Catholic counselor sues Oregon over $90k fine for not 'blessing' client's lesbian relationship

Oregon has repeatedly tangled with federal courts over the burdens it places on the free exercise of religion in such matters as public accommodations, abortion coverage mandates and eligibility to adopt and receive state funding, after finding approval in state courts.

The Beaver State appears to be on another collision course with judges not on its payroll by fining a Catholic counselor nearly $90,000 for refusing to "personally" affirm a client's same-sex relationship, deeming it a violation of "professional conduct" obligations.

An administrative law judge, who works for the Oregon Employment Department's Office of Administrative Hearings, found Frank Canepa violated American Counseling Association Code of Ethics Rule A.4.b, which is legally binding in Oregon. The Board of Licensed Professional Counselors and Therapists approved the recommendations.

"Counselors are aware of – and avoid imposing – their own values, attitudes, beliefs, and behaviors," the rule says. 

"Counselors respect the diversity of clients, trainees, and research participants and seek training in areas in which they are at risk of imposing their values onto clients, especially when the counselor’s values are inconsistent with the client’s goals or are discriminatory in nature," the rule concludes.

Canepa is challenging the finding, the rule and the very structure of the proceeding before the Oregon Court of Appeals, which directly hears appeals of rulings by state administrative agencies, arguing he stated his view only after 20 minutes of badgering by a client of two-and-a-half years to affirm her relationship with another woman.

Rule A.4.b unconstitutionally restricts speech based on viewpoint and content and is neither neutral nor generally applicable, while the administrative proceeding and financial penalties denied Canepa his Seventh Amendment right to a jury trial, according to the opening brief filed by his lawyers at the Alliance Defending Freedom.

Canepa is following in the footsteps of Aaron and Melissa Klein, who challenged the Oregon Bureau of Labor and Industries when it fined their shop Sweet Cakes by Melissa $135,000 for refusing to make custom same-sex wedding cakes based on their Christian beliefs.

Like the Kleins, Canepa got a boost from a recent U.S. Supreme Court ruling that by 8-1 struck down Colorado's statutory ban on so-called conversion therapy for youth struggling with sexuality and gender identity, as applied to licensed counselor Kaley Chiles, calling the Centennial State's viewpoint discrimination "egregious."

The licensing board declined to explain to Just the News how its finding against Canepa can survive under Chiles, citing active litigation.

The Oregon Counseling Association did not respond to Just the News queries about the state's treatment of Canepa but it's unlikely to support him, given that the trade association denounced the SCOTUS ruling for Chiles, conflating her nonjudgmental talk therapy with coercive practices historically associated with conversion therapy. 

"Oregon counselors are bound" by OCA's conclusory claim that anything other than proactive affirmation of gender confusion is "discredited, unsupported by science, and has no place in ethical counseling practice [...] regardless of what any court decides," its response to Chiles said.

A history of SCOTUS conflicts

SCOTUS has twice rebuked the Oregon appeals court for upholding BOLI judgments against the Kleins and ordered it to rehear their case in light of precedents against Colorado, the first when the high court found religious animus against baker Jack Phillips and his Masterpiece Cakeshop for refusing to make same-sex wedding cakes.

The Oregon court found the same religious animus against the Kleins, scrapped the fine and ordered a re-examination, following which BOLI imposed a $30,000 fine. 

SCOTUS vacated the judgment again in light of its ruling for website designer Lorie Smith against Colorado's compelled creation of same-sex wedding websites.

First Liberty Institute, representing the Kleins, confirmed to Just the News they are still waiting for a third ruling from the appeals court – 27 months after oral argument. The couple, under regulatory inquisition for 13 years, reportedly shut down the bakery in 2016.

SCOTUS, however, rejected an opportunity in December to rule squarely on whether refusing to make a same-sex wedding cake on religious grounds is constitutionally protected, declining Tastries owner Cathy Miller's petition to review California's civil prosecution that argued the cake she refused to make for a lesbian couple was "predesigned," not custom.

The high court may have been reluctant to answer a question posed by Miller's lawyers at the religious liberty firm Becket: whether to scrap its 1990 Smith precedent that has been widely invoked to suppress religious freedom, including by California against Miller.

It's still considering whether to grant Youth 71Five Ministries' petition to review a 9th Circuit ruling that lifted its own injunction against Oregon's revocation of grants from the ministry because of its "discrimination" – requiring employees to "sign a statement of faith."

The appeals court's "merits panel" said the state's new anti-discrimination rule was "neutral and generally applicable" – the conditions set by Smith for legitimate burdens on religious practices – and that the religious-autonomy doctrine cannot be used to "stop unconstitutional government action when it occurs." 

Preventing 'hurt feelings' not a 'compelling interest' for government

Lawyers for Canepa said he had "never mentioned his personal views on same-sex relationships in at least 44 other sessions in which this topic came up" with the client, starting in November 2020, when she broached the subject again July 10, 2023, expressing concern about "her own ambivalence" about whether to date men or women.

Despite Canepa's repeated assurance throughout their counseling relationship that he would "honor her personal life choices and direction in her own life," the client this time refused to let him remain silent and demanded Canepa's "personal blessing" on her current lesbian relationship, according to the lawsuit.

"To preserve the counseling relationship, Canepa knew that stonewalling was not an option," so he answered her truthfully, citing his Catholic faith. He was following the standard set by his mentor Bob Edelstein in their field of "Existential Humanistic Therapy," to be authentic and transparent with clients to show "how differences can be accepted positively."

Despite Canepa assuring her she wasn't a "bad person" in his view, the client quit their sessions two weeks later and filed a complaint with the licensing board, which charged him with imposing his "own values" on a client, even worse because they were "discriminatory," the suit says. 

By refusing a "personal affirmation" for same-sex relationships, Canepa had asserted that "a minority group" was "distinct or set apart from others," the board said.

The board deemed Canepa's eventual disclosure of his personal views unprotected "professional conduct," directly at odds with Chiles, the suit says.

"Colorado advanced the same argument [...] that speech by licensed counselors may be regulated because the speech is incidental to the provision of professional services," but SCOTUS said it regulated "speech as speech," gutting the "heart" of First Amendment protections for free speech.

No different than Colorado's law, which discriminates based on viewpoint, the board read Oregon's counseling rule to forbid "value judgment[s]" by counselors even when the client demands them and found that Canepa's "burdened" the client because it concerned her "identity" and "elicited an emotional response," the suit says.

Its whole interpretation is infected by viewpoint discrimination, with the board singling out speech from a Roman Catholic perspective as no less discriminatory than "racism and sexism and misogyny," violating the SCOTUS precedent Matal against the federal prohibition on trademarking terms that "disparage" an ethnic group, the suit says. 

The board also punished Canepa based on his rationale for not affirming his client's sexuality, his Catholic faith, when he could have cited "the rules of ethics." Both views express "a personal value – that some rules or doctrines should be followed – yet the Board bans only the latter," the suit says.

It came nowhere near the constitutional hurdle of showing the board has a "compelling interest" in regulating Canepa's speech and that it imposed the "least restrictive" means of accomplishing it, when its rationale for punishing him was "essentially [preventing] any hurt feelings," the suit says.