Lawsuit suggests counseling program guidelines subvert First Amendment

Monday, March 9, 1998

A federal lawsuit has been filed against officials in Orange County, Calif., after they allegedly told a retired police officer he could not become a counselor for sexual assault victims because he claimed that gays are an affront to his Christian beliefs.

Jim Tarvin sued county officials, claiming his First Amendment rights guaranteeing religious freedom and speech were infringed when the director of the county-sponsored Sexual Assault Victim Service/Prevention Program told him his personal beliefs prevented him from attaining a certificate to become a volunteer counselor.

In August, Tarvin began taking training courses to become a counselor for sexual assault. At a “Cultural Diversity” training session in September, Tarvin was given a document detailing needs of lesbian survivors of a sexual assault. The handout, in part, states that people are “misinformed about homosexuality in general, and about the lives of lesbians in particular, because of the many distorted attitudes our culture holds about lesbians.”

After the course, Tarvin told the director the document contained erroneous information and that he believes gays are sinners and their activities “harmful.” Tarvin's lawsuit alleges that because of his religious beliefs the county has denied him opportunity to become a counselor for sexual assault victims.

Brian Fahling, litigation counsel for the Mississippi-based Christian organization the American Family Association, which is representing Tarvin, said that the county should not force anyone to uphold beliefs contrary to their religious proclivities.

“The county-sponsored program vilifies anyone who disagrees with homosexual lifestyle and suggests that homophobia is akin to being a racist,” Fahling said. “Essentially, Tarvin is forced to abandon a fundamental precept of his faith—which is that homosexuality is sinful and harmful—in order to obtain a certificate to counsel sexual assault victims.

“We are not suggesting that Tarvin should be able to preach the gospel to victims; we are just asking the county to train counselors.”

Eugene Volokh, a UCLA law professor and First Amendment scholar, said Tarvin's claim that the county is singling him out for religious beliefs probably is not enough to show a First Amendment violation.

“The county would probably treat people the same even if their objections to homosexuality were secular,” Volokh said. “There is a weird twist under federal law, however, that if a person has another constitutional claim, then the religious claim becomes more serious. The free speech claim is very serious here. It appears the government is suggesting he won't make a good counselor because of his views. But that is an assumption government cannot make.”

Volokh added that Tarvin should have looked to California's constitution for protection.

“State constitutions can protect us beyond what the federal Constitution does,” he said. “Under California's constitution it is not yet clear whether the rule is that the government must take special steps to accommodate religious beliefs.”