The Supreme Court issued an ominous ruling for LGBTQ rights on Tuesday, siding with an anti-gay counselor in Colorado that the state's law against conversion "talk therapy" is a regulation on speech and therefore subject to strict scrutiny, ordering a lower court that upheld the law to re-examine it with a much harsher framework. However, liberal justices Sonia Sotomayor and Elena Kagan joined in with the conservatives, surprising some observers.
Slate court-watcher Mark Joseph Stern believes they got it disastrously wrong — but has some speculation about why they ruled the way they did.
"What’s most frustrating about the court’s decision in Chiles v. Salazar — aside from its devastating real-world consequences for LGBTQ+ youth — is its profound hypocrisy masquerading as principle," wrote Stern. "Justice Neil Gorsuch’s majority opinion praises itself for preserving Americans’ 'inalienable right to think and speak freely' by rejecting Colorado’s alleged 'effort to enforce orthodoxy in thought or speech.' But as Justice Ketanji Brown Jackson explained in her lone dissent, the majority really took sides in the culture wars: It affirmed the constitutional rights of anti-LGBTQ+ therapists while continuing to disregard the rights of trans-affirming doctors, abortion providers, and other medical professionals disfavored by this court."
'More ominously, Jackson wrote, the majority 'appears to have made this momentous decision without adequately grappling' with its 'potential long-term and disastrous implications' for all manner of medical regulations, which are suddenly vulnerable to a First Amendment attack." For example, the ruling's logic could even prohibit states from punishing doctors who don't advise against smoking.
Kagan provided some logic in her concurrence, suggesting state anti-conversion therapy laws would be likelier to survive a challenge if they are viewpoint-neutral restrictions on certain topics in doctors' offices. But, Stern argued, that isn't really a workable idea.
"What would such a law actually look like?" he wrote. "Would it bar licensed therapists from any discussion of a minor’s sexual orientation or gender identity — meaning a counselor could neither affirm nor reject their LGBTQ+ identification? If so, why would any state want to do that? Outlawing LGBTQ-affirming therapy would itself hurt children and defeat a key purpose of these laws."
Kagan and Sotomayor's real thinking, Stern suggested, might be strategic. "Maybe Kagan sought to prevent the majority opinion from undermining countless other state laws that restrict speech in the medical context," he wrote, though the concurrence is too "cryptic" to say this for certain. It's also possible, he said, that "Sotomayor and Kagan were only willing to join the majority" if the opinion sent the issue back to lower courts rather than striking down Colorado's law outright, or if it focused on viewpoint discrimination and left content regulation as a workaround.
"This time around, Kagan and Sotomayor may have sought to mitigate the damage rather than take a loss on the chin," he concluded. "But Jackson’s pessimism gives us every reason to fear that her colleagues have crafted a doctrine that lets them impose their own orthodoxy in the name of free expression."
