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Supreme Court asked to strike down California’s ban on LGBT “conversion therapy” for minors

Conversion therapy cases LGBT Legal Cases

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
As anticipated, the group challenging California’s ban on so-called LGBT “conversion therapy” for minors has filed their petition asking the Supreme Court to review the case. A three-judge panel for the Ninth Circuit Court of Appeals had ruled that the law is constitutional, when Liberty Counsel brought a challenge on behalf of several anti-LGBT groups, including National Association for Research & Therapy of Homosexuality (NARTH). The challengers sought en banc review in the Ninth Circuit, a request for the case to be heard by a larger panel of 11 judges in that circuit. That request was denied by a majority of sitting judges.

The Supreme Court petition poses three questions for the Court’s review:

1. Whether a law that bans counselors from providing and minor clients from receiving “talk therapy” counseling that unwanted same-sex sexual attractions, behaviors, or identity (collectively “SSA”) can be reduced or eliminated but permits talk therapy that affirms and approves unwanted SSA violates the First Amendment.

2. Whether a law that prohibits licensed counselors from, under any circumstances, engaging in talk therapy on the subject of “sexual orientation” that expresses the viewpoint that minors’ unwanted SSA can be reduced or eliminated is impermissibly vague and overbroad.

3. Whether a state law that prevents parents from seeking licensed counselors to provide talk therapy, as requested by their children, which expresses the viewpoint that the children’s unwanted SSA can be reduced or eliminated while permitting talk therapy that expresses the viewpoint that the children’s SSA should be affirmed and approved infringes upon the parents’ fundamental rights to direct the upbringing of their children.

Like their arguments in the court of appeals, the new filing suggests that the ban on so-called LGBT “conversion therapy” is a restriction on free speech, not simply a regulation of conduct of mental health professionals. The group says that “[t]his case does not involve state licensing requirements, but whether the state can censor what a licensed counselor says.”

There’s no “circuit split” on this specific issue – in fact, California’s law was the first of its kind, so there wouldn’t be any other precedents addressing the precise question – though the Third Circuit is considering New Jersey’s ban, passed after California’s. Even so, the filing argues that the Ninth Circuit’s “decision creates intra- and inter-circuit conflicts with decisions which concluded that restrictions less intrusive than SB 1172 crossed the line between permissible professional regulation and impermissible restraint on speech.”

It’s unclear whether the Supreme Court would grant the petition, given the lack of a circuit split. A response from the state is due March 12.

Thanks to Kathleen Perrin for this filing

19 Comments

  • 1. sfbob  |  February 19, 2014 at 10:17 am

    I don't see the Supreme Court granting cert. Whether or not the plaintiffs like it this is nothing more than the state instructing regulatory agencies to do their jobs. In the unlikely event the Supreme Court DOES grant cert, the plaintiffs will receive yet another judicial lecture on what "free speech" actually is and what it is not.

  • 2. davep  |  February 19, 2014 at 10:24 am

    Answers:
    1. No. Harmful quackery is not entitled to First Amendment protections.
    2. No. See #1.
    3. No. Laws against harmful quackery do not infringe upon a parent's right to direct a child's upbringing.

  • 3. bayareajohn  |  February 19, 2014 at 11:25 am

    The key here is that if "talk therapy" were to be held to be protected free speech, all such "therapy" of any kind (-ANY- kind!!) would be off limits to licensing for medical review. That's not going to happen.

    If parents want to force their kids into an unregulated "talk therapy", they can take them to the church of their choice. But they can't do it under the pretense of it being a licensed medical procedure.

  • 4. Rick O.  |  February 19, 2014 at 11:58 am

    Besides, the witch doctor at church is more tax deductible than the the one in private practice. Ooh, eee, willa willa bing bang…

  • 5. Eric  |  February 19, 2014 at 12:33 pm

    But insurance won't pay for the witch doctor. And somehow faith is less important when it is out of pocket.

  • 6. Mike in Baltimore  |  February 19, 2014 at 1:48 pm

    If 'talk therapy' is legal for 'conversion therapy', then a therapist can perform 'talk therapy' to convert a person to the KKK, into a pedophile, etc.

    The anti's love to talk about a 'slippery slope' when a state allows ME, but it is the anti's who are the ones setting the 'slippery slope' up with their idiotic law suits, and the 'slippery slope' is to their benefit, no one else's.

  • 7. Christian  |  February 19, 2014 at 2:06 pm

    I am worried though, "Kennedy v. Louisiana" and "Citizens United" did prove that Justice Anthony can be fairly unreliable. I am worried he'll have another freak-out, especially in this case where there is MUCH less coverage.

  • 8. FYoung  |  February 19, 2014 at 2:47 pm

    In One Day, Bills Allowing Anti-LGBT Discrimination Fail In Four States http://www.buzzfeed.com/tonymerevick/lgbt-discrim

  • 9. Ragavendran  |  February 19, 2014 at 3:28 pm

    Good article. This is amusing: "In South Dakota, a Senate committee voted 5-2 [...] to defer the bill [...] to the 41st day of the legislature’s 40-day session, effectively killing the bill." I wonder if this kind of tactic is routinely employed or is an extraordinary measure.

  • 10. Matt  |  February 19, 2014 at 4:09 pm

    But are on their way to passing in Arizona, from the looks of things: http://www.bilerico.com/2014/02/breaking_az_senat

  • 11. SPQRobin  |  February 19, 2014 at 6:25 pm

    Relatedly, several more states are considering such laws, e.g. Washington http://www.lgbtqnation.com/2014/02/bill-to-preven

  • 12. SPQRobin  |  February 19, 2014 at 6:34 pm

    A similar bill was vetoed last year by Governor Jan Brewer, according to http://dot429.com/articles/3893-religious-freedom

  • 13. MNbob  |  February 19, 2014 at 9:29 pm

    SCOTUS won't touch this with a 10-foot pole. Too many can of worms would be opened if they heard this and ruled either way.

    Ruling in favor of the ban would just reaffirm that states have the right to limit "medical" practices.

    Ruling against the ban could lead to other challenges for other state regulation of laws (i.e. abortion restrictions).

  • 14. Mike in Baltimore  |  February 19, 2014 at 10:14 pm

    I suspect this is a peculiar situation that applies only to South Dakota (or maybe to a very few other states). I say that because I've never heard it being used before (although it may have).

    This type of tactic would be difficult to impossible to use in states with full-time legislatures, such as New York, New Jersey, etc. The constitution of most states limits the days and/or dates of each legislative session.

  • 15. Ragavendran  |  February 19, 2014 at 10:38 pm

    I'm trying to picture the nine, all dressed up in their robes, huddled around a bunch of papers (symbolizing this case) with a 10-foot pole, gingerly sifting through the pages with it :-)

  • 16. USA, California: Effort t&hellip  |  February 20, 2014 at 6:25 am

    […] Equality on Trial reports: […]

  • 17. Steve  |  February 20, 2014 at 6:42 am

    But only because of political infighting. Not out of principle.

  • 18. Pat  |  February 20, 2014 at 9:07 am

    I was indeed surprised that Brewer would do something reasonable.

  • 19. Bruno71  |  February 20, 2014 at 1:51 pm

    If you want discrimination codified into law (or conversely no codification of non-discrimination), Arizona's your state.

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