Will Moral Traditionalism Be Permitted in the Professions? The Test Case of Julea Ward
In 2009, Julea Ward was dismissed from Eastern Michigan University’s counseling program. Her offense? In her practicum for the counseling degree, she refused to engage in counseling that involved affirming homosexual relationships. To begin with, she referred a client seeking counseling about a homosexual relationship, knowing that if she spoke with the client she would be required to affirm the relationship. By itself, this one referral would not have resulted in dismissal from the program; her dismissal was ultimately a result of the fact that she refused to submit to a “remediation” program designed to induce her to engage in such counseling. The Alliance Defense Fund sued on her behalf, alleging violation by EMU, a state school, of the establishment clause of the U.S. Constitution and of Julea’s rights to freedom of speech and the free exercise of religion. Federal District Court Judge George Sheeh rendered summary judgment in favor of EMU on all claims.ADF is presently appealing that judgement to the 6th Circuit Court.
It is important that Sheeh’s opinion be overturned. If it is upheld, it will establish a dangerous precedent with wide-ranging implications for the freedom of Christians and other moral traditionalists to hold and act on their beliefs both in and out of the classroom.
The “state interest” in requiring moral relativism and affirmation of homosexuality
Sheeh asserts in favor of EMU that the university had an important interest in providing and enforcing morally relativistic counseling—counseling that affirms and works within the values of the client, whatever those may be—and in requiring students to engage in counseling that affirms homosexual relationships. At various points in his opinion Sheeh treats this set of interests as a “rational basis” for a rule, a “legitimate pedagogical goal” (Sheeh opinion, p. 46), as something a “reasonable” person would see to be the “right and duty” of EMU (Sheeh opinion, p. 39), and as a “compelling [state] interest” (Sheeh opinion, p. 48), depending on the legal point he is making.
Judge Sheeh is not at all unclear about this matter. In his initial description of Ward’s offense, which he sees as a legitimate and constitutional reason for her being disciplined, he says this:
Plaintiff was asked to come before a concerned faculty to discuss her behavior [in referring a homosexual client during her practicum]. However, instead of exploring options which might allow her to counsel homosexuals about their relationships, plaintiff stated that she would not engage in gay affirming counseling, which she viewed as helping a homosexual client engage in an immoral lifestyle. It was the uncompromising stance taken by plaintiff during the informal review that resulted in disciplinary action, in the form of the formal review. (Sheeh opinion, p. 14)
He characterizes the university’s ostensibly “academic” requirement for counseling like this:
[T]he University had a rational basis for requiring its students to counsel clients without imposing their personal values. In the case of Ms. Ward, the University determined that she would never change her behavior and would consistently refuse to counsel clients on matters with which she was personally opposed due to her religious beliefs - including homosexual relationships. The University offered Ms. Ward the opportunity for a remediation plan, which she rejected. Her refusal to attempt learning to counsel all clients within their [the clients’] own value systems is a failure to complete an academic requirement of the program. (Sheeh opinion, p. 29)
Sheeh characterizes counseling like this:
Counseling, by its very nature, relies on a uniquely personal and intimate relationship between the counselor and client to assist in delivering the objectives sought by the client. (Sheeh opinion, p. 19)
In other words, it is literally of the essence of counseling that it is morally relativistic. Sheeh states that Julea Ward was required to “set...aside” her “religious beliefs” in the “counselor-client relationship” (Sheeh opinion, p. 37). And he characterizes Julea as a counselor who “do[es] not want to partake in gay-affirmative therapy” (Sheeh opinion, p. 31).
Unsurprisingly, later on Sheeh rather ostentatiously refers to the program requirements of moral relativism and the affirmation of homosexual relationships as advancing “professionalism, tolerance, and non-discrimination” (Sheeh opinion, p. 39), but he has already made it quite clear what these not-so-subtle code words mean.
It is more surprising that he should at one point say, “[C]ontrary to plaintiff’s assertion, this requirement is not a requirement to endorse or advocate homosexuality, hence infringing her free exercise rights.” (Sheeh opinion, p. 34) Since he has already characterized the act that Ward refused to engage in as “gay-affirmative therapy” and “gay affirming counseling,” it is difficult to see what this bald assertion could mean. The distinction between “affirming” and “endorsing” is, to put it mildly, opaque. Perhaps we can find some enlightenment from the fact that the sentence that immediately follows is this: “Plaintiff was not required to change her views or religious beliefs; she was required to set them aside in the counselor-client relationship – a neutral, generally applicable expectation of all counselors-to-be under the ACA standard.” (Sheeh opinion, p. 34) Apparently in Judge Sheeh’s mind “affirming” is not “endorsing” so long as it takes place only during certain hours of the day and in the context of a counselor-client relationship—a notion that is rather difficult to grasp for those who do not share the ideological predilections of the EMU counseling department and Judge Sheeh.
The radical nature of Judge Sheeh’s ruling and the threat it poses to religious liberty and liberty of conscience can be understood only if we have clearly in mind what he is saying—namely, that the state has a legitimate and even compelling interest in requiring counselors employed by and/or trained by the state (including state universities), to act as moral relativists in their counseling and, specifically, to affirm homosexual relationships. Since both moral relativism and the affirmation of homosexual acts as morally legitimate are contrary both to traditional morality and to specifically Christian morality, it is evident that declaring a state interest in such requirements has serious ramifications for the freedom of Christians to work in the helping professions in the United States.
Making the violations disappear
Sheeh’s approach to defending EMU is twofold. His first approach, which takes up the bulk of his ruling, is to declare that no infringement of any of Julea Ward’s constitutional rights has taken place. If no special constitutional right is infringed, EMU’s policies are supposed to be subject only to a weak level of review, known as a “rational basis” test. At the end of his ruling, Sheeh asserts that even if EMU did infringe Ward’s constitutional rights, the school’s policies could survive the supposedly much more difficult “strict scrutiny” test. In a sense, Sheeh lays the groundwork for that much stronger assertion (which he scarcely bothers to argue for when he gets to it) by the many pages he has already devoted to claiming that, because EMU’s goals are so reasonable and so important, EMU’s actions and policies did not infringe any of Julea’s constitutional rights in the first place. To make this argument, he sometimes has to be very creative indeed.
The free speech violation disappears
The claim of a free speech violation arises fairly simply: EMU is a government school. By trying to compel Julea Ward, on pain of dismissal, actually to counsel homosexual clients in a way that affirmed their homosexual acts, EMU was acting as a government agent compelling her to engage in speech contrary to her conscience and beliefs.
Sheeh’s answer—that there was no free speech violation—turns on precedents which have declared that the courts give great deference to educational institutions to set their own educational standards and that no free speech violation has occurred so long as the restriction on or compelling of speech is related to a “legitimate pedagogical goal.” This somewhat subjective standard was used in the Axson-Flynn opinion (2004), concerning a Mormon acting student who was compelled to use the “F” word in certain scenes played in class. The court ruled that as long as the assignments were not motivated by anti-Mormon animus but were simply required of her in order to teach her to be a better actress, her free speech rights were not violated by the requirement. The Axson-Flynn court cited (from a still earlier opinion) other examples of situations in which a student could be compelled to express opinions different from his own—e.g., writing a paper for a history class defending Prohibition or writing a legal opinion from the perspective of a particular Supreme Court justice.
Sheeh asserts that EMU had a “legitimate pedagogical goal” in training Ward “to counsel all clients within their own value systems.” He goes so far as to say that to train her in any other way would be to train her to engage in “harmful” counseling: “A counselor who cannot keep their [sic] personal values out of the interaction has great potential to harm her [sic] client.... [A] counselor needs clinical educational experiences to draw upon in order to deal with situations in a non-harmful, ethically appropriate manner. Providing such skills to its graduates is the legitimate pedagogical concern of the University.” (Sheeh opinion, pp. 26-27) In the service of this good and necessary pedagogical goal of teaching “ethical” (i.e., morally relativistic) counseling, EMU could not possibly be violating Ward’s free speech rights even by compelling her to speak in ways contrary to her own beliefs.
It is alarming for a judge to declare that it is a legitimate academic goal of a university to train students to counsel in this way and that in the service of that goal counselors in training can be legitimately compelled actually to speak to clients as if they believe their behavior to be morally good when the counselors believe just the opposite. Judge Sheeh’s high-toned declarations about harm to clients take no account even of the possibility that encouraging clients to continue engaging in homsoexual acts (not to mention any number of other behaviors which a counselor might, under this sweeping rubric, be compelled to affirm) is itself harmful to the client. Interestingly, Sheeh’s statements about client harm imply that all pastoral counseling or other counseling that takes place within the context of a clear moral framework is harmful. Judge Sheeh’s declaration that EMU had these “legitimate pedagogical goals” as a state school gives state schools great power to require ideological conformity from students as a condition of a degree.
There is, however, something else alarming here: In using the Axson-Flynn precedent, Judge Sheeh is applying to Julea Ward’s real-life counseling practicum a precedent that, in the original opinion, addressed only cases in which student “speech” was not real-life speech. No one concludes that a student who turns in a paper for a history class defending Prohibition must really favor Prohibition. The assignment is purely an exercise, carried out and submitted in a controlled classroom situation, that involves “taking on” a viewpoint which may be different from one’s own. That this same analysis applies to acting out a scene in an acting class is quite obvious. But if Julea Ward counseled a client in her practicum and gave the impression that she affirmed the client’s lifestyle and wished to advance the client’s goals, this would not be a matter of play-acting. The client would reasonably believe that this was Ward’s actual perspective and that Ward considered it morally acceptable to advance the client’s goals in carrying out a homosexual lifestyle (since she would be, in fact, doing exactly that). In fact, Sheeh’s comments about harm to clients ostensibly caused by “judgment” on the part of the counselor make this point quite clear. The client would allegedly be harmed if he believed that the counselor thought his behavior wrong. Therefore, the counselor must counsel in a way that works within the client’s own “value system.” This argument makes it clear that the client takes the counselor’s attitudes as conveyed in counseling to be real, not merely “acted out,” a point which is also evident by way of common sense.
If government schools can compel students for ostensibly pedagogical reasons to engage in real-life speech contrary to their own beliefs, it is difficult to see where any lines could be drawn. State schools could then compel a student, as an academic assignment, actually to write to his representative lobbying for policies he thought wrong, to go to a church and appear to convert to a religion he actually rejects, or to try to convince another person in real-life dialogue (perhaps secretly taped or recorded on the Internet) to accept a view the student finds abhorrent. As long as the school could give some allegedly “legitimate pedagogical goal” for such assignments—teaching non-judgmentalism, teaching students what it feels like to belong to another religion, etc.—such government-compelled speech would pass First Amendment muster. This is an extremely dangerous extension of the Axson-Flynn precedent that must not be allowed to stand.
The free exercise violation disappears
The complaint that EMU violated Julea Ward’s right to free exercise of religion begins with the same straightforward facts that support the free speech claim: EMU punished Julea Ward for not engaging in conduct contrary to her sincerely held religious beliefs—namely, counseling that affirms a homosexual lifestyle. But the complaint in the free exercise case goes farther, because Julea’s professors expressly targeted her religious beliefs as the source of her recalcitrance and pressured her to change them. This would have been the goal of the “remediation” which she refused to undergo. Hence, EMU not only tried to force her to violate her religiously informed conscience, it also punished her for maintaining her religious beliefs.
The attacks on Julea’s Christianity were not particularly subtle. At the informal review, the professors told her that the purpose of the proposed remediation was to make her see the “error of her ways.” At the formal review, Professor Dugger asked (though he later “withdrew” the question) whether Julea viewed her “brand of Christianity as superior.” Professor Francis proposed to engage her in a “theological bout” and then tried to argue that if no one is more “righteous” than another before God, homosexuals are worthy of “respect and honor” and hence, by implication, should be counseled in a way that does not involve any negative judgment of their behavior. At this same review, her supervising professor, Prof. Callaway, recounted having expressly told Julea that in professional counseling her “position” was “untenable” and her “attitude” regarding counseling homosexual clients “would not be condoned” (Ward complaint, formal review transcript, p. 3). Most strikingly, in describing Ward’s refusal, during the informal review, to agree to remediation, Prof Dugger said this:
The development of the remediation plan of course would, um, be contingent on Ms. Ward’s recognition that she needed to make some changes. And, um, she did not, um, express that; in fact she expressed just the opposite. And, um, she communicated an attempt to maintain this belief system and those behaviors. (Ward complaint, formal review transcript, p. 8)
It was Ward’s refusal to make changes in her “belief system,” her expressing an attempt actually to maintain her beliefs and the constraints they placed upon her actions, that blocked her participation in a “remediation” plan designed to change her. Hence, she was dismissed. Had she adhered to a different religion, perhaps one of those other “brands” of Christianity, she might have been able to remain in the program. The religious discrimination could not be much clearer.
Incredibly, Judge Sheeh insists that no violation of Julea’s religious freedom took place at all. He dismisses all of the express comments about her beliefs and about religion as merely “indelicate” (Sheeh opinion, p. 28) and “tactless” and goes so far as to say that they do not create a constitutional problem because the “disrespectful comments were directed at plaintiff, herself, rather than at the practice of religion” (Sheeh opinion, p. 43). He even quotes the school’s own non-discrimination policy, emphasizing the words “religion/spirituality,” to argue that the school’s policies are obviously “designed to encourage respect for, not hostility toward, various points of view” (Sheeh opinion, p. 43). To make things even stranger, after having admitted that the professors were “indelicate,” and despite saying that their comments were “disrespectful,” Judge Sheeh says that the professors “in no way attacked her beliefs” (Sheeh opinion, p. 28, emphasis added).
It is almost difficult to believe that a judge could make such a poor excuse for an argument. Consider the way that similar comments would be treated in the area of race. Suppose that a professorial committee badgered a black student about his race, perhaps apropos of his support for affirmative action, asked him if he considered his race to be superior to other races, said that they were going to engage him in a “racial debate” or “bout,” and then dismissed him from a program when he refused to undergo “remediation” designed to change his views on the subjects of race and affirmative action. Would anyone dismiss their remarks as merely “tactless” and as irrelevant to the question of racial discrimination, on the grounds that the comments were directed at the student personally and did not happen to include sweeping slurs against all black people? Would it do the school the slightest good to quote its non-discrimination policy and to argue that, since the policy declares that racial discrimination is forbidden, the school could not have been engaging in it? These questions scarcely require an answer. Indeed, if a prospective employee were questioned and badgered with regard to race in the way that Ward was with regard to religion, and if the applicant did not receive the job, he would certainly be considered to have plausible evidence of racial discrimination.
Judge Sheeh actually quotes Prof. Dugger’s statement that Julea was punished because she refused to make changes in her “belief system.” Yet immediately thereafter he states that Julea has “distorted the facts in this case to support her position that defendants dismissed her due to her religious beliefs” (Sheeh opinion, p. 28). Sheeh makes two attempts to defend this blatant contradiction of Prof. Dugger’s own words. First, Sheeh simply asserts repeatedly that Ward’s professors maintained a strict distinction between beliefs and behavior and were concerned only with behavior. This assertion, posing as an argument, is contradicted by the facts. Any such distinction on the part of the professors would have been highly artificial; no doubt this is why they did not maintain it. Julea’s belief that homsoexual acts are wrong was the motive behind her “behavior.” She also had a belief about her own behavior—namely, that it would be wrong for her to engage in counseling affirming homosexual acts. At a minimum, the professors had to break down her adherence to this latter belief about her own actions in order to induce her to hide her belief about homosexual acts and to pretend in her counseling to hold a positive view of homosexual acts. The professors made it quite clear that they understood this in their statements about the remediation plan.
Judge Sheeh’s second attempt to support his false contention that the professors never showed any intention of changing Ward’s beliefs is his statement that “plaintiff is forced to agree that Drs. Callaway and Dugger never told her that she needed to change her religious beliefs,” with a reference to Ward’s deposition (Sheeh opinion, p. 28). This would be a somewhat strange thing for Ward to have said, given especially that Dugger himself was the professor who accused her in the formal hearing of “communicat[ing] an attempt to maintain this belief system.” The question that she was answering at that point in the deposition, however, concerned only the informal review and asked specifically whether Dugger or Callaway told Julea that she needed to “change her beliefs.” Despite the clear implication that she needed to do so, at the informal review that phrase was not used, nor was Dugger’s statement made directly to her at the formal review. Dugger was summarizing at the formal review, for others, the import of what had happened. In other words, Dugger made it clear at the formal review that they had been all along attempting to make Julea agree to undergo remediation to change her beliefs, even though they had not directly said to her earlier, “You need to change your beliefs.” If someone is “distorting the facts” here, it certainly does not appear to be Julea but rather Judge Sheeh.
Beyond all this, Sheeh never fully faces the fact that forcing Ward to violate her religious beliefs raises serious free exercise questions in itself. It would not do for state educators to force a Muslim to eat pork as an “educational exercise” and then to defend themselves on the grounds that he was free to believe as he liked about pork eating so long as he actually ate pork for the class assignment. Even if the professors had not made it quite evident that Ward needed to change her beliefs, their very attempt to get her to engage in that behavior in the face of her stated religious objections was itself a prima facie attack on her freedom of religion.
Sheeh’s main attempt to deal with this problem involves a lengthy discussion of the referral question and whether or not the counseling association guidelines used in EMU’s program would have allowed EMU to permit Ward to refer homosexual clients during her practicum. Sheeh goes to some lengths to argue that Ward’s refusal to counsel homosexual clients in an affirming way about their relationships violates the ACA code of ethics and hence that EMU could not have permitted her to refer homosexual clients for relationship counseling while maintaining an accredited program. But even if this were true, it hardly follows that EMU’s actions were not a violation of her right to free exercise of religion. It is conceivable that a professional organization’s guidelines could be such that, if a state school enforced them against students of a particular religion, this enforcement would create a free exercise problem. If the ACA guidelines really do mean that counseling students must engage in “gay-affirmative therapy,” this seems to be just such a case.
Sheeh also argues that this requirement could not violate Ward’s free exercise of religion because it was imposed on all students equally and not directed at any one religious group. Once again, the conclusion does not follow. As in the pork-eating example above, a requirement can be made of all students which nonetheless would be considered, if made by a state entity, a violation of the religious freedom of a particular student who has a sincere religious objection to that requirement. Usually some “reasonable” religious accommodation can be required in such cases. It is in this context that Sheeh makes another of his breathtaking statements, quoted above—namely, that Ward was not required to “endorse or advocate homosexuality” but only to “set aside” her religious beliefs when she was counseling clients. But again, since Sheeh himself has apparently accepted the characterization of the requirement as providing “gay-affirmative therapy,” this assertion rings hollow. The “setting aside” that was called for involved appearing, to the client, to endorse homosexual behavior.
The establishment violation disappears
It may seem surprising that part of the ADF complaint is that EMU violated the establishment clause of the Constitution. What religion were they establishing, if so? The answer to this apparent puzzle lies in the history of establishment clause jurisprudence and precedents. According to what is known as the Lemon test for an alleged violation of the establishment clause, a government action constitutes a prima facie violation of the establishment clause if, inter alia, it has the primary effect of either advancing or inhibiting religion. Later, in Lynch v. Donnelly, Justice O’Connor proposed the endorsement test, according to which a government action constitutes an establishment of religion if it would create in the mind of a reasonable observer the perception that the government is either endorsing or disapproving of religion. Since both of these precedents include the possibility that disfavoring or inhibiting religion could be a violation of the establishment clause, the ADF argues that the professors’ actions and hostility toward Julea Ward and her religious beliefs did exactly that—specifically by disfavoring her morally traditional version of Christianity in favor of more liberal brands.
We have already seen part of Judge Sheeh’s answer to this claim—namely, that the disrespectful comments of the professors about religion could not constitute a violation of the establishment clause in this way because they were directed at Julea personally and not at all Christians or at religious practice generally. This response is entirely inadequate not only for the reasons already cited, but also because Sheeh ignores the legal implications of the attack on Julea’s “brand” of Christianity suggested by one of the questions at her formal review.
Sheeh relies heavily on the Lynch endorsement test. Using Lynch, he attempts to argue that a “reasonable observer” would not consider EMU to be sending a message of disapproval of religion. Sheeh’s argument on this point is curious:
The court finds that no reasonable person could conclude that the Program curriculum, as written or as enforced, conveys a message endorsing or disapproving of religion. Counseling program requirements that advance professionalism, tolerance, and non-discrimination, whether or not the University officials adopted an arrogant or hostile demeanor during disciplinary reviews, cannot reasonably convey a message of disapproval of religion to the public. As noted supra, counseling is a helping profession that seeks to assist in resolving delicate and personal issues; thus, a counselor’s attitude of nonjudgment and nondiscrimination is of foremost importance. A reasonable member of the community would understand that defendants, in preparing students for the counseling profession, had a right and a duty to enforce compliance with such ethical rules. (Sheeh opinion, p. 39)
Sheeh is arguing, in essence, that because a “reasonable observer” would agree with him about the great importance of ethical relativism in counseling (particularly, of course, on the matter of homosexuality), the reasonable observer would be unable to see any message of disapproval of religion in EMU’s actions. But this does not follow. If indeed Julea Ward’s religious beliefs, and the implications of those beliefs concerning counseling, are contrary to the opinions of Sheeh and his clone, the “reasonable observer,” then presumably from his perspective her religious beliefs ought to be disapproved of because they are unreasonable. Sheeh confuses the question of whether or not the government is sending a message of disapproval of (some) religion with the question of whether the government is right to do so. He assumes that if the answer to the latter is “yes” then the answer to the former must be “no.” But this is illogical. Here we see even more clearly than before that Sheeh uses his own perception of the great importance of “gay-affirming counseling” in a strange and reasonless way to block all constitutional claims against such requirements.
Finally, Sheeh considers the possibility that Ward’s professors might be accused of establishing a religion of secularism by their hostility to her religious beliefs. It is in this context that he makes the remarks already discussed about their “tactlessness.” He also makes the following rather subjective evaluation:
Although plaintiff’s complaint that defendants demonstrated hostility, arrogance, and offensiveness during the formal and informal reviews is well taken, the court finds that neither this behavior nor the curriculum requirements satisfy the level of hostility required to establish a religion of secularism...(Sheeh opinion, p. 43)
One cannot help wondering just how much hostility toward religion Judge Sheeh considers necessary to support an establishment complaint.
Upping the ante
Since Judge Sheeh has argued that there were no constitutional violations by EMU in the first place and that their actions would pass the weak “rational basis” test, he does not actually have to go any farther. But lawyers and judges are rarely willing to leave any stone unturned in their desire to make their case airtight, so Sheeh makes one more move—a rather important one: He states that even if he were wrong and EMU did infringe upon Ward’s constitutional rights, EMU could justify doing so under the much stronger requirement of “strict scrutiny.” In unusual cases, a state entity can argue that it is constrained to burden or limit a constitutional right because it has no other way to fulfill some “compelling state interest,” such as, for example, national security. In those cases the state entity must also argue that its policy is as narrowly tailored as possible to achieve that compelling interest. Since, for all the ink he has spent on it, Sheeh’s case that EMU did not violate any of Ward’s constitutional rights is quite weak, his further claim that its actions could survive “strict scrutiny” requires consideration. To say that EMU has some truly grave state interest which it could maintain only by requiring Julea Ward to engage in gay-affirming counseling is to make a legally very strong and significant statement. What argument could Judge Sheeh possibly bring forward to make this case?
Interestingly, his argument here is quite short, especially in comparison with the many pages that have gone before.
This court finds that even if plaintiff succeeded in her free exercise claim, resulting in strict scrutiny review of her equal protection claim, defendants have demonstrated a compelling interest and narrowly tailored means to achieve the end. The Supreme Court has recognized the fundamental role of public education in maintaining the fabric of our society....Therefore, public educational institutions have been given considerable deference by the judiciary in determining their own academic standards. Some courts have held that a compelling interest in public education includes designing and teaching a curriculum as the State sees fit....EMU has a compelling interest to design and maintain a counseling program meeting the CACREP accreditation standard, and its measure to enforce this goal is narrowly-tailored: it is not so under-inclusive that it only targets plaintiff’s religion, nor is it so over-inclusive that it substantially regulates aspects of students’ personal lives outside of their professional conduct. Therefore, defendants would still obtain summary judgment ...even if plaintiff had succeeded on the free exercise claim. (Sheeh opinion, p. 47-48)
When push comes to shove, EMU’s “compelling interest” apparently is made to rest on the need to meet the accreditation standard of the counseling association. Judge Sheeh has mentioned this point before in his opinion (Sheeh opinion, pp. 2, 13, 22, 26, 37, 46), laying particular stress on the fact that EMU did not write the guidelines and that EMU needed to maintain an accredited program. Here, where he needs to defend his strongest claim, he falls back on this point.
Rhetorically, it seems quite plausible that had Sheeh not made his earlier statements about the supposedly “harmful” nature of “judgmental” counseling and about EMU’s “right and duty” to require it, he would not feel free to offer such an attenuated argument for the compelling interest claim. Whether or not EMU actually could have lost its program accreditation if it allowed Julea Ward to refer homosexual clients for relationship counseling is questionable. In a letter to the counseling program, Julea argues that it would have been quite easy to make an accommodation for her, that there were plenty of other counselors available, and that requests for homosexual relationship counseling in the practicum were not frequent. (Ward complaint, Ex. 4-65) It seems doubtful that the accrediting association would have gotten wind of such an accommodation, swooped down upon EMU, and withdrawn its program accreditation for such a prudential decision to accommodate Julea. (See also footnote 8, above.)
But if we waive that question, consider this: Suppose that some accrediting agency required as a “professional standard” that counselors affirm white supremacism. Suppose that somehow such a bizarre “professional standard” had become entrenched, perhaps under the rubric of “scientific” information about the races. Would a federal judge, upon discovering this, excuse a state school that enforced such “professional standards,” arguing that the school had a “compelling state interest” in enforcing them simply because the school might lose its program’s accreditation if it did not do so? The question answers itself.
In fact, we can imagine situations where even a client’s “values” would be considered warped by Ward’s professors, and warped in such a way that the very “professional standards” they claim to uphold would make it impossible for them to work within that client’s value system. The ACA standards expressly say that ethical counselors do not “condone” discrimination on the basis of a litany of the usual characteristics, including race and sexual orientation (Sheeh opinion, p. 18). But what if a client’s goals included perpetuating discrimination? A client might refuse to allow his daughter to date a young man of another race and might seek counseling with the goal of being reconciled with his daughter while maintaining his prohibition. In this case the supposed requirements of “non-judgmentalism” and of “delivering the objectives sought by the client,” stand in direct conflict with another “professional standard” of never condoning, inter alia, racial discrimination.
It is easy enough to make up such examples, for ethical relativism is impossible to maintain consistently, and it is part of the philosophical childishness of the EMU counseling faculty and of Judge Sheeh that they talk loftily as though “non-judgementalism” were a self-consistent value system. The point of such examples for Ward’s suit is just this: If the guidelines for accreditation really require absolute moral relativism from all counselors, they cannot be consistently followed, and such guidelines would certainly not be enforced nor used to bolster a claim of a “compelling state interest” were the concrete subject at issue one on which the liberal elite held different substantive views.
If the professional association’s standards really mean that serious, consistent, traditional Christians need not apply to train and work as counselors, there are constitutional problems with government schools that apply and enforce those standards. The courts cannot simply punt to the “professional standards” as Sheeh is doing, nor, as his entire opinion makes clear, would he even attempt to do so if he did not personally agree with the standards as he and EMU interpret them.
The rubber meets the road: Implications for freedom of religion in school and society
We should be clear about one thing: These matters cannot be decided in a purely procedural, content-neutral fashion. Legal terms of art such as “legitimate pedagogic purpose” and “compelling state interest” make that quite clear. As the relevant jurisprudence has developed across its history, exceptions to “religious freedom” have naturally been made for government policies that burden religion where such a burden is legitimate and inevitable. A man cannot beat his wife or torture his child and claim that he must be exempt from laws against these acts because they are called for by his religion. More to the point, if a medical student claimed a religious right to refuse to wash his hands because he adheres to a religion that teaches the non-existence of germs and the origin of all disease in the acts of evil spirits, it would be legitimate in the name of public health and safety for a state school to deny him a medical degree.
Christians and moral traditionalists must therefore realize what Judge Sheeh’s opinion means: It means that refusing to engage in “gay-affirming therapy” should be treated as the professional equivalent of a medical practice that directly endangers patients’ physical well-being and public health. It means that simply being a morally traditional Christian in one of the helping professions is tantamount to bizarre and potentially life-threatening religious practices and claims. It means that it is extremely important for the state to weed out serious Christian counselors who refuse to act as good moral relativists, at least with regard to homosexual acts.
Judge Sheeh does not even try to hide these implications. Recall that he says this:
A counselor who cannot keep their [sic] personal values out of the interaction has great potential to harm her [sic] client.... [A] counselor needs clinical educational experiences to draw upon in order to deal with situations in a non-harmful, ethically appropriate manner. Providing such skills to its graduates is the legitimate pedagogical concern of the University.” (Sheeh opinion, pp. 26-27)
He also makes an express reference to EMU’s actions as essential to the role of professional gatekeeper:
[T]he Program’s primary goals are threefold: (1) to promote student development, (2) to protect clients who utilize the Program’s services, and (3) to serve as gatekeepers for the counseling profession, thus ensuring that its graduates have the skills and professional disposition to become licensed counselors. (Sheeh opinion, p. 39)
This is fairly explicit, and chilling. People like Julea Ward do not have the proper “professional disposition” and “skills” to be counselors. Indeed, to let people like Ward continue even in a practicum would be to risk harming the clients seen in the practicum. Those clients must be protected from people like Julea Ward. Schools like EMU must act as gatekeepers to block people like Julea Ward from ever becoming counselors.
If Judge Sheeh’s opinion is not overturned on appeal, here are some of the implications: State schools running professional programs including a practicum will be able to demand that their students conform, during the practicum, to a sexually libertine, relativistic ideology as a condition of graduating, to the point of being required to endorse homosexual acts in their speech with clients. Sheeh’s extension of the Axson-Flynn precedent means, moreover, that state schools can make “educational” assignments that compel ideological speech as dictated by professors in real-life situations.
But the implications do not end when the student graduates. Sheeh himself makes the further point:
The ACA Code of Ethics is the industry standard in the field of counseling. EMU did not write the nondiscrimination policy that it adopted into its counseling student handbook. Rather, the University is using the ACA Code of Ethics to govern its counseling students in exactly the same way they will be governed when they are practicing counselors. (Sheeh opinion, p. 22)
Sheeh here implies that if Julea Ward were to graduate from EMU’s counseling program, she would, for her entire life as a professional counselor, be required to engage in “gay-affirming therapy,” presumably on pain of discipline from her counseling association. Sheeh accepts, in other words, the possibility that traditional Christians may be significantly blocked from participation in the counseling profession by these “standards.” Rather than recognizing the constitutional problems that would follow from such a conclusion, he uses it as another reason to defend EMU’s discrimination against Ward during her student days.
It is true that there is a separate, Christian counseling association, the American Association of Christian Counselors, and it is possible that Ward and others in her position would be able in some way to do extra work, obtain a credential from this association, and work under its auspices. But if she were to be disciplined by the ostensibly non-religious ACA, that in itself would no doubt make it more difficult for her to work with, for example, public schools, which is the area in which she wished to work as a counselor. The net result of lifelong monitoring of counselors for “gay-affirming counseling,” if Sheeh is right that ACA counselors will be “governed” by his interpretation of the ACA standards, would be the effective segregation of serious Christians from all counseling work for which a secular counseling credential is required.
Sheeh’s argument as a whole also leaves wide open the possibility for direct discrimination by government employers against Christian counselors or other professionals. If non-judgmentalism concerning homosexuality is really necessary to avoid harm to clients and if requiring “gay-affirming” professional behavior can really constitute a compelling government interest, government entities could presumably simply fire counselors who did not conform to this requirement without even waiting for action from a professional association. Even if it were demonstrated that such firings constituted an infringement of religious freedom, they could be judged constitutional as a matter of the state’s carrying out its “compelling interest” in ridding the profession of judgmental Christians who dare either to refer homosexual clients or, even more shockingly, to suggest to homosexual clients that their behavior is self-destructive.
It does not take much imagination to see how the notion of a “compelling state interest” in requiring the affirmation of homosexuality could be expanded beyond the counseling profession—to policemen, social workers, lawyers, and doctors, for example—so that Christians in these professions would be hemmed in by ideological “professional” requirements and eventually, if they did not compromise, ousted. Hence Sheeh’s elevation of moral relativism and the affirmation of homosexuality has broad implications for the aggressive secularization of American society in some of its most crucial and powerful professions.
Suppose for the sake of the argument that some or all of the professions listed already have policies in place that could plausibly be interpreted to require the behavior that EMU asked of Julea Ward. It may then be asked how Sheeh’s ruling makes matters worse in these professions. The answer is that Ward’s is a test case. Ward expressly made a request based on her religious beliefs for exemption from a state entity’s demand that students affirm homosexuality. This was a moderate and reasonable request. Indeed, it should have been possible for Ward to challenge the “standards” even further and to counsel the client in a way that would actually, in her best judgment, help the client. But she did not even go that far, asking only to be allowed to refer the client. EMU disallowed even that and demanded that she be willing to affirm homosexual clients’ acts or leave the profession, and Sheeh’s ruling affirms that dismissal as constitutional. If there are presently ideological impositions and discrimination taking place against traditional Christians by state entities, the absence of a federal court ruling leaves open at least in theory the possibility that such discrimination could be challenged as unconstitutional. If Sheeh’s ruling is left in place by, ultimately, the Supreme Court, such later challenges will be much less likely to be heard without bias, much less to succeed. The possibilities for legal redress for Christians tossed unceremoniously out of the helping professions will be severely limited.
Sheeh’s ruling, if it stands, will be one more nail in the coffin of religious liberty in the United States; it is therefore crucial that it be overturned.
Axson-Flynn opinion, Axson-Flynn v. Johnson, et. al., (10th Circuit, 2004), <http://ca10.washburnlaw.edu/cases/2004/02/01-4176.htm> Accessed 3/4/11.
Sheeh opinion, Ward v. Wilbanks, et. al., (U.S. District Court, 2010), <http://oldsite.alliancedefensefund.org/userdocs/WardOpinion.pdf> Accessed 3/4/11.
Ward complaint, Ward v. Wilbanks, et. al., (U.S. District Court, 2010), <http://oldsite.alliancedefensefund.org/userdocs/WardComplaint.pdf> Accessed 3/4/11.
 The ADF complaint and Sheeh’s opinion provide what one might call dueling quotations on the question of value-neutrality from a textbook used in the EMU counseling program. These quotations appear to indicate that the standards taught contain some ambiguity; for example, the textbook asserts that it is not possible for a counselor to be completely value-neutral and that sometimes it may be appropriate for a counselor to reveal his values (Ward complaint, pp. 19-20). However, the same textbook states both that counselors must not attempt to “steer” clients to accept counselor values and also that in the area of homosexuality in particular counselors are “obligated not to allow their personal values to intrude into their professional work” (Sheeh opinion, p. 9).
 In the context in which he uses this phrase, Sheeh is restating a challenge posed by Julea Ward—namely, why was she not permitted to refer homosexual clients since she could not affirm their values, while EMU would permit a counselor to refer clients who wish to change their homosexual behavior? It is therefore possible that the phrase “gay-affirmative therapy” originally came from Ward’s question. But Sheeh uses it himself without any indication that it is a faulty characterization of what she was being asked to “partake in,” and he does not put the phrase in quotation marks. He appears to accept this characterization of what was, in his view legitimately, being required of Ward.
 One section of Sheeh’s ruling that I will not be examining is the discussion of whether EMU’s policy constitutes a speech code. This is a part of ADF’s complaint because, based on past precedents, it could indicate a due process violation.
 Any degree involving a practicum could be affected, including medical degrees. Schools could compel a medical student not to tell an actively homosexual or a sexually promiscuous patient that his lifestyle is potentially harmful to his physical and psychological health. Students could be compelled instead to speak in a value-neutral or even affirming way to the patient about these acts. Whether they might be allowed to counsel a patient to stop smoking remains to be seen.
 This is not, of course, to say that it is morally legitimate for acting courses to require students to quote vile language on-stage. It is simply to acknowledge that in such situations no one believes that the student himself really is the character he is playing who uses the vile language.
 The comments on p. 43 are from the judge’s consideration of the establishment clause complaint rather than the free exercise complaint, but the two are closely related.
 This information about Julea Ward’s deposition was provided to me in personal communication by Atty. Jeremy Tedesco. I thank him for the information.
 Here too, as in the case of value-neutral counseling (see footnote 1), the complaint (pp. 21-22) and the judge’s opinion (p. 9) adduce different quotations from textbooks. Some of these quotations allow for referrals when there are value clashes between client and counselor; others state that referral is supposed to be only a last resort after the counselor has attempted to counsel the client. Both Sheeh and the EMU department assume that a counselor’s blanket policy of referring homosexual clients for relationship counseling would be contrary to ACA standards; given the treatment of homosexuality as a specially protected category in the textbooks and standards, this is not an implausible interpretation but also not completely clear. In particular, it is unclear that the ACA would have concerned itself with a decision by EMU to accommodate a student counselor’s religious views by permitting such referrals.
 The caveats in the counseling textbooks about the possibility of value-neutral counseling may reflect at least a faint realization that true ethical relativism is not self-consistent.
 Possibly state courts would take a different view based on state discrimination law, but even there a federal ruling would be an important source from which state courts could draw in fashioning arguments in favor of anti-Christian discrimination.