Appeals Court Upholds Ban on Reparative Therapy

The 3rd Circuit Court of Appeals has upheld a lower court ruling upholding a New Jersey law that prohibits licensed therapists from offering “ex-gay” reversion therapy to any client under the age of 18. The court did base its ruling on a different analysis than the district court, however, ruling that state regulations on professional speech where licensing is required is allowed under the First Amendment.

“Prohibitions of professional speech are constitutional only if they directly advance the state’s interest in protecting its citizens from harmful or ineffective professional services,” the court said.

The legislature targeted the practice “because it was presented with evidence that this particular form of counseling is ineffective and potentially harmful to clients,” the judges said. Protecting New Jerseyans from ineffective or harmful professional services is “precisely the reason” the law was passed, the court said.

Liberty Counsel, a not-for-profit group that represents the therapists and groups suing, said it will ask the U.S. Supreme Court to review the decision because it conflicts with the California ruling. At issue is whether “counsel by licensed counselors is speech or not,” and the extent to which it’s protected by the First Amendment, the group said in a statement.

The Supreme Court already denied cert in a nearly identical case from the 9th Circuit where the appeals court upheld a similar ban in California, so it seems pretty unlikely that they would accept an appeal in this case.

POPULAR AT PATHEOS Nonreligious
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  • eric

    Prohibitions of professional speech are constitutional only if they directly advance the state’s interest in protecting its citizens from harmful or ineffective professional services,” the court said.

    The legislature targeted the practice “because it was presented with evidence that this particular form of counseling is ineffective and potentially harmful to clients,” the judges said.

    So, can we pull the medical licenses from doctors who shill quack medicine now too? Consider all the “ineffective and potentially harmful” alternative medicine things being touted by people who hold an M.D.

  • D. C. Sessions

    It sounds to me as though Liberty Counsel is arguing that the multitude of laws regulating what obstetricians can tell women seeking abortions are contrary to the Constitution.

    Or is this one of those “the Constitution varies” things?

  • Michael Heath

    What’s quoted above in Ed’s blog post has the court and Liberty Counsel talking past each other, where Liberty Counsel raises an interesting point.

    Are licensed counselor communications with their patients “speech”? Or is it treatment? I previously presumed the latter and therefore licensed counselor communications with clients are not speech that deserve speech protection. But instead, these treatments are activity that the state has the power to regulate in order to protect the public; just like the court asserts above. But at least in what’s quoted above, the court didn’t confront Liberty Counsel’s perspective.

  • eric

    Are licensed counselor communications with their patients “speech”? Or is it treatment?

    Well, the constitution takes a pretty dim view of the idea of requiring a license to do free speech. So either the Liberty Counsel must argue (or imply through their argument) that it is unconstitutional to have a licence to be a counselor (and that the industry must be constitutionally unregulated), or they must admit it’s a form of medical treatment.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Look, I don’t need Big Government standing between me and my “licensed” “therapist’s” ineffective, dangerous treatment.

     

    In any event, all they need to do is put “For entertainment purposes only” on their ads.