The Democrat-led state of Colorado seemingly attempted to dodge addressing a key point raised in a pivotal free speech case before the U.S. Supreme Court on Tuesday. And it’s clear Associate Justices Neil Gorsuch and Amy Coney Barrett were having none of it.
The moment came during oral arguments in Chiles v. Salazar, a case centered on Colorado therapist Kaley Chiles’ challenge to a state law prohibiting professionals such as herself from providing “conversion therapy” to children suffering from issues related to sexuality and gender dysphoria. Represented by Alliance Defending Freedom, Chiles, a Christian, alleges that the statute infringes upon her ability to engage in related talk therapy with her minor clients and violates her First Amendment rights.
During her opening statement defending the law, Colorado Solicitor General Shannon Stevenson claimed that “conversion therapy” “does not work and carries great risk of harm.” She further argued that the law “governs only treatments,” and thus “does not interfere with any First Amendment interest.”
“[B]ecause Colorado’s law regulates treatments only, and because it enforces the professional standard of care, the law falls squarely into the reasonable regulation of professional conduct that does not trigger First Amendment [strict] scrutiny,” Stevenson said.
When given the opportunity to question the Centennial State solicitor general, Gorsuch posed a “mirror image” hypothetical, in which he noted how other states could potentially pass laws similar to Colorado’s that instead prohibit licensed therapists from using talk therapy that “affirmed” minors’ pursuit of homosexuality.
He specifically probed whether, under Colorado’s argument, a state could “forbid a regulated licensed professional from affirming homosexuality if that were consistent with the then-prevailing ‘standard of care'” and “so likewise, if the prevailing standard of care were to change or solidify that this sort of talk therapy is beneficial to minors, or at least not harmful to minors, then a state could pass a mirror image statute to Colorado’s that prohibits any attempt to affirm changes of gender identity or sexual orientation, and that would be subject to mere rational basis review” as opposed to strict scrutiny?
While Stevenson initially appeared to agree with Gorsuch’s premise, she went on to argue that “the fact that there are words involved [in the therapy] doesn’t make a difference.” Citing the high court’s recent U.S. v. Skrmetti decision upholding a Tennessee law banning certain trans procedures for minors, she said states “have the power to regulate even in the face of” uncertainty within the medical community, and that the recognized “‘standard of care’ could change there, and the legislature can act to change that.”
The seemingly convoluted answer sparked an extensive back-and-forth between Gorsuch and Stevenson, in which the former attempted to pin the latter down on what exactly she was trying to argue:
Gorsuch: So, even cases where ‘medical uncertainty’ exists, you think that the state could pass such a law prohibiting ex-ante speech that would affirm gender identity changes or sexual orientation changes or homosexuality?
Stevenson: I don’t think you have to reach that question in this case because here —
Gorsuch: I’m asking about the logic of your argument. I think you just said states can regulate even in the absence of medical consensus in this fashion. Is that right?
Stevenson: Where there are no words involved and no First Amendment issue raised, and —
Gorsuch: No … we’re talking about speech and we’re talking about … talk therapy. That’s what I want to get at. And I think you’re saying that if there’s medical consensus, a state surely could pass mirror image laws. And I think you’re saying, but I want to make sure, that even in cases where there’s medical uncertainty, a state could so regulate?
Stevenson: You could reach a holding in this case that said, ‘Yes, treatment is treatment, and … it doesn’t matter whether it’s … consistent with the standard of care or not.’ We would urge you to reach a narrower holding in this case —
Gorsuch: I understand that, but I’m asking you to answer my question. … [T]his court has many times said when there’s medical uncertainty, we defer to state judgements. And I think you’re saying, that ‘yes.’ I think the logic of your position has to be ‘yes.’ …
Stevenson’s unsuccessful attempt to adequately address Gorsuch’s questions prompted Barrett to interject and press the state solicitor general on the point of “medical uncertainty.” The junior justice highlighted potential “competing” views within the medical community about the safety and efficacy of conversion talk therapy and so-called “gender affirming care.”
“Can a state pick a side? … I want to be very clear. It’s not that the medical community says, ‘We just don’t know.’ It’s that there are competing strands, and some states like, say, Tennessee, which was the state at issue in Skrmetti, pick one side. Colorado picks another side.” Barrett said. “Your position is that rational basis applies?”
Stevenson appeared to try to wiggle out of the question. She argued that Colorado’s position is that “the standard of care is important” but was cut off by Barrett, who asked that she answer the question.
“No, our view is that would not be the right rule here,” Stevenson said. “One, because that’s not consistent with the history and tradition identified in [NIFLA v. Becerra], and two, because the reason why that history is important and the reason why the standard of care is important is because it’s a confirmation that the state is not actually trying to shut down viewpoints … “
Seemingly befuddled by Stevenson’s confusing response, Barrett further probed the state solicitor general about why she doesn’t believe the “standard of care” question “isn’t relevant there,” seemingly referring to her previous hypothetical about states “picking sides” amid competing medical opinions.
“Wouldn’t that be a situation in which Colorado is essentially … looking at expert evidence and saying that, ‘We think this is what’s appropriate. That we shouldn’t have this kind of talk therapy.’ And Tennessee is choosing a different one as a matter of its state law, or am I not understanding that correctly?” Barrett asked.
Stevenson replied, “What I’m saying is, where there is a First Amendment issue raised and the state can show we’re regulating a treatment and we’re regulating consistent with the standard of care, there is a confirmation, a security, that the court can have that there is no other motive going on to suppress viewpoints or expression.”
“So, Colorado’s law would trigger rational basis, but Tennessee’s hypothetical law would be strict scrutiny?” Barrett asked, homing in on Colorado’s apparent double standard in which prospective laws barring therapists from affirming minors’ pro-gay/trans thoughts would be subject to a more heightened form of review by courts than laws like Colorado’s.
“If it were against the standards of care,” Stevenson responded.