USA: SCOTUS dispatch: justices see speech concerns in conversion therapy ban, but path forward unclear

Chloe Miracle-Rutledge is a JURIST Supreme Court Correspondent and a 2L at Georgetown University Law Center in Washington, DC. 

On Tuesday morning, the second day of the Supreme Court’s new term, I went to the United States Supreme Court to attend oral argument for Chiles v. Salazar—a case about a Christian counselor’s First Amendment challenge to Colorado’s ban on conversion therapy for minors. Given the case’s focus on LGBTQ rights and conservative Christian views, I expected crowds outside the Court. Instead, it was strikingly quiet.

The pressroom was sparse, too, allowing me a clear view of all nine justices from the front of the press box. The light turnout was surprising. This case could reshape First Amendment law, yet it seems to have slipped under the public radar—perhaps a result of news fatigue or attention on the Court’s emergency docket cases involving President Trump. Still, the ruling will offer key insight into how this Court views freedom of speech and the ideological preferences of the justices.

The law at issue in this case is Colorado’s Minor Conversion Therapy Law, which prohibits licensed counselors and therapists from trying to change a young person’s sexual orientation or gender identity. The petitioner, Kaley Chiles, is a Christian counselor who argues that the law violates her freedom of speech by preventing her from having certain conversations with clients.

Representing Chiles was Jim Campbell, a lawyer from the Alliance Defending Freedom, a conservative impact litigation group focusing on freedom of speech and religion issues. Campbell urged the Court to strike down the law as unconstitutional. He framed the law as one that silences certain viewpoints, claiming it prevents Chiles from “helping minors pursue state-disfavored goals on issues of gender and sexuality.” Campbell emphasized that the treatment consists “only of speech,” not conduct, which would place the case firmly in “First Amendment land.” Because of that, he argued, the Court must apply strict scrutiny—a level of review Colorado cannot meet, according to Campbell.

The Trump administration also intervened as amicus curiae in support of Chiles. Principal Deputy Solicitor General Hashim Mooppan said the law “restricts speech based on content and viewpoint” and “falls outside any historically grounded exception.”

Shannon Stevenson, the Solicitor General of Colorado, emphasized that the law is a healthcare regulation that only applies “when a licensed professional is delivering clinical care to an individual patient.” Because the law only prohibits treatment, Stevenson suggested, “it does not interfere with any First Amendment interest” and does not “stop a professional from expressing any viewpoint.”

In a relatively short and quick ninety-minute argument, in which Justice Brett Kavanaugh asked no questions, the justices grappled with a variety of different questions and issues.

A few justices were concerned about whether Chiles actually had standing to bring her case.  Justice Sonia Sotomayor pressed Campbell to explain how Chiles was personally harmed by the law, noting that she may not face a “credible threat of prosecution.” Colorado has made clear that it will not apply the statute to her unless she explicitly tries to change a minor’s orientation or gender identity.

The justices also wrestled with a larger question of whether the law regulates speech or conduct. The answer is critical, as it determines the level of constitutional protection that applies. Justice Ketanji Brown Jackson remarked that it seemed “very odd” to view licensed professionals providing medication as conduct but licensed professionals providing talk therapy as speech. She also pointed out the long history of regulating medical treatment and brought up the recent Skrmetti decision which allowed Tennessee to regulate gender-affirming care for minors. Justice Clarence Thomas also asked about the history and tradition of medical regulations, particularly in the context of talk therapy.

Justice Samuel Alito, however, pushed back sharply against Colorado’s framing of the law as a neutral and narrow medical regulation, calling it “blatant viewpoint discrimination.” Even Justices Sotomayor and Elena Kagan—typically part of the Court’s liberal bloc—appeared uneasy with the state’s interpretation. Sotomayor wondered why the special relationship between a licensed therapist and client made the speech any less protected, and Kagan questioned whether the law was viewpoint discrimination.

The justices then turned to the scientific evidence behind the law. Campbell and Mooppan criticized the studies Colorado cited, arguing that they were flawed and failed to distinguish between voluntary and coercive treatments. Stevenson defended the research and emphasized that “there is no study” showing that conversion therapy works.

Still, several conservative justices seemed troubled by how states justify these kinds of laws. Justice Neil Gorsuch asked Stevenson whether a state could regulate a medical treatment even where medical uncertainty was present. Justice Amy Coney Barrett followed up by asking whether states can “pick a side” if there is a lack of medical consensus. Alito then raised examples of politicized medical practices from the past, like forced sterilization and institutionalization. This line of questioning hints at concerns that laws like Colorado’s could be driven by ideology rather than evidence.

The justices also debated what to do next. If the Court agrees with Chiles that the law discriminates based on viewpoint, it must decide whether to strike it down or send the case back to the lower court on remand. Colorado urged remand, saying it would allow more evidence and studies to be added to the record. Campbell and Mooppan opposed that, arguing that a remand would only “prolong the ongoing harm” to Chiles and others like her.

Sotomayor and Jackson seemed clearly inclined toward remanding. Barrett, often considered a wild card on the Court, also pressed questions about remand—suggesting she might favor that outcome as well.

As the argument ended, the quiet that had greeted me outside lingered. But beneath that calm was a brewing tension: a case that could redefine the boundary between speech and conduct, faith and professional duty, in one of the most ideologically charged contexts of our day.

Overall, I found the Court skeptical of Colorado’s assertion that this is conduct and not speech. But larger questions remain about whether the Court will send the case back to the lower courts and how they will treat medical regulations in the future. A decision is expected by the end of the summer.

The post SCOTUS dispatch: justices see speech concerns in conversion therapy ban, but path forward unclear appeared first on JURIST – News.