Supreme Court Sides With Colorado Counselor Over ‘Gay Conversion’ Law
WASHINGTON — A federal appeals court should have applied a different level of scrutiny to determine whether a Colorado law infringed on a Christian counselor’s protected speech, the Supreme Court ruled in an 8-1 vote on March 31.
Kaley Chiles, a licensed counselor, argued that the state’s 2019 Minor Conversion Therapy statute violated her free speech rights while discussing issues such as same-sex attraction and gender identity with adolescents.
At issue was the level of scrutiny to apply the law. Colorado called for a “rational level,” a lenient form that typically favors the government because the law’s objective — in this case, protecting youth — only needs to incidentally involve something like speech.
READ: Why Finland’s Conviction Of Päivi Räsänen Reverberates Beyond Europe
Chiles argued for “strict scrutiny,” a more demanding level that, in this case, would compel the government to prove that banning one side of a discussion is the least restrictive way for the law to work.
The decision could affect a similar case of two Kansas City counselors who say ordinances prohibiting “conversion therapy” violated their free speech rights.
Justice Neal Gorsuch, writing for the majority, echoed the lower court’s characterization of Chiles’ position in saying a stricter constitutional test must be applied to determine if the statute violates Chiles’ free speech rights.
“Her speech does not become ‘conduct’ just because a government says so or because it may be described as a ‘treatment’ or ‘therapeutic modality,’” he said. “The First Amendment is no word game, and ‘the exercise of constitutional rights’ cannot be circumscribed ‘by mere labels.’”
Colorado’s law, he continued later, doesn’t just regulate the content of Chiles’ speech, but “goes a step further, prescribing what views she may and may not express.”
Interim Ethics & Religious Liberty Commission President Gary Hollingsworth hailed the news as “a moment worth celebrating.”
“Eight justices decisively rejected Colorado’s blatantly unconstitutional attempt to silence counselors from freely discussing issues of gender and sexuality with patients,” he said in a statement to Baptist Press. “This is not only the correct constitutional outcome – it reinforces a conviction Southern Baptists have held for decades [that] the state cannot coerce individuals to deny biblical truth or compel them to violate their religious beliefs just because it disfavors their viewpoint.”
Justices Elena Kagan and Sonia Sotomayor joined the conservative wing of the court in the decision. Kagan wrote a concurring opinion, joined by Sotomayor.
“A law drawing a line based on the ‘ideology’ of the speaker — disadvantaging one view and advantaging another — skews the marketplace of ideas our society depends on to discover truth,” she wrote. “And such a law suggests an impermissible motive – that the government is regulating speech because of its own ‘hostility’ toward the targeted messages.”
“If the First Amendment prohibits anything,” she later added, “it is the ‘official suppression of ideas.’”
Ketanji Brown Jackson brought the lone dissenting vote, viewing the case as one of health and not free speech.
“Many States have now chosen to exercise their police powers to ban ‘conversion therapy’ based on the medical profession’s broad consensus that this medical treatment … is ineffective and harmful,” she said.
David Smolin, Harwell G. Davis professor of Constitutional Law and director for the Center for Children, Law and Ethics at Samford University’s Cumberland School of Law, noted the SCOTUS decision as seeing Colorado’s statute in line with “viewpoint discrimination.”
“As the Court indicated, it is almost always unconstitutional for the government to censor one side or viewpoint while permitting an opposing viewpoint,” he told Baptist Press. “The Court rejected the claim that there is a professional speech exception permitting viewpoint-based censorship of professional speech. …The Supreme Court’s holding and the 8-1 vote should also send a significant message regarding the constitutionality of laws similar to that of Colorado.”
Hollingsworth pointed to Southern Baptists’ commitment to biblical truth and God’s creation that is “consistent with the biological reality” of “male and female according to his good design.”
“We reject efforts that seek to redefine or alter a person’s God‑given identity,” he said. “Today’s ruling strengthens the freedom of counselors to speak from their convictions and protects the ability of Christians to minister with integrity and faithfulness.”
This article has been republished with permission from Baptist Press.
Scott Barkley is chief national correspondent for Baptist Press.