SCOTUS rules on law banning 'conversion therapy' — and 2 liberal justices break rank

In a nearly unanimous decision, the Supreme Court has issued a ruling on one state's ban on conversion therapy for minors, resulting in an important First Amendment win and setting a possible precedent for many states with similar laws on the books.

In an 8-1 decision released Tuesday, the Supreme Court ruled in Chiles v. Salazar that, when applied to talk therapy, Colorado's ban on minor-directed conversion therapy — or any therapy that attempts to "change an individual’s sexual orientation or gender identity" — "regulates speech based on viewpoint" in violation of the First Amendment.

'The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.'

The Colorado law, passed in 2019, was adopted "in response to a growing mental health crisis among Colorado teenagers and mounting evidence that conversion therapy is associated with increased depression, anxiety, suicidal thoughts, and suicide attempts." The law thus prohibited licensed counselors from engaging in "conversion therapy" with minors, according to the opinion.

Kaley Chiles, a mental health counselor in Colorado, brought the suit against Patty Salazar, the executive director of the Colorado Department of Regulatory Agencies.

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Maxine Wallace/The Washington Post/Getty Images

The ruling overturns a decision from the U.S. Court of Appeals for the 10th Circuit, which ruled in favor of the law, not finding any violation of Chiles' First Amendment rights.

However, the majority opinion, written by Justice Neil Gorsuch, concluded:

In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.

Gorsuch added that the law in question not only regulates the content of Chiles' speech, but "goes a step further, prescribing what views she may and may not express."

Justice Elena Kagan, together with fellow liberal Justice Sonia Sotomayor, joined the majority opinion, but wrote a concurring opinion "only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question."

Justice Ketanji Brown Jackson alone dissented from the majority: "Stated simply, the majority has failed to appreciate the crucial context in which Chiles's constitutional claims have arisen. Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional."

While these facts were clearly established in the syllabus and the body of the majority's opinion, Jackson's primary contention, stated at the end of her dissent, was that "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."

"To do anything else opens a dangerous can of worms," Jackson concluded. "It threatens to impair States' ability to regulate the provision of medical care in any respect."

Matt Walsh, noted for his documentary "What is a Woman?," weighed in on the decision, attacking Jackson's attempt to uphold the ban:

To be clear, this was a law that attempted to ban therapists from telling gender confused boys that they're actually boys, and girls that they're actually girls. It was literally a law prohibiting anyone in the therapy profession from verbally acknowledging biological reality to their clients. Easily one of the most psychotic pieces of legislation ever passed anywhere in the world at any time in history. The fact that Ketanji Jackson tried to uphold this law — even as her fellow liberals broke ranks with her — just proves again that she is the most unfit, unqualified, unhinged lunatic to ever hold a seat on the Supreme Court.

Colorado is one of more than 20 states with laws prohibiting conversion therapy.

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