Supreme Court turns aside appeal of Christian therapist challenging anti-conversion-therapy law
Some religious groups had claimed restriction violates First Amendment
The U.S. Supreme Court today decided not to hear the case of Brian Tingley, a licensed marriage and family counselor who had challenged a Washington state law that prohibits the practice of conversion therapy on minors.
The decision is a defeat for religious groups that had claimed the law keeps some counselors from providing therapy in accordance with the religious beliefs of themselves and their clients on homosexuality and gender identity. It is also a small and possibly unexpected win for LGBTQ interests — although the decision is favorable to them, it doesn’t ultimately settle the issue of whether such laws are constitutional.
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Conversion therapy is defined in the law, Senate Bill 5722, as “a regime that seeks to change an individual's sexual orientation or gender identity.”
Tingley had sought to reverse the decision of the 9th U.S. Circuit Court of Appeals, which had upheld the law in Tingley v. Ferguson. Essentially, the appeals court found that SB5722 regulated a type of health treatment rather than ban protected speech. Pointing to his religious beliefs as a Christian, Tingley had filed the appeal on both free-speech and religious-freedom grounds and had received the support of several conservative religious organizations.
Under Supreme Court procedures, the votes of four justices are needed to accept a case, but only three did: Clarence Thomas, Samuel Alito and Brett Kavanaugh.
Unlike in cases in which the high court makes makes final ruling, justices often don’t explain their decisions on whether to hear a case, and none of the justices who rejected Tingley’s appeal did. Two of those who wanted to hear the case, Thomas and Alito, did, however.
Thomas said he would have granted a review of the case because it “strikes at the heart of the First Amendment,” which provides for both free speech and freedom of religion.
He further said:
Under SB 5722, licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities. Expressing any other message is forbidden — even if the counselor’s clients ask for help to accept their biological sex. That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.
“This case is not the first instance of the Ninth Circuit restricting medical professionals’ First Amendment rights, and without the Court’s review, I doubt it will be the last,” Thomas added.
Alito said he would have accepted the case because of the free-speech issues it raises:
This case presents a question of national importance. In recent years, 20 States and the District of Columbia have adopted laws prohibiting or restricting the practice of conversion therapy. It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.