Newspaper column: State should not violate one’s moral convictions

And you thought the 13th Amendment prohibited involuntary servitude.

This past week Nevada’s Democratic Attorney General Aaron Ford joined a coalition of 23 states and local governments in filing a lawsuit against the Trump administration’s Department of Health and Human Services (HHS) rule aiming to protect health care providers from having to provide services contrary to one’s “religious beliefs or moral convictions” — such as abortion, contraception, sterilization, assisted suicide or transgender hormone treatment or surgery.

The so-called Final Rule was announced in early May by Roger Severino, director of the Office for Civil Rights at HHS. He said in a statement that the rule “provides enforcement tools to federal conscience protections that have been on the books for decades” and “does not create new substantive rights.”

Severino added, “Finally, laws prohibiting government-funded discrimination against conscience and religious freedom will be enforced like every other civil rights law.”

HHS Office of Civil Rights Director Roger Severino. (Getty Images via National Catholic Register)

Ford said in a statement accompanying the announcement of Nevada’s role in the litigation, “The Department of Health and Human Services’ rule would allow individuals and entire institutions to deny lawful and medically necessary care to patients, even in cases of emergencies,” though it is difficult to conjure what constitutes an “emergency” abortion, assisted suicide of transgender treatment.

Nevada Attorney General Aaron Ford

The crux of the lawsuit is money.

The lawsuit and Ford’s press release note that noncompliance with the 440-page Final Rule could result in the denial of federal funding. The lawsuit alleges this could amount to hundreds of billions of dollars each year.

Ford’s statement further argues “the Final Rule, which will take effect in July 2019, would undermine the delivery of health care by giving a wide range of health care institutions and individuals a right to refuse care, based on the provider’s own personal views. … The Rule makes this right absolute and categorical: no matter what reasonable steps a health provider or employer makes to accommodate the views of an objecting individual, if that individual rejects a proposed accommodation, a provider or employer is left with no recourse.”

The Wall Street Journal noted at the time the Final Rule was announced that it is an outgrowth of President Trump’s 2017 executive order that included a section on “conscience protections.” The order was seen as a direct response to some Obama administration orders.

“Several religious groups, for example, battled the Obama administration over the Affordable Care Act’s mandate that employers and insurers provide no-cost contraceptive coverage for employees,” the newspaper reported.

Kevin Theriot, vice president of Alliance Defending Freedom, told the National Catholic Register earlier this month that those who have conscientious objections to procedures are not discriminating.

“Our clients that have conscientious objections to participating in abortion or participating in, for instance, sex-change therapy or any of those kinds of things, they don’t discriminate based upon a person’s sexual orientation or their sex or anything like that,” Theriot was quoted as saying. “What they’re saying is they shouldn’t be forced to participate in a procedure that violates their convictions. They won’t do that procedure for anybody, so there’s no discrimination going on at all. What’s going on is acknowledging our time-honored practice here in America of respecting rights of conscience.”

As an example of the problem, the Catholic publication noted an example of a New York nurse who was forced to participate in an abortion procedure despite her conscientious objection as a Catholic.

“I’ll never forget the day my supervisor ignored the law and forced me to participate in an abortion. I still have nightmares about that day,” the nurse said in a statement. “As an immigrant to America because of the freedom and opportunity I saw here, today I’m hopeful that HHS’ new rule will help make sure that no other nurses or health care professionals will be forced to go through what I did and that their rights will be protected.”

Theriot noted that the Supreme Court has repeatedly found that each person determines his or her own conscience, not the government.

And you thought the First Amendment prohibited Congress from abridging the free exercise of religion.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

If you’re going to California, be sure …

Maybe it is time to update that old hippie paean that goes, “If you’re going to San Francisco, be sure to wear some flowers in your hair,” to: “If you’re going to California, be sure to leave your Bible at home.”

Like Nevada, California has a law on the books making it illegal for any therapist to provide so-called conversion therapy to anyone under the age of 18. In Nevada that is defined as “any practice or treatment that seeks to change the sexual orientation or gender identity of a person.”

A week ago the California Assembly passed Assembly Bill 2943 on a vote of 50-14, making it unlawful to advertise, offer to engage in or engage in any effort whatsoever to change anyone’s sexual orientation.

Getty Images

The bill specifically states: “Courts, including in California, have recognized the practice of sexual orientation change efforts as a commercial service. Therefore, claims that sexual orientation change efforts are effective in changing an individual’s sexual orientation, may constitute unlawful, unfair, or fraudulent business practices under state consumer protection laws. This bill intends to make clear that sexual orientation change efforts are an unlawful practice under California’s Consumer Legal Remedies Act.”

Now, there are a number of passages in the Christian Bible and, or so we’re told, in Islam’s Koran that are highly critical of behavior other than heterosexuality. It would seem on the surface that if the California Senate passes and the governor signs this bill that selling Bibles and Korans, or even having them in libraries, would be against the law in California.

The current law in Nevada has a ham-fisted attempt to protect religious practices. Just before it was passed in the 2017 Legislature, the bill was amended to say “there is nothing in this bill that regulates or prohibits licensed health care professionals from engaging in expressive speech or religious counseling with such children if the licensed health care professionals: (1) are acting in their pastoral or religious capacity as members of the clergy or as religious counselors; and (2) do not hold themselves out as operating pursuant to their professional licenses when so acting in their pastoral or religious capacity.”

So, which hat is the professional licensee wearing when talking to a child about gender? The pastor hat or the doctor hat?

The Alliance Defending Freedom says bluntly that AB2943 outlaws speech by targeting a specific message — advice to anyone about changing sexual orientation. The organization argues:

• A religious ministry could not hold a conference on maintaining sexual purity if the conference encourages attendees to avoid homosexual behavior;
• A bookstore (including online bookstores like Amazon) could not sell many recently published books challenging gender identity ideology and advocating that these beliefs should be rejected by society; and
• A pastor paid to speak at an event addressing current social topics could not encourage attendees that they can prevail over same-sex desires or feelings that they were born the wrong sex.

Presumably, under such a law it would be illegal to write that 80 to 95 percent of all children who express feelings of gender dysphoria abandon those feelings upon maturity and that more than 80 percent of youth claiming to experience same-sex attractions in late childhood and adolescence identified themselves as exclusively heterosexual upon becoming adults.

What happens in California too often has a way to seeping across the border. So be forewarned.

California will not tolerate intolerance. What is the punishment? Stoning?

Editorial: Conversion therapy ban violates First Amendment

Gov. Brian Sandoval signed into law this past week a legislatively passed bill that makes it illegal for any psychotherapist in Nevada to provide conversion therapy to anyone under the age of 18.

Senate Bill 201 defines conversion therapy as “any practice or treatment that seeks to change the sexual orientation or gender identity of a person.”

It states this therapy is barred “regardless of the willingness of the person or his or her parent or legal guardian to authorize such therapy.” The bill description justifies this usurpation of individual and parental rights by claiming the practice is ineffective and potentially harmful.

In a statement released to the press, the bill’s chief sponsor, state Sen. David Parks of Las Vegas, said, “Banning conversion therapy makes Nevada a safer place for children who are at a higher risk of anxiety, depression, substance abuse and even suicide.”

But what is therapy? These days it is not torture, electric shock or some emersion in aversion straight out of “A Clockwork Orange.” It is talk. You know, free speech.

Aversion therapy in “A Clockwork Organe”

But SB201 dictates that some speech is permissible while other speech is not. While it prohibits speech that might prompt a person to reconsider his or her sexual orientation or gender identity, it specifically allows support or confirmation for “a person undergoing gender transition …” or provides “acceptance, support and understanding of a person or facilitates a person’s ability to cope, social support and identity exploration and development …”

It is a one-way street. The courts have repeatedly ruled that laws that limit speech based solely on its content violates the First Amendment.

Presumably, if a professional merely talked to a minor about the results of years of research and studies and that talk resulted in a change of attitude about sexual orientation, that would be illegal under the law. Facts matter for naught.

Drs. Paul McHugh and Lawrence Mayer of Johns Hopkins University School of Medicine have written that 80 to 95 percent of all children who express feelings of gender dysphoria abandon those feelings upon maturity and that more than 80 percent of youth claiming to experience same-sex attractions in late childhood and adolescence identified themselves as exclusively heterosexual upon becoming adults. Would telling a minor to let nature take its course violate the law?

A late amendment to the law makes a ham-fisted attempt to protect religious counselors from being punished under the law, but it is so convoluted as to be indecipherable and totally useless. It tries to tiptoe around the Free Exercise Clause of the First Amendment, but instead does a Mexican hat dance.

It states “there is nothing in this bill that regulates or prohibits licensed health care professionals from engaging in expressive speech or religious counseling with such children if the licensed health care professionals: (1) are acting in their pastoral or religious capacity as members of the clergy or as religious counselors; and (2) do not hold themselves out as operating pursuant to their professional licenses when so acting in their pastoral or religious capacity.”

They have to take off their professional licensee hat and put on their clerical hat.

A group called the Alliance Defending Freedom points out the Catch-22 in that.

Nevada law states that it is “unlawful for any person to engage in the practice of marriage and family therapy … unless the person is licensed …” the Alliance points out. “Telling licensed professionals that they can only engage in certain speech and activities if they do so outside of the umbrella of their license exposes them to ethical and legal liability. It places them between a rock and a hard place. If they do the counseling under their license, they violate SB 201; if they do it outside the scope of their license, they violate” another law.

What a tangled web lawmakers weave when they decide they know what’s best for young people, and they and their parents don’t.

The Latin phrase is in loco parentis, meaning “in the place of a parent.” The emphasis should be on the loco. Someone should challenge the constitutionality of this law in court.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Anti-bullying law may have widespread unintended consequences

In his latest book, “The Rule of Nobody: Saving America from Dead Laws and Senseless Bureaucracy,” Philip K. Howard writes about how American lawmakers have abandoned all pretext of common sense and letting people just work things out. For any ill that could possibly befall anyone, there has to be a law.

“America has succumbed to its own intermediate goal. Purging official discretion, not advancing the public good, has become the goal of the Rule of Law,” Howard contends. “Better to prevent a bad choice, even at the cost of banning all good choices. Unquestioned assumptions are the most powerful forces in human affairs. If people assume something is right or wrong, they’ll act on it even to the point of self-destruction. … Americans seem content to pile society high with detailed regulations as long as they succeed in preventing anyone with responsibility from actually making a decision.”

A near-perfect illustration of this observation comes to us courtesy of the late, unlamented Nevada legislative session in the form of Senate Bill 504, described by its backers as an anti-bullying bill, one which Gov. Brian Sandoval has already signed into law.

Yes, there have been problems with school officials being less than aggressive in curbing bullying of fragile school children, in a very few cases leading to tragic outcomes, such as suicide.

But SB504 is a sweeping, all-encompassing, detailed dictation to public school officials of precisely how every imaginable offensive word, gesture or facial expression must be handled and how quickly. It leaves little to discretion or judgment. If it is perceived by the most super-sensitive or supercilious child to be an affront, it must be confronted and dealt with, without fail.

Among the myriad things this law deems to be bullying are “taunting, name-calling, belittling, mocking or use of put-downs or demeaning humor regarding the actual or perceived race, color, national origin, ancestry, religion, gender identity or expression, sexual orientation, physical or mental disability of a person, sex or any other distinguishing characteristic or background of a person …”

One of the law’s unintended consequences, at least we hope it was unintended, appears to be a prohibition of gender segregation — as in restrooms, locker rooms and showers.

The law prohibits “blocking access” to “any property or facility of a school” on the basis of any of the aforementioned categories, which include sex, gender identity or expression or any other distinguishing characteristic. Can’t block access to the girls’ showers just because he is not a girl.

Nevada’s Supreme Court has long held that laws are to be interpreted according the plain meaning of their texts.

“If the Legislature’s intention is apparent from the face of the statute, there is no room for construction, and this court will give the statute its plain meaning. …” a 2012 ruling declared. “Statutes should be read as a whole, so as not to render superfluous words or phrases or make provisions nugatory.” No matter how ludicrous.

A legal analysis of the law by the Alliance Defending Freedom makes much of the fact the law will force school officials to make student bathrooms and shower facilities available to students who identify with a gender other than their biological gender.

But it also claims the law violates the First Amendment guarantee of free speech. “While SB504 does not impose criminal sanctions, it subjects students to permanent expulsion and teachers and administrators to employment termination and loss of their licenses (and thus livelihood) if they ‘tolerate’ or fail to immediately report an allegation of bullying,” the Alliance reports. “Rather than maintain the bright lines of Nevada’s pre-SB504 anti-bullying law, SB504 ventures into the uncharted realm of punishing verbal and nonverbal behavior, including ‘gestures.’

“Vagueness in a law carrying severe sanctions may violate basic notions of due process when it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits or when it may authorize and even encourage arbitrary and discriminatory enforcement.”

The law demands the resolution of any complaint of bullying within 72 hours, certainly carrying implications for due process, fairness, thoroughness and, most importantly, justice.

School officials under this law could be tied up refereeing petty disputes among children instead of teaching them civil behavior and civics and reading and math.

Lawmakers should have left well enough alone and let responsible adults handle things.

The law of unintended consequences always prevails.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.