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Where Did The Ex-Gay One-Third “Success Rate” Come From?

Jim Burroway

July 18th, 2011

E. Daniel Blatt, otherwise known as GayPatriotWest, responded to the Marcus Bachmann exposé with his thoughts on ex-gay therapy. He didn’t exactly defend ex-gay therapy per se, defending instead the right of Christian groups to “set up such companies, provided they do not coerce anyone to enter treatment.” He doesn’t go into what constitutes coercion in conservative Christian culture, but that’s not the debate he was entering. He adds “that critics of such outfits continue to have the freedom to question the methods of said companies and should continue to exercise that freedom,” but he doesn’t enter into a debate of their methods either. He merely posits those two statements as a prelude to the debate he does enter, the so-called success rates of ex-gay therapy. Blatt concluded that the reported success rates are likely highly self-selecting and consisting of those whose sexuality is more fluid that those who don’t seek to change.Very reasonable assumptions, both, strongly backed by the evidence itself. But then he says this:

The only objective studies I have read of such programs show they have a “success” rate (as defined by them) no greater than 33% (and even that number is likely inflated).  And that, let me stress, is not 33% of all gay people, but 33% of those who seek counseling in such facilities.

The caveat is taken, but even with that caveat, the numbers are definitely inflated. And it’s the first sentence that gave me pause: “The only objective studies I have read…” Which studies would those be?

Blatt probably did what many people do in the blogosphere. Most who say they looked into studies almost never actually read the studies. Blatt wrote about the “objective studies I have read,” but he likely should have written about the “objective studies I have read of” — the key point being that he probably relied on others whom he trusted to describe those studies on the assumption that they read them — or that they read of them from others who they trusted, who read them or who read of them from others who they trusted, and so on.

You see where this is going. I suspect that about as many people have actually read studies on efforts to change sexual orientation, whether they support ex-gay therapy or oppose it, as those who have actually read Kinsey’s 1948 Sexual Behavior In the Human Male. Everyone quotes from them and are absolutely certain that their quotes are accurate, but almost nobody has actually read the sources that they claim their quotes came from. (The same argument can be made for other important books like, say, the Bible.) And so I’ve learned a long time ago not to rely on other people’s characterizations of whatever they say they’ve read — or what they said they read of someone else who read it, or who read someone else who read it, etc. I actually have those books and studies in my collection (visitors to my home find my library “interesting,” to say the least) and I have not only read them, but I refer to them more often than I care to.

The 33% statistic, in fact, is not based any any systematic objective studies, but is rather an artifact of lore (much like Kinsey’s 10%) which has a ring of credibility for those who believe it (much like Kinsey’s 10%) but which doesn’t have much of a rigorous statistical basis behind it (much like Kinsey’s 10%). Further, the 33% statistic often appeared more as a rule of thumb than as a reliable statistic. Back when homosexuality was still considered a mental disorder, it was generally believed among mental health professions that about a third could be “cured” and induced to enter heterosexual marriages, a third could become either celibate or bisexual, and a third were more or less hopeless. The one-third/one-third/one-third lore — specifics of the lore varied — became more or less accepted fact despite the absence of evidence to support it.

Exodus no longer touts the 33% statistic on their revamped web site, but before that remodel Exodus claimed (via archive.org) that a success rate of between 30% and 50% was “not unusual.” A similar range of success was repeated by NARTH, the National Association for Research and Treatment of Homosexuality, while a 1997 unpublished, non-peer-reviewed NARTH study conveniently arrived at the the 33% figure right on the nose. In 2009, NARTH appeared to have traced the 33% statistic to Edmund Bergler’s 1956 book, Homosexuality: Disease or Way of Life? I’ll let NARTH  describe Bergler’s finding from their “journal.” It’s not online, but I have a copy. On page 20, NARTH writes:

Bergler (1956) reported that in his 30 years of practice, he had successfully used psychoanalysis to help approximately 100 homosexuals change their orientation, and that a real shift toward genuine heterosexuality had indeed occurred. Using psychoanalysis, Bergler and his associates reported a 33 percent cure rate-that is, following treatment these patients were able to function as heterosexuals, whereas before treatment they were exclusively homosexual.

I have combed through Homosexuality: Disease or Way of Life? but cannot find the 33% statistic. On page 188, Bergler does write, “In nearly thirty years, I have successfully concluded analysis of one hundred homosexuals (thirty other analyses were interrupted either by myself or by the patient’s leaving)” That’s about as close as I can get to finding a statistical citation. I haven’t found NARTH’s claim for a “33 percent cure rate.” Instead, Bergler actually implies that all of those 100 cases were “successfully concluded” and on the next page he triumphantly states, “The theoretical and therapeutic obstacles to curing homosexuals has been surmounted” — all with nary a statistic or measurement in sight. I’m willing to concede that the statistic may be hidden somewhere else in the 302-page volume. But if it’s in there, Bergler himself doesn’t make much of it, and neither do his contemporary book reviewers.

But while I have Bergler’s books off the shelf and on my desk, an examination of his views are illuminating. Bergler wrote some of the most damning books and essays on homosexuality ever published. In 1959′s 1000 Homosexuals, (again, no mention of cure rates that I can find) Bergler describes gay men as “psychic mascochsts,” as he explains in the very first chapter:

Imagine a man who for some mysterious reasons unconsciously wants to be mistreated by a woman, though consciously unaware of this wish. Imagine, further, that this person inwardly fears his own wish, but instead of giving up the wish itself give sup its alleged or imagined central figure, woman. Since there are only two sexes, this leaves him only one alternative in his frantic flight: man.

In Homosexuality: Disease or Way of Life?, Bergler described gay men as acting on utter hatred of women:

The homosexual takes flight to man as an antidote for the woman he fears; the antidote is only secondarily elevated to the status of an attraction. This attraction is mingled with contempt; the hatred and scorn for women shown by the most vilent heterosexual misogynist appears to be benevolence when compared with the contempt shown by the typical homosexual for his sexual partners. This attitude is so marked that frequently the whole personality of the “lover” is obliterated: many homosexual contacts take place in comfort stations, in the obscurity of a park, in Turisk baths, where the sex object is not even seen. This fully impersonal means of achieve “contact” makes even a visit to a heterosexual whorehouse see, like an emotional experience.

In his 1953 book Fashion and the Unconscious, Bergler gave an example of how this so-called hatred of women played out:

It may be surprising but the existence of constrictive and “uncomfortable” fashions can be traced to the paradoxical fact that women are dressed by their bitterest enemies. Male homosexuals, who are inwardly terrified of women, are predominant in designing women’s clothes. Whatever their rationalizations, they hate women, as a defense.

So now that you you know where he’s coming from, let’s leave this digression and get back to the rule of the thirds. If Bergler wasn’t the source, then the next probably source might be Irving Bieber’s 1962 Homosexuality: A Psychoanalytic Study. He touted a 77% “cure” rate, which is at least in the one-third ballpark.  More significantly, Bieber’s tome was wildly influential throughout the mental health profession. Anyone who was even mildly interested in trying to cure homosexuality was aware of Bieber’s book. It cared a weight in the psychological world similar to that which Kinsey’s books caried in popular culture. There were other studies which claimed a 33% success rate, but none of them came close to approaching the reach that Bieber’s 358-page book had. If Bieber wasn’t the source of the 33% statistic, he most certainly was the inspiration for the one-third/one-third/one-third lore. His numbers make a good approximation. After treatment, 27% of his sample of 106 gay and bisexual men became “exclusively heterosexual”, 32% became bisexual or inactive, and 41% remained uncured. And thus, the very rough one-third/one-third/one-third rule of thumb was born.

(It’s interesting to note the role that the 30 bisexuals played in this composite statistic: of them, 50% became “exclusively heterosexual”, while 43% of them remained bisexual and two became “inactive”. Meanwhile, only 19% of “exclusive homosexuals” before the study became “exclusively heterosexual” afterwards. Fifty-seven percent of the “exclusively homosexuals” remained stubbornly “exclusively homosexual” after treatment, with the rest reportedly becoming bisexual.)

Bieber’s anti-gay rhetoric was considerably more restrained than Bergler’s but his views of gay people were nevertheless similar. During the 1973 debate over the APA’s removal of homosexuality from its list of mental disorders, Bieber told a reporter, “a homosexual is a person whose heterosexual function is crippled, like the legs of a polio victim.” Bieber died in 1991, but his wife Toby Bieber, who was one of the book’s nine other co-authors, continued her husband’s legacy and helped to create NARTH, where today she sits on their so-called Scientific Advisory Committee. She also backed Paul Cameron’s abandoned online “journal.”

So what about the ex-gay success rate? Well, the more I look personally at the studies, including Bieber’s and Bergler’s, the less I find that any of them are objective. The few that are, are burdened with poor methodologies, missing or inconsistent definitions of what “success” means, and minimal or absent long-term follow-up — also like Bieber’s and Bergler’s. And it’s not just me saying so. The American Psychological Association agrees. An APA task force in 2009 concluded (PDF: 816KB/138 pages) that “enduring change to an individual’s sexual orientation is uncommon,” and that “there was some evidence to indicate that individuals experienced harm” from such therapies.

Oh, and it’s not just the APA saying change is extremely rare and much, much lower than 33%. It’s ex-gay proponents themselves, when you take the time to dig into their data and ignore their press releases. In 2007, Stanton Jones and Mark Yarhouse, two proponents of ex-gay ministries, published their study in a book titled, Ex-Gays? A Longitudinal Study of Religiously Mediated Change in Sexual Orientation. (An important caveat to note is that this book was not peer-reviewed. It was also funded and supported by Exodus International.) As I noted then, one of the diffuculties of that study was that, despite Exodus’s boast that they have helped “hundreds of thousands” find “freedom” from homosexuality, Jones and Yarhouse had a very difficult time finding people to study:

The sample size was disappointingly small, too small for an effective retrospective study. They told a reporter from Christianity Today that they had hoped to recruit some three hundred participants, but they found “many Exodus ministries mysteriously uncooperative.” They only wound up with 98 at the beginning of the study (72 men and 26 women), a population they describe as “respectably large.”

Fewer than a hundred is a tiny sample on which to assess the efforts of an entire movement, but let’s press on. In 2009, Stanton and Jones issued a follow-up with updated figures for that study. So overall, here’s what happened:

  • Success: Conversion – 14 (14%)
  • Success: Chastity – 18 (18%)
  • Non-Success – 29 (30%)
  • Drop-Outs – 37 (38%)

And what was “Success: conversion?” Stanton and Jones defined it in their book as — and this has to be my favorite definition of all time — “satisfactory, if not uncomplicated, heterosexual adjustment.” Let’s just pause here and let that sink in. It’s not heterosexuality. It’s a close-enough-for-hand-grenades adjustment to heterosexual behavior, with complications.  I’ll bet, because when looking at average changes in Kinsey scores during the study, the prospective sample (a critical subset of the overall study — they were the only ones measured from the beginning of their entry into ex-gay therapy and were thus less self-selecting) reported, on average, virtually no change in attractions and a small increase in homosexual behavior. That’s probably why Jones and Yarhouse gave this caution:

[W]hile we found that part of our research population experienced success to the degree that it might be called (as we have here) “conversion,” our evidence does not indicate that these changes are categorical, resulting in uncomplicated, dichotomous and unequivocal reversal of sexual orientation from utterly homosexual to utterly heterosexual. Most of the individuals who reported that they were heterosexual at T6 did not report themselves to be without experience of homosexual arousal, and they did not report their heterosexual orientation to be unequivocal and uncomplicated.

Somehow, that doesn’t sound like anything close to being a “cure” to me. And as for defining chastity as “success,” well, I’ll let you decide if a lifetime of loneliness is acceptable to you.

Comments

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kelly
July 18th, 2011 | LINK

So if Blatt read just one of these reports then your whole post is bunk? What a sad mission you guys are on.

dave
July 18th, 2011 | LINK

Ex gays are as real as god.

TampaZeke
July 18th, 2011 | LINK

AND, curiously (or conveniently), NO ONE bothered to check back in with these “success” stories five or ten years later.

Yarhouse’s “study” had no other purpose than to attempt to lend desperately needed “objective” “credibility” to a snake oil industry that had been roundly and thoroughly debunked by every profession medical and psychiatric association in the country and was getting a lot of bad press.

And Kelly, sugar-plum, you just seem pitiful, sad and a bit crazy trolling Box Turtle Bulletin every day. Is it your personal compulsion or are you on the payroll of Exodus or NARTH?

William
July 18th, 2011 | LINK

@ kelly:

“What a sad mission you guys are on.”

What mission would that be? And what is your own mission, by the way?

jpeckjr
July 18th, 2011 | LINK

Mr. Burroway, thank you for this post. I am not going to take the time to read any of these studies, so I appreciate that someone does.

I have three main impressions.

First, underlying all of this discussion is the “orientation vs. behavior” debate, the perspective that homosexuality is a behavior one can choose while heterosexuality is an orientation one cannot choose.

This data, as small as the samples are, actually supports the perspective that both homosexuality and heterosexuality are orientations upon which one can act. Jones and Yarhouse acknowledge this themselves: “they (converts) did not report their heterosexual orientation to be unequivocal and uncomplicated.”

Second, every sample that is mentioned is too small to reach a conclusion that is applicable to the general populations of homosexual persons.

Third, if “conversion” is defined as going from “I’m troubled about my homosexuality” to “I’m troubled about my heterosexuality,” the person is still troubled about their life.

Does that seem like a desired outcome for a therapeutic process? Is “we’ve helped thousands of people move from being messed up gay to being messed up straight” something to boast about?

Timothy Kincaid
July 18th, 2011 | LINK

Zeke

Yarhouse’s “study” had no other purpose than to attempt to lend desperately needed “objective” “credibility” to a snake oil industry that had been roundly and thoroughly debunked by every profession medical and psychiatric association in the country and was getting a lot of bad press.

Yes, I’m sure that was his intent, but in the process he discovered that orientation doesn’t change much and, to his credit, he did acknowledge as much. Sadly, he still continues to allow himself to be misquoted and his findings distorted. I think he is a man who is torn between the truth and his religious affiliations.

Priya Lynn
July 18th, 2011 | LINK

JPeck said “First, underlying all of this discussion is the “orientation vs. behavior” debate, the perspective that homosexuality is a behavior one can choose while heterosexuality is an orientation one cannot choose.”.

I agree that this is what many anti-gays believe but miss the logical fallacy in the belief – if one can choose gayness then it necessarily follows that one can choose heterosexuality.

Ben In Oakland
July 18th, 2011 | LINK

Kelly– you still haven’t answered the sad question.

Whom do you work for?

Kevin
July 18th, 2011 | LINK

I’m sorry I did not read this entire post, as it probably deserved. Looks like a lot of work went into analyzing various “studies.” But I just cannot take them seriously, as studies, because none have been peer-reviewed. No social science hypothesis is worth dissemination without that.

B. Daniel Blatt
July 18th, 2011 | LINK

I read two different studies, one in the early 1990s by a friend of mine who wrote a paper exposing the fraud of Paul Cameron. (I will be e-mailing asking him to e-mail me a copy of his research so I can more accurately.)

The latter study was something I read just after I started blogging (so sometime in late 2004, early 2005).

When I wrote the post you reference and link, it was late at night and I didn’t feel the need to consult either study for the primary reason that the main point of the post was something you get early on in your commentary that “reported success rates are likely highly self-selecting and consisting of those whose sexuality is more fluid that those who don’t seek to change.”

As I edited the piece, I kept added caveats, notably the parenthetical about the numbers being inflated. Like you, I wanted to make clear that I do not believe that 33% figure to be accurate.

The key issue (as I see it) is the self-selection. Those who seek such treatment may simply have a less fixed sexuality (than ours). I had meant to link this post, Alexander’s Erotic Impulses & Human Sexuality at the end of the post in question, but due to the hour (of posting) neglected to do so. (I will correct this oversight forthwith.)

I should also note that if you want accuracy of information, it may not be a good idea to cite Kinsey whose methodology has been called into question.

TampaZeke
July 18th, 2011 | LINK

“Third, if “conversion” is defined as going from “I’m troubled about my homosexuality” to “I’m troubled about my heterosexuality,” the person is still troubled about their life.

“Does that seem like a desired outcome for a therapeutic process?”

Bing, Bing, Bing!

Quote of the day!

Great point. Just brilliant!

Kudos jpeckjr.

Kelly
July 18th, 2011 | LINK

You’ll have to take my word for it but my participation is wholly individual and I have never had any relationship or communication with any of the groups or individuals mentioned. I am simply fed up with theta agenda’s fabrications and propaganda. Now they are micro managing textbook content through the legislature. They must be exposed and stopped.

Allen
July 18th, 2011 | LINK

Kelly, who are “they”? And what is this “agenda” you speak of that is fabricating and spreading propaganda?

At least here the only person who seems to be spreading what could be called propaganda would be you, and you’ve been doing it under several different names.

Priya Lynn
July 18th, 2011 | LINK

Kelly/elsa/evil Becky/omar/tom you claimed on Truth Wins Out you posted under different names to avoid censurship and denied you were doing so to deceive people into thinking several people agreed with you. What’s your reason for posting under different names on this blog?

Kelly/elsa/evil Becky/omar/tom said ” I am simply fed up with theta agenda’s fabrications and propaganda.”.

You’ve never mentioned any of these alleged fabrications and propaganda – let’s here them so we can analyze how “truthful” you’ve been.

Kelly/else/evil Becky/omar/tom said Now they are micro managing textbook content through the legislature. They must be exposed and stopped.”.

It has nothing to do with micromanaging, it is all about an accurate and balanced teaching of history. Gays have been excluded from that history for no other reason than their gayness, that’s created an inaccurate and unbalanced view of history. Why do you want to stop this? Do you oppose acknowledgement of reality solely because it involves portraying gays in a positive light?

William
July 18th, 2011 | LINK

I suspect that the reason why “kelly” is now blogging on here is that it has been barred from Dr Warren Throckmorton’s website, on which it was previously blogging under the names of “Preston” and “Madison”.

Kelly
July 18th, 2011 | LINK

Priya, the ONLY reason I have used different names is to get through the censors. As is painfully obvious, I have made no attempt to otherwise disguise my writing.

Priya Lynn
July 18th, 2011 | LINK

Kelly/preston,madison/elsa/evil becky/omar/tom/est/dmitri you haven’t been censored here at BTB, what’s your excuse for posting under different names here?

As far as other web sites go, if you sincerely thought you could be identified solely by your writing then it was pointless for you to attempt to “get by the censors” using different names – clearly you’re lying about that, obviously you were trying to create the false impression many people share your viewpoints. Why should anyone believe anything you say when you’ve repeatedly attempted to deceive them?

Theo
July 18th, 2011 | LINK

Excellent post and comments. In my view, the success rate is only important to those who are actually concerned with the well-being of conflicted homosexuals considering the therapy. For the vast anti-gay industry, it matters not one whit whether the success rate is 33% or .000033%. What they are after is support for their argument that homosexuals are not entitled to something they call “minority status” because that status is only accorded to groups that are defined by immutable characteristics.

Thus, if even one homosexual in all the world has changed to a heterosexual (or even, in theory, bisexual), then homosexuality would not be “immutable” and courts and legislatures would thereafter be bound to treat it like more like adultery or other sexual conduct and not like race. It wouldn’t matter that millions of other homosexuals could not change. It wouldn’t even matter that the one success story achieved his goal through a personal religious experience. The means don’t matter and the frequency of success doesn’t matter. All that matters is that it happened once.

That is why you will always here Peter LaBarbera, Linda Harvey, Bryan Fischer and the rest of the gang use artful phrases like “change is possible” or “there is hope”. Those statements would be technically accurate even if the possibility of change were 1 in 1,000,000.

I would hope that Burroway or Kincaid would at some point do a good analytical post on the Christian Right’s fallacious and deceitful arguments about civil rights and immutability. It is infuriating that this argument has been put bandied about for decades with, so far as I know, no one on our side taking it apart in non-legal forums.

The claim is a profoundly dishonest mess on many levels. I can’t say that dullards like LaBarbera or Fischer don’t know better, but there is no question in my mind that attorneys at ADF, Regent University School of Law, Liberty Counsel, etc. know that they are spreading lies. If either of you should decide to tackle this important topic and you need input on the legal aspects, I’d be happy to help.

Priya Lynn
July 18th, 2011 | LINK

Theo said “What they are after is support for their argument that homosexuals are not entitled to something they call “minority status” because that status is only accorded to groups that are defined by immutable characteristics.

Thus, if even one homosexual in all the world has changed to a heterosexual (or even, in theory, bisexual), then homosexuality would not be “immutable” and courts and legislatures would thereafter be bound to treat it like more like adultery or other sexual conduct and not like race.”.

That’s not a valid argument Theo. Religious groups have minority status and are singled out for protection from discrimination and religion is most definately mutable, people can and do change religions all the time.

Ben in Atlanta
July 18th, 2011 | LINK

Jim, you know it’s 0 (zero). There’s no such thing as ex-gay. Stop it! Not one thuggy killer deserves the benefit of the doubt. I will not be civil to murderers.

Jim Burroway
July 18th, 2011 | LINK

“Kelly”, whoever he or she is, is now on moderation for multiple abuses to our comments policy. Furthermore, “Kelly” provides a fake email address with his/her comments, which indicates that he/she wishes not to be held accountable for his/her actions.

If “Kelly” wishes to post comments which comply with our comments policy — regardless of whether her comments agree or disagree with the posts or with others — we will release those comments from the moderatio queue. Trolling behavior however is not allowed.

Furthermore, by his/her own admission, he/she was also been banned from other web sites for engaging in similar actions and has actively tried various tactics to work around those bans. Attempts to do so here will not be tolerated, and will result in reporting his/her i.p. address to his/her internet service provider for harassment.

Adam
July 19th, 2011 | LINK

Theo (this comment is based on the assumption that disability attracts protected class status in the US as it does in the UK; please disregard this if not):

In addition to Priya Lynn’s comment, how do you reconcile your interpretation of the court’s role with protection of disabled people as a class? Clearly, not all disabilities are immutable (some may be remedied by newly developed treatments; others may be ameliorated by time), so by your logic, no disabled people can be protected as members of a minority.

(Incidentally, if disabled people are not legally protected from discrimination, the state of human rights in the US is even worse than I feared.)

Daddy Todd
July 19th, 2011 | LINK

@Adam and Theo — What does immutability have to do with protected status? Religion is protected, and we all know it’s highly mutable. I spent 2 years in my youth as a Mormon missionary in Panama and Costa Rica, and I managed to convince 69 people over the course of 2 years to change their religion.

Mutable, but still worth protecting. So, even if sexual orientation is mutable in some tiny subset of cases, it doesn’t mean that it’s not worthy of protection.

Amicus
July 19th, 2011 | LINK

Jim, thanks. excellent write-up. We are lucky to have you on the job.

14% success rate among a self-selected population, with no statistical confidence.

Please. That’s appallingly low, for any “treatment” statistic, no?

So, the question remains: is that sufficient rational basis to support setting up a counselling center of this kind?

Assuming that success rates are lower, perhaps by even an order of magnitude, for a regular, not-self-selected set, then the answer has to be no. Given the high rates of dis-utility of the treatment, the cost-benefit of treatment *as a group* would probably be rejected.

Success this low and nontrival hazard rates would probably have the treatment dubbed “experimental” or “radical”, in other circumstances. That is what would be disclosed, to parents and others, along with the potential harms.

jpeckjr
July 19th, 2011 | LINK

@TampaZeke: Thank you so very much for the kudos on my comment. I’m just bursting with pride for the recognition. Of course, my therapist is very upset with you. We have been working on my becoming more humble, which is not my natural state. You’ve set back his work by years. Now, he’s going to have to revise his “conversion to humility” data and delay publication yet again!

Timothy Kincaid
July 19th, 2011 | LINK

Amicus,

A gentle revision:

14% success rate among a self-selected population, with no statistical confidence, and a definition of “success” that does not reflect any rational expectations of outcome.

Timothy Kincaid
July 19th, 2011 | LINK

Adam,

The US has some pretty strong protections. The Americans With Disabilities Act prohibits not only overt discrimination, but requires proactive accommodations.

Amicus
July 19th, 2011 | LINK

Timothy, I would expect that inflated expectations, to the extent that they were psychologically reinforcing, would spread the distribution of outcomes, biasing it so that there were more successes and worse failures.

I haven’t read any of these studies. Do any have a proper control group? I ask because the one case I am personally familiar with, there was absolutely no “treatment” involved, per se. The person more or less did it on their own, I think (I really don’t know all of the details, but there was certainly no conversion therapy).

What that might indicate is that therapy is not quite the predictor or co-factor that even these meager statistics suggest. It’s sort of like the person, who is already buff, decides to go to the gym to get fit, then the gym claims their program gave him six-pack abs…

Theo
July 20th, 2011 | LINK

@Daddy Todd:

“What does immutability have to do with protected status? Religion is protected, and we all know it’s highly mutable.”

It has little to nothing to do with it. There are 2 bases for the protection of classes of persons. One is the constitutional (federal or state) and the other is statutory (federal or state). The constitutional protection comes out of the Equal Protection Clause. That clause prohibits the government from treating its citizens unequally. The courts set up a way of evaluating government actions to determine if they violate the clause. One factor they look at is whether the group challenging the governmental action is defined by an immutable characteristic. This only comes up in the context of a constitutional claim and immutability is only one of a series of factors that the court considers. This recently came up in the Prop 8 case, b/c Prop 8 was being challenged under the Equal Protection Clause.

In the statutory arena, the government is free to provide anti-discrimination protection to any group it wants, regardless of whether the group is defined by an immutable or mutable characteristic. Thus various states and cities have at some point extended protection to religion, disability, pregnancy, marital status, family status, military status, participation in recreational activities, and participation in conduct in furtherance of public policy.

The Christian Right knows that all of this is Greek to most Americans, half of whom couldn’t tell you the name of the Vice President. So they take a little bit of the constitutional discussion, distort it so that immutability becomes a dispositive factor, and then dishonestly apply it to argue against anti-discrimination laws such as ENDA. They also use these arguments when they are trying to enlist African Americans to their cause by suggesting that genuine civil rights can only legitimately apply in matters such as race or sex.

@ Priya:

As noted above, the Right’s argument is completely invalid. Religion is totally mutable and yet gets included in anti-discrimination laws. How does the Christian Right explain this?

Well, for a time, they simply ignored it inasmuch as no one was calling them on the carpet on their arguments. About 10 years ago, they felt the need to say something, and they essentially said that religion is mentioned explicitly in the Constitution (in the First Amendment) so therefore it must get anti-discrimination protection even though it is mutable. This is, of course, more nonsense. There is no anti-discrimination protection for gun owners (2d amendment), for people who refuse to quarter soldiers in their homes (3rd amendment), or for people who demand jury trials in civil actions (7th amendment).

Religion gets covered in civil rights laws simply because legislatures want it covered as a matter of good public policy, not because it is immutable, mutable, or because it is mentioned in some part of the Constitution. And that is precisely why they should include sexual orientation as well.

That ends class for today. There will be a quiz on Monday.

Timothy Kincaid
July 20th, 2011 | LINK

Theo,

Excellent explanation.

I would only add that for the most part protection from discrimination on the basis of religion is for the benefit of members of minority or unpopular religions (Jews, Mormons, Jehovah’s Witness, Wiccans, etc.). The Catholic Church is more than a little disingenuous to complain about religious discrimination when the Governor and a significant number of legislators voting for the bill are Catholic.

Amicus
July 21st, 2011 | LINK

Theo wrote: … that is precisely why they should include sexual orientation as well

Superb write-up, as always, but, while it may be true that legislators may not include it *because* it is immutable, that doesn’t mean that such a characteristic is ruled out of consideration (or even critical).

For some things, it may be judged dispositive, for others, not.

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