"Justices Reject Colorado Law Banning ‘Conversion Therapy’ for L.G.B.T.Q. Minors."

"Colorado and more than 20 other states restrict therapists from trying to change the gender identity or sexual orientation of L.G.B.T.Q. clients under the age of 18."

The NYT reports.

“Colorado may regard its policy as essential to public health and safety,” Justice Neil M. Gorsuch wrote for himself and seven other justices from across the ideological spectrum. “But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.” 

Only Justice Ketanji Brown Jackson dissented, reading a lengthy summary of her opposition from the bench.

Here's the opinion: Chiles v. Salazar. 

The Times headline needs to be sharpened up. The Court didn't "reject" the whole "law." The opinion says that the therapist, Chiles, "stresses that she provides only talk therapy, employing no physical techniques or medications." And the case returns to the lower court to apply the correct standard — strict scrutiny.

Jackson's idea:

"The majority finds, at bottom, that Colorado likely cannot legislate to protect the children of its State if, by doing so, it happens to keep state-licensed healthcare providers from saying what they want to say to minors. And the majority’s holding means, in effect, that just because Chiles is a talk therapist—and not, say, a surgeon—a State can be prevented from incidentally imposing reasonable restrictions on the treatments she provides. Our precedents do not compel this conclusion. In fact, [National Institute of Family and Life Advocates v. Becerra, 585 U. S. 755, 767–769 (2018)] draws a different line, and the correct course of action here is to hold it: Speech uttered for purposes of providing medical treatment may be restricted incidentally when the State reasonably regulates the speaker’s provision of medical treatments to patients. Id., at 769–770. To do anything else opens a dangerous can of worms. It threatens to impair States’ ability to regulate the provision of medical care in any respect. It extends the Constitution into uncharted territory in an utterly irrational fashion. And it ultimately risks grave harm to Americans’ health and wellbeing."

MORE: From Gorsuch's opinion (which was joined by everyone except Sotomayor and Jackson):

Not long ago, many medical experts and organizations, including the American Psychiatric Association, considered homosexuality a mental disorder.... On the view Colorado and the dissent advance, a law adopted during that era prohibiting counselors from engaging in the “substandard care” of affirming their clients’ homosexuality would have been subject to only rational-basis or intermediate-scrutiny review—and likely upheld. Today, tomorrow, and forever, too, any professional speech that deviates from “current beliefs about the safety and efficacy of various medical treatments” could be silenced with relative ease. It is a consequence Colorado freely acknowledges. And one the dissent embraces. So what if that kind of reflexive deference to currently prevailing professional views may not always end well? Cf. Buck v. Bell, 274 U. S. 200, 205–207 (1927). 

Fortunately, that is not the world the First Amendment envisions for us. Licensed professionals “have a host of good-faith disagreements” about the “prudence” and “ethics” of various practices in their fields. NIFLA, 585 U. S., at 772. Medical consensus, too, is not static; it evolves and always has. A prevailing standard of care may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow. Far from a test of professional consensus, the First Amendment rests instead on a simple truth: “[T]he people lose” whenever the government transforms prevailing opinion into enforced conformity. Ibid.  

We do not doubt that the question “how best to help minors” struggling with issues of gender identity or sexual orientation is presently a subject of “fierce public debate.”... But Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.....

ALSO: Justice Gorsuch cited Buck v. Bell, as you can see in that long quote. Back at the time of the oral argument, I called attention to Justice Alito's use of Buck v. Bell:

"The medical consensus is usually reasonable and important. But have there been times when it has been politicized or influenced by ideology?"

Said Justice Alito in yesterday's oral argument in Chiles v. Salazar. He was confronting the lawyer defending Colorado's law prohibiting licensed therapy treatments aimed at changing a minor's sexual orientation or gender identity. The lawyer responds:

MS. STEVENSON: We have no facts about that in this case, but I wouldn’t disagree that it’s possible.

JUSTICE ALITO: Isn’t it a fact that it’s happened in the past?... “Three generations of idiots are enough”?

Those few quoted words invoke an infamous case, Buck v. Bell, where a state had seen fit to sterilize  a "feeble minded woman" without her consent. The Supreme Court did not object to the state's approach to medical science.

MS. STEVENSON: That’s certainly a concern. If there were evidence in the record that a standard of care wasn’t based on patient safety, that would be highly relevant.

Justice Alito didn't ask about whether the motive was correct — whether medical scientists were sincerely pursuing patient safety. He was concerned with whether the goal was pursued in a truly scientific manner and was not skewed by politics and ideology. 

JUSTICE ALITO: Isn’t that a reason to apply First Amendment scrutiny when what’s being regulated is pure speech, rather than just accepting the medical standard of care and medical consensus as the end of the matter, allowing rational basis review where anything goes?

The lawyer must resist this idea that the therapy is "pure speech." The idea she uses is that these are "words used to deliver medical treatment" (which are different from words expressing the opinion that conversion therapy is good (or bad)):

MS. STEVENSON: No, Your Honor. When we’re talking about words used to deliver medical treatment, the issues are the same whether it’s words or medical practices that don’t involve words. This statute, for example, doesn’t stop anyone from sharing opinions about conversion therapy or how the consensus on it was reached. In this case, there’s no evidence of any motive by the Colorado legislature or any medical association to reach this conclusion based on anything other than protecting minors and a decades-long record of research.

Justice Alito returns to the idea that medical consensus can be wrong and the classic example of eugenics, but the lawyer for Colorado declines to engage:

JUSTICE ALITO: Was there a time when many medical professionals thought certain people should not be permitted to procreate because they had low IQs?

MS. STEVENSON: I don’t know that, but I’ll accept the premise.

JUSTICE ALITO: Was there a time when many medical professionals thought every child born with Down syndrome should be immediately put in an institution?

MS. STEVENSON: I don’t know that, Your Honor.

JUSTICE ALITO: Thank you.