Federal judges in two separate lawsuits challenging the constitutionality of the recently passed law in California that prohibits the use of “gay reversion therapy” by therapists have reached opposite conclusions, at least preliminarily. The first case is Welch v Brown, where the judge issued a preliminary injunction prohibiting enforcement of the law against the plaintiffs. You can read that ruling here.
As is often true, the outcome of these cases depends on the level of scrutiny the judge applies. Free speech cases are generally considered under strict scrutiny, a high burden on the government that usually means the law will be overturned. But restrictions on speech that are the result of professional and license regulations are usually considered under the rational basis test, a much easier standard that usually means the law will be upheld.
A concurring opinion in Lowe v SEC in 1985 found that “[r]egulations on entry into a profession, as a general matter, are constitutional if they ‘have a rational connection with the applicant’s fitness or capacity to practice’ the profession.” And in Planned Parenthood v Casey, a case involving restrictions on abortion, Justice O’Connor said that “the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.”
But Judge William Shubb nonetheless applied strict scrutiny in this case, citing that same concurring opinion in Lowe that said “[a]t some point, a measure is no longer a regulation of a profession but a regulation of speech or of the press; beyond that point, the statute must survive the level of scrutiny demanded by the First Amendment.” He also cited a 9th Circuit Court of Appeals ruling on a similar regulation of psychological care that said ‘“[t]he appropriate level of scrutiny is tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content.’” And the judge thus concludes:
When a mental health provider’s pursuit of SOCE (sexual orientation change efforts) is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality. Expert
declarations defendants submitted in opposition to plaintiffs’ motion are consistent with this conclusion…
Although it does not appear that the Legislature intended to suppress the spectrum of messages that may be
intertwined with SOCE, such as whether homosexuality is innate or immutable, its enacted finding “that [b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming” strongly suggests that the Legislature at least sought to suppress the performance of SOCE that contained a message contrary to this finding. That messages about homosexuality can be inextricably intertwined with SOCE renders it likely that, along with SOCE treatment, SB 1172 bans a mental health provider from expressing his or her viewpoints about homosexuality as part of SOCE treatment…this court would be hard-pressed to conclude that SB 1172 is content- and viewpoint-neutral. Accordingly, because it appears that SB 1172 lacks content and viewpoint neutrality, it is likely that it must ultimately be assessed under strict scrutiny.
This is really a very difficult question to resolve and it’s all too easy to answer it in a particular way because we like the outcome of banning reversion therapy. But imagine a similar regulation, where a law is passed that forbids doctors from recommending abortions to women. Would you want such a regulation subject to strict scrutiny or to the rational basis test? The distinction might be found in determining whether such a regulation could pass strict scrutiny or not. Judge Shubb ruled that it could not in this case:
If a statute “imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny–that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.” …
To overcome strict scrutiny, “[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution.” The state’s burden on strict scrutiny is substantial, especially when contrasted to the lowest level of review, which does “not require that the government’s action actually advance its stated purposes, but merely look[s] to see whether the government could have had a
legitimate reason for acting as it did.” …
In the findings and declarations of SB 1172, the California Legislature found that “California has a compelling
interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” The court does not doubt that the state has a compelling interest in “protecting the physical and
psychological well-being of minors.”
SB 1172 cannot withstand strict scrutiny unless the state demonstrates an “‘actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors. At most, however, defendants have shown that SOCE may cause harm to minors…
Additionally, the studies discussed and criticized as incomplete in the 2009 APA Report do not appear to have focused
on harms to minors, and the 2009 APA Report indicates that “[t]here is a lack of published research on SOCE among children.” It is therefore unclear whether the reports of harm referenced in the 2009 APA Report were made exclusively by adults…
In expert declarations defendants and amicus submitted, individuals opined that SOCE causes harm. None of the experts, however, identify or rely on comprehensive studies that adhere to scientific principles or address the inadequacies of the studies discussed in the 2009 APA Report…
Here, evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that
may not have included minors is unlikely to satisfy the demands of strict scrutiny.
But in the other case, Pickup v Brown, Judge Kimberly J. Mueller refused to issue a preliminary injunction and concluded that the law must only survive the rational basis test and that the law regulates conduct and practices rather than speech. You can read that full ruling here.
Here, plaintiffs have not demonstrated a likelihood of success on the merits of their claim that SB 1172 will subject mental health professionals to discipline if they merely recommend SOCE to minor patients, or discuss it with them, or even present them with literature about SOCE. This case is thus unlike Conant, where the government was unable “to articulate exactly what speech [was] proscribed, describing it only in terms of speech the patient believes
to be a recommendation of marijuana.” Here, in contrast, the state’s insistence that the statute bars treatment only, and not the mention of SOCE or a referral to a religious counselor or out-of-state practitioner, is consistent with a fair reading of the statute itself.
According to the statute, SOCE is any “practices” aimed at changing a person’s sexual orientation. As the law itself does not define either “practices” or “change,” the court construes the terms in accordance with their “ordinary or natural meaning.” A “practice” is “the application or use of an idea, belief, or method, as opposed to the theory or principles of it,” and the transitive verb “to change” is to “make (a thing) other than it was; to render different.” As defined, then, what SB 1172 proscribes is actions designed to effect a difference, not recommendations or
mere discussions of SOCE. This fact distinguishes SB 1172 from the policy at issue in Conant or the law at issue in Wollschlaeger, as SB 1172 does not on its face penalize a mental health professional’s exercise of judgment in simply informing a minor patient that he or she might benefit from SOCE; it also does not prohibit speech necessary to the therapist’s practice. Moreover, the statute does not preclude a minor’s taking information from a licensed mental
health professional and then locating someone other than a licensed professional to provide SOCE…
Given the weight of the authority on the question and the nature of the record before the court, plaintiff therapists have not shown they are likely to succeed in bearing their burden of showing that the First Amendment applies to SOCE treatment; they have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection.
That is not the end of either case, of course. These are just preliminary injunction motions, with the actual case yet to be tried. But it’s all but certain that the final outcome will match these preliminary rulings in both cases and that both cases will be appealed (they’ll probably be appealed immediately, on the basis of the motions for preliminary injunction, without waiting for the full trial). And while I may prefer a particular outcome for policy reasons, the constitutional question really is a close one. It will be interesting to see how the appeals court and perhaps even the Supreme Court rule on these issues.