This week the United States Supreme Court agreed to accept an appeal in a case that puts at issue the constitutionality of a state law that prohibits a Christian counselor from providing “conversion therapy” to gender-confused persons. The appeal should put the original meaning of the Free Exercise of Religion Clause and human meaning on trial. That it won’t provides insight into the faithless state of Christianity in America.
I believe Christian legal advocates are taking these two fundamental issues off the table. The case this week is, to me, demonstrative of how they do so. But to offer only a critique is not helpful. So, I will also offer an alternative approach, one that runs to, not away from, the godless roar!
The first thing I noticed in the Petition asking the Court to allow the appeal was this: the claim of the Christian counselor does not implicate the Free Exercise of Religion Clause. I explore the reason in the next subdivision. Instead, the Petition expressly limits the claim to one under the Free Speech Clause: “The question presented is: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.” (Emphasis supplied)
In pursuit of a free speech only claim, the Petition contains several statements about the kind of speech involved to justify allowing a Christian version of that speech. This one is a good summary:
Although more research is needed, recent studies show that those who desire harmony with their bodies and seek counseling find “significant improvement” with depression, anxiety, and suicidality and experience no “adverse or negative effects. Cass Review at 153. Chiles wants to provide that emotional support in an evidence-based manner that aligns with her and her clients’ shared convictions. (Emphasis supplied)
In my view, it seems that science is key to what seems like a Christian therapeutic understanding of emotional health.
But think about what this seems to imply. Irrelevant is truth about the triune nature of God, the relation of that knowledge to the Christian conception of human beings, and the relation of that knowledge to their psychical components (soul).
Why this limited approach? I submit, based on years of experience, the Christian legal approach, reflected in the Petition, conforms to the “legal speech” that a godless form of jurisprudence has deemed “acceptable.”
Why a godless limitation on speech in law? Because the Supreme Court does not want to opine on what it means to be human, a “person,” under the Constitution’s language.
So, to “win” in court, Christian lawyers choose not to press jurists on that point. “Give the judges another way out” seems to be the Christian legal strategy.
Ironically, in arguing that the government should not restrict the content of the counselor’s speech, Christian legal advocates often choose to limit their form of speech to what the U.S. Supreme Court, a part of government, has said is acceptable to the godless.
As I’ve noted elsewhere, the first published commentary on the U.S. Constitution (Justice Joseph Story, 1833) says “the language of [the Free Speech Clause] imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint.” (Emphasis supplied).
By prescribing and proscribing what words a state-licensed person can use, the law seems to me to be a prior restraint on speech. These state laws are per se unconstitutional in my view.
For reasons I don’t understand, no legal authority regarding the Free Speech Clause prior to 1940 is even presented in the Petition to the Court. Unfortunately, by then, its historical meaning had been long forgotten. Seem no one want to remind our justices.
I think the solution to “counseling” speech is for states to conform to what famed jurist James Kent wrote in his Commentaries on American Law (1826-1830): “[I]t has become a constitutional principle in this country, that every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right.” (Emphasis supplied)
In other words, the Christian counselor should speak what is true according to the Word of God. The client can sue for damages if he or she can prove that what was said was false and caused injury.
This approach, I believe, is the path to liberty—freedom of speech and religion—and to personal responsibility for both counselor and client. Let any harm arising from the mutuality of their relationship be adjudged by a jury of their peers.
I believe it is time to let the Lion of Judah roar by un-caging the Word of God in a Christian counseling session.
I would urge Christian counselors and their policy and legal advocates to not just put free speech on trial. Put at issue the liberty of Christian counselors to be explicitly Christian, not just emotional therapists (supports) according to science-based evidence.
I believe Christians need to be willing to put the High Court of Heaven in a place to judge our less supreme jurists for their God-ignoring speech about those made in God’s image.
What might happen under that approach? Who knows. God may be looking to and fro across our land to see if faith can be found among Christian counselors and their advocates. If so, He may bring His judgment on these jurists and relent in the present discipline of His people. Lord, hasten that day!
