I hesitated commenting on this given the source- WND – but decided I would because it is a perfect example of the growing threat to our constitutional democracy by religious zealots who seek to impose a theocracy upon America. Sometimes this takes the form of claiming that our Founding Fathers wanted a Christian domination from the start, and at others, it grows from a desire to twist and abuse the Constitution like this example.
Two appeals courts have disagreed on how to define “speech,” setting up a likely challenge to the U.S. Supreme Court over “change therapy” counseling, which aims to relieve unwanted same-sex attractions.
It’s illegal now in California and New Jersey for minors to receive such therapy, but for different reasons, warranting intervention by the highest court, argues Liberty Counsel.
California was the first state to make such therapy illegal for minors. The 9th U.S. Circuit Court of Appeals concluded the therapy, which mostly involves talking, is “conduct” rather than speech.
But when New Jersey made the therapy illegal for minors, the 3rd Circuit U.S. Court of Appeals determined it is speech but concluded it is not protected by the First Amendment.
“The laws banning counseling in this area are simply unconstitutional violations of free speech,” asserted Mat Staver, chairman of Liberty Counsel.
“While we are disappointed in the overall decision to uphold the [New Jersey] law, we are glad that the 3rd Circuit finally recognized that the counseling that takes place with these minors is entitled to First Amendment protection,” he said.
Actually, it isn’t just religious zealots. Many of folks have, in a moment of self-righteous indignation claim that whatever the heck they just said or want to say, is protected as “free speech.”
But WND’s abuse of the Constitution is more insidious, as the only ability by religious zealots to harm gay, lesbian, bi, and trans persons is by claiming whatever they say is protected speech. So, the question, “What is speech” is a crucial one, which they want to be as muddy and ambiguous as possible.
Towards that end, WND pretends that two courts disagree on how to define speech, when in reality that isn’t the case at all. Will conversion therapy bans end up before the US Supreme Court? Maybe, and if it does, proponents of religious conversion therapy are going to hope they can frame the topic as a free speech issue.
The facts however don’t cooperate with that desire. Forcing children into conversion therapy has been banned in two states, California and New Jersey. These bans do not stop adults from seeking counseling, and do not impact religious counseling. They only impede parents from forcing this therapy onto children. Conversion therapy is a highly controversial form of therapy, not because of the form it takes (often talk therapy), but because there is no scientific evidence to suggest it is in any way successful, and in fact there is plenty of evidence that it is harmful to children. WND wants to make it appear that the 9th circuit and the 3rd Circuit are at odds, but in fact they are not, even if their decisions are based on different points. The ABA Journal describes the 9th Circuit ruling this way:
A federal appeals court has upheld a California law that bars therapists from providing “conversion therapy”—which seeks to change sexual orientation from gay to heterosexual—for patients under age 18.
The San Francisco-based 9th U.S. Circuit Court of Appeals said the ban does not violate the free speech or associational rights of therapists and patients. Nor does the law violate the fundamental rights of parents to make important medical decisions for children, the court said.
“Under its police power,” the court said, “California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful, and … the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech. … We further conclude that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone.”
And CourtHouse News summarizes the 3rd Circuit ruling this way:
The 3rd Circuit affirmed that decision in a 74-page opinion Thursday, finding that New Jersey unquestionably has the right to regulate professional practices that it believes pose serious health risks to its citizens.
“The legislative record demonstrates that over the last few decades a number of well-known, reputable professional and scientific organizations have publicly condemned the practice of SOCE, expressing serious concerns about its potential to inflict harm,” Judge Brooks Smith wrote for the three-judge panel.
In other words, the two courts agree more than anything else. The only people who are claiming there is a “free speech” argument to be made are by the religious proponents of conversion therapy, and that argument has now lost in two different circuit courts.
This will not be the last we rear of cries for freedom of speech. It is practically the only straw that the religious zealots have to grasp for in their efforts to demonize and harm LGBTQ persons. These two appeals cases help protect vulnerable youth from the danger of conversion therapy, but it won’t be the end of the use of a “free speech” argument by those who seek Christian control of America.
Blogger’s note: a reader asked for a clarification as to what “SOCE” referred to. Here it is- SOCE is sexual orientation change effort.