The Ninth Circuit Court of Appeals upheld a California law banning gay conversion therapy for minors, reports Reuters. California was the first state to enact such a ban, and the bill's author, State Senator Ted Lieu of Torrance stated: "Today's federal court opinion puts another nail in the coffin for the discredited and harmful practice of gay-conversion therapy. ... Now the law has caught up to the truth: Sexual orientation is not a mental illness or defect."
In a press release, attorneys for the plaintiffs, Liberty Counsel, a non-profit whose stated purpose is "advancing religious freedom, the sanctity of life, and the family," stated:
Legislators and judges in the state of California have essentially barged into the private therapy rooms of victimized young people and told them that their confusion, caused by the likes of a Jerry Sandusky abuser, is normal and they should pursue their unwanted and dangerous same-sex sexual attractions and behavior, regardless of whether those minors desire their religious beliefs to trump their unwanted attractions.
Perhaps understandably, the Ninth Circuit did not find plaintiffs' arguments convincing.
SB 1172 / Cal. Bus. & Prof. Code § 865
SB 1172, the bill in question prohibits mental health providers from providing patients, under the age of 18, with "sexual orientation change efforts." The law provides that such practices will be "considered unprofessional conduct" and result in professional discipline.
The Ninth Circuit's opinion actually addresses two district court cases: Welch v. Brown and Pickup v. Brown. In Welch, the district court applied strict scrutiny and granted plaintiffs' petition for a preliminary injunction. The Pickup court came to the opposite conclusion; it found that SB 1172 only regulated conduct, not speech, and applied rational basis review. The Pickup court did not grant a plaintiffs' request for a preliminary injunction.
Conduct v. Speech
Before the court could analyze whether SB 1172 was facially unconstitutional, it had to determine what level of scrutiny to apply. The court rejected the Welch court's holding, and plaintiffs' arguments that their First Amendment right to free speech was violated. Instead, the court found that SB 1172 regulated professional conduct, not speech. The court noted that just because psychotherapy the "talking cure" did not mean that it was all protected speech.
Finding that speech was not regulated, the court applied rational basis review. Since the legislative history showed that the legislature acted reasonably in enacting SB 1172, and relied on mainstream medical reports. Finding that the state had a legitimate interest of protecting minors from medical practices deemed harmful, the court reversed the Welch preliminary injunction, and affirmed the Pickup denial of a preliminary injunction.
The Ninth Circuit also summarily rejected plaintiffs' arguments that SB 1172 was vague, overbroad, violated parents' fundamental rights to choose medical treatment for their children, or the rights of freedom of association.
California is not the only state to address this issue. Just last week, according to The Star Ledger, New Jersey became the second state to ban gay conversion therapy for minors, and the law was also challenged by Liberty Counsel. If the Third Circuit comes to a different conclusion, or if more states begin to enact these laws, the Supreme Court will have to weigh in. For now, Liberty Counsel has already stated that it will either ask the Ninth Circuit to rehear the case or file a cert petition.
- California gay conversion therapy ban upheld (San Jose Mercury News)
- Let the Litigation Begin: NJ Conversion Therapy Ban Challenged (FindLaw's U.S. Third Circuit Blog)
- Ninth Circuit Enjoins Gay Conversion Therapy Ban (FindLaw's U.S. Ninth Circuit Blog)
- Conservative Groups Challenge Gay Therapy 'Quackery' Ban (FindLaw's California Case Law)