September 11, 2013
The Ninth Circuit Court of Appeals recently upheld California’s recently-enacted ban on so-called LGBT ‘conversion therapy’ for minors, a therapy which attempts to change their sexual orientation and gender identity. All of the major mental health organizations oppose attempts to convert a person’s sexual orientation. Today the Liberty Counsel, who brought one of the lawsuits challenging the ban on First and Fourteenth Amendment grounds, has filed a petition for rehearing and rehearing en banc at the Ninth Circuit. This means if they agree to rehear the case, the same panel could hear it again, or an 11-judge en banc panel will take up the issue anew.
The petition questions the Ninth Circuit’s application of the more lenient rational basis scrutiny on a variety of grounds, suggesting that the law is content-based and viewpoint-based so that the proper First Amendment scrutiny should be the most rigorous strict scrutiny. And the petition suggests higher levels of scrutiny should apply if the law is based on conduct that touches on speech, among other things.
Liberty Counsel cites the newly enacted New Jersey ban on marriage equality in the petition. That law is also being challenged in a case filed by several plaintiffs, as well as National Association for Research & Therapy of Homosexuality (NARTH).
Thanks to Kathleen for this filing