FactCheck.org has joined Snopes as another sneaky liar with their article on Apr. 25 entitled “California Bill Wouldn’t Ban the Bible.” Although per the “Editor’s note,” “FactCheck.org describes itself is one of several organizations working with Facebook to debunk false stories,” it is not without its left-wing biases.
Article author Angelo Fichera claims that California Assembly Bill 2943 has no bearing on the sale not only of the Bible but also of any Christian book that makes the case, in whole or part, for orientation, identity, or behavior change. Although Fichera asserts claims about AB 2943 banning books “are indeed not supported by the language in the legislation,” he does not actually analyze the contents of the bill.
The extent of his “research” is to cite a tweet from the bill’s author, California assemblyman Evan Low, and an email from attorney Anthony J. Samson, a registered state lobbyist who “provided Low with technical assistance on the bill.” Another quote from Samson is now offered in the updated Snopes article.
Low and Samson are hardly impartial sources. They have a vested interest in getting the bill passed into law before massive opposition can galvanize. FactCheck.org never bothered to do the most basic investigative work of all: “factcheck” the bill’s author and his assisting attorney in relation to the language of AB 2943.
FactCheck.org would never take Donald Trump’s or Jeff Sessions’s word for what a certain anti-immigration bill of theirs says. So why does FactCheck.org take the word of Low and Samson about what AB 2943 allegedly says, particularly since it appears to be at odds with the wording of the bill?
Courts Have Trashed Bill History in LGBT Cases
Low tweeted on Apr. 22: “A church or individual may still practice conversion therapy if they do so without charging for this fraudulent service. It does not ban bibles nor does it ban the basic sales of books as some would have you believe.” To this we can add Low’s statement to the state assembly just minutes before the vote, in which he alleged the sale of a book is not an actual conversion therapy “practice,” which the bill bans.
Samson sent an email to FactCheck.org saying: “The bill by its express terms is limited to the practice of conversion therapy as a commercial service in exchange for monetary compensation.” Samson added in an email to Snopes: “It does not apply to the sale of books or any other kind of goods, and it does not prevent anyone from speaking or writing on the subject of conversion therapy in any forum.”
Let’s review what AB 2943 says, as opposed to how Low and Samson characterize it. That’s critical because the wording is what ultimately determines its legal enforcement. Yes, California courts may consider the legislative history of a bill when ruling on its meaning, but “only where statutory language is ambiguous.” Even then, it is not binding and comprises only one component of the court’s opinion. A court could easily decide that the wording of AB 2943 is not ambiguous on this point, as we shall see.
In addition, past experience suggests legislative history often means relatively little in relation to court decisions on LGBT matters. The classic examples are the same-sex marriage decisions of the California Supreme Court in 2008 (4-3), the U.S. District Court for the Northern District of California in 2010, and the U.S. Supreme Court in 2015 (5-4), all of which were based on finding a “fundamental right” to same-sex marriage in the Due Process and Equal Protection clauses of the Fourteenth Amendment.
Yet this amendment addressed citizen rights of former slaves, not “gay marriage.” No one who had a hand in formulating and passing this amendment in 1866-68 would have done so if it had occurred to them that same-sex marriage could be a possible result. Of what value was legislative history here? None.
By the same token, did the Obama administration honor the legislative history of Title IX (passed in 1972) when it decided to interpret “sex discrimination” to include “gender identity” and “sexual orientation”? Who could have imagined that when “sexual orientation” non-discrimination laws were passed in the 1980s and 1990s it would lead to Christian bakers, florists, and photographers being fined tens of thousands of dollars and put out of business? Or children compelled to undergo gender identity indoctrination from kindergarten on?
What AB 2943 Actually Says Implies Bible Bans
You might think that AB 2943 applies only to psychotherapeutic “practices” in contradistinction to other “efforts.” You would be wrong. “This bill intends to make clear that sexual orientation change efforts are an unlawful practice under California’s Consumer Legal Remedies Act,” the bill says. Ergo, any “effort” at “sexual orientation change” constitutes “an unlawful practice.”
Moreover, “‘sexual orientation change efforts’ means any practices that seek to change an individual’s sexual orientation.” Catch that? “Any practices,” not exclusively those of a psychotherapeutic sort.
You might suppose that AB 2943 has restraints on its application to avoid encroachments on freedoms of speech and religion. You would be wrong. The bill specifies only one restraint: These “sexual orientation change efforts” must occur in the context of a “transaction intended to result, or which results, in the sale or lease of goods or services to any consumer.” Obviously, the sale of a book is a “transaction” that “results in the sale . . . of goods . . . to any consumer.”
Even so, you might surmise that the bill applies only to mental health professionals and not also to religious organizations or individuals, since that limitation existed in the 2012 law forbidding sexual orientation change therapy for minors. You would be wrong. AB 2943 applies to “unfair or deceptive acts or practices undertaken by any person in a transaction intended to result, or which results, in the sale or lease of goods or services to any consumer” (my emphasis).
You might think that “sexual orientation change efforts” entails only efforts “to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” You would be wrong. According to the bill, it includes also “efforts to change behaviors or gender expressions.” Thus, any sale of a book that makes statements that homosexual practice or transgender identification are immoral actions that people ought not to commit falls easily under the purview of AB 2943.
You might think that a transaction has to take place before the law’s penalty can apply. You would be wrong. Also prohibited by this bill is “advertising, offering for sale, or selling a financial product that is illegal.” Merely advertising (e.g., on one’s Facebook page or some other Internet site) or offering for sale (e.g., on a table at a conference, regardless of whether copies are sold) “a financial product” that advocates a change of attractions, behavior, or gender expression away from the “LGBTQ” mantra is fair game.
You might think (by now a little flustered) that at least the prohibited advertising is limited to advertising a counselor’s practice. You would be wrong. It rather includes (to judge from a stipulation of the bill regarding veterans affairs) “advertising or promoting any event, presentation, seminar, workshop, or other public gathering.”
Thus, any conference or lecture would apply if a fee is charged for attending or if “goods or services” are advertised or made available in the course of the “event.” Indeed, I can’t see why this wouldn’t also apply to a course offered at a college or seminary if tuition is charged for that course.
Bill’s Author Agrees It Can Apply to Churches
Now let’s go back and see how the bill’s actual wording applies to Low and Samson’s remarks. Low’s first comment in his tweet is a devastating new admission: “A church or individual may still practice conversion therapy if they do so without charging for this fraudulent service.” The flipside of this statement is that “a church or individual” cannot “practice conversion therapy” if there is a charge for the service.
Contrary to what many supporters of the bill have been saying, the bill’s application extends beyond mental health professionals (note that the Snopes article claims this is unclear). There is no exemption for religious instruction. We now have confirmation from AB 2943’s author that the bill would indeed apply “to a pastor, Bible study or house church leader, member of a parachurch organization working to help people afflicted by same-sex attractions, or indeed anybody who attempts change if goods or services involve an exchange of funds.”
AB 2493’s wording does not support Low’s second statement: “It does not ban bibles nor does it ban the basic sales of books as some would have you believe.” The only way that such a statement, particularly the second half, could be true is if the sale of a book were not included as “a transaction . . . which results in the sale . . . of goods . . . to any consumer” or did not come under the heading of “selling a financial product.” It is difficult to see how that could be the case.
For example, the California government’s own guide to “Understanding California’s Sales Tax” gives as its first example of how “sales tax . . . depends on the tax rate and the dollar value of the goods sold” that of a retailer who “sells five books costing $20 each” at a tax rate of 8 percent (my emphases). There is no puzzling over whether the sale of “books” could count as a sale of “goods.” It’s obvious.
“Goods” are broadly defined in AB 2943 as “tangible [movable] chattels bought or leased for use primarily for personal, family, or household purposes.” By what rationale, then, can Low claim the sale of books is excluded from the bill’s designation “sale of goods”? If Low were so concerned to exclude book sales from his bill, he would have to have excluded “books” from the category of “goods” explicitly.
People Can Be Prosecuted for Recommending Books
Oddly, Low also claims AB 2943 does not “ban the basic sales of books.” What limitation does the adjective “basic” place on “sales”? Does he mean only book sales not made in conjunction with other efforts to change the behavior, identity, or attractions of specific individuals? His qualification reminds me of constitutional lawyer David French’s observation in a recent National Review article.
To be sure, it is probably “too much even for [the California government] to sweep through Christian bookstores looking for books” that caution against homosexual practice or transgenderism, although French hastens to add that “the statute would empower such an action.” Nevertheless, “it’s far more likely that the recommendation or sharing of certain kinds of Christian books and other written materials would be deemed evidence of fraud and would present a core part of the case against a minister or counselor.”
In other words, while the state might not immediately ban the sale of certain books, it could prosecute someone who recommended or shared such books with a person struggling with same-sex or transgender desires. The state could also prosecute someone who, at an event in which books advocating against homosexual practice or transgenderism are sold, urges homosexually active or transgender-identified persons in an audience to change their behavior.
After people adjust to this draconian step, the state might well decide to use the law to ban books outright. In the meantime, as French adds, “the law would loom over booksellers and churches, establishing a chilling effect and providing a pretext for even more secular booksellers to refrain from stocking certain Christian titles.”
If Money Changes Hands, This Bill Applies
Samson makes an even more blatant distortion about books in the updated Snopes article, claiming AB 2943 “does not apply to the sale of books or any other kind of goods.” Pray tell, then, what exactly is the bill talking about when it refers to “unfair or deceptive acts or practices . . . intended to result, or which results, in the sale or lease of goods or services to any consumer” (my emphasis)? The sale of “goods” is mentioned a whopping 18 times in the bill in connection with fraudulent practices.
Samson adds: “It does not prevent anyone from speaking or writing on the subject of conversion therapy in any forum” (my emphases). If he had said “everyone,” he would be correct (a monetary transaction is required); “anyone” is certainly false. The bill is clear that it pertains to “anyone” involved in “advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual,” broadly defined as “any practices that seek to change an individual’s sexual orientation” or “behaviors or gender expressions,” where a monetary transaction is entailed.
There is no limitation in the bill itself placed on venue (office, private residence, church, conference hall, auditorium, classroom), the mode of communication (lecture, question-and-answer counseling, facilitated small-group discussion, writing), or the number of persons that may be present at a given event.
The Consumer Legal Remedies Act does not limit “unlawful, unfair, or fraudulent business practices” to discussions with a single individual. One can just as well engage in such practices in a classroom setting as in a one-on-one session. If Samson had intended the limitations he specifies in his email, why didn’t he advise Low to put them in the bill?
Samson’s comment in the FactCheck.org article, which is repeated in the updated Snopes article, is a masterpiece of dissembling: “The bill by its express terms is limited to the practice of conversion therapy as a commercial service in exchange for monetary compensation.” One who hasn’t read the bill but reads this description would likely conclude that “the practice of conversion therapy” means only the practice of reparative therapy or some other psychotherapeutic practice engaged in by mental health professionals. As we have shown, one would be wrong.
What’s the bottom line? Either Low and Samson are deliberately misrepresenting matters to secure passage of this bill, or they have ignorantly constructed one of the most poorly worded bills imaginable. Whichever answer one goes with, the end result is the same: AB 2943 does not exempt from state action any oral or written communications associated with a monetary transaction that convey, in whole or part, that people should stop engaging in homosexual practice or expressing themselves as a gender at odds with their biological sex established before birth.
To those tempted to accept Low and Samson’s assurance I say: Caveat emptor.