Born that way (but not THAT way)

On Monday, NJ Governor Chris Christie signed a bill barring any person licensed to provide professional counseling from counseling minors to avoid homosexual identity or behavior.  Reported as legislation to ban "conversion therapy," the text of the legislation, which I did not find in any of the news stories I read, is much broader.  The meat of the legislation reads as follows:

   2.    a.  A person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the person's professional training for any of these professions, shall not engage in sexual orientation change efforts with a person under 18 years of age.
     b.    As used in this section, "sexual orientation change efforts" means the practice of seeking to change a person's sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender; except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another, or counseling that:
     (1)   provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and
     (2)   does not seek to change sexual orientation.

The new legislation is being reported as restricting the actions of "licensed therapists," but clearly the real aim is parents whose attitudes are out of line with the opinions of the governor and the legislature.  It is unlikely that licensed therapists are cruising the school yards and pouncing on unsuspecting youths to ply them with "conversion therapy."  It is also unlikely that kids are sneaking out of their windows at night to seek out such therapy on their own.  No, if there is any counseling going on, you can be sure that it is by the wishes of the parents.

The new legislation serves to frustrate the wishes of those parents, substituting the judgment of elected officials for that of the parents over their own children.  The legislation does this indirectly, only because the legislature knows that to craft a more direct impingement of parental rights would doom an already constitutionally dubious law.  The federal courts have consistently maintained that parents have a fundamental right to direct the upbringing of their children as they see fit:

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.

Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944) 

The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court.  In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

Troxel v. Granville, 530 U.S. 57 (2000)

Section 2(b) of the legislation defines "sexual change orientation efforts," prefaced by the phrase that legislators are overly fond of: "including, but not limited to."   This phraseology, which also appears in Section 2(a), is often the "tell" for an overly broad legislative scheme.  Here, the definition includes (but is not limited to), "efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender."   What else is included?  Your guess as good as the legislature's.  The "but not limited to" language is a catch-all that is meant to send the message: "Don't even think about it."

By itself, "efforts to change behaviors" is quite broad.  Parenting is all about changing behaviors.  Children come into this world with an assortment of naughty inclinations, and it is the duty of parents to civilize them by changing their behaviors.  But the governor and the legislature have proscribed one set of behaviors that must not be changed.  Commenting on his signing of the bill, Governor Christie explained why this is so, saying that he believes that homosexuals are born that way.  But if parents must keep their hands off of any trait that a child is "born with," then parenting itself is eliminated.  "Stop putting clothes on that baby!  He was born that way."

But wait.  Even the governor must make exception to his "born that way" logic, because the legislation makes exception: "except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another."  If you were paying attention, you might have noticed that "gender" is something you were born with.  (We, like the New Jersey legislature, will overlook the grammatical rule that words have "gender," while people have "sex.")  Nonetheless, the legislation makes it explicit that a licensed therapist may counsel a minor toward changing genders.  Some speech is freer than others, and the professional discretion of the therapist is respected, except when it isn't.

The language restricting counseling (speech) is preceded by a litany of quotes from experts, associations, and studies (but none involving youth counseling), meant to give a veneer of objective scientific fact, that fact being that counseling youth away from homosexuality is harmful.  "The experts have spoken, so we must act!"  The underlying assumption is that the experts, or at least the ones favored by elected officials, are wiser than parents and therefore any interference with parental rights is justified by the compelling governmental interest of protecting children from the harm to which their parents are blind.

Conspicuously absent from any of the news articles I read on the New Jersey law was any mention of the newly enacted Russian law that has received so much opprobrium in recent weeks, and is the obverse of the New Jersey law.  It bans the "propaganda of non-traditional sexual relations."

Propaganda is the act of distributing information among minors that 1) is aimed at the creation of nontraditional sexual attitudes, 2) makes nontraditional sexual relations attractive, 3) equates the social value of traditional and nontraditional sexual relations, or 4) creates an interest in nontraditional sexual relations. 

Explaining the purpose of the law, Russia's Sports Minister, Viitaly Mutko said, ""We want to protect our younger generation whose physicality has not been formulated. It is a law striving to protect rights of children – and not intended to deprive anybody of their private life."  In other words, "it is for the sake of the children."

Regardless of one's views of homosexuality, legislation such as that in New Jersey and Russia should be condemned as intrusive overreach on the part of the government, infringing upon freedom of speech and parental rights.  Asserting that it is all done for the sake of the children is a feeble justification too often used by statists of all stripes.  Here again, the U. S. Supreme Court has it right:

The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 

The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.

Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.

Parham v. J. R., 442 U.S. 584 (1979)

 "The best interests of the child," a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. 

"The best interests of the child" is not the legal standard that governs parents' or guardians' exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.

 Reno v. Flores, 507 U.S. 292 (1993)

Posted at Irving Two Smokes