Usually the US Supreme Court’s refusal to review a lower court decision puts an end to the case, but Liberty Counsel, a right-wing religious group that represents psychologists in New Jersey who want to provide conversion therapy to “change” minors from gay to straight, has seized on an opening created by a high court decision last June to revive their constitutional claims. On February 11, the organization petitioned the Supreme Court to effectively reopen the case.
Then-Governor Chris Christie signed the measure into law on August 19, 2013. Liberty Counsel promptly filed suit on behalf of two psychologists and their patients, as well as the National Association for Research and Therapy of Homosexuality (NARTH), and the American Association of Christian Counselors, claiming that the measure violated the constitutional rights of plaintiffs. The work of NARTH and similar organizations has been widely and thoroughly discredited by leading mental health professional groups.
In the original case, District Judge Freda L. Wolfson granted the state’s motion to dismiss Liberty Counsel’s case, finding no constitutional violation. The plaintiffs fared no better before the Third Circuit Court of Appeals, based in Philadelphia, which upheld Wolfson’s ruling in September 2014.
Wolfson found the measure to be a regulation of professional conduct, only incidentally affecting speech. As such, she held that the challenge should be rejected as long as the Legislature had a rational basis for enacting the law. Looking to the legislative history on the law’s enactment, she found that the evidence about the inefficacy and harm of such therapy was sufficient to meet the test.
On appeal, the three-judge panel disagreed with Wolfson to the extent of finding that the ban as applied to “talk therapy” is a content-based regulation of speech, not just a regulation of conduct with an incidental effect on speech. But the appeals court unanimously rejected the plaintiffs’ argument that the statute should be subject to strict scrutiny, under which it would be presumed unconstitutional unless New Jersey could prove that it was narrowly tailored to achieve a compelling state interest.
Instead, wrote Circuit Judge D. Brooks Smith for the panel, the speech involved in providing conversion therapy is “professional speech,” subject to state regulation. As such, the court ruled, the state could prevail under a less demanding heightened scrutiny analysis by showing that the ban substantially advanced an important state interest, and that the legislative record was sufficient to uphold the law.
Liberty Counsel petitioned the Supreme Court for review, but was denied in May 2015. The high court also denied a petition to review a similar decision by the San Francisco-based Ninth Circuit Court of Appeals, which rejected a challenge to California’s ban on conversion therapy. Judge Wolfson, in fact, relied on that Ninth Circuit ruling in finding that conversion therapy statutes can be upheld based on the traditional state power to regulate the conduct of licensed professionals.
More than a dozen jurisdictions have since passed such bans, and attempts to challenge them in the courts have similarly been unsuccessful. But the Supreme Court may have upset this trend by its ruling on June 26, 2018, in National Institute of Family and Life Advocates (NIFLA) v. Becerra. NIFLA challenged a California law that required licensed pregnancy-related clinics to inform their clients about the availability of publicly-funded family-planning services, including contraception and abortions, and non-licensed facilities to provide notices stating that they were not licensed by the state. The Supreme Court agreed with NIFLA that the statute violated the First Amendment protection for freedom of speech by compelling the plaintiffs to speak the government’s message.
In defending that statute, California relied on the Ninth and Third Circuit conversion therapy decisions. That provoked Justice Clarence Thomas, writing for the 5-4 majority, to reject the idea that “professional speech” in the context of regulated, licensed professions was entitled to any lesser constitutional protection than other speech.
Thomas wrote, “[T]his Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’ This court has ‘been reluctant to mark off new categories of speech for diminished constitutional protection.’”
Thomas cited what he said were the only two circumstances in which the Supreme Court had provided lesser protection to “professional speech”: “First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’ Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.”
At least by implication, then, a majority of the Supreme Court last June found that states passing conversion therapy bans will have to meet a demanding strict scrutiny standard when they are challenged under the First Amendment — unless such a ban really is a regulation of professional conduct with incidental effect on speech. That approach worked in the Ninth Circuit’s consideration of California’s conversion ban, but Thomas’ comments in the NIFLA case suggest this may be a difficult task — though not necessarily impossible.
Following the NIFLA ruling, Liberty Counsel jumped into action to revive its challenge to the New Jersey law. Its argument to the Third Circuit that the NIFLA ruling “abrogated” its decision, however, was unsuccessful. The Third Circuit rejected the motion from Liberty Counsel without a hearing or a written opinion. The circuit also rejected a motion for all of the judges on the circuit bench to hold a rehearing.
In its February 11 petition to the Supreme Court, Liberty Counsel argued that the Third Circuit “abused its discretion” by refusing to take action based on the NIFLA decision. Liberty Counsel argued that the Third Circuit’s reaction is particularly egregious because the Supreme Court not only rejected the reasoning of the conversion therapy case, but also cited and quoted from it while doing so.
Thomas, however, never used the word “abrogate” and his opinion in NIFLA recognizes that there may be circumstances in which state regulation of professional speech may be constitutional. The Ninth Circuit’s reasoning in the California case, focused on the regulation of professional conduct rather than speech, may be such an instance, and the Third Circuit’s case could be reconsidered under such a standard.
Liberty Counsel’s petition, a bit disingenuously, assumes that NIFLA decision means that the New Jersey law is unconstitutional, but all it really means is that the Third Circuit applied too lenient a standard in ruling on the case and should have applied the strict scrutiny standard adopted by the Supreme Court ruling in NIFLA.
Liberty Counsel also contends that the Third Circuit’s refusal to recall its mandate in the conversion therapy case will have harmful rippling effects throughout the nation. It points to the steady progression of new state and local laws enacted in reliance on what it characterizes as “incorrect” decisions by the Third and Ninth Circuits. The consequences, Liberty Counsel asserts, will “chill” the ability of conversion therapy practitioners to offer their “cure” to patients.
Last month, Magistrate Judge Amanda Arnold Sansone relied on the NIFLA decision in her report recommending that a Florida district court issue a preliminary injunction against Tampa’s conversion therapy ban as it applies to practitioners who provide “talk therapy.” A complaint filed in Brooklyn federal court last month by Alliance Defending Freedom, challenging New York City’s ordinance, is devised to raise the same arguments. And it is predictable that either ADF or Liberty Counsel will file suit in an attempt to block the new state law enacted last month in New York.
Liberty Counsel couches its petition as an attempt to have the Supreme Court settle how lower courts should respond when the reasoning of one of their decisions is substantially undermined by the high court, but, at heart, this is an attempt to re-litigate the question of whether conversion therapy practitioners have a First Amendment right to ply their trade free of government restrictions. It is a blatant attempt to get the issue of conversion therapy back before the Supreme Court now that Donald Trump’s appointments have solidified the conservative majority. And, at that, it is a test of science against homophobia and transphobia.