In the recent case Chiles v. Salazar, the Supreme Court was asked if Colorado’s “Conversion Therapy” law violated Ms. Chiles right to free speech. As is so often the case, the court agreed that the law violated Ms. Chiles free speech rights, just for the wrong reasons.
Conversion Therapy
This all started with a 2019 Colorado law banning what some people call “conversion therapy” for minors.
In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in “conversion therapy” with minors, Colo. Rev. Stat. §12–245–224(1)(t)(V), defining the term to include “any practice or treatment . . . that attempts . . . to change an individual’s sexual orientation or gender identity,” as well as any “effor[t] to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions toward individuals of the same sex,” §12–245–202(3.5)(a).
Chiles v. Salazar
Colorado defines “conversion therapy” as any attempt to change or convert a persons behavior, gender express, or sexual attraction, but only to those of the same sex and so-called “transgender.” This is a one-sided and biased law.
Yet the law explicitly allows counselors to provide “[a]cceptance, support, and understanding for . . . identity exploration and development,” §12–245–202(3.5)(b)(I), and to assist persons “undergoing gender transition,” §12–245–202(3.5)(b)(II).
Chiles v. Salazar
So Colorado thinks it’s OK to encourage such attraction, but not to discourage it. Part of the push behind these conversion therapy bans has more to do with imagery rather than the actual techniques.
The term “conversion therapy” may evoke physical techniques such as “‘electric shoc[k]’” therapy aimed at changing an individual’s sexual orientation or gender identity.
Chiles v. Salazar
Colorado’s law doesn’t simply forbid shock therapy, or any other therapy that harms the individual.
The law forbids as well any “effor[t] to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” … At the same time, the law explicitly allows counselors to engage in “practices” that provide “[a]cceptance, support, and understanding for the facilitation of an individual’s . . . identity exploration and development.” §12-245–202(3.5)(b)(I). Likewise, the law allows counselors to provide “[a]ssistance to a person undergoing gender transition.” §12–245–202(3.5)(b)(II).
Chiles v. Salazar
So Colorado doesn’t have an issue with conversion therapy, only in attempts to assist those who are not comfortable with their homosexual or transgender feelings. In other words, only those that challenge the politically correct idea that homosexuality and transgerism are normal.
Ms. Chiles filed suit in federal court seeking a preliminary injunction, raising a First Amendment challenge to the law as it applies to her talk therapy.
Chiles v. Salazar
Ms. Chiles claims that the Colorado law violates her rights protected by the First Amendment. I will discuss the First Amendment issues in another section, where I will show this is actually a Fourteenth Amendment violation. However, the question the court was asked specified a violation of the First Amendment.
The question before us is a narrow one. Ms. Chiles does not question that Colorado’s law banning conversion therapy has some constitutionally sound applications. … She does not take issue with the State’s effort to prohibit what she herself calls “long-abandoned, aversive” physical interventions. … Instead, Ms. Chiles stresses that she provides only talk therapy, employing no physical techniques or medications.
Chiles v. Salazar
Ms. Chiles agrees, some forms of conversion therapy, namely those with averse physical interventions, can be banned. However, she does not employ such physical techniques or any medications. Yet Colorado’s law still applies to her.
Yet, she argues, Colorado’s law still applies to her, prescribing what she may say in “voluntary counseling conversations” with her clients. … And because that application of the law strikes at the heart of the First Amendment’s protections for free speech, she contends, it warrants considerably more searching scrutiny than the rational-basis review the Tenth Circuit applied in this case or the intermediate-scrutiny review some other lower courts have employed in cases like hers. … We agree.
Chiles v. Salazar
I agree that Colorado’s law abridges Ms. Chiles freedom of speech, and much, much more. However it does not and cannot violate the First Amendment.
Court Decision
Justice Gorsuch delivered the court’s opinion, joined by Justices Robert, Thomas, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett.
Both the district court and the Tenth Circuit determined that Ms. Chiles had Article III standing to pursue her as-applied pre-enforcement challenge. On the merits, however, both courts denied Ms. Chiles’s request for a preliminary injunction, reasoning that Colorado’s law is best understood as regulating professional conduct and that it regulates speech only incidentally, thus triggering no more than rational-basis review under the First Amendment. This Court granted certiorari to resolve a circuit conflict over how the First Amendment interacts with laws like Colorado’s when those laws are applied to talk therapy.
Chiles v. Salazar
Both the District and Circuit Courts said that Ms. Chiles had standing to sue, even though Colorado has not yet enforced this conversion therapy law against her. They also said this law primarily regulated professional conduct. That, however, that does not allow the state to violate the Constitution of the United States, and specifically the supremacy clause.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
Yes, the Constitution does not prohibit states from regulating professional conduct, but it does prohibit depriving people of their liberty without due process of law.
First Amendment
Now, let’s talk about this First Amendment issue.
(a) The First Amendment protects the inalienable right of every individual to decide for himself “how best to speak,” Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 791, and laws regulating speech based on its subject matter or “communicative content” are “presumptively unconstitutional,” triggering “strict scrutiny” that requires the government to prove its restriction is “narrowly tailored to serve compelling state interests,” Reed v. Town of Gilbert, 576 U. S. 155, 163. “Viewpoint discrimination” represents an even more “egregious form” of content regulation from which governments must nearly always “abstain.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829.
Chiles v. Salazar
Most everything Justice Gorsuch said was true, except for the statement about the First Amendment. While freedom of speech does protect a right for people to decide for themselves how best to speak, First Amendment protections are limited. Did you notice how the court did not quote the First Amendment, but previous court opinions? Maybe because that would prove the error of their statement?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,
U.S. Constitution, Amendment I
Since Congress did not make this law, it cannot violate the First Amendment.
We do not doubt that the question “how best to help minors” struggling with issues of gender identity or sexual orientation is presently a subject of “fierce public debate.” Tingley v. Ferguson, … But Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint.
Chiles v. Salazar
Yes, Colorado’s law censors speech, and only for one viewpoint. That does not make it a First Amendment violation, but a free speech violation. Substitute free speech for First Amendment and the next statement makes more sense.
Colorado may regard its policy as essential to public health and safety. 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. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an “egregious” assault on both of those commitments. Rosenberger, 515 U. S., at 829.
Chiles v. Salazar
Very interesting point, because Colorado is not the only government that has attempted to censor speech it disagreed with. That puts Colorado on the same footing as every other despotic, censorious government that has ever risen.
Kagan Concurrence
I was rather surprised that eight of the nine justices supported free speech. Justice Kagan wrote a concurring opinion which Justice Sotomayor joined. In that concurrence, Justice Kagan brought up an interesting point.
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR joins, concurring.
The Court today decides that the Colorado law challenged here, as applied to talk therapy, conflicts with core First Amendment principles because it regulates speech based on viewpoint. … I agree. I write only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.
Chiles v. Salazar
What if Colorado had written their law prohibiting any form of conversion therapy? What if those who promoted homosexuality and transgenderism were held to the same standards as those who opposed them? Justices Kagan and Sotomayor may have held a viewpoint-neutral censorship law constitutional, but that would disagree with the Constitution itself. Because freedom of speech isn’t limited to so-called viewpoint-neutral content; it protects all forms of speech.
Jackson Dissent
JUSTICE JACKSON, dissenting.
“[T]here is no right to practice medicine which is not subordinate to the police power of the States.” Lambert v. Yellowley, 272 U. S. 581, 596 (1926). This was true 100 years ago, and it should be true today.
Chiles v. Salazar
Even the police powers of the states are subject to their constitutions and the Constitution of the United States.
Many States have now chosen to exercise their police powers to ban “conversion therapy” based on the medical profession’s broad consensus that this medical treatment (which seeks to change a gay or transgender person’s sexual orientation or gender identity) is ineffective and harmful.
Chiles v. Salazar
Rights are not determined by consensus. Obviously, there are medical professionals who disagree that attempting to help someone reverse unwanted attractions are dangerous. While the guilds that control the medical profession may claim these treatments are harmful, not all of those they claim to support actually agree with them. We’re not talking about “group rights,” but individual rights. When the majority can overrule the rights of the individuals, we are the exact despotic democracy our Founding Fathers worked hard to insure we would not become.
This case involves the Colorado Legislature’s policy decision to prohibit licensed medical professionals from offering or providing conversion therapy to minors in that State.
Chiles v. Salazar
Except it does not prohibit medical professions from offering conversion therapy, but as I’ve already shown, only conversion in one direction.
So, I respectfully dissent. Stated simply, the majority has failed to appreciate the crucial context in which Chiles’s constitutional claims have arisen. Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional. The Tenth Circuit was correct to observe that “[t]here is a long-established history of states regulating the healthcare professions.” 116 F. 4th 1178, 1206 (2024). And, until today, the First Amendment has not blocked their way. For good reason: Under our precedents, bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care.
Chiles v. Salazar
Except the justices seems to have forgotten the very reason we establish governments: To secure our rights. When the government becomes destructive of our rights, it is our right and duty to alter or abolish it.
Chiles insists that, although she is a counselor licensed by Colorado, she has a constitutional right to flout Colorado’s statute and the standard of care it incorporates if a client asks her to do so.
Chiles v. Salazar
Apparently Justice Jackson has forgotten that Colorado does not have the right to deprive their citizens, even licensed professionals, of their rights in order to promote their political agenda. Ms. Chiles has the right to flout Colorado’s laws when they violate the supreme law of the land.
Conclusion
So what can we conclude from this opinion?
Held: Colorado’s law banning conversion therapy, as applied to Ms. Chiles’s talk therapy, regulates speech based on viewpoint, and the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny.
Chiles v. Salazar
I agree with everything the court found, except for the First Amendment basis. Colorado’s law regulates not only speech, but liberty itself. Which does violate the Fourteenth Amendment.
nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV
This law not only denies Ms. Chiles of the liberty to provide guidance as she sees fit, but it deprives those who want this type of therapy the liberty of seeking it, all without due process of law. Not only does that make this a Fourteenth Amendment violation, not a First, but it greatly expands the scope of the violation. As I’ve pointed out, this law violates the rights not only of Ms. Chiles, but any medical profession that wishes to help people with unwanted feelings and sexual attractions. It also violates the rights of minors, and their parents, to seek assistance in dealing with unwanted attractions.
Furthermore, these restrictions are not based in due process. It is not designed to protect the rights of individuals, neither does it protect people from harm. This law is solely about promoting a political agenda designed to elevate homosexuals and those claiming to be transgender to higher rights than the rest of us. And if that isn’t a violation of due process, I don’t know what is.
