The Supreme Court has declined to hear an appeal on two cases involving California’s ban on ex-gay therapy for minors. Does this mean the end of the line for ex-gay therapy groups, or will they keep trying?
While Monday’s Hobby Lobby decision has grabbed the headlines, the Supreme Court also handed down a number of other important decisions, among them its declining to take up an appeal against California’s ban on ex-gay therapy for minors known as SB 1172.
California passed that law in 2012 and the ban is very narrow in that it only prohibits licensed therapists from attempting conversion and ex-gay therapy on minors. The law notes the state government’s interest is safeguarding minors from conversion attempts because of the significant risks they pose and the lack of scientific evidence to say conversion is even a reputable treatment, let alone desirable. It cites that no major medical or psychological body supports ex-gay therapy for treating sexual orientation anxiety and the proper treatment is to affirm LGB identity rather than to attempt to “treat” homosexuality like it is a disease.
Nevertheless, two legal challenges (Pickup v. Brown and Welch v. Brown) were brought by the organizations Liberty Counsel and the National Association for the Research and Treatment of Homosexuality (NARTH). While separate and representing different people, the challenges are essentially the same and can be summed up: the plaintiffs contended that the ban violates a therapist’s right to free speech, violates parental rights and violates the rights of children that want to seek help for sexual orientation distress. A key argument in these challenges was that, because not much research has been done on gay conversion therapy, there is no scientific basis on which to state that these practices are definitely harmful. Obviously, this works the other way — that there’s no sound research to say they aren’t, either. Yet the groups wanted to bring in enough doubt to say that California State’s ban was an undue burden on plaintiffs’ First Amendment rights.
The challenges lost in the district courts and then, when combined by the 9th Circuit, lost again. The three-member panel of 9th Circuit justices was particularly unimpressed with the First Amendment claims: “The First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone,” stated the unanimous opinion. In addition, the 9th Circuit found that the California Legislature was well within the bounds of its power to pass the law, stating, “California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful.”
Flash forward to today and, by refusing to take up this case, the Supreme Court appears to have given a clear signal that other challenges to bans on ex-gay therapy for minors will also be thrown out. The New Jersey ex-gay therapy on minors ban, which mirrors the California one, has survived a district court challenge and, excluding any extraordinary intervention from the 3rd Circuit, it appears that the ban will remain intact.
The National Center for Lesbian Rights, which helped in writing the California law, said it was pleased with the Supreme Court’s decision to let the 9th Circuit ruling stand:
“This life-saving law has cleared the final hurdle and will now protect California youth from harmful practices that have been rejected by all leading medical and mental health organizations,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “This important legislation will permanently improve the health and well-being of California’s most vulnerable LGBT young people.”
There is now a national campaign to have every state pass an ex-gay therapy on minors ban. This year New York attempted such a law but it was allowed to die in the Senate. The Supreme Court’s decision may embolden lawmakers to try again next year, as well as lawmakers in states like Illinois and Pennsylvania where bans were discussed by legislators outside of lawmaking chambers.
However, Liberty Counsel’s Matt Staver issued a statement on Monday attempting to spin this as a loss for children’s rights:
“I am deeply saddened for the families we represent and for the thousands of children that our professional clients counsel, many of whom developed these unwanted attractions because of abuse of a pedophile. The minors we represent do not want to act on same-sex attractions, nor do they want to engage in such behavior. They are greatly benefiting from this counseling. Their grades have gone up, their self-esteem has improved, and their relationships at home are much improved. These children have been victimized twice – first by the likes of Jerry Sandusky, and second by legislators and judges who have essentially barged into their private therapy rooms and told them that they must pursue their unwanted and dangerous same-sex sexual attractions and behavior.”
It’s worth just issuing a correction here: though Staver may continue to claim the contrary, there is no sound scientific basis for his assertion that homosexuality is a result of sexual abuse during childhood. He is attempting to conflate child abuse with homosexuality, and his reasons for doing so appear entirely self-serving and prejudiced. Regardless, the Liberty Counsel and the Pacific Justice Institute have both indicated that they will look at their legal options going forward, and appear ready to continue challenging other states that dare to enact these protective measures.
Clearly the fight isn’t over yet, but with the 9th Circuit’s ruling in place supporters of ex-gay therapy for minors will find it even more difficult to prevail — and that’s a good thing.
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