Today’s U.S. Supreme Court decision in Chiles v. Salazar unfortunately has handed another victory to litigants who continue to use our courts to mold the law to reflect their religious beliefs.
A Christian therapist, represented by Alliance Defending Freedom, orchestrated a legal challenge to a Colorado law that banned licensed medical professionals from performing conversion therapy on children. Conversion therapy is the widely condemned practice of trying to change someone’s sexual orientation or gender identity/expression to conform to heterosexual and cisgender norms. In a 8-1 decision, the court ruled against Colorado’s law.
Justice Neil Gorsuch authored the court’s opinion, which held that the conversion therapy regulation in Colorado restricted the speech of the therapist and is therefore subject to the highest First Amendment scrutiny.
“This is a disappointing decision, which likely will lead to further harm to children,” says Freedom From Religion Foundation Legal Director Patrick Elliott. “This case continues the trend of the Supreme Court favoring religious litigants under the guise of free speech.”
In its friend-of-the-court brief, FFRF argued that this case was yet another example of the Supreme Court improperly allowing religious litigants to use hypothetical and even insincere legal injuries in support of lawsuits designed to strike down laws based on nothing more than religious or ideological objections. This has been an alarming trend in recent years, and religious parties are now regularly obtaining sweeping legal precedents that are weaponizing their faith against vulnerable groups, especially the LGBTQ+ community.
Last term, the Supreme Court concluded that gender-affirming care like puberty blockers and hormone therapy can be regulated (and even banned completely) because they include more traditional health care like medication and needles. However, since conversion therapy is accomplished through talking, the court found it is not traditional health care, but “speech,” which cannot be regulated in the same way.
Although the court acknowledged that laws can regulate conduct in ways only incidentally having an impact on speech, the majority concluded that “all Ms. Chiles does is speak — and, as far as she is concerned, speech is all Colorado seeks to regulate.” As a result, the majority held that the law must be subject to strict scrutiny — a legal standard that is nearly impossible to meet.
“This conclusion is both preposterous and dangerous,” says FFRF Co-President Annie Laurie Gaylor. “Health care, whether it involves physical procedures or mental health therapy, should be regulated based on its safety and efficacy, not religious ideology or preference.”
The lone dissenter in the Chiles decision, Justice Ketanji Brown Jackson, agrees. As she notes, “Chiles is not speaking in the ether; she is providing therapy to minors as a licensed health care professional.” Jackson points out that Colorado’s law “treats the talk-therapy form of conversion therapy as a prohibited medical treatment” and “all that Colorado’s law proscribes is the provision of such therapy to minors.” Jackson explains that “states can regulate the medical treatments health care professionals provide to patients without running afoul of the First Amendment, even if the regulation applies to and restricts speech based on its content.” Her dissent ends with a warning about what the majority opinion could mean:
Ultimately, because the majority plays with fire in this case, I fear that the people of this country will get burned. Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want. Largely due to such state regulation, Americans have been privileged to enjoy a long and successful tradition of high-quality medical care. … To put it bluntly, the court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised health care providers.
As Jacky Chu, a medical student at Stanford University School of Medicine and a public health student at UC Berkeley, writes, “Scientific consensus is clear: Conversion therapy efforts are not only ineffective, they significantly increase a person’s risk for depression, anxiety, post-traumatic stress disorder and suicidal ideation.” As a result, every major mental health and medical association has condemned the practice. Following the Chiles decision, however, conversion therapy might not only continue, it could do so virtually unchecked by any standard of care.
The Supreme Court has done a major disservice in its decision today to the counseling profession — and to the American population at large.
The Freedom From Religion Foundation is the largest national association of freethinkers, representing atheists, agnostics, and others who form their opinions about religion based on reason, rather than faith, tradition, or authority. Founded nationally in 1978 as a 501(c) (3) nonprofit, FFRF has more than 41,000 members nationwide, with members in every state and the District of Columbia.
