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Supreme Court to decide whether to hear challenge to California’s ban on so-called LGBT ‘conversion therapy’

LGBT Legal Cases Marriage equality Marriage Equality Trials

The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina

On June 26, the Supreme Court will hold a conference in which it will discuss, among other cases, two challenges to California’s ban on so-called LGBT ‘conversion therapy.’ Pickup v. Brown and Welch v. Brown have been distributed for that conference, the last until the Court’s “long conference” at the beginning of the next term.

In Pickup v. Brown, the district court denied a preliminary order that would have put the law on hold for the remainder of the case, but in the Welch case, a judge granted a similar order.

The Ninth Circuit Court of Appeals issued a ruling that ultimately upheld the conversion therapy ban, but petitions for Supreme Court review were subsequently filed.

The law has been challenged on First Amendment grounds, as a regulation of speech, and defended as simply a common regulation of psychiatry. The Ninth Circuit held that the ban regulates professional conduct, not speech.

It takes four votes to grant review in a case, though the brief opposing review pointed out that there’s no conflict among the lower courts on the issue, nor does the Ninth Circuit’s ruling appear to conflict with Supreme Court precedent.

44 Comments

  • 1. debater7474  |  June 11, 2014 at 12:09 pm

    Interesting to see what will happen. In other news, though, good riddance to Eric Cantor, a committed lgbt foe who voted with other House GOP leaders to fund the defense of DOMA. Although that defense ironically helped give the SCOTUS jurisdiction in Windsor, it is still nice to see him go down given his heinous anti-equality record.

  • 2. Bruno71  |  June 11, 2014 at 12:15 pm

    Interestingly, Cantor's wife expressed support for marriage equality. I haven't read anything about Brat's views, other than he "supports the sanctity of marriage" or some other b.s. red meat statement.

  • 3. Rik  |  June 11, 2014 at 12:21 pm

    He is just a POS mercenary politician who would say or do anything to keep himself in power. The world is a better place with him unemployed.

  • 4. KarlS  |  June 11, 2014 at 12:32 pm

    Brat said some nonsense about "a miracle from god" last night. He's goofier even than Cantor…it's a shame the Rs have such a lock on that district.

  • 5. Andrew  |  June 11, 2014 at 12:32 pm

    News that WI is now processing licenses. That should encourage more counties to issue licenses. The AG has asked the judge for a quick review with no hearing and no more arguments. His response to the proposed injunction states that the judge can't change specific language in licenses such as husband and wife. But in the plaintiffs proposed injunction, it asks for no such change; only that same sex couples get treated the same as two-sex couples. Many same sex couples have signed their licenses without changing the bride/groom language. IMO whether you list yourself as a wife or a husband does not change whether the marriage is legal or not. And this point should not be a deal breaker on this case before us. If the state insists on not changing the wording on the license, then let that be the basis for another court case down the road.

  • 6. TDGrove  |  June 11, 2014 at 12:35 pm

    http://www.jsonline.com/newswatch/262713011.html is a link to the story if you are interested.

  • 7. JayJonson  |  June 11, 2014 at 12:51 pm

    From a Milwaukee Journal Sentinel editorial urging Van Hollen to drop the appeal of Judge Crabb's decision:

    "This was not just a victory for gay couples; it was a victory for equal rights for all Americans, and it follows a pattern from the civil rights era, when federal courts played a key role in striking down laws that had imposed second-class citizenship on African-Americans. These bans had done the same to gay couples; it's good to see the bans meeting the same fate.

    Van Hollen argues that Crabb's ruling should be stayed so as not to create confusion for the nearly 300 couples who have been issued marriage licenses in Milwaukee and Dane counties since Friday's ruling. Other counties are holding off on issuing such licenses, awaiting the state's appeal. And, in truth, Crabb could have been clearer in her ruling, which, unlike other courts' rulings, doesn't explicitly say what county clerks should be doing. Crabb is asking for more information before deciding whether to stay her own decision while it is appealed. There is a chance the ruling will be stayed even though Crabb did deny Van Hollen's request on Monday.

    But Van Hollen only has a point if he appeals Crabb's ruling. If he doesn't, the argument and the confusion are over. He should refrain from such an appeal and recognize that Crabb's ruling — like other such rulings across the country — is a victory for freedom for all Americans."

  • 8. TomPHL  |  June 11, 2014 at 1:13 pm

    Does anyone have ideas on what is actually happening in Wisconsin? Judge Crabb has told the state that their problems with the county clerks should be taken up in state courts. The 7th Circuit releases requests for responses as to their jurisdiction and then says oops and takes it back. Meanwhile the Wisconsin AG does nothing in state courts. Do you think the Gov. & AG are having a hard time making up their minds to appeal or not to appeal? Again an Attorney General seems at a loss when asked to deal with a situation he didn't expect to occur.

  • 9. BenG1980  |  June 11, 2014 at 1:21 pm

    I've been wondering exactly the same thing. It seems as though Van Hollen should have gone right to state court after Monday's hearing. His actions aren't consistent with his public rhetoric, and Walker, on the other hand, has been virtually silent.

  • 10. Mike in Baltimore  |  June 11, 2014 at 1:26 pm

    Brat very openly supports, and in return is supported by, the Tea Party. I believe Sarah Baracuda is in that same grouping.

    Is it any wonder that he spouts male bovine dropping word-salad statements?

  • 11. Andrew  |  June 11, 2014 at 1:51 pm

    The 7th has a deadline of 5:00 today to receive comments on whether they should issue a stay. Who knows how long after that they will rule. The only thing they said that was a mistake was when, after they had asked for the today's comments, they then later also asked for comments on whether they had jurisdiction with a June 26th deadline. I don't think you can read anything into that mistake other than it was a mistake by one of their young clerks. The AG will appeal this when he can. Its just that they can't appeal until Crabb issues her injunction, which she won't do until her scheduled hearing next week (I think its next week). What Crabb did was give the counties some time to issue licenses with no clear avenue for a stay available to the AG. I don't know if that was an intentional move or not. The AG did ask Crabb today to rule without the hearing. I suppose if both parties are ok with that then Crabb could rule at any time. I think the 7th approve a stay until Crabb issues an order. Even then we don't know if the 7th will issue a stay or not, or whether Crabb will issue a stay with her order.

  • 12. davepCA  |  June 11, 2014 at 1:57 pm

    I think that sounds right. Yikes, compared to most of the other rulings, either with or without a stay, this one has a pretty bewildering "If/Then" decision tree. At least to me.

  • 13. Bruno71  |  June 11, 2014 at 2:16 pm

    Maybe clarity of thought and articulation are too much to ask of an economist professor from Randolph-Macon College?

  • 14. Bruno71  |  June 11, 2014 at 2:20 pm

    I was operating under the assumption that Van Hollen isn't very good at his job, and thus felt like the federal court motion was the way to go. Why we haven't seen anything since then is more guesswork, but it's possible he's just been taking some time having his minions research the right way to go about things. Since he probably doesn't know that way himself.

  • 15. StraightDave  |  June 11, 2014 at 2:23 pm

    I thought today's deadline was to argue whether the 7th even had jurisdiction at this point. Most observers think they don't. If they don't, then they're not prepared to listen to any arguments on a stay.

    Now, there could have been another motion to stay the whole world until Crabb does something else, which might have slipped by me….
    It's hard to keep score anymore.

  • 16. brandall  |  June 11, 2014 at 2:25 pm

    Off topic, but it's a slow day:

    FINAL FANTASY XIV WILL INCLUDE SAME-SEX MARRIAGE
    http://www.metroweekly.com/2014/06/final-fantasy-

    Since NOM is running out of options, perhaps they'll use this in their next fundraising campaign to raise urgent donations. In this case, at least we'll all know it's a "game" they are playing with their donors [pun intended]

  • 17. Andrew  |  June 11, 2014 at 2:50 pm

    Today's deadline inherently includes a discussion of jurisdiction. There was no second motion to the 7th by the AG. The temporary mistake by the 7th was in reply to nothing. I don't think the judges tried issue any second statement. It could have been an after-the-fact release of an earlier rough draft to the ruling that they previously release that gave todays 5:00 deadline. Its like sending an email, but then later sending your rough draft to that email, then moments later sending a third email saying ooops, I didn't mean to hit send on the second email.

    Even harder to keep score is if the 7th rules before Crabb issues an injuction, and they deny the stay because there is nothing yet to stay, then the AG would have to refile another motion after Crabb's ruling, assuming she doesn't stay her order. Whats interesting is that when the AG filed the motion, he claimed confusion among the counties. Now, most counties are issuing licenses and the state is recording them, so the status quo has changed. Now, a stay would cause more disruption than not staying the order would.

  • 18. DrPatrick1  |  June 11, 2014 at 2:51 pm

    Just to nitpick a bit, but BLAG (the bipartisan legal advisory committee which was not bipartisan) did not help give SCOTUS jurisdiction, and no court, least of all SCOTUS, ruled that BLAG had article 3 standing to appeal. In Windsor, the Justice dept, under Obama's direction, continued to officially appeal, but supported the court finding that portion of DOMA unconstitutional. This move angered everyone, with "us" up in arms over the appeal, and "them" upset that there was not a full throated defense of the law. BLAG asked, and was granted ability to intervene in the case only to provide some defense for DOMA. If the justice department hadn't appealed, the case would have gone the way of the Hollingsworth case. BLAG was a complete waste of tax dollars and any suggestion otherwise would be incorrect.

  • 19. Mike_Baltimore  |  June 11, 2014 at 3:27 pm

    Somewhat off-topic – last night I heard the 'nickname' for Randolph-Macon College is Randy-Mac College. Not really sure what that means for the college.

    (I've signed into Intense Debate, but because spaces are not allowed, and there is a limit of 15 characters, I'm 'Mike_Baltimore', not my previous Mike in Baltimore.)

  • 20. davepCA  |  June 11, 2014 at 3:39 pm

    I think "Mike Baltimore" has a rather nice crime fighting super hero / porn star 'ring' to it.

  • 21. Zack12  |  June 11, 2014 at 3:42 pm

    Update on PA.
    http://www.greenfieldreporter.com/view/story/7e07
    Sad to say but from what I've read online, she actually might have a good case to intervene. Let's hope she gets denied but I have a bad feeling PA is going to see a halt on gay marriages very soon.

  • 22. StraightDave  |  June 11, 2014 at 3:49 pm

    porn star? really?!? Not nearly enough panache to it. Dick Baltimore, maybe I could get impressed with…. if I were that type :)

  • 23. TomPHL  |  June 11, 2014 at 4:01 pm

    I could be wrong but the decision in the Bruce Hanes case seems not to augur well for her chances to intervene. If one clerk does not have standing to challenge the ban how can another have standing to uphold it? It also seems that her claim to intervene fails most of the other criteria for intervention. If I am wrong and the judge decides otherwise this might give Hanes ammunition in his appeal and his case might still be decided by the PA supreme court.

  • 24. Mike_Baltimore  |  June 11, 2014 at 4:01 pm

    To be honest, I don't consider myself a super hero, I definitely am not of a 'porn star' image (how many 'porn stars' are 63 YO?), and I have NO body piercings for rings/bars/etc. of any kind.

  • 25. SeattleRobin  |  June 11, 2014 at 4:09 pm

    Does anyone have a link to the defense response to the plaintiff's request for cert in the above reparative therapy case? I've just read the 9th Circuit decision and the request for cert, and now would like to see what the state has to say.

    I'm also realizing how ill-informed I am about how free speech is considered by the courts. The Citizens United decision certainly woke me up when money was equated to speech (I still disagree!), and some of the arguments and case cites here are surprising me too.

    Is anyone here really up on their First Amendment, now that we're all experts on the Fourteenth? 😉 To me it seems like the plaintiffs are misrepresenting the law and the Ninth's decision. The law seems clear that it only prohibits attempts to change orientation, not discussion that such "therapy" exists. But I could be missing something.

    But also it seems like the request for cert makes a strong argument for rational basis not being correct, so Im wondering what others know about that in this case. I'd think that's a pretty stupid mistake for the appeals court to make, but I don't know enough to judge.

  • 26. ebohlman  |  June 11, 2014 at 4:34 pm

    Am I correct that these are appeals regarding preliminary injunctions rather than final orders?

  • 27. SeattleRobin  |  June 11, 2014 at 4:59 pm

    That's what it looks like to me. One district judge granted a prelim injunction and another district judge didn't. Both cases were appealed to the 9th Circuit. The Ninth not only upheld the no prelim injunction decision and denied the prelim injunction, but they went on to discuss the merits of the case before sending it back down.

  • 28. Rik_SD  |  June 11, 2014 at 5:15 pm

    Woo I'm official now, too!

  • 29. StraightDave  |  June 11, 2014 at 5:35 pm

    Hanes' flaw was trying to claim authority to unilaterally disregard an existing law. That's quite a bit stronger than politely going to a court to request relief. If this new clerk Gaffney is turned down, it won't be because of Hanes. It will be because her own rights and *legal* interests are not being harmed. And even if the court decides to listen to her, like NOM in OR, I can't imagine it provoking a stay at this point, That horse has left the barn.

  • 30. dann  |  June 11, 2014 at 5:38 pm

    I read the article that you include and I don't get a bad feeling at all. If they do allow her to intervene ( I don't think they will because of lack of timeliness even though within 30 days, the Bruce Hanes decision and just plain frivolous at this point ) I don't believe a "stay" will be implemented. We'll have to wait and see I guess.

  • 31. Dann  |  June 11, 2014 at 8:32 pm

    *a stay will NOT be implemented

  • 32. Japrisot  |  June 11, 2014 at 10:36 pm

    I am happy to tell you about First Amendment law, but I cannot take the time to read plaintiffs' request. Any way to narrow it down to a particular passage or issue?

  • 33. ebohlman  |  June 11, 2014 at 10:53 pm

    Crime fighter Mike Baltimore by day, porn star Randy Mac by night. Or is it the other way around?

  • 34. SeattleRobin  |  June 11, 2014 at 10:57 pm

    Hmmm…probably not very well. 😉

    The plaintiffs spend a lot of time talking about how the Ninth created a new category of speech, which they can't do, and that basically there is no distinction between treatment and speech in this case because it's talking therapy, which automatically makes it protected speech. I'm not sure Im summarizing this accurately.

    There was also a section arguing that free speech always gets at least heightened scrutiny, but usually strict scrutiny, yet the Ninth drew conclusions using rational basis. Come to think of it, that may have been the part whe they were saying the Ninth was just making stuff up by using a unique-to-them continuum of types of protected speech.

    There were also quite a few mischaracterizations of what the Ninth did and didn't say about the logical understanding and application of the law.

  • 35. ebohlman  |  June 11, 2014 at 10:57 pm

    :Posters at DKOS have been reporting that Van Hollen has been communicating in secret with the department of health and/or other state agencies and is claiming that those communications are subject to attorney-client privilege, which is almost certainly incorrect under Wisconsin's public-records laws. Curiouser and curiouser.

  • 36. Japrisot  |  June 11, 2014 at 11:44 pm

    I am not entirely familiar with the factual history and procedural posture of this case, but from what I have read in news accounts I imagine the arguments go something like this.

    Plaintiffs: the State passed a law prohibiting speech by a therapist when the therapist treats a minor; the prohibition is based on the content of the speech; all content-based restrictions are subject to strict scrutiny, requiring the state to show a compelling interest and that the law is the least restrictive means of accomplishing the interest; the State cannot do it so we win.

    Defendants: California passed a law banning the use of reparative therapy because it believes the practice is harmful; although reparative therapy is implemented with speech, it is not communicative speech, but conduct; the government may regulate conduct, even expressive conduct, if it has an important interest unrelated to the suppression of the expressed message; here, California has an interest in protecting children from a potentially damaging practice; therefore, the law is constitutional.

    The plaintiffs are probably saying that the Ninth Circuit erred when it found that reparative therapy is conduct (rational basis review), rather than expressive conduct (intermediate scrutiny), or pure speech (heightened scrutiny). They are probably also saying that the particular manner in which the Ninth Circuit came to this conclusion conflicts with other circuits because this is a trigger for Supreme Court review.

  • 37. Mike_Baltimore  |  June 12, 2014 at 12:05 am

    On Wednesday, I heard that the US DoJ was in contact with the Governor and AG of Wisconsin. DoJ rarely confirms or denies such contact, and Wisconsin's comments about the contact is that any communication is protected by "attorney/client privilege". (No word on who WI considers is the attorney, and who it considers is the client.)

    Sounds like Van Hollen isn't very good at his job, and his PR people are not much better.

  • 38. Deeelaaach  |  June 12, 2014 at 3:23 am

    Deeelaaach was available, so as Rik_SD says, I'm official (also).

  • 39. Sagesse  |  June 12, 2014 at 3:46 am

    The Mormon Church is becoming more accepting… or not.

    Two Activists in Mormon Church Threatened With Excommunication [New York Times]
    http://www.nytimes.com/2014/06/12/us/two-activist

  • 40. JayJonson  |  June 12, 2014 at 6:47 am

    Another factor in the case is that the law regulates conduct by licensed professionals and that the penalties are imposed by professional societies. The law does not prohibit reparative therapy by religious counselors, etc., so it is not regulating religious expression or speech.

  • 41. Marriage Equality Round-U&hellip  |  June 12, 2014 at 8:00 am

    […] USA, California: The US Supreme Court may take up the California ban on conversion therapy for gay youth. full story […]

  • 42. SeattleRobin  |  June 12, 2014 at 9:05 am

    Yep, Japrisot, that's pretty much it. The last part you wrote was helpful for understanding what situations call for which level of scrutiny.

    Based on what you know, how do you think talking therapy will be viewed, as protected speech or as treatment/conduct?

    The other big sticking point is whether the law is too vague and too broad. The Ninth interpreted it narrowly, to only prohibit engaging in attempt to change orientation. But the plaintiffs kept writing throughout like ANY DISCUSSION of conversion therapy is prohibited, not just actively engaging in the therapy.

  • 43. Japrisot  |  June 12, 2014 at 12:05 pm

    I think that if the case is taken up it will be to clarify a point of law in the Ninth Circuit's opinion or to clarify the scope of law's application. Plaintiffs will have a difficult time claiming, on the one hand, that reparative therapy is a valid practice (which, like any other therapy, would bring it within the ambit of the APA and state regulatory authority) while, on the other hand, claiming that it is speech that enjoys first amendment protection. If that were the case, state authority to regulate any talk therapy would be severely undermined because it would shift the ground from therapy as a verbal act to therapy as protectable expression. This is like having your cake and eating it too.

    The questions of vagueness and overbreadth relate to the restrictiveness of the government's actions. For cases requiring strict scrutiny, the government must choose the least restrictive means necessary to fulfill its compelling interest. For intermediate/heightened scrutiny, the government interest has to be substantial and the law has to be narrowly tailored to meet that interest. The plaintiffs are probably saying that even if the court accepts that a lower standard of scrutiny should apply, the law is not narrowly tailored enough to survive. In other words, it is unnecessarily sweeping in too much activity. (This is why they want to claim that law bans all discussion of the topic.) I don't think this argument will work either. If the state's interest is in protecting children from a dangerous practice that takes place in a therapist's office, then banning the practice by therapists in their offices makes sense.

    As an advocate, I would also be suspicious of therapist plaintiffs who are trying to vindicate their rights as opposed to the rights of their patients. As far as I can tell, any minor can still go to a therapist's office, ask for reparative treatment, and be referred to a religious counselor. I don't see this as an unconstitutional restriction on their speech.

  • 44. SeattleRobin  |  June 12, 2014 at 10:45 pm

    Thanks for your insight!

    On that last part, the plaintiffs do emphasize this as a right of patients, not just their right as practitioners. They repeatedly mention that seeking this is at the behest of the minor patients, and frequently use the phrase "unwanted same sex attraction" in order to support their argument that this is a legit therapy that people want. (Of course, how much say in the matter minors have when their parents tell them this is what they are going to do is never mentioned.)

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