By Laura A. Haynes, Ph.D., and Charles S. LiMandri, Esq.
As of the end of January 2016, Jews Offering New Alternatives for Healing (JONAH) is being forced by a court of law to close its doors. JONAH was a small religious nonprofit dedicated to the education of the worldwide Jewish community on the Torah-based view of homosexuality. Its two leaders and an independent life coach (not a professional licensed therapist) were punished. In addition, an independent professional psychotherapist suffered attacks on his reputation, though the plaintiffs chose not to sue him because he was licensed in a state other than New Jersey where the lawsuit took place. These individuals were honored by God to be martyrs – sounding the urgent call for legal protection of religious freedom and therapeutic choice for individuals suffering from unwanted same-sex attraction.
They are the latest victims in the culture war against religious freedom that is attempting to intimidate and silence not only bakers, florists and county clerks who stand for traditional marriage, and Christian organizations and medical professionals who suffer for the right to life, but also all who provide resources for individuals struggling with unwanted same-sex attraction. The battle against sexual orientation change efforts (SOCE) is as old as the battles against marriage and the right to life, but it has not gained the same attention. The tragic loss in the JONAH case is putting this issue squarely before the American public.
The megalithic, far-left Southern Poverty Law Center (SPLC) sued JONAH on behalf of four men JONAH referred for sexual orientation change therapy and mothers of two of the men (Ferguson v. JONAH, No. L-5473-12 [N.J. Super. Ct., L. Div., 2015]). The plaintiffs charged JONAH with consumer fraud. The plaintiffs claimed JONAH guaranteed them their sexual orientation would change through counseling, even though the plaintiffs signed several forms acknowledging JONAH made no outcome guarantee. The outcome for sexual orientation change efforts varies widely among individuals, as is true of efforts to change other feelings or behaviors generally. One of the plaintiffs quit counseling after attending only four times, then complained it didn’t work.
The real fraud was that the court allowed the New Jersey Consumer Fraud Act (CFA) to be applied to a religious organization and a nonprofit organization for the first time ever, and allowed recovery for non-economic damages, even though the New Jersey CFA specifically disallows such recovery. (Elaboration upon, and citations for, all of the legal arguments mentioned here can be found in JONAH’s legal filings.) In retrospect, this was the first sign that the lawsuit had a pre-determined outcome.
JONAH’s religious and nonprofit services consisted of referring callers to a network of therapists, psychologists and life coaches. Sometimes JONAH would receive compensation from some of its referral therapists, but it never received payment from the men and women who called in. JONAH’s two leaders never received any salary from JONAH as a result of their work; rather, the money received from referral therapists was used to maintain the JONAH office and offer scholarships to callers who could not afford to pay their therapists. JONAH even offered a scholarship to one of the plaintiffs. As a nonprofit, JONAH simply engaged in no commercial activity, a requirement to be covered by the CFA.
How JONAH lost: The court’s ruling that homosexuality is ‘normal’
The plaintiffs won the case as a result of an absurd ruling that homosexuality was “normal,” with little to no explanation of what that meant. First, the court ignored the New Jersey Supreme Court jurisprudence holding that New Jersey courts are not competent to adjudicate great questions of scientific, philosophical and theological dispute that have divided American society for decades, such as when life begins. Anyone who is alive and awake in America knows homosexuality is such an area of dispute. The leaders in a majority of left-of-center mental health organizations take a position that same-sex attraction is a normal variant of human sexuality, but not all their members are in agreement about that. “Normal” in the sense of positive is a value statement. Science can provide objective data, but data interpretations and values are subjective. Organizational positions are worldview statements. Some individuals would like to decide for themselves whether their same-sex attraction is positive for them. Many religions see same-sex attraction as a religious disorder. JONAH held that “homosexuality is against Torah (biblical) law, and since G-d gave humans free will, they retain the ability to change sexual orientation.” The plaintiffs were asking a court of law to resolve, not only a religious belief, but a scientific debate as well, by shutting it down.
The court took sides in this debate. It based the case on the theory that homosexuality is “a normal variant of human sexuality” as a matter of law, and any contrary representation by an organization selling goods or services is fraudulent. The court did not explain all the contours of this ruling, but did provide some parameters in later rulings concerning what the plaintiffs’ and the defendants’ experts could say in court. For example, the court ruled that it is fraudulent to describe homosexuality as a mental disorder, illness or disease. The court did rightly exclude from trial the scientific theory that same-sex attraction is inborn – an outdated theory even rejected by the liberal American Psychological Association. (See page 2: “There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation.”) The court, however, did not exclude the plaintiffs’ experts from testifying, who all held to that theory, while at the same time excluding defendants’ experts who held to theories on the origins of homosexuality that did not view it as “normal.” In retrospect, if defendants’ experts simply held the view that homosexuality was “developmental” but not a “developmental problem,” they probably would have been able to testify.
The defendants’ experts would have testified to the various psychological origins of homosexuality and the potential to change same-sex attraction. But as a result of their absence, the plaintiffs were able to twist JONAH’s leaders’ lay descriptions of homosexuality as developmental into an indictment that JONAH’s leaders were essentially selling (for free) a cure (with no promises) to a mental disorder (although they never called it that).
The evidence shows SOCE is effective
At trial, all but one of the plaintiffs’ expert witnesses testified that sexual orientation is fluid and can change. Even though all of JONAH’s experts were barred, JONAH was allowed to cross-examine the plaintiffs’ experts with research, if the expert would admit on the stand that the research was well-regarded in the scientific community. Thus, through one of the plaintiffs’ experts, JONAH brought to the court’s attention the conclusion of Dr. Lisa Diamond, co-editor-in-chief of the “APA Handbook on Sexuality and Psychology,” who certainly cannot be dismissed as biased in favor of sexual orientation change efforts. Dr. Diamond says that one of the best-documented phenomena in highly regarded research is that sexual orientation – including attraction, behavior and orientation identity, all three – is fluid for both teens and adults and for both genders, and the number of exceptions is tiny. She says “born that way” and “can’t change” are not true.
JONAH also brought forward, through the plaintiffs’ experts, the testimony of the former president of the American Psychological Association, Dr. Nicholas Cummings, who initiated the APA resolution in 1975 that homosexuality is not a mental illness. As Kaiser psychology chief in San Francisco, Cummings saw “hundreds” of homosexuals “change and live very happy heterosexual lives.” Of note, the late Dr. Robert Spitzer, famous for his parallel resolution to remove homosexuality from the list of mental disorders in the American Psychiatric Association, published research showing change therapy is effective for those who seek it. Rebutting controversy, the editor of the prestigious journal that published the study confirmed that the research was sound.
This lawsuit arose because four young men wanted to change their same-sex attractions, but ultimately failed in that regard. The lawsuit was brought to prove that sexual orientation change therapy can never work, but it would appear that it only won on the grounds that homosexuality is “normal.”
Why SOCE must be taken out of the hands of the judiciary
The Southern Poverty Law Center is the legal nonprofit that targeted Christian organizations on a hate map leading to a gunman opening fire at the Family Research Council, a conservative Christian organization. With the SPLC’s assets of over $340,000,000, their strategy is to spend as much money as necessary to bankrupt small religious organizations like JONAH that hold religious beliefs that homosexuality is not natural and can be changed, therapists who are open to a client’s goal of change and Christian law firms that represent them, like Freedom of Conscience Defense Fund, a small nonprofit law firm that sacrificially provided pro bono counsel for JONAH. In fact, two plaintiffs testified in depositions that their target was specifically to shut down all change therapy for everybody who seeks it.
The elephant in the room is the question of whether JONAH was actually acting fraudulently. There are fraudsters in every field – mental health providers can be fraudsters, and so can religious leaders. But when the JONAH case is examined closely, it becomes clear that JONAH was a model example of a small religious organization serving the most helpless and defenseless, and that it was only taken down due to a concerted effort to undermine its ability to defend itself.
The court barred almost all of JONAH’s expert witnesses. Defendants were not permitted to testify about or enter into evidence customer surveys or studies (even one that included subjects recruited from JONAH) showing SOCE’s effectiveness. On the other hand, the court allowed an expert witness for the plaintiffs to assert that JONAH’s program used cult-like thought reform, a grotesque misrepresentation based on a theory not accepted in the scientific community or by courts.
Dr. Lee Beckstead, one expert witness for the plaintiffs, testified that efforts to alter homosexuality are almost always inevitably harmful, although he co-authored the American Psychological Association’s review of the scientific literature that stated, “Thus, we cannot conclude how likely it is that harm will occur from SOCE.” As noted above, JONAH was allowed to present before the court evidence that contradicted Dr. Beckstead so long as he admitted that it was reliable and beyond reproach – he was under oath. However, Dr. Beckstead quickly figured out, presumably with the aid of counsel, that he could simply refuse to admit as much, and that the cross-examination would come to a halt. The court did nothing while Dr. Beckstead repeatedly testified that articles published by some of the most prestigious psychiatrists and psychologists, in some of the most prestigious academic journals, were simply not reliable.
Nor was JONAH allowed to bring in its rebuttal witnesses. The plaintiffs testified that JONAH told them all sorts of lies about the health risks of homosexual sex to try to scare clients into trying to change, but when JONAH tried to bring in a medical expert to testify that the health risks were real, the court barred him. The court held that the truth of the health risks was immaterial. JONAH asked the court to instruct the jury that JONAH’s alleged lies were not actual lies, but merely “scare tactics,” but it would not do so.
The court also regularly dismissed JONAH’s attempts to assert its religious rights per the Constitution. The court dismissed these arguments with the simple explanation that religious organizations do not have the right to speak (i.e., lie) on issues that are secular. And in line with its understanding that religions should have nothing to say on homosexuality, the court barred JONAH’s expert rabbi from testifying as to JONAH’s religious understanding of human sexuality. In the closing argument, the court would not even permit JONAH’s attorneys to mention religious liberty as a defense to the jury. The court also refused to instruct the jury about religious liberty as a defense generally, and refused to use the jury instructions for fraud claims brought against entities asserting their religious rights.
The court further refused to instruct the jury that opinions cannot form the basis for a violation of the CFA, only facts, because, ostensibly, it had already determined that its views on homosexuality were not opinions, but facts. To top it off, the court actually allowed the plaintiffs to state their complaints in the jury instructions – not once, but twice – and then sent the written jury instructions into the jury room while the jury was in deliberation – an unheard of practice in New Jersey.
Not only judicial – but legislative assaults as well
The SPLC’s inquisition is not the only threat. A legislative war is also being directed against religious organizations like JONAH, life coaches and licensed professional psychotherapists. There is a campaign to pass so-called consumer fraud laws forbidding SOCE. So far, four states, Washington, D.C., and the city of Cincinnati have passed laws against SOCE for adolescents. The good news is that 16 states have rejected such laws, and U.S. House of Representatives let die a comprehensive ban against all SOCE in all states for all ages by any provider – including licensed psychotherapists and pastoral counselors – who receive remuneration for providing SOCE. But advocates for SOCE are continuing to fight these legal challenges. Religious freedom and therapeutic choice are under threat.
Individuals who are distressed by their unwanted same-sex attractions are not going to go to a gay-affirmative religious organization, life coach, or therapist. If not allowed to turn to religious organizations or professional therapists who share their faith, they will likely be left with no help for their distress at all. Some have been victims of sexual abuse, and some desire to save their marriage and family. Religious organizations and professional therapists should not have to abandon such individuals under threat of being bankrupted, having their organizations closed, or losing their licenses. Banning sexual orientation change therapy for individuals who desire it is harmful and ineffective and is religious discrimination perpetrated for political purposes.
It should not be missed that laws banning SOCE place all therapists in a dangerous trap – regardless of their view on homosexuality or sexual orientation change therapy. If a client desires SOCE, it would be unethical for the therapist to provide gay-affirmative therapy, because the client does not want it, and providing it would violate the client’s right to self-determine the goal of therapy. The therapist cannot provide or refer the client for change therapy, because doing so would be against the law. Ethically, the therapist cannot abandon the client. If the therapist agrees to treat the client for other concerns though not for the goal of changing sexual attraction, change – fluidity – in the client’s sexual orientation may occur, and then it is an open question as to whether the therapist is in violation of the law. At least, the therapist is opened up to liability. An unintended consequence is that therapists may decide their only protection is to avoid treating all clients of the banned age who have same-sex attraction, and especially if such clients want SOCE. There is a danger that some same-sex attracted individuals may not be served. The California Board of Behavioral Science (BBS) has been asked more than once to clarify the law on this very question and has declined. All banned providers and their same-sex attracted clients are endangered. Bans on sexual orientation change efforts are not safe or effective.
Act now to protect SOCE by law
JONAH was a David and Goliath case, only Goliath won and intends to attack some 70 other religious organizations and individuals next. Or did the giant win? The martyrdom of JONAH’s leaders and an independent life coach will not be in vain if good comes from evil. Martyrs prove the need for legal protections for sexual orientation change efforts (SOCE), and that need is now. Many have feared to step forward and fight for the right of access to services from religious organizations, professional psychotherapists and other providers for distress over unwanted same-sex attraction. Let these martyrs inspire and awaken politicians in city, state and federal legislatures, church leaders at all levels, and citizens of faith to initiate strong and unequivocal legal protections for the religious liberty and personal rights of individuals who have unwanted same-sex attraction and behavior to have the religious support and professional therapy they so deeply desire. Resources below will help you start.
RESOURCES TO PROTECT SOCE UNDER LAW:
To initiate legislative action or defend legislative attacks: www.EqualityandJusticeforAll.org.
“10 Myths and Facts about Sexual Orientation Change” – www.TherapistsEmbracingFreedom.org.
“My Conversation With a Typical Opponent of Professional Therapies That Include Change,” by Christopher Rosik, Ph.D. This article can be shared with everyone including legislators. Available on www.TherapistsEmbracingFreedom.org.
Testimonies of change: www.Voice-of-Change.org.
Accurate scientific information about professional change therapy:
National Association of Research and Therapy for Homosexuality Institute (NARTH Institute)
Laura A. Haynes, Ph.D., clinical psychologist, author, and speaker, practices in Tustin, California, with over 40 years experience. Dr. Haynes is a former president of the Christian Association for Psychological Studies – Western Region. She has published and presented professional papers and served as guest reviewer for peer-reviewed journals. Contact: www.LauraHaynesPhD.com.
Charles LiMandri, president and chief counsel of Freedom of Conscience Defense Fund. Mr. LiMandri is double Board Certified in Pre-Trial Litigation and Trial Advocacy by the National Board of Trial Advocacy. He is also a member of the American Board of Trial Advocates and is admitted to practice law in California, New York, Washington, D.C., and before the United States Supreme Court. As an accomplished trial advocate with a national reputation, leading a team of FCDF attorneys, Mr. LiMandri is well qualified to handle cases involving religious-liberty issues. Contact: www.ConscienceDefense.org.