Judge Jeffrey Sutton

Over the weekend, Mark Oppenheimer wrote an interesting New York Times piece about the Sixth Circuit’s recent ruling in Ward v. Polite (PDF). In that case, Judge Jeffrey Sutton — noted feeder judge, judicial hottie, and possible SCOTUS nominee in a Republican administration — handed a (partial) victory to Julea Ward, an evangelical Christian who sued various teachers and administrators at Eastern Michigan University, where she had been studying counseling.

Here’s a concise summary of the facts, from the opening to Judge Sutton’s opinion (which is wonderfully clear; he’s great at explaining complex legal issues to large lay audiences; see also his Obamacare opinion):

When the university asked Ward to counsel a gay client, Ward asked her faculty supervisor either to refer the client to another student or to permit her to begin counseling and make a referral if the counseling session turned to relationship issues. The faculty supervisor referred the client. The university commenced a disciplinary hearing into Ward’s referral request and eventually expelled her from the program. Ward sued the university defendants under the First and Fourteenth Amendments.

Ward claimed that her expulsion violated her free speech and free exercise rights. The district court granted summary judgment in favor of the university, but the Sixth Circuit reversed. At the same time, the Sixth Circuit held that Ward wasn’t entitled to summary judgment in her favor either: “At this stage of the case and on this record, neither side deserves to win as a matter of law.” So perhaps we’ll end up with a trial.

Who’s in the right here, Ward or the university? Let’s discuss….

You can read the full opinion here. It has been covered by many outlets besides the Times, including the WSJ Law Blog (Joe Palazzolo) and FindLaw (Robyn Hagan Cain).

Here’s more about the Sixth Circuit’s rationale, from Oppenheimer’s article:

The Sixth Circuit decision turns on how common it is to refer patients to other counselors. Ms. Ward argues that one’s religious beliefs are a reasonable reason to refer a client, while the university argues that it has to train students to work with all kinds of clients. The American Counseling Association filed a brief asserting that to habitually refer gay clients would violate its ethical canon.

Ms. Ward referred questions to her lawyer, Jeremy Tedesco of the Alliance Defense Fund, a Christian legal advocacy organization. Mr. Tedesco said that “if referrals are acceptable, including for many nonreligious-based reasons, they can’t deny someone who has a religion-based need to refer.” He said that Ms. Ward was not singling out gay men and lesbians, and that she would also refuse to affirm heterosexuals who sought counseling about their adultery.

This line of reasoning does not seem crazy — even if it’s coming from the Alliance Defense Fund, which is committed to fighting the “homosexual legal agenda,” described on the ADF website as “The Principal Threat to Your Religious Freedom.” (Funny, I would have thought that totalitarian states or sectarian killings pose a greater threat to religious freedom than people who want to expand access to civil marriage, while leaving religious groups to define for themselves what constitutes marriage under their own belief systems.)

Julea Ward may have won this latest legal battle. But what about the viability of her counseling career, over the long term? More from the NYT:

[Daniel Mach of the ACLU, which filed an amicus brief in support of the university], pointed out that the counselor who seeks to avoid gay people — or adulterers, or those having premarital sex — has an unworkable view of how the profession works.

“To say, ‘I will start treating them, but if the discussion turns to matters of relationships, at that point, I will refer them away’ — that misapprehends the nature of the counseling relationship, in which you don’t always know where the discussion will lead,” Mr. Mach said. “You may start out talking about an eating disorder and then, a couple sessions in, that veers toward a discussion of sexuality.”

That seems right to me. I suspect that people whose conduct Julea Ward might frown upon — including, but not limited to, adulterers and gay people — might be disproportionately represented among the ranks of people seeking counseling.

Okay, enough of the lawyerly views. What does a practicing counselor — of the psychotherapist type, not the “at law” type — make of this? We reached out to ATL columnist Will Meyerhofer, attorney turned therapist, for his views on Ward v. Polite….


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