What if the Government Ordered the Human Rights Campaign to Cover Conversion Therapy for Gays?

Thom Lambert —  23 January 2012

A thought experiment:

It’s late January 2016.  Newt Gingrich is President.  The House of Representatives is solidly Republican, and there’s a slight Republican majority in the Senate.  Because Republicans lack a filibuster-proof majority in the Senate, the Affordable Care Act (a.k.a. Obamacare) remains on the books.  (The reconciliation process, which allowed the law to be enacted without supermajority support in the Senate, could not be used to repeal the law.)  The Act continues to require employer-provided insurance to provide full coverage for all preventive care measures.

Secretary Rick Santorum of the Department of Health and Human Services has determined that conversion therapy for gay males will help prevent all sorts of costly health problems.  HIV and related health problems, it seems, are extremely costly to treat and are far more common among gay men than among straight men.  HHS has determined that the most modern conversion therapies can cheaply and successfully alter sexual orientation or, at a minimum, reduce homosexual impulses so that they can be managed by homosexually oriented patients who would prefer not to engage in homosexual activity.

President Gingrich and Secretary Santorum have therefore mandated that employer-provided health insurance policies cover gay conversion therapies.  Claiming to be sensitive to the concerns of gay groups, they have included a narrow exemption for employers who don’t employ or serve significant numbers of straight people.  In reality, though, none of the major gay and lesbian advocacy groups (e.g., the Human Rights Campaign, GLAAD) or publishing organizations (e.g., The Advocate, OUT Magazine) could qualify for this exemption because all employ a great many gay-affirming straight people and include outreach to heterosexuals as one of their objectives.     

Can you imagine the howls from the New York Times, the television networks, and basically every other political commentator in America?  Andrew Sullivan might just explode.  And rightly so.  Forcing gay groups to pay for a procedure that so deeply offends their core principles would be beyond the pale in a liberal society that respects personal conscience and the right of individuals to associate in groups that share their values – a right that can exist only if groups are allowed to express those values and, to the extent they aren’t hurting others, order their affairs according to them.  

So why do President Obama and HHS Secretary Kathleen Sebelius get a pass when they order Catholic schools, hospitals, and social service agencies to cover birth control, sterilization, and the morning after pill?  The ridiculous “exemption” they created shows how little they know about what churches actually do:  Christ’s apostles themselves wouldn’t have qualified because they, like any church worth its salt, served multitudes of nonbelievers.  Providing an extra year to come into compliance does nothing to alleviate the fundamental problem (Is the doctrinal conflict going to disappear next year?) and is a transparent attempt to deflect media attention until after the 2012 election.  There are lots of Catholics in Ohio and Pennsylvania, after all.

One might say that my analogy fails because the science doesn’t show that gay conversion therapy actually works, and it therefore wouldn’t reduce total health care costs.  But that’s beside the point.  Even if there were a therapy that could cheaply and effectively make gay people straight (i.e., a pill or a quick surgical procedure) it would still be inappropriate to force groups whose central objective is to affirm gay people and fight anti-gay bias to provide coverage for such a therapy.

My point is not to defend the Catholic Church’s views on birth control (with which I disagree), to defend gay conversion therapy (which I think is a harmful crock), or to question the mission of gay rights organizations.  Instead, I mean to point out that governments in liberal societies do not force individuals or voluntary associations to violate their consciences where their conscience-following does not violate the rights of others.  Yet another example of Obamacare’s heavy hand.

Thom Lambert

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I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

10 responses to What if the Government Ordered the Human Rights Campaign to Cover Conversion Therapy for Gays?

  1. 

    Mike–

    Good question about Hosanna-Tabor. I haven’t read the opinion (only news reports on it), so I’m scared to speculate. The apparent rationale of the decision, at least as summarized in the news articles I read, seems to undermine HHS’s rule. I’d love to hear from someone who’s studied the decision.

    Thom

  2. 

    Kinda shows why its ridiculous to tie health care to peoples jobs and that having a free market for insurance, just like we do auto insurance would alleviate some of the problems your talk about. Further, kinda points out why having religions running hospitals leads to some obvious problems. But ignoring that and following your idea, all your saying is that gay groups would have to fund the insurance that covered the gay conversion correct? Not sure that theres a problem there, I know you say the NYTimes et al will howl and I agree that they would, but as long as there not forcing anyone to get converted, just forced to provide the funding for insurance to those who choose to do it, its no different then now right and they’d be wrong to complain and I say ok.

  3. 

    Thom, I’m wondering how the recent SCOTUS ruling on Hosanna-Tabor would inform this issue. If the EEOC cannot impose anti-discrimination laws against religious organizations that would require religious organizations to violate their sets of beliefs, would the same logic not apply to this health care mandate?

  4. 

    This is a good post. I agree with the sentiments expressed in it, although I would emphasize a different point. You seem to be suggesting: Government has no business intruding upon “conscience-oriented” activities. However, I have always preferred this kind of argument: Government simply does not know how to intelligently regulate and control “conscience-oriented” activities. The latter argument, it seems to me, avoids so many of those thorny natural-rights and philosophical-polity questions that plague the former argument.

    In other words, it is much easier to say that government cannot do something than to say that it shouldn’t.

    I recently read a very good book entitiled “Beyond Politics,” by (I believe) Gordon Tullock. He makes the very good point that hip hop music has done more to equalize race relations in American than the entire collection of the Civil Rights Acts, and I think he is absolutely right.

    Society is a complicated thing, and government should not meddle in it too much. Sure, we need government regulating things like governmental structure and procedure. But it is another thing entirely when government begins regulating things like economic competition, racism, discrimination, labor, and, yes, what we do in the bedroom (and with whom). I don’t think anyone really understands any of these things. They are just too complicated.

  5. 

    Thom, yet again with another insightful and thought-provoking post.

  6. 
    Bert Schwitters 24 January 2012 at 1:08 am

    The analogy demonstrates that abortion, homosexuality, etc. are the progressives’ moral, political and administrative benchmarks for people’s behaviour.

  7. 

    Simply the best article I’ve read on ObamaCare!

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