Anti-Gay Conversion Therapy Laws Infringe Parental Rights

Lynn Wardle
By Lynn Wardle | August 14, 2015 | 3:52 PM EDT

Billboard for Exodus International, the largest conversion therapy organization in the country. (AP Photo/James A. Finley)

Three months ago, in May 2015, the Oregon legislature enacted new legislation banning sexual orientation change therapy (SOCE). The Governor, herself reportedly bi-sexual, signed the bill into law on May 18.  Oregon thus joined California, New Jersey and the District of Columbia in outlawing professional SOCE therapy.

Critics objected to the new law’s interference with parental rights, individual autonomy, religious liberty, and constraint of professional judgment.  They asserted that:

“… the legislation is based on a false portrayal of SOCE therapy and interferes with the right of minors to seek out treatment for unwanted same-sex attraction..

“Teresa Harke of the Christian advocacy nonprofit Oregon Family Council testified that the bill is ‘too broad and may have unintended consequences for religious liberties.’

“‘We are concerned how this bill would affect a licensed counselor's work under the ministry of the church,’ Harke asserted during testimony given before lawmakers in February.

. . . .

“In a statement shared with The Christian Post in March, the ex-gay group Equality and Justice for All described support for HB 2307 as "particularly unconscionable" since "minors often struggle with same-sex attractions as a result of rape or molestation by pedophiles."

Despite such opposition, a short time later, another Oregon state agency pushed the envelope even further. The Oregon Health Evidence Review Commission (HERC) adopted an even more radical policy to authorize sex change treatments for 15-year-olds including “cross-sex hormone therapy, puberty-suppressing drugs, and gender-reassignment surgery for people with gender dysphoria,” all “without parental notification.”

Much could be said of the uncommon irrationality of these Oregon laws.  For example, they do not apparently prevent parents, friends, and religious leaders from offering non-professional (i.e., personal, religious, un-informed and un-trained) efforts to help youth with unwanted same-sex attraction overcome or escape those undesired feelings. All they stop is professional therapy.  They assure ridiculously uninformed medical decision-making. That seems not to be in the best interests of minors. 

The anti-SOCE laws also appear to seriously infringe parental rights, which long have been deemed protected as fundamental rights under the Constitution of the United States.  When parents living in 47 states (94% of the states) are free to provide SOCE therapy to their children in an effort to aid, assist, nurture and provide for their medical-psychological needs, the anti-SOCE laws of Oregon, California and New Jersey seem very extreme. 

The anti-SOCE laws are clearly ideological and political.  It is no coincidence that only the liberal bastion of the District of Columbia and (arguably) the three most extremely liberal states in America have adopted anti-SOCE legislation.

Opposition to freedom of choice in matters of sexual orientation and attraction, ironically, seems to be an article of faith of the liberal left, at least when that means the freedom to reject same-sex proclivities.  Freedom of choice for these persons means only the freedom to choose what is considered to be politically correct, not to reject it.

Perhaps the most disturbing aspect of the anti-SOCE laws is their disregard for and denial of parental rights to act in the best interests of their own children.  That strikes a blow that harms not only the parents who support SOCE treatment for their children, but ALL parents and children.

The welfare of children is best served when the state supports parents who are acting out of love for their children, not when the state supplants those parents.  Children need parents much more than they need state protection from their parents’ efforts to help them change their same-sex sexual inclinations.

State interference with parental decision-making for their children is only constitutionally justified when there is an immediate threat to the life or long-term well-being of a child.

The 2015 anti-SOCE law is not the first time Oregon legislators have tried to interfere with the parental rights. One of the leading cases to establish that parental rights are constitutionally protected arose out of Oregon’s efforts to prohibit Catholic parochial school education. 

In Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Supreme Court of the United States enjoined enforcement of Oregon’s Compulsory Education Act which required all parents and guardians of children between 8 and 16 years-old to send their children to public schools (excluding Catholic parochial schools). 

The Supreme Court agreed that the Oregon law was unconstitutional because:

“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

268 U.S. at 535.

Apparently Oregon has forgotten the lesson it should have learned ninety years ago.  The pursuit of political correctness is no justification for interference with the constitutional rights of parents.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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