Well guys, the Supreme Court is in full swing and releasing opinions. What a time both to be alive and a lawyer!
I’m old enough – because I’m older than age five – to remember when it seemed like the culture believed that anyone who did not affirm the LGBTQ lifestyle was not only wrong but dangerous. It also seemed this culture shift was big enough to have the government’s backing.
In some places, it did. In 2019, Colorado passed a law banning conversion therapy. This law banned any treatment or therapy that helped a minor patient move away from same sex attraction or gender dysphoria, including talk therapy, which is discussion between a patient and his counselor. The law did, however; expressly allow for affirmation of same sex attraction or gender dysphoria.
The Court noted that the only type of conversion therapy happening today is talk therapy. No one is doing shock therapy, pills, or other painful methods. So this law really just affects counselors talking to their patients.
The Supreme Court smacked down this law the other day in Chiles v. Salazar, ruling 8-1 against it. All the justices agreed the law was viewpoint discrimination and thus violates the First Amendment – except for Ketanji Brown Jackson. When the other liberal justices agree – even Justice Sotomayor – with the conservative justices, you know the lone dissenting justice is probably an idiot.
The Court based its decision on the legal basis that the law violated the First Amendment. When a law prohibits someone from expressing a certain viewpoint while allowing other viewpoints, we have viewpoint discrimination, which is generally unconstitutional. It is only allowable if it passes strict scrutiny – a hard test to pass – meaning the law must be narrowly tailored to meet a compelling governmental interest using the least restrictive means. The Colorado law clearly did not meet that test.
Attorneys for the State of Colorado and Jackson argued that the law did not have to pass strict scrutiny because it dealt with speech incident to conduct. In other words, the speech amounted to conduct because talk therapy is a form of treatment. But recent Supreme Court precedent goes against this.
I know this seems dry and technical, but hang on, because the use of case law here is interesting.
The most cited case in the opinion and the dissent is NIFLA v. Becerra (2018). It involved a California law requiring pregnancy centers to tell their pregnant clients that free or low-cost abortions were available, where to find them, and whether the clinic was licensed, which obviously created an issue for pro-life pregnancy centers. The Supreme Court ruled this law an unconstitutional violation of the First Amendment as it was viewpoint discrimination. This case is strikingly similar to the case we are discussing.
Both these cases show that when the left wants to force their agenda on you, they do it by enacting laws that suppress speech to the contrary. That’s the only way they can win. Jackson’s dissent is a case in point. It can be boiled down to “I like the law, so it’s fine.” Part of her reasoning is that the state claimed that the science of the day shows that only affirming care is effective for people struggling with same sex attraction and gender dysphoria. The Science says so, so the Supreme Court must uphold it.
Justice Gorsuch hit that dumb argument with precedent, however, citing Buck v. Bell, a case where the Supreme Court upheld a law requiring people with mental disabilities to be sexually sterilized because the science said these people would just reproduce more mentally handicapped people. Today we recognize this case as really bad precedent, and when your argument gets slapped with Buck v. Bell, you know you are on the wrong side. Science of the day does not dictate law, nor should it ever do so.
Again, the tides are turning. The left will not again try to enact laws against counselors talking to patients who do not want to give in to same-sex attraction or gender dysphoria. This was something all Christian counselors feared just five years ago.
That’s good because we know that the best treatment for people is truth: truth about who they are and who God designed them to be. This law would have prevented that truth from going forward.
So keep fighting, my friends! The left must violate your rights to get you to agree with them. Then they gaslight you by saying you are the one violating their rights, even while the law shows the exact opposite. The Constitution is on our side. Keep going!
Laura Clark is a wife, mother, and community activist. She currently serves as the interim president of Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. Anything written by Laura for this publication does not constitute legal advice.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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