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Supreme Court turns away case threatening California ban on gay ‘conversion therapy’

The U.S. Supreme Court in Washington, D.C. on Nov. 13, 2023. The court turned down a Christian group's free-speech challenge to the laws in California and 21 other states that forbid licensed counselors from using "conversion therapy" with children and teenagers.   (Mandel Ngan/AFP/GETTY IMAGES NORTH AMERICA/TNS)
By David G. Savage Los Angeles Times Los Angeles Times

WASHINGTON – A divided Supreme Court on Monday turned down a Christian group’s free-speech challenge to the laws in California and 21 other states that forbid licensed counselors from using “conversion therapy” with children and teenagers.

Justices Clarence Thomas and Samuel A. Alito Jr. filed dissents, and Justice Brett M. Kavanaugh said he also voted to hear the case.

“There is a fierce public debate over how best to help minors with gender dysphoria,” Thomas said, and states such as Washington and California have “silenced one side of this debate.”

But a majority of the other justices disagreed, and refused to hear a case that challenged the states’ laws. It marked the fourth time since 2014 that the court has refused to hear such a case.

Lawyers for the Alliance Defending Freedom, a Christian legal group, argued states should not be permitted to “censor” counselors who espouse Christian values.

They appealed to challenge a Washington state law they said violates marriage and family counselor Brian Tingley’s rights to the freedom of speech and free exercise of religion.

Tingley “helps clients with various issues, including sexuality and gender identity,” the ADF lawyers said in their petition to the court. “A practicing Christian, Tingley grounds human identity in God’s design rather than a person’s feelings or wishes. Many of his clients agree and seek his counsel precisely because they want to align their identity with their faith.”

The law at issue prohibits licensed counselors from using “a regime that seeks to change an individual’s sexual orientation or gender identity.” State lawmakers said this “therapy” was proven to be ineffective and significantly increased the risk of suicide among young people.

When the 9th Circuit Court of Appeals upheld California’s first-in-the-nation law in 2014, it ruled the state had broad authority to regulate the practice of medicine and “professional speech” about medical treatments.

The appeals court applied the same rule in upholding Washington’s law last year. “States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel,” wrote Judge Ronald Gould. “As of 2015, every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy,” he added.

But five years ago, the Supreme Court disagreed with the 9th Circuit’s view that “professional speech” could be strictly regulated. Citing the 1st Amendment, the justices by a 5-4 vote set aside part of a California law and ruled that “pro-life crisis pregnancy centers” could not be required to notify patients that they did not perform abortions and sometimes did not have medical professionals on staff.

The ADF’s lawyers argued that ruling undercut the 9th Circuit’s decision in Tingley’s case. They contended he is subject to state fines for “pure speech” because he has a different viewpoint.

“A counselor who encourages same-sex conduct or assists a young person to adopt a transgender identity is free to do so. But a counselor who discusses a client’s desire not to pursue sexual relationships outside of marriage between one man and one woman, or to align the client’s sense of identity and biological sex, faces steep penalties,” they said.

Though the court turned away the latest challenge, the current conservative majority has shown itself ready to rule at times for free speech claims that involve religion.

In 2022, the justices reversed the 9th Circuit and upheld in Kennedy vs. Bremerton a free-speech claim from a football coach who defied school officials and insisted on praying at the 50-yard line.

In June this year, the court agreed in 303 Creative vs. Elenis with the ADF’s lawyers and ruled a self-employed website designer in Colorado had a free-speech right based on her Christian beliefs to refuse to design wedding websites for same-sex couples.

In defense of Washington’s law, state Atty. Gen. Robert Ferguson said the 1st Amendment protects a person’s right to say harmful and hateful things in public. “But if a teenager told their state-licensed therapist: ‘I think I am gay,’ and the therapist responded: ‘Well then God hates you,’ or, ‘Well then you should kill yourself,’ the therapist could lose their license and be sued for malpractice. No reasonable person would disagree.”

He said that under the law, therapists can “discuss conversion therapy with minor clients, recommend it be performed by others (e.g., religious counselors), promote it in public or private …. All they cannot do is perform conversion therapy in their capacity as licensed therapists,” he told the court.

Equal Rights Washington, the state’s largest LGBTQ+ advocacy group, said Tingley claims “he merely wants to express his ideas without state ‘censorship,’ but that is not the relief he seeks. Instead, he seeks Washington’s endorsement of his therapeutic methods. In effect, he wants to tell his patients that the state of Washington deems him an expert and that his treatment methodologies are an exercise of that expertise. The Constitution does not require Washington to endorse treatment methodology that Washington believes to be ineffective and unsafe.”