Free Speech and Religious Rights Case Appears Poised to Do Just That!
With apologies to those who couldn’t care less what happens in the nation’s Highest Court, as well as to those who rightly ask why any of it matters. It is, after all, merely a temporary adjustment until some other be-robed hoodlums flip a judicial switch and make it into something else.
The judicial branch is a problem child often in need of a scolding, and the list of judges who are long overdue for impeachment, certainly in my state of New Hampshire, continues to grow. But sometimes they manage to do it right.
Roe v Wade was judicial activism, and returning the question of abortion to the states was one of the most constitutional things the Court has done in far too long. The Second Amendment has been enjoying some breathing room of late, but the First Amendment tends to be the golden child. Even the “liberal justices,” who all, coincidentally, look like diversity hires, are more likely than not going to stand with A1, but a recent case may be testing their resolve.
Chiles v. Salazar
Kaley Chiles is a Christian counselor whom the State of Colorado has muzzled. The Centennial State is one of more than two dozen that have conversion therapy bans on the books. She is prohibited by law from talking to her patients about gender transition unless it is to advocate for it.
Before the popularization of the lie that chemistry and surgery can remake you into the opposite sex, the ban was crafted to prevent almost anyone from daring to suggest you might not be gay, lesbian, or bisexual.
In states like mine, the prohibition was extended to pastors, priests, coaches, guidance counselors, and anyone who might represent a position of wisdom, knowledge, or authority, regardless of whether any of those qualities applied to them or not.
You could encourage them to be gay or a lesbian if that were the question, but you could not even suggest it might be a phase.
When the transgenderizers got their social engineering machines in gear, converting gay boys into women or lesbian girls into men, actual irreversible conversion therapy, it was all the rage with the conversion ban progressives. Anyone who didn’t do it was violating the ban, a position defended, straight-faced, or more likely “rage-faced,” with a bit of acidic-looking drool in the corner of their malformed mouths.
How dare you?
Chiles, a licensed counselor in Colorado who receives clients seeking to stop unwanted sexual attractions or overcome gender dysphoria through Biblical means, challenged Colorado’s 2019 Minor Conversion Therapy Law in 2022, arguing that it violates the Constitution’s Free Speech and Free Exercise Clauses. The law bars counselors and licensed professionals like Chiles from providing so-called “conversion therapy” to minors, which the state defines as any form of therapy seeking to change gender expression and behaviors or mitigate same-sex attractions. Those who violate the law are subject to up to $5,000 per violation and could be stripped of licensing.
Alliance Defending Freedom took Kaley’s case, which was rejected at every stop until it finally arrived at the US Supreme Court, where oral arguments were heard last week.
In 2022, an ADF Allied Attorney filed a lawsuit on Kaley’s behalf and asked a federal district court to halt Colorado’s unconstitutional law. But the court ruled against Kaley.
ADF attorneys took lead in the case, appealing to the U.S. Court of Appeals for the 10th Circuit. Unfortunately, the 10th Circuit also ruled against Kaley, claiming that conversations in a counseling session are conduct rather than speech—and therefore are not protected by the First Amendment.
But this determination stands at odds with the rulings of other appellate courts, which agree that conversations in counseling sessions are protected under the First Amendment.
Things are looking good for Kaley and free speech.
The legal issue revolves around the limits of freedom of speech in a highly regulated industry —medicine. Just last year, the Supreme Court found that some states’ bans on genital mutilation procedures were constitutional. So they must now distinguish why a law banning talk therapy isn’t similarly legal.
Fortunately, the easy answer, as the Justices’ questions seemed to confirm, is that speech is expressly protected by the Constitution.
In other words, talk therapy without any concomitant medical or surgical intervention is pure speech. Thus, while medical speech may still be regulated, the state must meet a tremendously difficult standard called strict scrutiny. In the case of gender dysphoria, the science is so awful and all-over-the-place that strict scrutiny would be hopeless.
If or when (I’m being optimistic) the US Supreme Court declares the Colorado law Unconstitutional, they will be doing their actual job. The State has no interest in suppressing speech between private individuals, especially when they are specifically seeking the consultation of a therapist who specializes in helping individuals address matters like gender dysphoria.
I’d be unsurprised if the ruling weren’t 6-3 or 7-2. Ketanji Brown Jackson, the dumb justice, might even find herself on an island with a 9-1, but FreeSpeech seems likely to win the day. If it does, thirty states will need to rethink their conversion ban laws, all of which will have been, in part or total, thrown out as violations of individuals’ First Amendment rights.
Oh, and it will allow gender confised kids and adults who want to be their birth sex to seek treatment and support to that end. That’s still illegal in the states with so-called conversion therapy bans.
Fingers crossed, and maybe find some earplugs or noise-canceling headphones for when the decision drops. The screetching harpies will be making quite a noise when they lose, and I think they will.
