Oaks Rebutted, Chapter Four

Today we turn to the stories of two counselors who allegedly suffered professionally for their beliefs that homosexual relations were wrong. And once again, things aren’t quite as Oaks paints them.

Oaks: Candidates for masters' degrees in counseling in Georgia and Michigan universities were penalized or dismissed from programs for their religious views about the wrongfulness of homosexual relations.

In the Michigan case, Julea Ward, a graduate student, refused to counsel a homosexual student as part of the required practicum in her Eastern Michigan University's graduate program for becoming a high school counselor, because doing so would allegedly "validate" homosexual conduct which she believed was immoral and prohibited by the Bible. She asserted a First Amendment right to speak or decline to speak as she wished, and that the school's requirement that she counsel a homosexual student would violate that right.

It is settled law that a public university does not force a violation of the First Amendment when requiring students to comply with the terms of an academic assignment. As a former teacher of constitutional law, Oaks knows or should know this. A federal court held that Ms. Ward could not insist upon being excused from training to counsel gay people due to her religious beliefs, and that the school did not violate the 1st Amendment by insisting on a curriculum reflecting the counseling profession’s ethics code concerning non-discrimination in serving clients or requiring students to fulfill curricular requirements.

Oaks tries to paint this case as a penalty for trying to exercise religious freedom. It is not. The federal court's ruling says the following, and Oaks should have known this too, at least in principle:

"Plaintiff [Ms. Ward] has distorted the facts in this case to support her position that [EMU] dismissed her due to her religious beliefs. While [the university] may have been indelicate in their inquiry into Ms. Ward’s beliefs, they never demonstrated a purpose to change her religious beliefs. [The school was] at all times concerned with [her] refusal to counsel an entire class of people whose values she did not share. [The school] acknowledged that [her] beliefs motivated her behaviors, but always made the distinction between the two, and in no way attacked her beliefs. Even [Ms. Ward] is forced to agree that Drs. Callaway and Dugger never told her she needed to change her religious beliefs."

Oaks is therefore simply wrong to claim that Ms. Ward's dismissal from her graduate program represents a restriction of religious freedom. It was instead the predictable consequence of a student's deliberate refusal to fulfill all elements of the graduate program to which she voluntarily sought admission.

Once again, as in all the earlier cases Oaks cites, the federal court granted "summary judgment" for the university and against Ms. Ward. In real person language that means the court said "Ms. Ward, you have no case and there's no reason to take this to trial because the law is absolutely clear." Another reason to say "shame, shame" to Dallin Oaks, the former law school dean. He knows what summary judgment means, and it doesn't mean what he claims in this case.

In the Georgia case, Marcia Walden, a contract counselor with the Centers for Disease Control, referred an employee in a same-sex relationship to another counselor because of Ms. Walden's religious objection to what she believed would be facilitating a same-sex relationship. Although the second counselor was satisfactory, the employee “felt ‘judged and condemned’” and “”that [Ms. Walden]'s communication also indicated disapproval of her relationship.” After investigating the complaint, Ms. Walden was laid off. She sued, alleging (1) a violation of free exercise of religion, (2) a violation of the Religious Freedom Restoration Act, and (3) a violation of Title VII’s prohibition of religious discrimination.

The court found no evidence in the record to suggest that the CDC removed Ms. Walden from the contract because of her religiously based need to refer clients seeking same-sex relationship counseling. Rather, the court found that “the CDC removed [Ms. Walden] from the contract because of the manner in which [she] handled the situation involving [the client], and the CDC’s reasonable concern about how [Ms. Walden] would handle similar situations in the future.”

Thus, said the court, the firing created no substantial burden on Ms. Walden's free exercise of religion. Since the CDC’s decision was “not based upon [Ms. Walden]'s religiously based refusal to provide same-sex relationship counseling” but on “the manner in which [she] handled the situation," there was no violation of the Religious Freedom Restoration Act or Title VII. In addition, the CDC offered Ms. Walden employment reassignment services which was a reasonable accommodation of any religious objection she may have had.

In the Walden case too, the federal court issued summary judgment for the CDC and against Ms. Walden. "You've got no case, ma'am." This means that in every single case Oaks cites so far, each court has considered the claims of "infringement of religious freedom" (also made by Oaks) so groundless that they weren't even worth having a trial for.

At this point I should stop to say I'm astonished that Dallin Oaks, the former law school dean and state supreme court justice, has been so sloppy and distortionary with his research. He either does or doesn't know the real facts of these cases. If he does, then he's deliberately misrepresenting their implications in his speech. That's called "lying." If he doesn't, then his research has been inexcusably slipshod in a way I'm sure he would never have allowed for any of his law students or law clerks.

Tomorrow, the story of an L.A. policeman allegedly demoted after speaking against homosexuality in the church where he is a lay pastor. Stay tuned!