On Tuesday, the Supreme Court broke from its increasingly common practice of deciding important cases without holding an oral argument or even explaining the reasoning of its decision, to hear a case about whether states may ban a practice known as “conversion therapy” — therapy sessions which seek to change someone’s sexual orientation or gender identity.
About half of the states have laws banning conversion therapy for patients under the age of 18, including Colorado, whose law was before the Court on Tuesday.
Realistically, there was never any chance that this Supreme Court, which has a 6-3 Republican supermajority, would uphold the Colorado law at issue in Chiles v. Salazar. When this Court hears cases that place the interests of queer Americans against the claimed rights of religious conservatives, it consistently rules in favor of the religious right.
That said, two uncertain questions did emerge from the Chiles argument. One is whether the Supreme Court will immediately strike down Colorado’s ban on conversion therapy, or whether it will send the case back down to lower courts to apply a test known as “strict scrutiny,” which nearly all laws fail.
The more important question is to what extent the Court will strip state governments of their longstanding power to regulate health care and other professionals, at least when those professionals give dangerous advice to their patients and clients.
The Chiles case turns on two competing theories of the First Amendment. The plaintiff in the case is a therapist represented by a prominent anti-LGBTQ law firm known as the Alliance Defending Freedom. Her lawyer, James Campbell, said at oral argument that she wants to have “full conversations exploring issues of identity and gender,” and that “includes considering chang[ing]” a patient’s identity.
He also makes a fairly intuitive argument: Talk therapists talk to their clients. Talking is protected by the First Amendment. Therefore, Colorado cannot prevent her from providing conversion therapy.
Colorado, meanwhile, points to the long history of states regulating the advice that licensed professionals give to their clients. A lawyer cannot tell a client that it is legal to rob banks, for example, even though this bad legal advice is just speech. Similarly, a doctor risks a malpractice suit or professional sanctions if they advise a patient to engage in unhealthy conduct.
Thus, in its brief to the justices, Colorado proposes a legal standard similar to the one used in many professional malpractice cases: The First Amendment permits states to regulate speech between a licensed professional and their client to ensure that the professional’s behavior aligns with the accepted standard of care within the profession.
Under that rule, Colorado’s ban on conversion therapy is lawful because, as one federal appeals court explained, “every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.”
None of the six Republican justices appeared to buy the state’s argument, however. At least two of them seemed to doubt whether medical expertise is actually something that can be relied upon at all.
Some of the justices appeared to be at war with the very idea of medical expertise
In one of the most dramatic moments in the Chiles argument, Justice Samuel Alito compared Colorado’s ban on conversion therapy to an infamous Virginia law calling for “feeble minded” individuals to be sterilized. He pressed Colorado Solicitor General Shannon Wells Stevenson on whether the consensus within the medical profession is sometimes “politicized.” And he even quoted his Court’s statement in Buck v. Bell (1927) that forced sterilization laws are acceptable because “three generations of imbeciles are enough.”
Just in case there is any doubt, this comparison is facile. Buck involved a woman who was confined in a state-run “Colony for Epileptics and Feeble Minded” and who was sterilized by order of the government. A law instructing a state to physically mutilate a person that it has incarcerated is a far cry from a law that attempts to ban a practice that mental health professionals widely view as harmful — even though it is true that eugenics was broadly supported by the scientific community in the 1920s.
Justice Neil Gorsuch, however, did raise a more sophisticated version of the “can we really trust health care professionals?” question. As he noted, back in the 1970s “homosexuality” was considered a disorder by the mental health profession. So, under Colorado’s proposed rule, which permits states to ban treatments that do not align with the standard of care within a profession, couldn’t states have banned therapists from affirming their gay patients’ sexual orientations in the 1970s?
Stevenson conceded that they could have back then. And she was right to do so. One uncomfortable consequence of relying on experts is that sometimes experts are wrong. And if you root the law in the consensus among experts, the law will sometimes do harmful things if that consensus is erroneous.
But what is the alternative? Relying on people who don’t know what they are talking about?
As even some of the Republican justices conceded, state malpractice laws have long punished licensed professionals who do not meet the standard of care within their profession. And this rule in malpractice cases is widespread for a very good reason. Even if experts aren’t right 100 percent of the time, they are correct far more often than they are wrong. And they are far more likely to be correct than lay people.
Significantly, the mental health profession abandoned its erroneous view of homosexuality decades ago.
Unlike Alito and Gorsuch, Justice Amy Coney Barrett seemed to accept that malpractice laws are valid during some of her questioning. And even Gorsuch seemed to concede that licensed professionals should be subject to a lawsuit if they offer disastrous advice to a client.
But Gorsuch also tried to distinguish malpractice suits from the Colorado law at issue here by labeling the Colorado law a “prior restraint,” a term that refers to laws that attempt to ban speech before it is uttered. Malpractice suits, by contrast, typically arise after a doctor, lawyer, therapist, or other professional gives substandard advice to a patient or client.
Thus, the Court could potentially decide Chiles relatively narrowly by striking down affirmative bans on conversion therapy, while still allowing patients who are harmed by this discredited treatment to sue their therapists.
For what it is worth, Stevenson argued that it’s not clear that Colorado’s law actually functions as a prior restraint. The law is only triggered if a patient files a complaint with the state’s licensure board, and the board can sanction a therapist much like a judge in a malpractice suit may order a bad therapist to compensate their client. Both of these procedures occur after the substandard care has been provided.
So, even if the Court accepts the distinction between malpractice suits and more precisely drawn bans on professional misconduct like Colorado’s, it may find it difficult to police this line in future cases.
The justices seemed to disagree about how soon to strike the law down
One other question that came up is whether the lower courts should be given another chance to look at this law before it is struck down. Ordinarily, when the Supreme Court announces a new legal rule in a case, it “remands” the case to a lower court to determine how to apply the rule to that case. And, in this case, a majority of the justices appeared ready to impose a new rule: Bans on conversion therapy must overcome strict scrutiny.
For a law to survive strict scrutiny, the government must show that it is “narrowly tailored” to achieve a “compelling” interest. Stevenson argues that, had Colorado known it had to overcome this very difficult test to defend its law, it would have introduced more empirical studies into the record demonstrating why the law is justified. And she said the state should be given a chance to provide that evidence to a lower court before the law is struck down.
But, of the Court’s six Republicans, only Barrett appeared open to this argument — though Justice Brett Kavanaugh was silent during the argument. So it’s far from clear that there are five votes who would support remanding the case to a lower court. (Notably, Justice Elena Kagan, an Obama appointee, asked some questions at the end suggesting that she may be willing to join the Republicans in applying strict scrutiny if they agree to a remand).
This Supreme Court is often sloppy when it hands down decisions that pit the religious right against LGBTQ Americans. So there is a serious risk the justices will hand down a decision that sweeps far beyond conversion therapy. If they interpret the First Amendment to bar any specific restrictions on what professionals can tell their clients, then states could lose the power to prevent doctors from giving dangerous advice to their patients.
Bans on conversion therapy were almost certainly doomed the moment this Supreme Court took an interest in this case. But now, the most important question is whether the Court will concede that medical expertise has some role to play in regulating speech between health providers and patients.
