In just a few days, the U.S. Supreme Court will hear oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case will decide whether commercial businesses—in this case, a bakery—can refuse to provide services or sales to LGBTQ people. At the same time, a case in Tennessee, filed earlier this month by an LGBTQ activist, comes at this issue from the other side. It alleges that a service business—in this instance, counselors and therapists—cannot refuse to provide services to LGBTQ people without running afoul of the U.S. Constitution. Think of it as sort of a “reverse-Cakeshop” maneuver. If it succeeds, Tennessee would be required to safeguard the rights of LGBTQ people to seek counseling or therapy from the provider of their choice.
Back in May 2016, less than a year after the Supreme Court declared same-sex marriage legal nationwide in Obergefell v. Hodges, Tennessee passed a law declaring that no counselor or therapist was required to provide services if doing so would conflict with the “sincerely held principles” of that counselor or therapist. The bill was backed by organizations like the Alliance Defending Freedom (ADF), which consistently works on statutes and lawsuits designed to undercut LGBTQ rights at the state and national levels. Indeed, there’s no evidence that anyone testified in favor of this bill, save for individuals that wished to refuse services to LGBTQ people.
However, the language of the law is very broad: Because it has no real limiting language, a marriage counselor could refuse, for example, to counsel a mixed-race couple. This puts other vulnerable groups—including, say, women seeking counseling about reproductive health issues—at risk of discrimination, even though no other groups have yet filed suit.
Bleu Copas, a gay activist who is a veteran suffering from post-traumatic stress disorder, filed suit stating that after his previous therapist changed careers in 2016, he wished to seek counseling from a new therapist. (He filed a previous suit immediately after passage of the law seeking to block the law from taking effect, but that was unsuccessful.) His current suit indicates he is actively harmed by the law now because he is afraid that he will be denied services. Being denied services and facing consequences for his sexuality isn’t an abstract fear for Copas: He was dismissed from the Army in 2006 under the “Don’t Ask, Don’t Tell” policy for refusing to deny that he had engaged in “homosexual activity or conduct.”
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When passing the law, the Tennessee legislature clearly thought they’d provided an out against allegations the bill would brutalize LGBTQ people such as Copas, who might be seeking mental health help while in crisis. The law states that therapists must refer those they turn down to another counselor and they must counsel people who are in imminent danger of harming themselves or others. But, as Copas points out in his lawsuit, the law made no mention of how those referrals would be made. What about people in rural areas, for example, where very few counselors might be available? How will counselors assess whether someone is in crisis when they are opposed to providing them services at all?
Copas’ lawsuit alleges that Tennessee’s law violates both the Establishment and Equal Protection clauses of the United States Constitution. An equal protection violation, when LGBTQ individuals are involved, occurs when one group of people is treated differently than another without any rational basis. (LGBTQ individuals are not generally considered a protected class, so the lower-tier rational basis of scrutiny applies.)
Copas’ lawsuit argues that there is no rational reason to allow religious therapists to discriminate against LGBTQ individuals or same-sex couples who wish to marry. There’s another twist to his claim: marriage counseling. The lawsuit points out that, in Tennessee, if you get premarital marriage counseling, the state will take $60 off of your marriage license fee. However, marriage counselors can refuse to provide those counseling services to same-sex couples. If those couples can’t find a therapist willing to provide services, they have to pay more for their marriage licenses than their opposite-sex counterparts, which may also violate the equal protection clause.
Laws that violate the Establishment Clause of the First Amendment do so when they create or favor an establishment of religion or approve of one religious stance over another. Additionally, when assessing an Establishment Clause violation claim, the court must consider the reasons for the passage of a law. In other words, the court is required to look at what was happening when the law was passed and what led to the law’s passage. Not only did ADF, an explicitly religious organization, push this anti-LGBTQ legislation, a therapist who testified in favor of the bill specifically stated that providing some services to same-sex couples violates his religious beliefs. An early version of the bill, pushed by anti-LGBTQ organization Family Action Council of Tennessee (FACT), even used the term “sincerely held religious belief.”
Copas argues that this law shows that Tennessee approves of therapists who hold certain types of religious beliefs—anti-LGBTQ ones—over the rights of LGBTQ individuals and over the religious beliefs of those therapists who are accepting of LGBTQ people. Put another way, it establishes, favors, and enshrines one type of religious belief as the law of the state.
It could be that an anti-LGBTQ decision by the U.S. Supreme Court in the Masterpiece Cakeshop case would settle this issue, but perhaps not. It will depend on how broad that decision is. If a negative Cakeshop decision is relatively limited in scope, a victory in this case could still stand and provide a bulwark against more anti-LGBTQ initiatives in Tennessee, regardless of what happens at the national level. And of course there is always the slim hope that the Supreme Court would find in favor of LGBTQ people being able to access the full range of retail stores, counseling services, and more. Right now, we just have to wait to find out.