Evangelical offering talk-based conversion therapy wins 8-1 ruling from Supreme Court
Even two of the court’s liberal justices agree law illegally restricts freedom of speech
Chalk up another win for an evangelical Christian using First Amendment free-speech protections in ways opposed by LGBTQ activists.
In 2023, the U.S. Supreme Court decided in 303 Creative v. Elenis that an evangelical website designer had the constitutional right to deny services related to same-sex weddings. Today, the court said in Chiles v. Salazar that Colorado could not enforce a ban on conversion therapy for minors. But there was a key difference in the two cases: In 303 Creative, the court was split 6-3 along ideological lines. In today’s ruling, however, two of the court’s three liberal members went along with the conservative majority, handing mental-health counselor Kaley Chiles an 8-1 victory.
Chiles, basing her concerns on her beliefs as an evangelical Christian, had fought Colorado’s 2019 law, which prevented licensed counselors1 from offering “any practice or treatment ... that attempts or purports to change an individual’s sexual orientation or gender identity.” The law, Chiles’s attorneys argued, restricted Chiles’s free-speech rights in part because the only therapy she was offering was speech-based, not involving discredited approaches such as medicinal treatment or shock therapy. They also argued that the law was broadly written in a way that it discriminated against viewpoints disfavored by the state.
All the justices other than Ketanji Brown Jackson agreed. Justice Neil Gorsuch, writing for the majority, based the ruling on First Amendment free-speech grounds2:
Start with the most obvious point. While the First Amendment protects many and varied forms of expression, the spoken word is perhaps the quintessential form of protected speech. And that is exactly the kind of expression in which Ms. Chiles seeks to engage. As a talk therapist, all Ms. Chiles does is speak with clients; she does not prescribe medication, use medical devices, or employ any physical methods.
Next, and nearly as clear to our eyes, Colorado seeks to regulate the content of Ms. Chiles’s speech. When it comes to issues of human sexuality, some of her clients “are content with” their sexual identity and orientation and want help only “with social issues [or] family relationships.” But other clients seek her counsel on how to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] bod[ies].” And in those cases, Colorado regulates how Ms. Chiles may respond. Under its law, she may not speak in any way that attempts to change a client’s “sexual orientation or gender identity” — including a client’s “behaviors or gender expressions” — or in any way that seeks to “eliminate or reduce” a client’s “sexual or romantic attraction or feelings toward individuals of the same sex.”3
The majority opinion several times referred to the contentious nature of arguments over LGTBQ issues. But it emphasized that the right to free speech has as one of its chief purposes protecting the right to convey unpopular or controversial opinions:
We do not doubt that the question “how best to help minors” struggling with issues of gender identity or sexual orientation is presently a subject of “fierce public debate.” But Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same.
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.
A concurring opinion, and a dissent
About 30 states have laws similar to Colorado’s. Today’s decision raises questions about those other laws, although it is possible that laws in some states, if they are structured differently, might withstand Supreme Court scrutiny. At least that is what a concurring opinion written by one of the court’s more liberal justices, Elena Kagan, and signed by Sonia Sotomayor, suggested:
I write only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question. … Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression because, as the Court holds, Colorado’s is not one.
Meanwhile, in her dissent, Jackson pointed to the harm that conversion therapy can cause:
Not only is conversion therapy ineffective, former participants of conversion therapy report that it causes lasting psychological harm. Gay and transgender children who underwent nonaversive conversion therapy say they were taught to feel shame and self-hatred.
Calling the majority opinion “puzzling,” Jackson wrote that states have the right to prohibit such therapy and that any infringement on speech is only incidental.
The law does not apply to life coaches or pastors, whose practices are not regulated by the state. It also does not prohibit conversion therapy for adults.
The case was not argued on freedom-of-religion grounds.
For ease of reading this an other quotations from the Supreme Court opinions, notes in the text indicating case names and numbers from precedents cited in the ruling have been omitted.