Numerous commentators have raised concerns about a proposed bill currently in the California Senate, Assembly Bill 2943. The bill would amend the California Consumer Legal Remedies Act to prohibit “sexual orientation change efforts.”
Most discussion of the bill has focused on its potential ban on Bible sales. It seems much more likely that the bill will make religious education programs the target of “death by litigation.”
The proposed bill states: “The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful:…Advertising, offering for sale, or selling services constituting sexual orientation change efforts to an individual.”
AB 2943 is based in part on California Business and Professions Code. Section 865 defines “sexual orientation change efforts” as “any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Section 865.1 provides, “Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.”
Bill Bans ‘Any Practice’ that Proclaims Christian Doctrine
Unlike this section of existing law, AB 2943’s definition of “sexual change orientation efforts” is not limited to “practices by mental health providers,” and its prohibitions are not limited to minors. AB 2943 defines “sexual orientation change efforts” as “any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”
The bill’s only express exclusion from “any practices” are “psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.”
Thus, under AB 2943, “any practice,” except certain psychotherapies, would qualify as an unfair and deceptive business practice, so long as it is intended as part of a sale of goods or services. There is no guidance as to what qualifies as “seek[ing] to change an individual’s sexual orientation.”
This Easily Includes Catechism Classes
Under these broad and ill-defined terms, “any practice” could include Catholic catechism classes, commonly known as CCD, in which every Catholic child who attends public school must participate to make First Communion and Confirmation. Parents pay for their children to attend these classes, so they are purchasing a service. The purpose of these classes is to teach the Catechism of the Catholic Church and to teach the students to live in accordance with the church’s teachings.
The catechism is very clear on the church’s position on homosexuality in three sections:
2357 Homosexuality refers to relations between men or between women who experience an exclusive or predominant sexual attraction toward persons of the same sex. It has taken a great variety of forms through the centuries and in different cultures. Its psychological genesis remains largely unexplained. Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that ‘homosexual acts are intrinsically disordered.’ They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.
2358 The number of men and women who have deep-seated homosexual tendencies is not negligible. They do not choose their homosexual condition; for most of them it is a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God’s will in their lives and, if they are Christians, to unite to the sacrifice of the Lord’s Cross the difficulties they may encounter from their condition.
2359 Homosexual persons are called to chastity. By the virtues of self-mastery that teach them inner freedom, at times by the support of disinterested friendship, by prayer and sacramental grace, they can and should gradually and resolutely approach Christian perfection.
To the extent the issue of human sexuality is raised in a CCD class, the catechist is obligated to tell the students what the church’s view on homosexuality is. That would certainly qualify as attempting to “change behaviors” in the context of sexual orientation. Sections 2357 and 2359 of the catechism expressly call on persons who are attracted to the same sex to refrain from such behaviors by living a life of chastity, and Section 2357 states that “under no circumstances can [homosexual acts] be approved.”
The students in CCD classes for First Communion can range from ages 7 to even 12, for children whose parents failed to enroll them in second grade. Confirmation classes have students who are between 15 and 16 years old. Classes for children who were not baptized and seek to be baptized into the church at a later age can include students up to 17 years old.
Given these age ranges, questions about the church’s position on marriage, sexuality, sexual orientation, cohabitation, and divorce will most certainly arise. If the teacher performs his or her duties accordingly, he or she is obligated to refer to sections 2357-2359 of the catechism and, if AB 2943 is in place, expose the parish to a potential lawsuit.
This Law Could Also Ban Christian Schools
The potential risk that parochial schools, particularly high schools where issues of sex and sexuality are a major part of students’ lives, will be ensnared by AB 2943 is also high. Parents at these schools pay tuition and are therefore paying for services and goods. The mission of Catholic schools, like CCD classes, is to educate students in the teachings of the Catholic Church, including Sections 2357 to 2359 of the catechism.
AB 2943 would force teachers at these schools to choose between fully and freely teaching the full catechism, thereby exposing the school to a potential lawsuit under AB 2943, and censoring the portions of the catechism taught to avoid litigation. AB 2943 would chill any discussion of the church’s position on homosexuality and homosexual acts in religious education classes, including debate among students regarding the merits of that position.
More than 10 million adults in California identify as Catholic. There are 306 parishes in the Archdiocese of Los Angeles alone. There are also hundreds of Catholic elementary and high schools all over California. AB 2943 would chill the religious freedom of Catholics to study and examine the tenets of their faith.
AB 2943 is impermissibly vague and broad. As drafted, it will impinge on the First Amendment rights of numerous religious groups. Many religious education programs will self-censor due to potential lawsuits. Those who refuse to do so risk being sued out of existence or into submission.
AB 2943 is not yet law and is currently still in committee. Perhaps with sufficient opposition, it will never become law. The bill is currently in the Senate Appropriations Committee. A hearing on the bill is set for July 2, 2018. The Senate Appropriations Committee meets every Monday at 10 a.m. in Room 4203. The committee’s mailing address is State Capitol, Room 2206 Sacramento, CA 95814.