February 19, 2014anticipated, the group challenging California’s ban on so-called LGBT “conversion therapy” for minors has filed their petition asking the Supreme Court to review the case. A three-judge panel for the Ninth Circuit Court of Appeals had ruled that the law is constitutional, when Liberty Counsel brought a challenge on behalf of several anti-LGBT groups, including National Association for Research & Therapy of Homosexuality (NARTH). The challengers sought en banc review in the Ninth Circuit, a request for the case to be heard by a larger panel of 11 judges in that circuit. That request was denied by a majority of sitting judges.
The Supreme Court petition poses three questions for the Court’s review:
1. Whether a law that bans counselors from providing and minor clients from receiving “talk therapy” counseling that unwanted same-sex sexual attractions, behaviors, or identity (collectively “SSA”) can be reduced or eliminated but permits talk therapy that affirms and approves unwanted SSA violates the First Amendment.
2. Whether a law that prohibits licensed counselors from, under any circumstances, engaging in talk therapy on the subject of “sexual orientation” that expresses the viewpoint that minors’ unwanted SSA can be reduced or eliminated is impermissibly vague and overbroad.
3. Whether a state law that prevents parents from seeking licensed counselors to provide talk therapy, as requested by their children, which expresses the viewpoint that the children’s unwanted SSA can be reduced or eliminated while permitting talk therapy that expresses the viewpoint that the children’s SSA should be affirmed and approved infringes upon the parents’ fundamental rights to direct the upbringing of their children.
Like their arguments in the court of appeals, the new filing suggests that the ban on so-called LGBT “conversion therapy” is a restriction on free speech, not simply a regulation of conduct of mental health professionals. The group says that “[t]his case does not involve state licensing requirements, but whether the state can censor what a licensed counselor says.”
There’s no “circuit split” on this specific issue – in fact, California’s law was the first of its kind, so there wouldn’t be any other precedents addressing the precise question – though the Third Circuit is considering New Jersey’s ban, passed after California’s. Even so, the filing argues that the Ninth Circuit’s “decision creates intra- and inter-circuit conflicts with decisions which concluded that restrictions less intrusive than SB 1172 crossed the line between permissible professional regulation and impermissible restraint on speech.”
It’s unclear whether the Supreme Court would grant the petition, given the lack of a circuit split. A response from the state is due March 12.
Thanks to Kathleen Perrin for this filing