High court considers whether to accept appeal that challenges key 1990 religion ruling

Rejection of ban on conversion therapy could have far-reaching legal consequences

Image of counseling session by Priscilla Du Preez, licensed by Unsplash.

The Supreme Court could end up having a headline-making religion case during the current term after all.

SCOTUSblog has reported that the high court is continuing to consider whether it should accept the case of a Washington state licensed marriage and family counselor who claims that the state is unconstitutionally censoring him through a law that declares as unprofessional any conversations with clients that might encourage a “change [of] an individual’s sexual orientation or gender identity.” Such a practice is generally known as conversion therapy, although the petitioner in the case, Brian Tingley, is involved only in talk therapy and is not involved in medical or other types of physical interventions sometimes often associated with conversion therapy.

Lower courts have differed on whether laws prohibiting talk-based conversion therapy interfere with the free-speech rights of therapists. But one aspect of Tingley’s legal action could have far broader consequences than than limiting counseling practices: He is seeking to overturn Employment Division v. Smith, a landmark 1990 Supreme Court decision that expanded the ability of governments to enforce laws that restrict religious practices.

In Smith, a Native American contested his denial of unemployment benefits because he had lost his job for using peyote as a religious practice. Oregon was not among the few states at the time that protected the religious use of peyote, a natural hallucinogen. The high court determined that while states could choose to accommodate religious practices in enforcing laws that applied to everybody, they were not required to do so.

In legalese, the high court found in its 6-3 ruling that a “neutral law of general applicability” is acceptable even when it prohibits some people from practicing aspects of their religion. Concerned that the ruling posed some threat to the religious rights of religious minorities, Congress passed the Religious Freedom Restoration Act in 1993 and the Religious Land Use and Institutionalized Persons Act in 2000 to grant religious protections beyond what the Supreme Court said was required. Those two laws long had bipartisan support, although RFRA has faced opposition from liberals in recent years as it was sometimes used to allow discrimination against LGBTQ persons.

What happens if Smith is overturned?

Overturning of Smith could potentially have far-reaching consequences. Without Smith in place, for example, courts might have been required to give covid-19 restrictions closer scrutiny when they were applied to religious activities. Without Smith, the types of laws that would come under extra scrutiny when affecting religious organizations or religious practices might include those involving drug use, some types of discrimination, and environmental regulations, among many others.

At least three of the current justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — have questioned the Smith ruling.

The case now being considered by justices is Tingley v. Ferguson, in which the Ninth Circuit Court of Appeals ruled 3-0 that states have the ability to control how licensed counselors perform the professional duties without running afoul of the First Amendment. In essence, the appeals court found that the Washington state law regulated conduct rather than speech.

The ruling was written by Clinton appointee Ronald M. Gould. Obama appointee Kim Wardlaw signed on to the opinion, while Trump appointee Mark J. Bennett wrote a concurring opinion.

With regard to the Tingley’s attempt to overturn Smith, the Circuit Court opinion said:

The object of Washington's law is not to target religion. ... [T]he object of the State's ban on conversion therapy is “the prevention of harm to minors, regardless of the motivations for seeking” or providing conversion therapy. ... Washington restricted licensed providers from performing conversion therapy on minors because of the demonstrated harm that results from these practices, and not to target the religious exercise of health care providers.

In their petition asking the Supreme Court to accept his appeal, Tingley’s lawyers argued that rulings against him are keeping potential clients from getting the help they need. They said that many clients come to him on behalf of themselves or their children “precisely because he shares their faith-based convictions and worldview.” (Emphasis is in the original.)

So far, those asking the high court to accept the appeal have been supporters of conversion therapy or organizations known for religious-freedom advocacy. Opposition has come from the American College of Pediatricians and groups supporting LGBTQ rights.

Review of the appeal at the Supreme Court level requires approval of four of the nine justices. If it accepts the case, the court could do so solely on free-speech grounds, or it could accept the case as a way to consider overturning Smith, or both.