The Supreme Court released an 8-1 decision on Tuesday, striking down a Colorado law that prohibited licensed counselors from engaging in “conversion therapy” for minors. Justices Sonia Sotomayor and Elena Kagan joined the court's conservative members in the majority opinion.

Challenge to Colorado's 2019 Law

The case centered on a 2019 Colorado statute forbidding licensed counselors from attempting to change a minor’s sexual orientation or gender identity. The law specifically banned efforts to alter behaviors or expressions, or to reduce same-sex attraction or feelings.

Licensed counselor Kaley Chiles challenged the law, arguing it violated her First Amendment rights regarding speech with her clients. Chiles assists clients with diverse goals, including those content with their identity and others seeking to change behaviors or reduce unwanted attractions.

Court Finds Viewpoint Discrimination

The majority held that Colorado’s law, as applied to Chiles’ talk therapy, constituted regulation of speech based on viewpoint. The Court determined that lower courts had failed to apply “sufficiently rigorous” scrutiny under the First Amendment.

Justice Neil Gorsuch authored the majority opinion, stating the law “goes further to prescribe what views she may and may not express, discriminating on the basis of viewpoint.” The state, the Court concluded, could not prove the law’s application to Chiles fell within permissible content regulation.

Justice Gorsuch wrote, “However well-intentioned, any law that suppresses speech based on viewpoint represents an 'egregious' assault on both of those commitments.” He emphasized that the First Amendment protects the right to think and speak freely against efforts to enforce orthodoxy.

Concurrence Highlights Nuance

Justice Kagan filed a concurring opinion, joined by Justice Sotomayor. Kagan noted that a content-based but viewpoint-neutral law would present a “different and more difficult question.”

Kagan stated that the Court did not need to assess viewpoint-neutral laws regulating health providers’ expression in this instance. This was because, as the Court found, Colorado’s specific law was not viewpoint-neutral.

Lower Court Rulings Reversed

The district court and the Tenth Circuit Court of Appeals had previously ruled against Chiles. They applied a “rational basis review” under the First Amendment, which they found the state satisfied by relating the law to legitimate public health interests.

The Supreme Court reversed the Tenth Circuit’s judgment and remanded the case for further proceedings consistent with its opinion. The Court noted that Chiles does not prescribe medicine or engage in coercive physical treatments.

The Lone Dissent

Justice Ketanji Brown Jackson was the sole justice to dissent from the 8-1 ruling. She argued that states have historically regulated the provision of medical care without constitutional issue.

Justice Jackson contended, “The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel.” She concluded that she could not agree with the majority’s analysis or its final decision.