The Supreme Court appeared open to a Christian counselor’s free speech challenge to Colorado’s conversion therapy ban for minors during oral arguments Tuesday.
Several members of the court’s conservative majority expressed concern about accepting the blue state’s assertion that it is regulating professional conduct, not speech.
“Just because they’re engaged in conduct doesn’t mean that their words aren’t protected,” Chief Justice John Roberts said.
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“It looks like blatant viewpoint discrimination,” Justice Samuel Alito quipped at one point.
Not all the conservative justices were so vocal, including Justice Brett Kavanaugh, President Trump’s second appointee to the court, who remained quiet Tuesday. The court’s liberal wing, meanwhile, questioned whether the counselor had the right to bring the challenge.
The case is set to have national implications, with more than 20 states having enacted similar bans to the one in Colorado. A decision is expected by next summer.
In 2019, Colorado prohibited licensed mental health counselors from engaging in “any practice or treatment” that “attempts or purports to change” a minor’s sexual orientation or gender identity. Violations can carry $5,000 fines, and counselors can be suspended and stripped of their license.
Colorado contends it is a lawful regulation of health care treatment, pointing to major professional medical associations that suggest conversion therapy is ineffective and can be harmful to minors.
“Every theory that it’s relied on has been debunked and debunked and debunked,” Colorado Solicitor General Shannon Stevenson told the justices.
Alito questioned that assertion, pointing to when many medical professionals once believed people with low intelligence shouldn’t be permitted to procreate.
“The medical consensus is usually very reasonable, and it’s very important. But have there been times when the medical consensus has been politicized, has been taken over by ideology?” Alito pressed the state.
It’s a sentiment advanced by Kaley Chiles, the counselor, who argues Colorado’s law is trying to control her conversations with patients to suppress disfavored views on LGBTQ rights.
“This law prophylactically bans voluntary conversations, censoring widely held views on debated moral, religious and scientific questions,” said James Campbell, Chiles’s attorney.
The Trump administration supports her lawsuit.
“There is no separate nonspeech conduct being regulated here, and professional medical treatment is not exempt from the ordinary First Amendment rule,” said Principal Deputy Solicitor General Hashim Mooppan.
If the high court agrees, it has long held such laws to be presumptively unconstitutional by holding them to a demanding test known as strict scrutiny.
A district judge and a divided panel on the 10th U.S. Circuit Court of Appeals disagreed, upholding the law and spurring Chiles to petition the high court.
Even if the Supreme Court applies the stricter test, it remains to be seen whether the justices will outright strike down Colorado’s law or send the case back to the lower courts to apply the more demanding standard.
The court has a pathway to resolve the case without delving into those weighty issues, however. Justice Sonia Sotomayor, the court’s most senior liberal jurist, in particular questioned whether Chiles faced an imminent enough threat of enforcement to bring the case.
“This is an unusual case, because we have basically six years of no enforcement of this law, three before this lawsuit, three since,” Sotomayor said.
The Williams Institute estimates that 698,000 U.S. adults have received conversion therapy, including 350,000 who did so as adolescents.
Tuesday’s arguments follow a series of challenges the Supreme Court has taken up concerning Colorado’s broad LGBTQ protections.
In 2018, the court ruled 7-2 that Colorado violated cake baker Jack Phillips’s First Amendment rights by prohibiting him from refusing to bake for same-sex couples’ weddings. Two years ago, the court ruled against Colorado again when website designer Lorie Smith appealed to the court in a bid to refuse designing websites for same-sex weddings.
Chiles is represented by Alliance Defending Freedom (ADF), a conservative Christian legal powerhouse that represented both Phillips and Smith in the earlier cases.
Chiles’s challenge was supported by outside briefs filed by Christian counseling and medical groups, the U.S. Conference of Catholic Bishops, The Church of Jesus Christ of Latter-day Saints, Catholic University of America, the Becket Fund for Religious Liberty and 20 Republican state attorneys general.
Meanwhile, Colorado’s defense was supported by The Trevor Project, PFLAG, the American Psychological Association, nearly 200 Democratic members of Congress and 20 Democratic state attorneys general.
It’s the first of several cases implicating LGBTQ protections at the court this term. The justices are also set to rule on whether states can ban transgender girls from competing on girls school sports teams.
Last term, the court upheld Tennessee’s ban on transgender health care for minors in a 6-3 decision along ideological lines.
Though that case implicated different constitutional issues, Justice Ketanji Brown Jackson raised it at Tuesday’s argument.
“But the regulations work in basically the same way, and the question of scrutiny applies in both contexts,” Jackson said. “So, it just seems odd to me that we might have a different result here.