It comes as no surprise that LGBTQ rights in Colorado — and presumably in a few dozen other states that have similar laws — took another beating in the U.S. Supreme Court, this time by an 8-1 margin.
Whether it’s the religious rights of a Colorado cake maker or of a Colorado web designer or of a state-licensed Colorado therapist, the court has ruled consistently against those in the LGBTQ community and for those on the religious right. It’s not just a trend, it’s a movement — and a malign one.
And we are somehow at the center of it.
This would usually be a no-brainer for me to write about. It’s certainly consistent with the religious right’s use — or abuse, if you will — of the First Amendment to allow, say, cake “artists” to discriminate against LGBTQ individuals. As I may have mentioned before, the only cakes I’ve seen in museums are there when someone is celebrating a birthday.
And since the overwhelming consensus in the medical community is that conversion therapy is harmful to LGBTQ minors, it seems logical to me that the state, which licenses therapists, can ban talk therapy — thank God, no one uses shock treatments any more — that basically attempts to “cure” adolescents of their unwanted same-sex desires, or desires unwanted by their parents or religious adviser.
We know the horrible history of discrimination against gays in this country and throughout the world, largely based on religious teachings. There’s a recent study showing that as many as half of adolescents who have been pushed to change their sexual orientation have attempted suicide.
Why are we moving backwards? Is the religious right trying, as I can’t help thinking, to undo advances in gay rights, including same-sex marriage?
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SUBSCRIBEWell, when Justice Neil Gorsuch writes his majority opinion, I hear exactly what I expect to hear.
“Colorado may regard its policy as essential to public health and safety,” Gorsuch writes. “Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”
So it’s orthodoxy that’s at issue. Or censorship. Nothing about harmful practices or the state’s duty to protect patients.
But what gives me some pause is two of three liberal justices joined the majority opinion — written by Colorado’s own Trump-appointed justice — in a case that strikes down a Colorado law banning conversion therapy for gay and transgender minors.
Elena Kagan argues in a concurrence, joined by Sonia Sotomayor, that this is a straight First Amendment case — in fact, a no-brainer — because the law allows therapists to advise their minor clients that conversion therapy doesn’t work and that it can be harmful to those who seek it, but does not allow therapists to offer talk therapy that disputes that notion.
Kagan said she would have ruled the same way in cases where, for example, a state would ban therapists from helping patients to affirm their gender identity.
As Shannon Minter, legal director for the National Center of LGBTQ Rights explained to me, what Kagan is saying is that if Colorado had addressed the First Amendment issue better, or if Colorado rewrites its law to address the court’s problem, she might well find it constitutional. She leaves the door open.
But this is the money shot from Kagan: “Because the State has suppressed one side of a debate while aiding the other, the constitutional issue is straightforward.”
I’m not a law professor — although my daughter is — and I wouldn’t presume to get down and dirty with Kagan on First Amendment interpretations. But strictly speaking, Colorado is not, as Kagan certainly agrees, suppressing all speech on this issue. The law specifically allows religious mentors and parents, for example, to say whatever they please on the matter. It can be argued in newspapers, in legislatures, in courts, in the public square, just about anywhere.
But where I differ from Kagan’s opinion is the question of whether the state could constitutionally restrict state-licensed therapists — or physicians or lawyers or CPAs — from doing something to harm their clients. We know therapists can be sued. The court does recognize malpractice suits as a remedy for clients,
Still, we know what many on the religious right want. They say, as Donald Trump has said, that there are only two genders and that gay or lesbian minors (or adults, for that matter) should identify with the gender assigned to them by birth. Science says something quite different. I don’t want to get deep into gender assignment, dysphoria or intersex diagnosis, but this informative article will take you there if you want to go further.
The case began with a Colorado Springs therapist, Kaley Chiles, who argued that the law infringed on her First Amendment rights. She said she didn’t want to “cure” anyone but wanted to counsel religious teens dealing with these issues in ways consistent with biblical teachings. Is dealing with these issues with talk therapy — using the evangelical movement’s interpretation of what the Bible says as a benchmark — substantially different from trying to “cure” someone?
That’s what the court is saying, apparently.
I like that Jared Polis, the first openly gay person to be elected governor, loudly objected to the ruling, as did Attorney General Phil Weiser, who argued the state’s position.
And there is someone whose opinion I will rely on here — Justice Ketanji Brown Jackson, who wrote the 35-page dissent, which she read from the bench, and says the ruling could be “catastrophic.”
The ruling, as Jackson wrote, could be “ushering in an era of unprofessional and unsafe medical care.” She pointed out that medical practitioners must tell patients of any risks before treatment. Is there not a risk here? Or are the American Medical Association, the American Psychological Association, the American Academy of Pediatrics and other medical societies all wrong about the harms found in studies they cite?
She wrote: “A State that … pursues an agenda of purposefully silencing critics, muzzling opponents, or targeting views it considers threatening would, of course, violate the First Amendment. But it behooves us all (and especially courts) to see and know the difference. …
“The record here does not show that Chiles is being ‘target[ed]’ or ‘muzzle[d]’ or ‘silenced’ or ‘censor[ed],’ as the majority suggests. Instead, as a healthcare provider licensed by the State of Colorado, she is simply being held to the same standard of care that all other licensed medical professionals in that State must follow.”
And then she took it even further.
“I reach a different conclusion in this case than the majority does because precedent, principles, and history point in the same direction,” Jackson wrote. “The First Amendment cares about government efforts to suppress “speech as speech” (based on its expressive content), not laws that, like (Colorado’s), restrict speech “incidentally,” due to the government’s traditional, garden-variety regulation of such speakers’ professional conduct.”
She went on to ask how “it violates the Constitution for a State to prevent its licensed talk therapists from using speech to harm the minors in their care. … Holding otherwise, as the majority does now, flouts centuries of state-standardized regulation of medical care and is, ultimately, nonsensical.”
She says it’s nonsensical. I’ll leave the law to her. I say it’s harmful and opens the country to further harms.
And I say that Colorado, which I assume will attempt to modify the law in the next legislative session and which was once, long ago, known as the “Hate State” on gay issues, is on the right side of history today. And, I hope and believe, on the right side of the law.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
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