In 2012 California enacted a law that bars licensed mental health providers from engaging in therapy designed to change the sexual orientation of patients under the age of 18. Now the state Senate is considering a sequel of sorts. But this new legislation is broader in its application — so broad that some critics are claiming that it could be used to interfere with the sale of religious books, even the Bible.
Such fears may be farfetched. But AB 2943, which was passed by the Assembly last month, contains ambiguities that need to be cleared up if the legislation is to become law.
Like the 2012 statute, AB 2943 is inspired by research showing that so-called conversion therapy is not only ineffective but harmful. There is also a consensus among mental health experts that such therapy perpetuates the discredited idea that being gay is a mental disorder. Unlike the earlier law, however, this legislation targets "sexual orientation change efforts" aimed at adults as well as minors.
Some would argue that adults should be allowed to avail themselves of therapies, however discredited, if they are offered by licensed psychologists and other professionals. But if the Legislature has the legal authority to forbid therapists from engaging in conversion therapy with minors, it probably can prohibit them from treating adults as well.
The problem is that AB 2943 isn't a regulation of licensed healthcare professionals. Rather, and oddly, it's an amendment to a state law, the Consumer Legal Remedies Act, dealing with fraudulent trade in goods and services. It would expand the definition of "unfair or deceptive acts or practices" for which consumers could sue to include "advertising, offering to engage in or engaging in sexual orientation change efforts with an individual." And it would cover anyone who engaged in that practice.
Would that include churches or other religious groups that sold, advertised or even recommended books that propagated the idea that believers can use prayer to overcome "same-sex attraction"? That's what several conservative organizations and commentators are arguing. They have the Constitution on their side. The 1st Amendment clearly protects their right to preach, and encourage adherents to follow, religious doctrine on sexual morality.
Supporters of the bill scoff at this critique. A fact sheet provided by Assemblyman Evan Low (D-Silicon Valley), the sponsor of AB 2943, asserts that the bill "does not apply to the sale of books or any other kind of goods" and that the Bible "would absolutely not be banned." Yet the bill itself makes no such declaration. And the existing Consumer Legal Remedies Act clearly applies to the sale of goods such as books, videos and other educational materials — including those sold by churches and other religious groups.
Another complaint by critics is that, while the bill permits therapies that "do not seek to change sexual orientation," it defines "sexual orientation change efforts" to include attempts to alter not only romantic attractions but also "behaviors or gender expressions." Under this broad definition, wrote David French in the National Review, "if ... a sexually active gay man or woman sought counseling not to change their orientation but rather to become celibate, then the services and goods provided in that effort would violate this statute."
Many Californians obviously reject the idea that gays and lesbians shouldn't engage in sexual activity. But many religious groups (including the Roman Catholic Church) teach that sex is permissible only within heterosexual marriage. The 1st Amendment protects their right to counsel adherents to live by those teachings.
Granted, the 2012 law banning conversion therapy for minors by licensed professionals also defined "sexual orientation change efforts" to include efforts to change "behaviors or gender expressions." But that law regulated only the conduct of state-licensed professionals. Now, the state would be going further, including trying to regulate nonprofessionals, possibly including those engaged in religious speech. In upholding the 2012 law against a 1st Amendment challenge, the U.S. 9th Circuit Court of Appeals emphasized that the statute didn't prevent mental health providers from referring minors to unlicensed counselors "such as religious leaders."
Finally, it's true that AB 2943 covers only sexual orientation change efforts that result in the "sale or lease of goods or services" and thus wouldn't affect a lot of religious communications in which no money changes hands. But what if a minister urged someone he or she was counseling to buy a book or enroll in a religious seminar that charged a registration fee? Treating that activity as consumer fraud would raise serious constitutional questions.
It's possible that the critics of this bill are being alarmist, but the language of the legislation is ambiguous enough to justify at least some of their concerns. The Senate can allay them by amending the bill to make it clear that it can't be used against books or religious preaching or counseling about sexuality.