SCOTUS Decides Major Free Speech Case and Upholds Christian Therapists’ Constitutional Rights

By Trevor Esper

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In Chiles v. Salazar, the Supreme Court recently held that Colorado’s law banning “conversion therapy” unconstitutionally regulates speech based on viewpoint as applied to therapists that engage in talk therapy. Justice Gorsuch’s opinion explains that the lower courts erred by failing to apply strict scrutiny. This challenge was only on the talk therapy aspect of the bill, not the other parts of the bill that banned physical methods like electroshock therapy.  

Kaley Chiles is a mental health therapist for children in Colorado who struggle with gender and sexual confusion. When her patients express a desire to feel comfortable in their God-given bodies, she works with them to accomplish such goals. However, in 2019, Colorado passed a statute that banned conversion therapy (which includes counselling patients towards a Christian understanding of the human person) while allowing and even encouraging counselors to affirm disordered behaviors and beliefs on sexuality. The law is clearly a case of viewpoint discrimination aimed at allowing counselors to only affirm the state’s preferred pro-transgender view or risk having their licenses revoked. The two lower courts ruled that this was not a law prohibiting speech but a regulation of professional conduct; the lower courts claimed that the speech regulation was incidental to the professional conduct being regulated. Because of this, they applied the lowest level of scrutiny and rejected Ms. Chiles’ request for a preliminary injunction.  

At the Supreme Court, the majority held that classifying a law as professional conduct regulation cannot avoid strict scrutiny when the law in fact regulates speech and discriminates on the basis of viewpoint. Citing the case US. v. Alvarez, the Court reiterated that there are only a few historical categories of expression that are not protected by the First Amendment and that this type of professional conduct did not fall within an unprotected category. The Court then reaffirmed National Institute of Family and Life Advocates v. Becerra, confirming that the First Amendment still protects people with professional licenses.  

In this case, the Court found that Colorado’s law constituted viewpoint discrimination. The law allows therapists to affirm a patient's gender dysphoria or sexual confusion but prevents them from approaching these issues in other ways that contradict the state-mandated viewpoint adopted in Colorado. As the majority puts it, “her speech does not become conduct just because a government says so or because it may be described as a treatment or therapeutic modality.” According to the Court, just because Ms. Chiles’ professional conduct falls under that of a licensed healthcare professional, this does not eliminate all First Amendment protections. There is nothing unlawful about trying to help people through talk therapy in the way the counselor and patient deem appropriate. The Court also rejected Colorado's argument that this type of restriction is part of a traditional approach to licensing, as licenses for therapists did not even start until the late 1970s. Colorado also claimed that conversion therapy is necessarily harmful and that the state has an epidemic of mental health issues in teens. As such, it had a supposed compelling interest in passing its law. The Court rejected this as an insufficient reason to engage in viewpoint-based discrimination concerning speech.  

Justice Kagan wrote a concurrence, which Justice Sotomayor joined. In this concurring opinion, she stated that if Colorado's law was content-based but viewpoint-neutral, the question would be more difficult to answer. For example, a law that simply prohibited therapists from talking about sexual identity issues would be content-based but viewpoint neutral, as it would prohibit all viewpoints on a certain issue rather than preferring one viewpoint and prohibiting another. Justice Kagan reiterates that the government must nearly always abstain from adopting viewpoint-based restrictions and agreed with the majority that strict scrutiny always applies in such cases. However, she said that if the law was content-based and viewpoint-neutral, strict scrutiny would still apply, but the outcome might be different because precedent in those types of cases allows for more nuance. She cited a recent case where the Court declined to apply strict scrutiny in a trademark dispute concerning a law that was content-based but viewpoint-neutral, as there was no “significant danger of idea or viewpoint” discrimination, meaning the government was not favoring one side over the other but instead prohibiting all speech related to a certain issue.  

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Justice Jackson wrote a dissent that completely rejected the majority opinion, claiming that the Colorado law constitutes an incidental speech infringement because it is specifically related to the permissibility of certain medical practices. Her dissent stated adamantly that the courts should defer to legislative judgments concerning public health and not get involved.  

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The simple result of this case is that state governments are not free to infringe on the right to free speech by mandating that therapists only speak according to the state-sponsored viewpoint.