Originally published at: Kagan, Sotomayor Join Conservatives in Finding Conversion Therapy Ban Violates Therapists’ Speech Rights
The Supreme Court ruled against Colorado’s conversion therapy ban for minors Tuesday in an 8-1 decision, with Justices Sonia Sotomayor and Elena Kagan joining the conservatives. Justice Ketanji Brown Jackson was the sole dissenter. Kaley Chiles, a licensed counselor in Colorado, had sued, arguing that the law violated her First Amendment rights by preventing her…
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What is wrong with Kagan & Sotomayor in this case? Licensed medical care is heavily regulated, for good reason!
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This is a horrific decision. People will die as a result of this. Conversion “therapy” is pseudoscientific torture, no matter how many times they try to repackage it. In the 1950s it was aversion therapy, where LGBTQ people were shocked, force-fed emetics, or tied down on mattresses smeared with animal feces and forced to view same-sex pornography so they’d associate the physical disgust with their natural attractions. No matter what the New York Times argues, the actual scientific organizations are 100% clear that this only harms people.
It is no accident that this decision was handed down on Transgender Day of Visibility. The Right wants a genocide of transgender people (for a start), and they want everyone to know that that’s what they want.
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from ScotusBlog
In her 35-page dissent, Jackson contended that the Gorsuch opinion “finds, at bottom, that Colorado likely cannot legislate to protect the children of its State if, by doing so, it happens to keep state-licensed healthcare providers from saying what they want to say to minors. And the majority’s holding means, in effect, that just because Chiles is a talk therapist—and not, say, a surgeon—a State can be prevented from incidentally imposing reasonable restrictions on the treatments she provides. Our precedents do not compel this conclusion.”
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I guess I am out of touch because I don’t have any trouble with the decision. I think Kagan and Sotomayor got it right. the state can’t order doctors to not say something they don’t like.
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This is nonsense. Pushing a long and repeatedly debunked medical theory is not a matter of free speech, it shows an appalling lack of understanding about medicine, biology, and psychology, and is, for the Justices, practicing medicine without a license. It’s also a matter of fraud, and is bigoted, hateful, and dangerous, as the number of suicides by persons who have gone through so-called “conversion therapy” is not insignificant.
I don’t care how deeply its adherents believe it, it is simply not true. Sexual orientation can neither be chosen nor learned, and most definitely cannot be unlearned, and all of this has been proved medically; clapping as hard as you can, clicking your ruby slipper heels, and endlessly repeating the falsehood does not change any of that. This weaponization of the First Amendment completely perverts the Amendment - it was not intended to define money as speech. It was not intended to protect the dissemination of falsehoods. It was intended to prevent government censorship of valid political opinions it may have found inconvenient. This perversion of the text is among the most hateful and harmful of the various ways this SCOTUS and its immediate ancestors have twisted and ignored the words, and I’m appalled that only Justice Jackson voted to apply the Amendment as it was written and understood for most of our history.
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Yes, you are out of touch, because that is exactly what Texas and other states order when they legally require doctors to speak a litany of lies to their patients before providing abortion.
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It’s talk therapy, which necessarily implicates free speech. The state is not allowed to take sides in that context, i.e., engage in viewpoint discrimination.
Which also has serious implications for viewpoint discrimination that Republicans love to impose in other contexts, such as abortion care and education.
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The decision is only ok if any minor can opt out of this therapy even against parental wishes
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Time for a little good news, Actually a lot of good news.
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Thanks to you and @ConstanceReader, because I was beginning to think I had badly misunderstood the last couple of decades of the conservative fight against abortion providers.
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Professional speech is highly regulated. As a lawyer there are a whole number of things that could cost you your license. Same is true for accountants. Even the executives of publicly traded companies have their speech regulated. In all those cases the first amendment freedoms are balanced appropriately against professional duty and public harm.
It does not make sense that psychologists practicing a profession would be regulated even if outside of professional practice their ideas are free speech.
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I admittedly also wondered what Kagan and Sotomayor were thinking getting involved with the majority on this, and that does explain it, yes. I am curious, though: does that mean there’s no possible legal recourse for conversion therapy like this? I’m guessing not, given what you mentioned about ‘viewpoint-descrimination’, but yeah.
Edit: also, wasn’t the ban not so much on them offering this ‘therapy’ in the first place, but that it couldn’t be used on kids, who ostensibly have no choice in the matter at the time?
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Kinda reminds me of Catechism class in Catholic school. I was a Pantheist from early on. I didn’t need an all-knowing Supreme being telling me I should feel guilty - pretty much about everything.
Of course this is different (conversion therapy) but I hope Dems don’t make it the lead story in fighting to regain the House.
No, it’s really not. And more to the point, it is not regulated on the basis of viewpoint discrimination.
Not really. There are things I can do that might cost me my license, but they’re all content-neutral. Even violating my oath through my speech, such as advocating for overthrowing the Constitution, is content-neutral because it’s the violation of the oath that matters. It doesn’t matter whether I want to overthrow the Constitution because I’m a communist or a MAGA cultist, as it’s the failure to support the constitution that is the act that violates the oath. Again, content-neutrality.
Yes, but in content-neutral ways such as “Don’t talk bullshit that will fuck up the markets.”
Yes, but only in content-neutral ways.
And none of this forecloses tort liability for malpractice.
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See the end of my post immediately above. I do not read today’s holding as foreclosing a private cause of action for malpractice.
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I do think this was the correct decision given the specific context and the decision’s scope. Since the challenge to the ban was limited to talk therapy and because of the nature of the patient-therapist relationship, the First Amendment was implicated and the burden on speech has to be given greater scrutiny.
The decision doesn’t affect the other parts of the ban.
Is this a hypocritical ruling by the Conservative Justices? Absolutely. It’s a case any doctor challenging compelled speech should cite.
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So when the trans care bans get to the SC, I’m sure we’ll get a consistent ruling.
As for the two libs siding with the court’s hack majority, well, I dont even know what to say.
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While I agree with the spirit of your comment, I think the difference might be that states allow certain professions like lawyers and doctors to regulate themselves. It would be one thing if the Colorado Psychological Assoc banned conversion therapy (which they probably have because there is no scientific basis for it and it is harmful to patients), but it is another thing if the state bans it or bans talking about it. The other problem is that there are lots of kinds of therapists and lots of different professional organizations regulating/licensing them based on different philosophies. What might be anathema to one professional organization of hunky dory to another. And yet another problem is the prevalence of unlicensed therapists. For example, people can offer therapy-like services, often with no training or degree or license, by calling themselves ‘life coaches.’ It’s a damn mess.
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I wouldn’t hold my breath. This is what KBJ was pointing out.
Part of me believes that Kagan and Sotomayor use their seats strategically to reduce harm. By aligning with a majority opinion they can help soften it and if Roberts assigned this to one of the more deranged justices they could encourage someone less insane to write an opinion that would gain more support and render the assigned opinion a concurrence instead of governing law.
KBJ hasn’t seemed to play strategically in the same way and rightfully so. It will be her voice in the future that will need to rebuild case law and she will need to be able to seek overturning many of the Roberts Court decisions.
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