Colorado is at it again, trying to put the heavy hand of the law on one side of a roiling social debate about sex and gender. This time, instead of coercing cake bakers and wedding website designers to celebrate same-sex weddings against their own convictions, the once-proud Centennial State is abusing its regulatory power over the licensing of counselors and therapists as a lever to insist that if they counsel gender-confused minors, they may only promote gender transition and homosexuality; they are not allowed to speak against either.
That’s a flagrant violation of the First Amendment. As Justice Clarence Thomas wrote for the Court’s majority in 2018, such an approach “gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” In First Amendment terms, that’s called a prior restraint, and it’s a big, red line. The Court’s 2018 decision in National Institute of Family and Life Advocates v. Becerra (NIFLA) involved compelling state-licensed crisis pregnancy centers to distribute pro-abortion speech. But its rejection of the “professional-speech doctrine” applies just as well to Chiles v. Salazar, the case challenging the Colorado law which was argued before the Supreme Court on Tuesday.
Judging from the oral argument, the justices are skeptical of Colorado’s blandishments that it is just regulating medical practice and won’t launch a Javert-like pursuit of therapists who try to work within a Christian framework on such matters. It certainly isn’t helping Colorado’s case that it has been a recidivist speech-policer in this area. The counselor challenging the law, Kaley Chiles, is represented by the Alliance Defending Freedom, which previously bested Colorado at the Court in the Masterpiece Cakeshop and 303 Creative cases. Everyone knows the recent history.
Colorado’s law forbids “any practice or treatment by a licensee, registrant, or certificate holder that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” (Emphasis added.) Counseling minors in the opposite direction is permitted. This is an aggressive version of the laws against “gay conversion therapy” that exist in 25 states. In a last-minute footnote, Colorado argued that it wasn’t going to enforce the law, so Chiles didn’t have standing to sue over a threat to her rights. But even Justice Sonia Sotomayor, who advanced the standing issue at the argument’s opening, concluded after listening to how Colorado’s lawyer aimed to interpret its law, “That settles the standing question.”
As in the 2018 NIFLA case, Chiles involves two clashing constitutional visions. Chiles’s lawyers argue that states can regulate medical conduct such as prescribing drugs and performing surgeries, as Tennessee did in United States v. Skrmetti, and can regulate speech incidental to that conduct — but they must comply with the strict-scrutiny standards of the First Amendment when they try to regulate speech on its own. Colorado argues that states have always regulated medicine, so even speech is easily regulated if it comes from licensed medical professionals. Even Justice Elena Kagan had to interject that perhaps the Court should consider how to evaluate the case “in normal free speech land rather than in this kind of doctor land.”
Only Justice Ketanji Brown Jackson seemed to warm to Colorado’s argument that whether to apply the normal First Amendment strict-scrutiny standard or the relaxed rational-basis review that is ordinarily accorded to state regulation of medical treatments depends on how many studies the state can marshal to support its position — although Colorado’s collection of studies was notably irrelevant to the kind of therapy Chiles provides. We think the Court should recall that a self-governing people had power to make laws long before they had peer-reviewed medical studies — but they constitutionally restricted that power when regulating speech. The strength of scientific evidence should matter only to whether the state can meet its burden, not to what burden it must meet in the first instance.
Both Justice Samuel Alito, who remarked that Colorado was making “the argument that I thought we rejected in NIFLA that professional speech is a special category that’s outside normal First Amendment scrutiny,” and Justice Amy Coney Barrett, who pressed Colorado on what the standard should be when the medical community is divided and lacks a clear consensus, seemed to understand the commonsense reality of medical speech in a divided society susceptible to political pressures and prone to needing a few tries to get the scientific facts straight. Colorado’s lawyer did not help matters by appearing unfamiliar with the history Justice Alito cited of the Court’s upholding forced-sterilization laws in 1927. Kagan emphasized that whatever rule the Court chooses for laws that restrict therapist speech against gender transitions and homosexuality must apply equally to laws that restrict such speech in favor of those things. While that means granting falsehood as much protection as truth, it at least gets the state out of mandating orthodoxy.
Chiles has run away from defending gay conversion therapy in general, which in some instances involved dubious treatments such as electroshock therapy rather than solely speech. The Court is likely, prudently, to leave the full resolution of that question for another day. But it should not hesitate to rule that the state must provide a compelling justification and a narrowly tailored remedy before it attempts to ban speech — especially speech that simply states the plain truth.