Why SCOTUS Ruled 8–1 Against Colorado’s ‘Conversion Therapy’ Ban

Last week, the U.S. Supreme Court ruled against a Colorado law that prohibits mental health professionals from providing “conversion therapy” to minors, which the state defined to include “any practice or treatment…that attempts…to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” To the surprise of many observers, the decision was 8–1, a strikingly one-sided result in such a politically and socially divisive dispute. What happened?

Kaley Chiles, a licensed mental health counselor whose practice focuses on “talk therapy,” challenged the Colorado law on First Amendment grounds, arguing that the ban, as applied to her, unlawfully infringed on her constitutional right to speak freely with her clients.

The U.S. Court of Appeals for the 10th Circuit disagreed, however, holding that the state law was a permissible regulation of “professional conduct” that only “incidentally” affected speech. According to the 10th Circuit, the Colorado ban should be understood as part of “a long-established history of states regulating the healthcare professions,” and was therefore entitled to the most deferential form of judicial review, a lenient standard known as the rational-basis test.

But the Supreme Court took a different view. Writing for the majority in Chiles v. Salazar, Justice Neil Gorsuch held that the 10th Circuit “failed to apply sufficiently rigorous First Amendment scrutiny in this case.” The state law “does not just regulate the content of Ms. Chiles’s speech,” he wrote. “It goes a step further, prescribing what views she may and may not express.” And a law of that kind must always be reviewed under the Court’s most aggressive standard of review, which is known as strict scrutiny. The Supreme Court therefore reversed the 10th Circuit and remanded the case “for further proceedings consistent with this opinion.”

In other words, the Court ordered the 10th Circuit to revisit the case and rereview the law under the far tougher strict scrutiny test, rather than the more lenient rational-basis test that it used the first time around.

That may sound like a lot of unsatisfying legalese, but it effectively amounts to a judicial death sentence for the state law in this case. “Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same,” Gorsuch wrote. “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. However well-intentioned, any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

Those words should leave little doubt in anyone’s mind that the Colorado law’s application to Chiles will be ruled unconstitutional by the current Supreme Court if the lower court fails to take the none-too-subtle hint and do so itself on remand.

As noted above, this ruling was a lopsided 8–1. The sole dissenter was Justice Ketanji Brown Jackson. She thought the Colorado law was entitled to broad judicial deference and should be upheld as part of the state’s traditional regulatory authority over the medical field. “The conclusion that a State can regulate the provision of medical care even if, in so doing, it incidentally restricts the speech of some providers, fully comports with the First Amendment’s animating principles,” Jackson asserted.

Yet no other member of the Court, including no other member of the Court’s “liberal” wing, was willing to sign on to that assertion. In fact, in a separate concurrence, Justice Elena Kagan, joined by Justice Sonia Sotomayor, announced their full endorsement of Gorsuch’s opinion. “The Court today decides that the Colorado law challenged here, as applied to talk therapy, conflicts with core First Amendment principles because it regulates speech based on viewpoint,” Kagan wrote. “I agree.”

Sometimes, a highly controversial political or social issue will lead to a highly fractious Supreme Court decision. Chiles v. Salazar is a reminder that even the most contentious issues do not always raise equally difficult legal questions for the Supreme Court to answer.