On January 27, 2012, the 6th Circuit issued a landmark opinion in Ward v. Wilbanks. It is the biggest federal court victory for campus First Amendment rights since my own victory before the 4th Circuit last April. What is striking about the Ward opinion is the thread of common sense running through every aspect of its analysis. Even more striking is the eloquence of the 6th Circuit as it defends fundamental religious freedom against a full-frontal assault from the LGBT community.
Julea Ward was one of many counseling students being coerced into affirming homosexuality by a state-run institution. She did not seek to force homosexuals to change their conduct through religious-based corrective therapy. She simply sought to refer homosexual clients to other counselors when those clients demanded affirmation of their conduct. Eastern Michigan University sought to force Julea into a cruel trilemma by accepting one of the following options:
1. Lie to clients by telling them she approved of their conduct, or
2. Abandon her religious beliefs regarding sexuality, or
3. Leave the counseling profession altogether.
Julea’s preference was pretty simple: refer homosexual (and some heterosexual) clients to others more willing to affirm their conduct. For this she was expelled from the counseling program. Then the trial court granted summary judgment preventing Julea from having her day in court.
Julea Ward appealed to the 6th Circuit and won a unanimous reversal. The judges concluded that a reasonable jury could have found that Ward’s professors ejected her from the counseling program because of their own personal hostility toward her speech and faith, rather than a policy against referrals. In other words, that was simply a pretext to punish her for her beliefs.
The 6th Circuit judges wondered out loud just what Julea Ward did wrong. She was willing to work with all clients and to respect the school’s affirmation directives in the process. That is precisely why she asked to refer gay and lesbian clients (and some heterosexual clients) – but only if the conversation required her to affirm their sexual practices. After noting her compliance with the rule, the 6th Circuit raised interesting hypothetical questions. For example, would the ban on discrimination against clients based on their religion require a Muslim counselor to tell a Jewish client that his religious beliefs are correct? Would it require an atheist counselor to tell a person of faith that there is a God?