Supreme Court sides with therapist challenging Colorado ban on conversion therapy

William Brangham:

A Colorado law that bans what's called conversion therapy for LGBTQ youth hit a potentially far-reaching roadblock at the U.S. Supreme Court today.

In an 8-1 decision, the justices sided with a Christian counselor who argued that the law violated her First Amendment rights.

Our justice correspondent, Ali Rogin, has more on the ruling.

Ali Rogin:

William, the majority of justices cast doubt on whether the state of Colorado can ban licensed therapists from talking to their minor patients about their sexual orientation or gender identity.

Supporters of the law argue the ban was necessary to protect children from the practice of conversion therapy that they say is harmful. In the court's majority opinion, Justice Neil Gorsuch said -- quote -- "Colorado may regard its policy as essential to public health and safety, but the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country."

Last fall, the "News Hour" spoke to Kaley Chiles, the therapist at the center of the case.

Kaley Chiles, Licensed Professional Counselor:

The care that is at stake in this lawsuit is that we are allowed to speak freely and that we are allowed to, by the product of that, sort through feelings, sensations, thoughts, beliefs.

Ali Rogin:

The ruling sends the case back to a lower court to weigh in on if the law is constitutional. Colorado is about one of two dozen states that have banned conversion therapy for minors.

For more on today's decision, I'm joined now by the "News Hour" Supreme Court analyst, Amy Howe, co-founder of SCOTUSblog.

Amy, great to see you again.

Amy Howe:

Good to see you too.

Ali Rogin:

So, in this argument, the therapist made the case that because she was doing talk therapy with her clients, talking them through these issues, that this really was a violation, this ban is a violation of her First Amendment protections.

Did that seem to land with the majority?

Amy Howe:

It did indeed.

The state had argued that states have long had the power to regulate medical treatment, and so that the ban was part of an effort to regulate conduct, rather than speech, so that the First Amendment wouldn't apply. And to the extent that it regulated speech like Chiles', it did so only incidentally, sort of as part of the regulation of conduct.

But the majority didn't buy that argument at all. Justice Neil Gorsuch, writing for the majority, said the First Amendment is not a word game and said that what she's doing is speech, and the state is regulating that.

What this case was about was whether or not the lower courts applied the correct standard, the correct test to determine whether or not the conversion therapy ban was constitutional. Chiles argued that the lower court should have applied a less deferential, more stringent test called strict scrutiny precisely because her conduct was, in fact, speech, her talk therapy was speech, and therefore the First Amendment was involved.

And the Supreme Court agreed with her. It didn't go ahead and actually apply that test. Instead, it sent the case back to the lower courts.

Ali Rogin:

The court kept coming back to this idea of viewpoint discrimination, that this law allows therapists to affirm a person's identity, but not discourage that.

Why was that framing so important in this room?

Amy Howe:

It was essential, I think, in no small part because you have, when you have viewpoint discrimination, in the Supreme Court's view, you have the state choosing a side in the debate.

And so you have the state saying you can affirm a client's gender identity, but you can't work with them to try to realign their gender identity to the one that they were assigned at birth. It seemed pretty clear after oral argument that Kaley Chiles was likely to win in some form.

It was a little bit of a surprise that it wound up being 8-1, with justice Ketanji Brown Jackson being the only dissenter. Justice Elena Kagan and Justice Sonia Sotomayor joined the majority. Justice Kagan wrote a concurring opinion in which she said, this might have been a different case if we have a law that regulated content, but didn't discriminate based on viewpoint.

Ali Rogin:

You mentioned Justice Ketanji Brown Jackson, the lone dissenting voice.

And in her dissent, she really focused on the harm that she would argue is done potentially to children who undergo conversion therapy. She wrote -- quote -- "Like it or not, treatment standards exist in America, and those standards necessarily reflect the expert medical community's current beliefs about the safety and efficacy of various medical treatments, whatever those beliefs might be."

Beyond Justice Jackson's dissent, how did the issues of the potential harm and concerns about conversion therapy play into this argument and this opinion?

Amy Howe:

It was an issue that came up at the oral argument and then resurfaced again in Justice Gorsuch's opinion, but relatively briefly, and he acknowledged that there is this debate. The state had relied on it as the rationale for the conversion therapy ban, but the opinion sort of downplayed the consensus among major medical organizations right now on the idea that conversion therapy is harmful to LGBTQ teens.

Justice Samuel Alito, I believe, at the oral argument had pointed out, and then the opinion made the same point, that back in the '50s, '60s, and '70s, major medical associations had called homosexuality a mental disorder. And so the point that the opinion was making was that these kinds of consensuses can change.

Ali Rogin:

So where does this go from here, both in terms of this particular case that gets put back to the lower courts and the other approximately two dozen states that have similar bans?

Amy Howe:

So this case will go back to the lower court for it to apply strict scrutiny, this very demanding constitutional test.

Both in this case and in the roughly 25 other states that have similar bans, the Supreme Court didn't -- sort of tiptoed right up to the line. It didn't come right out and say that it believed that the ban, at least as applied to Kaley Chiles, someone doing talk therapy, was unconstitutional, but it really strongly signaled that the eight justices believed that a ban like this was.

And so I think that in the case of Colorado and in other states that have similar bans, it's going to be a really tough sell to try to convince courts that these laws can survive strict scrutiny and are constitutional.

Ali Rogin:

Amy Howe, co-founder of SCOTUSblog, thank you so much.

And we will see you back here tomorrow to discuss the big birthright citizenship case that is before the Supreme Court.

Amy Howe:

Looking forward to it. Thanks so much, Ali.