Associate Justice Samuel Alito exposed the absurdity of a Colorado law prohibiting so-called “conversion therapy” for minors during a high-profile case before the Supreme Court on Tuesday.
The moment came during oral arguments in Chiles v. Salazar, a case focused on a legal challenge brought by Colorado resident Kaley Chiles. A licensed therapist who provides counseling to children struggling with issues related to sexual orientation and gender dysphoria, Chiles alleges that the Centennial State’s “conversion therapy” law infringes upon her First Amendment right to free speech by inhibiting the types of discussions she has with her minor clients.
When questioning Colorado Solicitor General Shannon Stevenson, Alito posed a pair of hypothetical scenarios undermining the state’s argument that the statute does not engage in “viewpoint discrimination.” Alito’s questioning exposed the state’s policy of permitting therapists to encourage a child’s homosexual- or transgenderism-related behaviors, while at the same time prohibiting therapists from offering counseling that could help a child overcome them.
“So in the first situation, an adolescent male comes to a licensed therapist and says he’s attracted to other males, but he feels uneasy and guilty with those feelings. He wants to end or lessen them, and he asks for the therapist’s help in doing so,” Alito said. “The other situation is a similar adolescent male comes to a licensed therapist, says he’s attracted to other males, feels uneasy and guilty about those feelings, and he wants the therapist’s help so he will feel comfortable as a gay young man.”
The Bush appointee went on to argue that Colorado’s interpretation of the statute “dictates opposite results in those two situations … based on the viewpoint expressed.” “One viewpoint,” he noted, “is the viewpoint that a minor should be able to obtain talk therapy to overcome same-sex attraction, if that’s what … he or she wants,” while “the other is the viewpoint that the minor should not be able to obtain talk therapy to overcome same-sex attraction, even if that is what he or she wants.”
This “[l]ooks like blatant viewpoint discrimination,” Alito said.
In response, Stevenson claimed that both examples would “be permissible” under Colorado’s law “because it didn’t sound like in either case the goal was to actually change sexual orientation.”
“And again, that’s the touchstone because that’s where the harms come from,” Stevenson said.
[READ: The Federalist’s Guide To The 2025 Supreme Court Term]
The Colorado solicitor general’s argument didn’t appear convincing — even to Associate Justice Elena Kagan.
Referencing Alito’s query, the Obama appointee posed a similar hypothetical with the assumption “that we’re in normal free speech land rather than in this kind of doctor land.”
“If a doctor says, ‘I know you identify as gay, and I’m going to help you accept that,’ and another doctor says, ‘I know you identify as gay, and I’m going to help you to change that,’ and one of those is permissible and the other is not, that seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination,” Kagan said.
Stevenson did not dispute Kagan’s reasoning, but attempted to defend Colorado’s law by arguing that “medical treatment has to be treated differently because any time you exclude one harmful practice, you are by definition saying these things are allowed because they are not harmful and these things are excluded because they are harmful.”
“That’s the driving force behind regulating the particular practice,” Stevenson added.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood