I should say at the outset that the title of this post is a little misleading, because the California law I'm going to write about here was actually passed years ago, in 2012, it appears. Here, as far as my best googling efforts extend, is the text of the law. It's in the news again now because of a recent (bad) Ninth Circuit Court ruling on it.
This law forbids all "sexual orientation change efforts" by any licensed counselor, including any licensed marriage and family therapist (a credential earned and possessed by some pastors), for a counseling client under eighteen years of age. "Sexual orientation change efforts" are defined very broadly. This law doesn't apply only to some highly specific type of "reparative therapy" but to any attempt to work with the young person to "eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex." The law is sufficiently broadly worded that it presumptively also forbids attempts to help gender-confused minors become un-gender-confused. (In other words, telling confused boys that they are boys and confused girls that they are girls.)
The Pacific Justice Institute, another of the hard-working pro bono conservative legal organizations, has been filing suit against this law ever since using both freedom of speech arguments and freedom of religion arguments.
The case is in the news again because, just a few days ago, the infamous Ninth Circuit Court upheld the law against a religious liberty challenge from the PJI on behalf of pastors who are also licensed counselors.
As you can see from the text of the bill itself, there is no exemption stated in the bill for pastors at all. There is no exception for those working under the aegis of a church or other explicitly religious counseling facility. There is no exception for ministerial staff. Nothing.
Quite naturally, the Pacific Justice Institute and their plaintiffs interpreted the law to mean that a pastor who is also a licensed counselor who says the "wrong" thing to a young counselee, if caught, could lose his counseling license. (That is the penalty designated in the law.)
Homosexual activists (and now presumably transgender activists) do engage in "sting" operations in which they pretend to be clients who want to change their sexual orientation in order to "catch" counselors offering such counseling. Yes, it really is that bad. Help getting rid of homosexual desires is treated like selling illegal drugs, and just as someone might pose as desiring to purchase illegal drugs in order to catch someone selling them, activists post as wanting to purchase counseling to stop having unwanted homosexual desires in order to "catch" counselors giving it.
So this could, prima facie, happen to a pastor in California who happened also to be a licensed counselor. Or disgruntled parents or grown former parishioners who received biblical counseling on this matter could later "out" the pastor for having offered illegal advice and get his counseling license revoked.
It is perfectly legitimate and indeed valuable for Christian organizations and churches to run official counseling services. This allows Christians with psychological problems, including parents concerned about their children, to obtain counseling which they have some hope will be in line with their Christian beliefs while coming from someone licensed as a counselor, just in case there actually is some value or knowledge represented by that credential. (Also, insurance will not pay for psychological counseling from anyone unlicensed.)
In fact, it used to be that secularists trying to drive Christians out of the counseling profession explicitly told them to go and get their degrees from explicitly Christian schools and to work, once they obtained their license, in an explicitly Christian practice. But now, this law applies to everybody, including explicitly Christian practices, even those run by a church.
The court's reasoning for upholding the law against the PJI's challenge is curious. Here is the court's decision. The court states that, in oral arguments, the state's representative claimed that the law would not be applied against pastors "acting in their roles as clergy or pastoral counselors and providing religious counseling to congregants." The state said to the court that the law exempts (!) pastoral counselors and clergy "as long as they don't hold themselves out as operating pursuant to their licenses."
Now, let's be clear that none of these statements, including the claim that the law actually exempts a particular class of people, are in the law. They are simply claims made by the state to the court. If a reader can find a text of the law that contains any such exemption, he should feel free to pass on a link. But the court itself doesn't even claim that any of this is in the law. The court's own reference is simply to quotations from oral argument before the court itself!
Furthermore, this supposed "exemption," which means (says the court) that "the law does not excessively entangle the State with religion," is incredibly narrow, not to mention unclear.
Let's start with unclear: Suppose that everybody in the congregation knows that the pastor has a license as a family counselor. Under precisely which circumstances is he "acting in his capacity" as clergy as opposed to acting as a licensed counselor? Would that be left for the professional body (which has the power to yank his license) to decide after he's been accused of violating the law? What, precisely, counts as holding oneself out as operating pursuant to one's license? If the pastor mentions that he has the license, does that count? Who is a congregant? Only someone whose name is officially on the church membership rolls? Do regular attenders at a church count as congregants?
It looks like, even to claim this supposed exemption (which apparently exists only in the unstated penumbra of the law), a pastor would very nearly (or even literally) have to get a signed statement from a member of his congregation stating a) that the minor client is a "congregant" and b) that the minor and parents understand that the counsel the minor is going to receive is not being offered "pursuant to" the pastor's license but is purely "religious counseling" being offered "in the capacity of clergy." Or some such wording.
But now we come to the narrowness problem. That exemption, if it exists and if it could actually be used, is incredibly narrow. It means that licensed counselors who counsel non-congregants and who in any sense do "hold themselves out" as operating qua licensed counselors, would be muzzled, even if their salaries are entirely paid by a church, even if they are pastors or other unambiguously ministerial staff, even if the counseling is explicitly advertised as religious, and even if the counseling takes place on church premises.
The idea that such restrictions are consistent with the free exercise of religion is quite absurd.
Of course, secular counselors also should not be prohibited from offering sane counsel to young people with perverted desires or gender confusion. The only counseling allowed under this California law is that which is most destructive, that which affirms young people in their disordered desires and out-of-touch-with-reality gender confusions. It is scandalous that the only people who now have any hope of avoiding this insane law are religious counselors. But at least they should be free to counsel in line with reality, if religious freedom means anything.
SB 1172 is the product of wicked ideology coupled with jack-booted control-freakishness. It imposes the worst possible restrictions upon parents seeking to help their children at precisely the time of early intervention when it might be possible to turn the children away from the abusive, insane, harmful ideology confusing them in our culture and incessantly taught in school and the media. (See this fascinating article reprinted from 1997, by Joseph Sciambra, on his own experience.) Worse, it attempts to apply these restrictions even within the "Christian ghetto," even to Christian, biblical counselors billing themselves as such and sought out by willing clients. It attempts to apply them even to pastors if the pastors should dare, heaven forfend, to "hold themselves out" as operating with a professional counseling license.
Earlier actions by SCOTUS concerning challenges to SB 1172 do not bode well for an appeal. If you are hoping to set up as a counselor, even an explicitly religious counselor employed by a church or other religious organization, your best bet is to avoid California if you want to be able to tell your clients the truth and help them.