinical presentations was offered by Joseph Nicolosi, Jr., Ph.D. His father, one of the founders of the Alliance, died suddenly in 2017. Dr. Nicolosi, Jr. is carrying on his father’s work, but re-branding it—quite literally, in that he has trademarked the term “reintegrative therapy” to describe his approach (and to distinguish it from the ill-defined term “conversion therapy”). His father had coined the term “reparative therapy” in the 1990’s, but this was often (mistakenly) taken as implying a view that homosexuals were broken and needed to be “repaired.” Nicolosi, Jr. introduced an approach he calls the “reintegrative protocol,” which he insisted is not premised on any particular view of sexual orientation and can be used by therapists of any ideological persuasion. Its goal, he said, is not to change sexual orientation, but to heal trauma and sexual addiction—but a change in same-sex attractions may sometimes result when the protocol is followed. 

Two films were also screened at the conference. One, Voices of the Silenced, is an international effort produced by British expert Michael Davidson. It features personal testimonies from clients as well as from experts about the potential for sexual orientation change, while also placing the issue in a larger cultural and historical context, noting how the sexual revolution represents an effort to undo the advances made by Judeo-Christian culture and return to the pagan worldview of ancient Greece and Rome. The other, Free to Love (a 38-minute documentary that can be viewed free online), presents an overview of the debate over SOCE in the American context, and includes interviews with four ex-gay men as well as the views of attendees at a Gay Pride event.

Although geared largely for therapists, the Alliance conference is an important event every year for public education and networking as well. With the freedom to seek change ever more under attack, the Alliance is a vital ally in promoting the truth and protecting clients’ rights to self-determination.

Five Myths About “Gender Identity”

by Peter Sprigg

September 19, 2018

Adapted from remarks by Peter Sprigg, Senior Fellow for Policy Studies, Family Research Council

to World Congress of Families – Chisinau, Moldova

(Panel Discussion on “Gender Ideology—The Latest Attack on the Family and the Legal Challenges It Poses”)

Friday, September 14, 2018

 

Good afternoon.

I want to share with you today five myths about “gender identity.”

These are five things that are believed and taught by transgender activists, which simply are not true.

1. If the mind is in conflict with the body, the mind is right.

This is the most fundamental belief of the transgender movement. If a person is biologically male, but that person feels or believes that he is a woman, then he is female. And if a biological female believes she is male, then she is male.

But why should anyone believe that?

Contrary to the claims of the transgender activists, this belief is not “scientific.” In fact, since science deals with an examination of the physical world, the rejection of the physical body is anti-scientific.

The belief that the mind is right and the body wrong when they conflict is a philosophical—almost a religious—viewpoint. It has nothing to do with science.

It is bad enough when adults are deceived in this way—but it is tragic when it happens to children. Certainly, some children, even from a very young age, engage in behaviors that do not conform to the typical expectations for their sex.

However, myth number two is:

2. Gender non-conforming children will always grow up to be transgender adults.

Actually, there is much evidence that the vast majority of such children, if left to themselves, eventually accept their biological sex. According to the American Psychiatric Association, anywhere from 70 to 97.8 percent of gender non-conforming boys, and 50 to 88 percent of gender non-conforming girls, will not become transgender. However, if they are encouraged by adults to make a social transition, and they receive hormones that prevent normal puberty from occurring, they may be locked in to a path that leads to great suffering.

3. Gender transition (hormones and surgery) is “medically necessary.”

This is the claim that transgender activists make in order to justify forcing government health programs and private health insurance companies to pay for these expensive procedures.

This claim has everything to do with money, and nothing to do with medicine.

The vast majority of people who identify as transgender are physically normal, physically healthy people. Hormones and surgery do not help their bodies work better—instead, they destroy healthy body systems and healthy body parts.

The claim is that hormones and surgery are “necessary” to improve the mental health of transgender people, not their physical health. Has evidence proven this? No.

In 2016, the U.S. Centers for Medicare & Medicaid Services, which oversees two of the largest federal health care programs, refused to order routine coverage for gender reassignment surgery. They said:

  • [T]here is not enough high quality evidence to determine whether gender reassignment surgery improves health outcomes.”
  • Overall, the quality and strength of evidence were low.”
  • The four best studies “did not demonstrate clinically significant changes” for the better.

One of the best studies, out of Sweden, showed the following about patients after they had gender reassignment surgery. Compared to the general Swedish population, they were:

  • 2.8 times as likely to have died of any causes;
  • 2.8 times as likely to have a psychiatric hospitalization;
  • 4.9 times as likely to attempt suicide;
  • 19.1 times as likely to die by suicide.

This sounds medically dangerous—not “medically necessary.”

4. “Gender identity” discrimination is a form of “sex discrimination.”

In the United States, the majority of states have not added “gender identity” as a protected category in laws against discrimination, nor has the U.S. Congress.

Therefore, transgender activists have begun urging courts to interpret laws against “sex discrimination” to include “gender identity.” Since our federal law against sex discrimination in employment and in education were passed in 1964 and in 1972, it is unlikely that legislators intended “sex” to mean anything other than being biologically male or female.

A 1989 U.S. Supreme Court decision included a passing comment that “gender stereotyping”—for example, telling a woman she is not feminine enough—could be a form of “sex discrimination.” But even that case does not stand for the proposition that a man can become a woman, or a woman can become a man.

5. The transgender movement is a progressive movement.

This may be the most surprising for me to list as a “myth.”

Although we speak about the “LGBT movement,” there are many “LG”—self-identified lesbians and gays—who are concerned about the “T” (those who identify as transgender). They are not happy that masculine girls and feminine boys—who at one time might have grown up to identify as lesbians or as gay men—are now being told that they are actually the opposite sex.

Meanwhile, some feminists point out that transgender activists often are not trying to overcome gender stereotypes. Instead, they are trying to conform to rigid stereotypes—but of the opposite sex.

It would seem more “progressive” to simply say that there are different ways to be a boy or a man, and different ways to be a girl or a woman—and none of them require changing your gender or mutilating your body.

Thank you.

Update on California’s AB 2943: Therapy Ban Assaulting Freedom of Speech and Religion Passes Senate

by Peter Sprigg

August 17, 2018

Here are some quick facts on the most recent action regarding California’s alarming bill, AB 2943, with links to sources:

  • The California Senate just passed AB 2943 on August 16.
  • AB 2943 is Round Two of California’s attack upon sexual orientation change efforts (SOCE).
  • AB 2943 is so sweeping it could potentially ban the sale of some books—even the Bible.
  • Therapy bans restrict what therapists can say to clients. The Supreme Court has signaled that this violates constitutional rights to free speech.
  • Ironically, AB 2943 was passed even as a new study has debunked claims that SOCE is ineffective and harmful
  • Most clients who seek SOCE just want to live their lives according to the teachings of their faith, so bills like AB 2943 are an attack upon their freedom of religion.
  • The Assembly or Gov. Brown have a last chance to block enactment of AB 2943. Urge them to do so now.

Will the Supreme Court Save Sexual Orientation Change Efforts?

by Peter Sprigg

July 2, 2018

There are significant differences between pro-life pregnancy resource centers that seek to provide pregnant women with alternatives to abortion and pro-family therapists or counselors that seek to provide people with unwanted same-sex attractions with an alternative to a homosexual identity and lifestyle. However, they have one thing in common—they are both loathed by the sexual revolutionaries. And in both cases, anti-faith “progressives” have tried to employ the machinery of government in an effort to legally stifle the work and message of these groups or individuals.

The recent Supreme Court ruling in NIFLA v. Becerra on the rights of pregnancy resource centers has given new legal hope to the practitioners of sexual orientation change efforts (SOCE), which legislators in several states have now banned for clients under age 18. (Others have written about this development here and here.)

NIFLA dealt with a California law, supported by abortion proponents, which required pregnancy resource centers to post specific, government-prescribed notices. Centers with a medical license were required to post a notice indicating how women could obtain abortions; unlicensed centers were required to post a prominent notice to the effect that they were not licensed to provide medical care. One network of pregnancy centers, the National Institute of Family and Life Advocates (NIFLA) sued.

In a 5-4 decision, the U.S. Supreme Court struck down that law, ruling that it compelled the pregnancy centers to proclaim a message they didn’t want to, in violation of the First Amendment.

Like NIFLA in the pregnancy center context, defenders of the right to seek counseling to overcome unwanted same-sex attractions (and of the right to offer such counseling) have argued that free speech also protects their activities. In challenges to laws banning sexual orientation change efforts (SOCE) with minors by licensed mental health providers in California and New Jersey, they argued that such laws in effect limit what a counselor or therapist may say to a client in the privacy of his or her office, and thus infringe upon the free speech of the care-giver.

Courts in two federal circuits rejected those arguments. But one of those decisions, Pickup v. Brown, came in for unfavorable attention in Justice Clarence Thomas’s majority opinion in the NIFLA case—thus raising serious doubts about whether these therapy bans could survive scrutiny by the Supreme Court.

California’s therapy ban was actually challenged in two separate lawsuits. In Welch v. Brown, a U.S. district court struck down the law, but in Pickup a district court judge upheld it. The Ninth Circuit consolidated the two cases on appeal, and a three-judge panel upheld the finding in Pickup and overturned the one in Welch.

The plaintiffs then appealed for en banc review by the full Ninth Circuit court, but they were rejected. However, three judges dissented from the denial of en banc review, backed by a strong  opinion by Judge Diarmuid O’Scannlain.

The Pickup opinion rested in part on the assertion that speech engaged in by licensed professionals in the course of their work is somehow exempt from scrutiny under the First Amendment (“SB 1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners …”). This is exactly the argument that Justice Thomas rejected in his majority opinion in NIFLA. What is particularly striking is how much Justice Thomas’s majority opinion in NIFLA resembles Judge O’Scannlain’s dissenting opinion in the Pickup appeal.

Check out the comparison (citations, except to the Pickup case, are omitted):

Justice Clarence Thomas, U.S. Supreme Court, NIFLA v. Becerra (majority opinion)

June 26, 2018

. . .

[p. 6-8]

The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” This stringent standard reflects the fundamental principle that governments have “‘no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”

The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their]speech.”

. . .

­ Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” Some Courts of Appeals have recognized “profes­sional speech” as a separate category of speech that is subject to different rules. See, e.g., … Pickup v. Brown, 740 F. 3d 1208, 1227–1229 (CA9 2014) … . These courts define “professionals” as indi­viduals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” … Pickup, supra, at 1230. “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” or that is “within the confines of [the] professional relationship,” Pickup, supra, at 1228. So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scru­tiny. See  … Pickup, supra, at 1053– 1056 … .

But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” This Court’s prece­dents do not permit governments to impose content-based restrictions on speech without “‘persuasive evidence … of a long (if heretofore unrecognized) tradition’” to that effect.

This Court’s precedents do not recognize such a tradi­tion for a category called “professional speech.”

Judge Diarmuid O’Scannlain, U.S. Court of Appeals for the Ninth Circuit, Pickup v. Brown (dissent from denial of en banc review)

January 29, 2014

. . .

The Federal courts have never recognized a freestanding exception to the First Amendment for state professional regulations. Indeed authoritative precedents have established that neither professional regulations generally, nor even a more limited subclass of such rules, remain categorically outside of the First Amendment’s reach.

. . .

The Supreme Court, however, has clearly warned us inferior courts against arrogating to ourselves “any ‘freewheeling authority to declare new categories of speech outside the scope of the First Amendment.’” The panel cites no case holding that speech, uttered by professionals to their clients, does not actually constitute “speech” for purposes of the First Amendment. And that should not surprise us—for the Supreme Court has not recognized such a category.

III

The Supreme Court has chastened us lower courts for creating, out of whole cloth, new categories of speech to which the First Amendment does not apply. But, that is exactly what the panel’s opinion accomplishes in this case, concealing its achievement by casually characterizing the communications prohibited by SB 1172 as nonexpressive conduct. Of course, this begs the question. The panel provides no authority to support its broad intimations that the words spoken by therapists and social workers, if they fall within the statutory language of SB 1172, should receive no protection at all from the First Amendment.

. . .

But as to the threshold issue—may California remove from the First Amendment’s ambit the speech of certain professionals when the State disfavors its content or its purpose?—the Supreme Court has definitively and unquestionably said “No.” It is no longer within our discretion to disagree.

The Supreme Court’s recent NIFLA case is not the first to question the reasoning of the 9th Circuit in upholding the California therapy ban in Pickup v. Brown. A 2017 en banc decision by the full 11th Circuit court struck down, on free speech grounds, a Florida law that barred doctors from asking patients whether they had guns in their home. In this decision (Wollschlaeger v. Governor of Florida, February 16, 2017), Judge Adalberto Jordan, writing for nine of the eleven judges, also questioned the 9th Circuit ruling in Pickup:

The Ninth Circuit also adopted Justice White’s approach, but in a case upholding a California law prohibiting mental health practitioners from providing sexual orientation change efforts (SOCE) therapy—meant to change a person’s sexual orientation from homosexual to heterosexual—to children under the age of 18. See Pickup v. Brown, 740 F.3d 1208, 1225–29 (9th Cir. 2013) (as amended on rehearing)… .

There are serious doubts about whether Pickup was correctly decided. As noted earlier, characterizing speech as conduct is a dubious constitutional enterprise. See also id. at 1215–21 (O’Scannlain, J., dissenting from denial of rehearing en banc) (criticizing the Pickup panel for, among other things, not providing a “principled doctrinal basis” for distinguishing “between utterances that are truly ‘speech,’ on the one hand, and those that are, on the other hand, somehow ‘treatment’ or ‘conduct’”).

. . .

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion … .” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Our decision applies this timeless principle to speech between doctors and patients, regardless of the content. The First Amendment requires the protection of ideas that some people might find distasteful because tomorrow the tables might be turned.

The Supreme Court precedent of NIFLA is clearly more significant, since it is binding nationwide. Of course, a key difference between the NIFLA (pregnancy center) case and the Pickup (therapy) case is that NIFLA involved what is called “compelled speech” (the government forcing a private entity to communicate the message favored by the government); whereas Pickup involves an actual prohibition by the government against private speech that is disfavored by the government (if its aim is helping a client to change sexual orientation). Nevertheless, by affirming that “professional speech” is protected by the First Amendment, the Supreme Court has cast serious doubt on the constitutionality of bans on sexual orientation change efforts.

This should give hope to clients seeking to overcome unwanted same-sex attractions and to the counselors and therapists who help them. And it should give pause to legislators, like those in California now considering an even more draconian therapy ban (AB 2943).

Bans on sexual orientation change efforts lack any merit to begin with. But legislators tempted to vote for them (and governors tempted to sign them) should realize that there is a good chance these bills are unconstitutional, and that they will draw a rebuke from the U.S. Supreme Court in the fairly near future.

The Little-Known Figures Who Had an Outsized Impact on the Masterpiece Cakeshop Decision

by Peter Sprigg

June 20, 2018

I have already written several times about the Supreme Court’s recent Masterpiece Cakeshop decision, in which the Court struck down Colorado’s discrimination charge against a Christian baker who declined to make a custom wedding cake for a same-sex couple. The majority’s ruling rested on its finding that the proceedings against baker Jack Phillips in Colorado were tainted by anti-religious bias. I described each of the five opinions written in the case here, and explained why media referred to a 7-2 decision as “narrow” (in its reasoning, not its margin) here.

There is one more aspect of the Masterpiece case that I found interesting. The key parties to the case were the baker, Jack Phillips, and the same-sex couple, Charlie Craig and Dave Mullins. The experiences and perspectives of these men had been discussed and recounted repeatedly as the case made its way through Colorado’s adjudicatory process and then through the appeal to the Supreme Court.

In the end, however, there were two lesser-known figures who played a key role in the outcome of the case. From the pro-family perspective supportive of the baker Phillips, one—a man named William Jack—helped to expose the hypocrisy of the Colorado Civil Rights Commission. The other—a woman named Diann Rice—may have unwittingly doomed the state’s case by verbalizing the anti-religious hostility that was fatal to their side.

Diann Rice was a member of the Colorado Civil Rights Commission that heard the complaint against Masterpiece Cakeshop. During a July 25, 2014 meeting of the Commission, she made the following statement, which was recounted by U.S. Supreme Court Justice Anthony Kennedy in his majority opinion in the 2018 case:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

The quote was originally found on an audio recording of the meeting, and a transcript from that recording only identified the speaker as a “female speaker.” It was not until six months later that Phillips’ attorneys with the Alliance Defending Freedom identified the speaker as Rice.

Justice Kennedy explained the problem with this remark:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

The sad thing is that the kind of contempt for “freedom of religion and religion” voiced by Rice, including the over-the-top comparison of a belief in one-man-one-woman marriage with defenses of slavery and the Holocaust, is not even considered extreme on the Left today. On the contrary, that view is utterly commonplace. For example, writer Zack Ford of ThinkProgress openly defended the remark. That is why it was so welcome to have the Supreme Court declare that such contempt is not permissible as a part of government decision-making.

The other person who surprisingly proved central to the case was William Jack. (William Jack is not to be confused with Jack Phillips, the baker at the heart of the case.)

Even after he was cited in the Court’s ruling, little has been written about Mr. Jack’s background. The liberal magazine Mother Jones wrote the most detailed article about him, referring to him as “a foot soldier in the religious-right evangelical movement.” They also linked to a brief he filed in the case in support of Phillips, which describes him as “a Colorado citizen and Christian educator who teaches nationally on issues of Christian worldview, apologetics, and leadership.”

In a sort of reverse parallel of what happened to Craig and Mullins when they requested a wedding cake from Masterpiece Cakeshop, William Jack visited three Colorado bakeries requesting that they bake him cakes with a message of opposition to same-sex marriage. Justice Ruth Bader Ginsburg described Jack’s request most explicitly in her dissenting opinion. He wanted cakes:

made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He]requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] … ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’[Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ”

All three bakeries declined to bake the cakes requested by Mr. Jack, on the grounds that they considered the message (especially, it seems, the image of the grooms with the red “X” and the word “sin”) to be offensive. Mr. Jack brought discrimination charges against each of the bakeries, asserting that they had discriminated against him because of his “creed” (that is, religion), which is a protected category under Colorado’s public accommodations non-discrimination law. Yet the Colorado Civil Rights Commission in Mr. Jack’s case found the bakeries not to have been guilty of discrimination—in direct contrast to the outcome for Masterpiece Cakeshop.

Mother Jones referred to Jack’s requests as a “stunt.” Jack himself admitted, according to World magazine, that he made the requests in response to the Masterpiece case, “to see if those charging discrimination against gays would care about discrimination against Christians.” He never indicated that the cakes were intended for a particular social event. On the other hand, even Mother Jones admitted such experiments

aren’t uncommon among activist groups of all political leanings seeking changes in the legal system. Civil rights organizations use testers, for instance, to see whether a landlord is refusing to rent to people of color or a car dealer is charging them higher interest on auto loans. Activists who use wheelchairs visit businesses to see whether their buildings comply with the Americans With Disabilities Act, and file complaints if they don’t.

The point, of course, is not that the Colorado Civil Rights Commission should have punished the bakers who refused to make cakes for Mr. Jack with a message opposing same-sex marriage. Instead, it is the opposite. They should have allowed Jack Phillips of Masterpiece Cakeshop the same freedom—to refuse cakes with messages to which he has a conscientious objection—that they allowed to the bakeries approached by William Jack.

The message William Jack requested on his cakes may have seemed unusual, odd, or even, yes, offensive to some. But Justice Kennedy warned that “it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.”

William Jack did not get his cakes, but he did prove a point—possibly turning the tide of a Supreme Court case in the process.

Masterpiece Cakeshop: How Can a 7-2 Supreme Court Decision Be “Narrow?”

by Peter Sprigg

June 8, 2018

On June 4, the U.S. Supreme Court overturned a decision by the Colorado Civil Rights Commission (upheld by Colorado courts) that had found baker Jack Phillips of Masterpiece Cakeshop guilty of unlawful discrimination for declining to make a wedding cake for a same-sex couple. The vote was 7-2—that is, seven justices voted to overturn the Colorado decision, while only two voted to uphold it.

The New York Times’ online story about the ruling carried the headline, “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.” The Washington Post editorialized, “The Supreme Court’s narrow ruling on a wedding cake is a step in the right direction.”

Subsequently, I noticed some people on social media (especially conservative friends) grousing about the description of the 7-2 decision as “narrow,” as though the liberal media was trying to downplay Jack Phillips’ decisive victory. So I thought I would offer a short explanation.

Masterpiece Cakeshop is being described as a “narrow” ruling not because of its margin, but because of its reasoning. Neither side in the case got everything that it wanted.

Those supporting Colorado, and supporting Charlie Craig and Dave Mullins (the same-sex couple who had requested a cake from Phillips), wanted a broad ruling that 1) Phillips violated Colorado’s Anti-Discrimination Act by discriminating against the couple on the basis of “sexual orientation; and 2) that no claim of religious freedom or free speech can excuse that statutory violation by a business that qualifies as a “public accommodation.” In the end, only two justices (Ruth Bader Ginsburg, with Sonia Sotomayor joining her in dissent) adopted that view and considered it decisive.

Those supporting the baker Phillips, on the other hand, wanted a broad ruling that his rights to freedom of speech and the free exercise of religion, because they are fundamental rights under the U.S. Constitution, must take precedence over the statutory provisions of Colorado law. Yet the Court’s ruling in favor of the free exercise claim was a narrow one, and only two justices expressed support for the free speech claim as well (Clarence Thomas, with Neil Gorsuch joining his concurrence in the judgment).

(I should note as well that some key elements of the case remained in dispute. Phillips’ attorneys questioned whether the Anti-Discrimination Act even applied, arguing that Phillips did not, in fact, “discriminate” on the basis of “sexual orientation” at all, because he was happy to serve self-identified gay customers with products other than a wedding cake. Colorado’s attorneys questioned whether the First Amendment even applied, arguing that baking a cake cannot be considered a form of “speech” at all.)

Instead of clearly explaining that Jack Phillips’ has robust constitutional rights regarding the cakes he designs, the majority opinion found that the Colorado Civil Rights Commission simply didn’t behave well enough in this case, due to: (1) the hostility aimed specifically at his religious beliefs (evidenced in comments of the Commission), and (2) the different treatment the Commission gave a parallel case (one in which the Commission allowed bakeries to refuse to make cakes criticizing same-sex marriage). It was only because the Commission exhibited anti-religious bias in its proceedings against Jack Phillips that the Supreme Court threw out its ruling, on free exercise grounds. Justice Gorsuch also wrote a strong concurrence, joined by Justice Alito, elaborating on the strength of the free exercise claim here.

Although they joined the majority opinion, Justices Kagan and Breyer additionally wrote a concurrence explaining that their lukewarm support for Phillips was only based on the fact that he was treated really badly by members of the Commission in this case. They argued that the disparate treatment between the two bakery cases could have been justified, were it not for the overt anti-religious hostility exhibited by the Commission.

Justices Kennedy and Roberts—in writing and joining only the majority opinion, respectively—ruled in favor of Phillips, but not on the basis of a sweeping affirmation of his freedom of speech or of religion.

A definitive Supreme Court precedent, resolving the underlying dispute between “non-discrimination” principles and freedom of speech and religion, will have to await another case and another decision. That is why many are calling Masterpiece a “narrow” decision.

Masterpiece Cakeshop: Summary of Each Supreme Court Opinion

by Peter Sprigg

June 7, 2018

In the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, finding by a 7-2 vote in favor of a baker who had declined to create a wedding cake for a same-sex wedding, there were five separate opinions written.

Here, I offer a brief summary (not a detailed legal analysis) of what each of these opinions contained. (For more, see this blog post by FRC’s Travis Weber.) In the five opinions:

  1. Justice Anthony Kennedy wrote for the Court, joined by Chief Justice John Roberts, Justice Stephen Breyer, Justice Samuel Alito, Justice Elena Kagan, and Justice Neil Gorsuch (six Justices; Justice Clarence Thomas wrote separately “concurring in part and concurring in the judgment,” but did not join the Court’s opinion);
  2. Justice Kagan wrote a concurrence which Justice Breyer joined;
  3. Justice Gorsuch wrote a concurrence which Justice Alito joined;
  4. Justice Thomas wrote an opinion “concurring in part and concurring in the judgment,” with which Justice Gorsuch joined;
  5. Justice Ruth Bader Ginsburg wrote in dissent, joined by Justice Sonia Sotomayor.

Here’s an overview of each opinion:

Kennedy for the Court (joined by Roberts, Breyer, Alito, Kagan, and Gorsuch):

Justice Kennedy ruled in favor of Masterpiece because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” He found this for two reasons:

  1. Comments made by members of the Commission in the course of its hearings, especially one notorious quote:

    “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

    Kennedy noted that this statement disparages religion “in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”

  2. The difference in treatment between Phillips’ case and the cases of other bakers, who had refused to bake cakes communicating negative religious messages about same-sex marriage, but were found not to have discriminated against the customer (William Jack) on the basis of religion. He notes inconsistency in how the free speech claims were treated, but most notably in how the conscience objections were viewed, with the Commission accepting the secular objection to making anti-SSM cakes “because of the offensive nature of the requested message,” but rejecting Phillips’ religious objection to making a same-sex wedding cake. Kennedy says, “[I]t is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive,” yet the Colorado decision “elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”

Kagan concurring, with Breyer joining:

This short opinion (a little over three pages) concurs in the judgment—but goes out of its way to say that Colorado could have made a legitimate distinction between the Masterpiece case and the three cases of William Jack (who was refused cakes expressing opposition to same-sex marriage, but was not deemed a victim of discrimination). Kagan says explicitly that Jack Phillips of Masterpiece was guilty of discrimination:

Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination.

However, she concurs because the State’s decisions must not be “infected by religious hostility or bias”—as in this case.

Gorsuch concurring, with Alito joining:

Gorsuch focused in specifically on the disparate treatment of the Masterpiece case as opposed to the three William Jack cases involving refusal to bake cakes opposing same-sex marriage. In contrast to both the Ginsburg/Sotomayor dissent and the narrow Kagan/Breyer concurrence, Gorsuch argued that there was a very close correspondence between the facts of the cases, saying that “the two cases share all legally salient features”:

  • bakers refused services to persons who bore a statutorily protected trait (religious faith or sexual orientation)”
  • they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else)”
  • the bakers in the first case [William Jack] were generally happy to sell to persons of faith, just as the baker in the second case [Jack Phillips/Masterpiece] was generally happy to sell to gay persons.”

Gorsuch concludes that “the Commission failed to act neutrally by applying a consistent legal rule,” and warns that “the one thing it can’t do is apply a more generous legal test to secular objections than religious ones.” In contrast to the four liberals, Gorsuch states explicitly that “the Commission must afford him [Jack Phillips/Masterpiece] the same result it afforded the bakers in Mr. Jack’s case.”

Thomas, “concurring in part and concurring in the judgment,” Gorsuch joining:

To me, one of the most notable facts of the decision is that at oral arguments, the ADF attorneys representing Masterpiece put their emphasis on arguments resting on First Amendment Free Speech grounds (not Free Exercise of Religion). They emphasized that designing custom wedding cakes is a form of artistic expression and therefore, requiring they be provided for same-sex weddings is an unconstitutional form of “compelled speech” by the government. This, however, turned out not to be the primary issue addressed by the court, which instead decided there was a Free Exercise violation because of the lack of religious neutrality.

Justice Thomas’ opinion was the only one that addressed the Free Speech issues at length. He acknowledges that the issue here is “expressive conduct” rather than pure speech as such, but says under Court precedents, “Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.” He says that in this case, “Phillips’ creation of custom wedding cakes is expressive,” and concludes the following:

Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.

Although declining to decide whether Colorado’s law satisfies “strict scrutiny,” Thomas warns, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”

Ginsburg dissenting, Sotomayor joining:

Like the Gorsuch/Alito concurrence, the Ginsburg/Sotomayor dissent focused specifically on the differing results given by the Colorado Civil Rights Commission in the case involving Jack Phillips and Masterpiece Cakeshop (where refusing to provide the cake requested by the customer was found to be illegal discrimination) as opposed to the cases involving customer William Jack (where refusing to provide the cakes requested by the customer was found not to be illegal discrimination). However, Justice Ginsburg reaches the exact opposite conclusion from that of Justice Gorsuch.

Ginsburg and Sotomayor agreed with their liberal colleagues Justices Kagan and Breyer in saying that the cases could be legitimately distinguished, but disagreed with the latter pair’s conclusion that anti-religious bias had impermissibly “infected” Colorado’s adjudication of the cases. Ginsburg writes:

The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below. 

Commentary

The problem I see with the dissent is this statement (which was repeated, in various ways, several times): “Phillips did … discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief.” Ginsburg argues that Phillips’ refusal of a same-sex wedding cake was “determined solely by the identity of the customer” whereas the refusal of William Jack’s request “was due to the demeaning message” he wanted displayed.

Since Phillips regularly serves customers who identify as gay (but would refuse a cake to celebrate a same-sex wedding regardless of who requests it), the first conclusion is questionable. The latter conclusion, however, is nothing short of astonishing. What Ginsburg calls a “demeaning message” may have been crude (including, among other things, “an image of two groomsmen, holding hands, with a red ‘X’ over the image”), but combined with biblical verses and quotations, its essential content was that 1) homosexual conduct is sinful, and 2) God does not approve of same-sex sexual relationships or consider them to be “marriage.” I fail to see how this “message” (however “demeaning” some may find it) can be seen as not representing a “religious belief.”

Note that this is not to say that the solution would be to force bakers to make cakes with messages they consider “demeaning,” as well as forcing them to make cakes for same-sex weddings. Instead, the opposite would be ideal. Baking cakes, whether to celebrate a specific event such as a same-sex wedding or to condemn that concept, is a form of expressive conduct that should not be compelled by the government. Even if Colorado believes that its Anti-Discrimination Act was violated, the provisions of this state statute cannot be allowed to override the bakers’ fundamental right to free speech under the U.S. Constitution.

No baker should be forced to communicate a message with which he or she disagrees. Although Jack Phillips prevailed in the Masterpiece Cakeshop case, the ruling does not clearly apply the Court’s compelled speech precedents to that context. The debate continues.

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