Wednesday, January 29, 2014
The Ninth Circuit said today that it will not reconsider its decision upholding California's ban on gay-conversion therapy. In August, a three-judge panel of the court held that the law did not violate the First Amendment because it regulated conduct, not speech. Indeed, the court wrote:
We conclude that the First Amendment does not prevent a state from regulating treatment even when that that treatment is performed through speech alone... [T]alk therapy does not receive special First Amendment protection merely because it is administered through speech. That holding rested on the understanding of talk therapy as the treatment of emotional suffering and depression, not speech. (citations and internal quotations omitted).
Today, the Courthouse News Service reports:
Judge Diarmuid O'Scannlain made the remarks as his colleagues refused to hold an en banc rehearing after a three-judge panel with the federal appeals court upheld California's SB 1172.
The law prohibits state-licensed psychiatrists, psychologists and counselors from using sexual-orientation change therapy on patients younger than 18.
O'Scannlain argued Wednesday that the San Francisco-based panel who decided the issue in 2013 had improperly side-stepped the First Amendment by labeling as conduct what was essentially speech.
"In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California's prohibition - in the guise of a professional regulation - of politically unpopular expression," O'Scannlain wrote.
Empowered by this ruling of our court, government will have a new and powerful tool to silence expression based on a political or moral judgment about the content and purpose of the communications," he added.
The strength of our commitment to First Amendment principles occasionally is tried by the deplorable crusades of bigots and twits, and I find the promotion of gay-conversion therapy to fall sqaurely within that category. Nevertheless, the First Amendment protects such speech, so I'm happy to shrug off folks promoting such beliefs when I encounter them in public. However, the mental health treatment of teenagers is a horse of a different color, so to speak. Indeed, as Ken White commented at Popehat after the release of the Ninth Circuit's initial decision:
The persuasive force of the Ninth Circuit's ruling comes from two key points. First, you can't logically object to this law in particular without objecting to the entire structure of medical regulation that the courts have permitted. In other words, if you argue that parents have a fundamental right to inflict conversion therapy on their children, I think you have to argue they have a fundamental right to select "doctors" without medical degrees or doctors who will prescribe Laetrile or even doctors who will use therapies that could be affirmatively harmful to kids, like (for instance) unregulated rebirthing therapy.
Second, the law does not prohibit conversion therapy of adults, and does not prohibit speech endorsing or encouraging conversion therapy. As the Ninth Circuit acknowledges, California licensed therapists can lobby and agitate for conversion therapy, tell patients and their parents they support it (and that the patient should seek it elsewhere), express their views about homosexuality and conversion therapy, recommend the therapy once the patient reaches adulthood or in other jurisdictions, and even refer minors to unlicensed persons like ministers who are free to inflict conversion therapy.
In short, I'm not sure how you can logically strike down this law — or even subject it to strict scrutiny — without striking down every law and regulation of medical practice that touches on any remotely controversial practice.