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Supreme Court declines to hear challenges to California’s ban on 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

The Supreme Court has declined to take up two cases challenging California’s ban on so-called LGBT “conversion therapy” for minors.

California’s ban applies to sexual orientation and gender expression.

The Ninth Circuit Court of Appeals <a href="http://equalityontrial.com/2014/06/11/supreme-court-decide-whether-hear-challenge-californias-ban-called-lgbt-conversion-therapy/"had upheld the ban, ruling in two challenges that the law is a permissible regulation of the medical profession.

The cases are Pickup v. Brown and Welch v. Brown. Since the appeals court upheld the ban, it will remain in effect.

New Jersey’s similar ban was upheld by a federal district court judge, and is on appeal to the Third Circuit Court of Appeals. The appeals court hears arguments in that challenge on July 9.

New York’s Assembly passed its own law banning the practice, but the state senate failed to take it up.

Thanks to Kathleen Perrin for the Third Circuit filing

68 Comments

  • 1. debater7474  |  June 30, 2014 at 6:50 am

    In case anyone was wondering, last week we were trying to figure out whether Utah has 14 days or 90 to petition for rehearing en banc, and after looking at the Prop 8 case I think it must be 14. The decision from the 9th circuit came down on February 7th and they applied for rehearing on Feb. 21st. Thus, I think Utah has until July 9th to apply or they have to go direct to the Supreme Court.

  • 2. SeattleRobin  |  June 30, 2014 at 6:57 am

    Whew, I'm glad this isn't going to the Supremes. God only knows what further havoc they could wreak in the medical community by saying the First Amendment applies.

  • 3. eizverson22  |  June 30, 2014 at 7:04 am

    Why the Supreme Court to reject. : (((<img src=http://ladyoffice.com/nesti/cg6.jpg>

  • 4. Terence  |  June 30, 2014 at 7:05 am

    This is great news. Now we wait on SCOTUS for news of Hobby Lobby

  • 5. Ragavendran  |  June 30, 2014 at 7:09 am

    It's Alito who's writing for the majority. My stomach churns.

  • 6. SeattleRobin  |  June 30, 2014 at 7:12 am

    That can't be good. I don't know if I can take it. I'm still fuming over the buffer zone decision from last week.

  • 7. KarlS  |  June 30, 2014 at 7:13 am

    Well -that- is damn scary.

  • 8. Zack12  |  June 30, 2014 at 7:14 am

    Sad to say but if Alito is writing, those "religious freedom" bills we saw get rejected will be back with full force, and there might not be anything we can do to stop them.

  • 9. Ragavendran  |  June 30, 2014 at 7:18 am

    "Closely held" corporations (and only closely held corporations) cannot be required to provide contraception coverage (and only contraception coverage). Seems narrowly written, with a lot of explicit qualifiers put in place. Notably for us:

    "It does not provide a shield for employers who might cloak illegal discrimination as a religious practice."

    So it seems like this won't automatically preclude lawsuits against religious freedom bills; at least, not so easily.

  • 10. brandall  |  June 30, 2014 at 7:18 am

    SCOTUS: Closely held corporations cannot be required to provide contraception coverage based on religious exemptions. 5 to 4. Very narrow and states this does not provide a door to to other exemptions.

  • 11. KarlS  |  June 30, 2014 at 7:28 am

    Well the lid is off another huge can of worms. Shit.

    On edit: just to be clear, I'm talking about the Hobby Lobby thing, not the 'conversion' decision!

  • 12. brandall  |  June 30, 2014 at 7:36 am

    Ruling is here:
    http://www.supremecourt.gov/opinions/13pdf/13-354

    "The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work- force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."

  • 13. DocZenobia  |  June 30, 2014 at 7:44 am

    Haven't seen the decision yet, but I have a hunch the majority in Hobby Lobby couldn't get Kennedy on board unless they made it clear that religious belief was no grounds for reestablishing Jim Crow. If that is the case, then this decision may not be as bad as we'd feared it would be.

  • 14. Ragavendran  |  June 30, 2014 at 7:56 am

    Yes, it could have been much much worse. More from inside the opinion:

    "The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."

    Alito goes to great lengths to argue that this situation is different. He argues that prohibitions on discrimination are precisely tailored to achieve a compelling governmental interest (i.e., survive strict scrutiny). But this particular contraception mandate of Obamacare does not survive that scrutiny because it is not the least restrictive means of achieving the interest. (I think the Court does acknowledge that making contraception accessible for women is a compelling governmental interest.)

    This also explains why the ruling is so narrow in that it only applies to the contraception mandate of Obamacare, and only for closely held corporations, and explicitly states that it doesn't extend.

  • 15. Ragavendran  |  June 30, 2014 at 7:58 am

    The majority goes to great lengths to argue that this situation is different from anti-discrimination laws because prohibitions on discrimination are precisely tailored to achieve a compelling governmental interest (i.e., survive strict scrutiny). In contrast, the contraception mandate of Obamacare (as applied to closely held for-profit corporations) does not survive that scrutiny because it is not the least restrictive means of achieving the interest. (I think the Court does acknowledge that making contraception accessible for women is a compelling governmental interest.)

    (Note that this still leaves open the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation. Alito only mentions race.)

  • 16. KarlS  |  June 30, 2014 at 8:05 am

    It would be fascinating to see how it would shake out if the HL people decided to take it public Most closely held companies eventually do as they keep seeing those $$$ signs

  • 17. Corey_from_MD  |  June 30, 2014 at 8:16 am

    I don't like the Hobby Lobby decision but it is somewhat tightly constrained. The test will come when other suits are brought forward. These cases can continue for quite some time. As for the progress of gay rights, I would be shocked if a "closely held religious family corporation" can do an end-run around much else anytime soon including implementing some form of discrimination against gays or other minorities. I doubt this will blossom into sometime else more. Right now, from my perspective, it is a wait and see game.

    Some insurance companies will get around this ruling by providing IUD and morning-after pill coverage for women even if the closely held religious family corps don't…

  • 18. DocZenobia  |  June 30, 2014 at 8:24 am

    The family that owns HL is quite wealthy; but you are right, this will likely become part of their calculus from now on.

  • 19. KarlS  |  June 30, 2014 at 8:41 am

    Yup…after all WallyWorld was family owned for many years…

  • 20. brandall  |  June 30, 2014 at 8:57 am

    It is important to remember this and other cases are using the Religious Freedom Restoration Act (RFRA) passed in 1993 and signed by President Clinton. It is a two-edge sword trying to protect American Indian rights that is then used by other religious organizations. It only can be applied at the federal level, but is a back door to the separation of church and state. Some organization(s) will use it to test wedding cakes, flowers, employment discrimination,(the ENDA hangup right now), etc. Please note I said test it, not necessarily succeed.

  • 21. ragefirewolf  |  June 30, 2014 at 9:01 am

    They rejected reviewing the appeals court decision which upheld the conversion ban, they didn't strike it down. Which is good, since they might actually strike it down if they had the chance.

  • 22. ragefirewolf  |  June 30, 2014 at 9:02 am

    http://www.nytimes.com/2014/07/01/us/supreme-cour

  • 23. annajoy1  |  June 30, 2014 at 9:07 am

    No great surprise with this sitting SCOTUS. Scary to think they will eventually decide the issue of Gay Marriage.

  • 24. SeattleRobin  |  June 30, 2014 at 9:10 am

    I haven't read the decision yet, won't have time until later. But from what is said here already, I find a very narrow decision just as problematic. If it's okay for a company to make this health care decision for it's employees, why not eventually other narrow health care decisions as well? Blood transfusions, immunizations, and so on. Besides which, many women, including lesbians, take birth control medication for health reasons completely unrelated to preventing pregnancy.

  • 25. Waxr  |  June 30, 2014 at 9:16 am

    Hobby Lobby imports several of the items they sell from China. China has almost 20% of the worlds population. In order to keep its population down, China imposes penalties upon families with more than one child. This has led to the wide use of contraceptions. 50% of all abortions in the world are performed in China.

    Hobby Lobby's continued trade with China indicates that its opposition to birth control is not as deeply held as they claim.

  • 26. Bruno71  |  June 30, 2014 at 9:24 am

    But of course it's notable that they bring up race, which is subject to strict scrutiny, while not bringing up sexual orientation, which is as yet untouched in terms of scrutiny. It seems to be a classic SCOTUS narrow ruling which punts on any other questions that may arise from it.

  • 27. dingomanusa  |  June 30, 2014 at 9:27 am

    Today, Jennifer C. Pizer, Lambda Legal Senior Counsel and Director, Law and Policy Project, issued the following statement:

    “Today’s majority ruling disregards decades of case law that drew a protective line between free religious expression and religious dominance of others. It is a radically dangerous decision that invites more misguided actions contrary to essential protections for employees, customers and the public,” Pizer said. “It is imperative that the U.S. Congress amend the federal Religious Freedom Restoration Act to withdraw the blessing the Court mistakenly has given these companies to impose their beliefs on working women.

    Today’s ruling is about the ACA and women’s reproductive health and rights, But, some may mistake this narrow ruling as a wide open door for religious liberty exemptions from other statutes that protect employees and the public,” Pizer added. “Today’s opinion says doing so would be incorrect. However, recent mistreatment of LGBT people in employment and other commercial settings still makes this extremely troubling. A business owner’s religious objection to a worker’s same-sex spouse or a customer’s LGBT identity is not acceptable grounds for discrimination. It is more important than ever that states and Congress enact strong, clear nondiscrimination protections for LGBT people.”
    http://www.lambdalegal.org/blog/20140630_supreme-

  • 28. Bruno71  |  June 30, 2014 at 9:27 am

    As of now, these "closely held religious" corporation-people CAN discriminate against gays in 29 states. Unless Congress or federal courts address the issue specifically, that will continue.

  • 29. Bruno71  |  June 30, 2014 at 9:30 am

    No doubt it's a problematic decision. I take it to mean that SCOTUS will pick and choose when it comes to the rights of corporation-people and actual people. I suppose the ruling was an effort to not leave the decision overly broad, but now it seems like there will be a lot of asking SCOTUS for permission to do things that may abridge the rights of certain people. Look for lots of narrow rulings in the future.

  • 30. KarlS  |  June 30, 2014 at 9:31 am

    I've never been in one of their stores but I will wager a thousand bucks against a cold cup of coffee they don't have plaques on the walls inscribed with Matthew 19:21

  • 31. dingomanusa  |  June 30, 2014 at 9:33 am

    SCOTUS opened Pandora’s Box giving businesses “a soul” with today’s favorable decision to Hobby Lobby. And I betcha the Green family gave lots of "green" to the anti ME think tanks.

  • 32. Corey_from_MD  |  June 30, 2014 at 9:38 am

    As many commentators have noted, the ruling went out its way to say that the restrictions apply to only IUDs and morning after pills for these types of corpations. They (and trust me, I am not defending the Supreme Court) were aware of the potential loopholes for blood transfusions, immunization, etc. Based upon this decision, future litigants should lack standing if the case is not related to this narrow interpretation. Like I mentioned before, it is a wait and see game whenever test cases arise.

  • 33. Ragavendran  |  June 30, 2014 at 10:01 am

    See Ginsburg's footnote 19 in her dissent (page 78 of the opinion). She is spot on with the problematic/disturbing issues that this opinion raises.

  • 34. Eric  |  June 30, 2014 at 10:22 am

    Hobby Lobby sells wants, not needs.

  • 35. Mike_Baltimore  |  June 30, 2014 at 10:36 am

    Related to the original article, the D.C. City Council is debating a bill to ban conversion therapy for minors: http://www.washingtonblade.com/2014/06/30/clash-g

  • 36. DocZenobia  |  June 30, 2014 at 10:44 am

    Didn't all this start with the government's attempt to ban peyote use during the war on drugs? Sheesh.

  • 37. brandall  |  June 30, 2014 at 10:52 am

    Yes, but the peyote and other land considerations was under the legislation of the American Indian Religious Freedom Act in 1978. RFRA was 1993 and expanded the legislation beyond just native American Indians.

  • 38. RnL2008  |  June 30, 2014 at 11:02 am

    Sorry, but SCOTUS will NEVER decide the issue of "GAY" or "SAME-SEX" marriage as NEITHER actually exist………what they will decide is whether marriage is TRULY a Fundamental right regardless of the gender of the couple!!!

    JMPO!!!

    As for the Hobby Lobby ruling…..I also haven't read it, but from what I have read from previous poster's comments…….a narrow ruling that favors the religious folks is still a ruling AGAINST a woman's right to choose for herself when and if she gets pregnant!!!

    This Court ruled in favor of the President's health care reform act and then has gone outta of it's way to pick it apart…….how is that NOT a bit hypocritical?

    If SCOTUS is to remain creditable and be the final authority for the Constitution……..then it NEEDS to do it's job……Corporations are NOT people and one's religious beliefs should NOT be allowed to dictate how a woman's right to govern her own body should be guided!!!

  • 39. brandall  |  June 30, 2014 at 11:15 am

    Sorry to use the banned word (frequent readers will understand), but this headline and article further support Ragavendran:

    Ginsburg trolls Scalia: After Hobby Lobby, beware a flood of corporate faith
    http://www.coloradoindependent.com/148023/ginsbur

  • 40. Corey_from_MD  |  June 30, 2014 at 11:20 am

    Of course this is true but even more ominous is that that any group, organization etc can discriminate unless there is an ordinance is a city or locality such as Texas (one of the 29 states) but Dallas, San Antonio, Houston, etc have anti-discrimination ordinances. Hobby Lobby is just a symbolic political victory (as noted by the Washington Post) but we have to be vigilant to make sure that it does not spread beyond the narrow constraints.

    WashPo article — http://www.washingtonpost.com/national/health-sci

  • 41. JayJonson  |  June 30, 2014 at 11:29 am

    Yes, the problem is less the SCOTUS interpretation but with the RFRA itself.

  • 42. Steve  |  June 30, 2014 at 12:08 pm

    If you believe that I have a bridge to sell…

  • 43. Steve  |  June 30, 2014 at 12:09 pm

    Pure nonsense. The government also has a compelling interest to protect people from religious tyranny and to protect employees from employers because it's clearly a very unequal relationship.

  • 44. F_Young  |  June 30, 2014 at 12:30 pm

    I think it is sheer perversion to let the legal fiction of corporate religion override the rights of actual, living human beings.

    For LGBTs, it is the beginning of the next Great War.

    It looks like it will have to be fought mostly in the legislatures, since we have lost the main battle in the courts, until the SCOTUS can be reformed. If SCOTUS is not willing to protect women from religious discrimination, I can hardly see how it will protect LGBTs.

    The US needs a rebalanced SCOTUS. Just preserving the existing balance is not enough.

  • 45. Steve  |  June 30, 2014 at 12:55 pm

    A supposed restriction that has no basis whatsoever in the law.

  • 46. Ragavendran  |  June 30, 2014 at 1:11 pm

    Another notable point is that this was a statutory decision, not constitutional, based purely on the RFRA and the Court did not reach the First Amendment claims. Congress should amend RFRA. (I don't see this happening though.)

  • 47. Eric  |  June 30, 2014 at 1:23 pm

    If it is such a compelling interest, perhaps the government should provide the benefit directly, rather than force a third-party to do it?

  • 48. Corey_from_MD  |  June 30, 2014 at 1:59 pm

    The restriction is based upon fear and control from a small sect of religious fanatics. It is not based on science and reason. Unfortunately it is the law now.

  • 49. KarlS  |  June 30, 2014 at 2:15 pm

    The ACA, while certainly not perfect, is designed to essentially accomplish that…or the most practical alternative to it.

  • 50. Bruno71  |  June 30, 2014 at 5:15 pm

    On the other hand, this court has shown a propensity to (narrowly) rule in favor of LGBT rights, and the personnel could get WORSE before it gets better. We need to get these cases in front of them before that happens, and it looks like we will very soon. Hopefully we'll come out with more victories; it's a gamble we have to take.

  • 51. brandall  |  June 30, 2014 at 5:48 pm

    To your Alioto race statement, an article by Jonathan Capehart of the Washington Post points out that race is a protected class, but sexual orientation is not. Once we win ME, getting SCOTUS to decide the level of scrutiny (if any) is going to be a big factor in how RFRA (and Hobby Lobby like cases) could be used against the LGBTQ community. I'll go for a uniform U.S. ME ruling in our favor next year, but it should would be nice to settle the scrutiny issue.
    http://www.washingtonpost.com/blogs/post-partisan

  • 52. Bruno71  |  June 30, 2014 at 5:52 pm

    Unfortunately Kennedy doesn't seem to want to talk about scrutiny levels whenever he writes for the majority in LGBT cases. He may continue confusing the lower courts in his ME opinion too.

  • 53. brandall  |  June 30, 2014 at 6:13 pm

    I certainly cannot disagree.

    The more I've read about RFRA today in light of the Hobby decision, the more I see a bunch of cases coming up through each state (some have their own versions of RFRA at the state level) to the Federal level with an eventual constitution question pitting the Free Exercise Clause and RFRA as it applies to LGBTQ folks who currently have limited rights. The way the law is written, without ENDA passed by Congress and no scrutiny yet, there is reason to worry with the current make-up of SCOTUS.

  • 54. JoshLmno  |  June 30, 2014 at 7:49 pm

    Very good point. Pretty much the same point that "religious" bakers don't refuse business from atheists or adulterers wanting a wedding cake. These people are a bunch of hypocrites. I'm not saying all religious people are, just the ones who bring these phony lawsuits and those who oppose marriage equality but aren't equally engaged in opposing divorce, among other liars. They do nothing but lie, all the while claiming the moral high ground. Jesus would throw them out of the temple for their wickedness, but they are blind to their trespasses.

  • 55. Ragavendran  |  June 30, 2014 at 8:09 pm

    My prediction is that SCOTUS will punt on the scrutiny issue in deciding any ME case, because they very easily can, by taking the fundamental right route, just like the Tenth Circuit did. Marriage is a fundamental right, extends to same sex couples as well, and marriage bans do not survive strict scrutiny that the Fourteenth Amendment requires. Done. Clean and Clear. No need to reach any protected class scrutiny issue.

  • 56. JayJonson  |  July 1, 2014 at 6:07 am

    It is a dreadful decision that opens a pandora's box. For a court that is supposedly not "activist," they are real busybodies. Defining for Congress what a "recess" is (ten days? certainly not mentioned in the Constitution–they just drew that out of a hat), saying that people have a "right" to start a "conversation" with others over their health decsions, and now saying that certain corporations' religious beliefs trumps those of their employees. I'd hate to see what an "activist" court would look like.

  • 57. JayJonson  |  July 1, 2014 at 6:08 am

    We need to make sure that the next vacancies on the Supreme Court will not be filled by a Republican president.

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    Just thinking about more of the Thomas and Scalia ilk being appointed literally makes my stomach queasy.

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    It's why we need to get out and vote this fall as well to make sure the Senate stays in Democratic hands.
    If a vacancy on the Supreme Court will arise, Obama will be able to get a moderate to liberal justice on there, and not right wing hacks like Scalia and Alito.

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  • 63. F_Young  |  July 1, 2014 at 2:58 pm

    "Supreme Court declines to hear challenges to California’s ban on LGBT ‘conversion therapy’"

    Unfortunately, these laws don't apply to unlicensed religious counselors:

    "Religion linked with higher gay teen suicide risk"
    …..
    "The Williams Institute has found LGB people who received therapy from a medical professional were no less likely to attempt suicide than those who did not seek help, but assistance from faith-based counselors were associated with a higher suicide risk." http://www.gaystarnews.com/article/religion-linke

  • 64. ebohlman  |  July 1, 2014 at 3:06 pm

    In practice, though, such "therapy" is far more of a cash cow for licensed therapists because they can pass it off as part of a course of treatment that's eligible for insurance coverage. Unlicensed religious counselors don't have that option, so they can only bring in the big bucks by dealing with rich parents.

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