SCOTUS 8–1: Colorado’s Conversion-Therapy Ban Regulates Speech and Faces Strict Scrutiny

Last week the U.S. Supreme Court, in an 8–1 decision in Chiles v. Salazar, held that Colorado’s statute banning so-called “conversion therapy” for minors—at least as applied to a talk-therapy counselor—constitutes government regulation of speech based on viewpoint and must be reviewed under the most exacting constitutional standard, strict scrutiny.

Background

Colorado’s law defined conversion therapy broadly as “any practice or treatment…that attempts…to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” Kaley Chiles, a licensed mental-health counselor who focuses on talk therapy, sued the state, arguing the ban, as applied to her practice, violated her First Amendment right to speak freely with clients.

Lower-Court Ruling

The U.S. Court of Appeals for the Tenth Circuit upheld the statute, treating it as a regulation of professional conduct that only incidentally affected speech. On that basis the Tenth Circuit applied the deferential rational-basis test, reasoning the law fit within a long history of states regulating health-care professions.

The Supreme Court’s Decision

Writing for the majority, Justice Neil Gorsuch concluded the Tenth Circuit did not apply sufficiently rigorous First Amendment review. The Court found the law did more than regulate the manner of therapy; it "prescribes what views" a counselor may express and therefore burdens speech based on viewpoint. The majority reversed the Tenth Circuit and remanded the case for reconsideration under strict scrutiny.

"Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech." — Justice Neil Gorsuch

What Strict Scrutiny Means

Under strict scrutiny, the government must show that the law is narrowly tailored to serve a compelling state interest and that no less restrictive means are available. That is a difficult standard for most laws to satisfy, which is why the Supreme Court’s ruling strongly signals the Colorado statute is unlikely to survive as applied to talk-therapy providers.

Dissent and Concurrence

Justice Ketanji Brown Jackson was the lone dissenter. She argued that states have long exercised authority to regulate the provision of medical care and that such regulations may incidentally restrict speech without violating the First Amendment. Meanwhile, Justice Elena Kagan, joined by Justice Sonia Sotomayor, filed a separate statement agreeing with the majority's view that the law regulates speech by viewpoint.

Implications

The Court’s near-unanimous ruling narrows the latitude states have when a regulation directly prescribes what professionals may say to clients. The decision does not necessarily invalidate every state restriction aimed at clinical practices, but it establishes that laws targeting a speaker’s viewpoint—even in health-care settings—will face the toughest constitutional scrutiny.

What Comes Next: The case returns to the Tenth Circuit to apply strict scrutiny. If the lower court cannot uphold the law under that standard, the Supreme Court’s opinion strongly suggests the statute will be struck down as applied to talk-therapy counseling.