The United States Supreme Court ruled 8-1 Tuesday that Colorado’s ban on LGBTQ conversion therapy for children is unconstitutional under the First Amendment.
According to the majority, the ban “regulates speech based on viewpoint,” meaning that the lower courts erred in “failing to apply sufficiently rigorous First Amendment scrutiny.”
A concurring opinion authored by Justice Elena Kagan joined by Justice Sonia Sotomayor, arguing that “had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.”
Dissenting from the Court’s ruling was Justice Ketanji Brown Jackson on the grounds that the move “opens a dangerous can of worms” that “threatens to impair states’ ability to regulate the provision of medical care in any respect.”
Brought by Christian counselor Kaley Chiles, this case will now be sent back down to the lower courts for further consideration in light of the Supreme Court’s ruling.
Writing for the Court, Justice Neil Gorsuch argued that the Colorado law — similar to those on the books in nearly two dozen states, including Maine — “censors speech based on viewpoint.”
“‘Viewpoint discrimination’ represents an even more ‘egregious form’ of content regulation from which governments must nearly always ‘abstain,'” the Court said.
“The First Amendment stands as a bulwark against any effort to prescribe an orthodoxy of views, reflecting a belief that each American enjoys an inalienable right to speak his mind and a faith in the free marketplace of ideas as the best means for finding truth,” the majority argued. “Laws like Colorado’s, which suppress speech based on viewpoint, represent an egregious assault on both commitments.”
The counselor who challenged Colorado’s ban emphasized in her complaint that she “does not take issue with the State’s effort to prohibit what she herself calls ‘long-abandoned, aversive’ physical interventions,” instead stressing “that she provides only talk therapy, employing no physical techniques or medication.”
“While the First Amendment protects many and varied forms of expression, the spoken word is perhaps the quintessential form of protected speech,” said the Court. “And that is exactly the kind of expression in which Ms. Chiles seeks to engage.”
The majority then goes on to argue that she seeks to “engage only in speech, and as applied to her the law regulates what she may say,” but “her speech does not become conduct just because the State may call it that,” nor because “it can also be described as a ‘treatment,’ a ‘therapeutic modality,’ or anything else.”
The Justices also explain that the fact the law is narrowly tailored to target health care professionals “changes nothing” about its standing in contrast to the First Amendment.
“The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country,” the Justices concluded. “It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.”
“However well-intentioned, any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments,” they said.
Justice Jackson’s dissent takes a markedly different view of the situation presented in this case, arguing that the context of Chiles actively “providing therapy to minors as a licensed healthcare professional” is important to understanding the question presented to the Court.
“Under our precedents, bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care,” Jackson said.
Jackson goes on to emphasize the nature of Chiles’ work as a form of medical treatment.
“No one directly disputes that Colorado has the power to regulate the medical treatments that state-licensed professionals provide to patients. Nor is it asserted that, when doing so, a State always runs afoul of the Constitution,” she said. “So, in my view, it cannot also be the case that Colorado’s decision to restrict a dangerous therapy modality that, incidentally, involves provider speech is presumptively unconstitutional.”
Jackson went on to discuss scientific and medical literature suggesting that conversion therapy “has harmed patients, particularly minors.”
“Professional medical speech does not intersect with the marketplace of ideas,” she argued. “Even though these kinds of regulations are inherently viewpoint based, in the context of medical care, a State can certainly require the medical professionals it licenses to stand on one side of an issue.”
Jackson closed her dissent with a scathing rebuke of the majority’s opinion.
“To put it bluntly, the Court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers. A state license used to mean something to the patients who entrust their care to licensed professionals—i.e., that the person is certified to be one who provides treatments that are consistent with the standard of care,” she concluded. “That stops today.”
Click Here to Read the Court’s Full Opinion
The Maine Attorney General’s Office joined a coalition of 21 other states in filing an amicus brief supporting Colorado’s conversion therapy ban for minors this past August.
According to the Portland Press Herald, Attorney General Aaron Frey’s office has declined to comment on Tuesday’s Supreme Court ruling in this case.
