Paul A. Maclean comments at the Trial Insider blog:
A three-judge appellate panel struggled with the potentially broad implications of a constitutional challenge to California’s ban on gay conversion therapy in arguments Wednesday in San Francisco.
All three 9th U.S. Circuit Court of Appeals judges hammered both sides in nearly two hours of argument over a free speech challenge, to California’s ban on licensed health professionals use of therapies designed to make gay and lesbian teenagers straight.
Each judge raised concerns about the limits of free speech for medical professionals in use of therapy and when the state may step in to regulate psychiatric talk therapy. They also voiced concern about the potential implications on other medical practitioners and professions licensed by the state if they uphold the ban.
“This is an unprecedented regulation of psychiatric medicine,” argued Matthew Staver, attorney with Liberty Counsel in Maitland, Florida, representing parents and therapists who support the therapy.
Chief Judge Alex Kozinski quickly jumped in. “The state has greater power in protecting minors than parents, doesn’t it? The state can force a parent to accept medical care for a child, such as a blood transfusion, even if their religion prevent it.”
“But in that case a direct threat exists to the minor,” Staver said.
California adopted the first of its kind ban on sexual orientation conversion therapy in 2012, with Senate Bill 1172, to prevent counseling of young people with the aim to eliminate same-sex sexual attraction, behavior or identity. The ban was set to take effect January 1, 2013, but it has been blocked until the courts sort out its constitutionality.
The 9th Circuit panel was hearing two appeals from cases in federal court in Sacramento.
During Wednesday’s argument Judge Kim Wardlaw asked what deference the court should give to the legislature in regulating the treatment of under 18-year-old patients.
State Deputy Attorney General Alexandra Robert Gordon argued that the ban was “not a breathtaking prohibition on speech” as the opposition claims, she was met with a buzz saw of questions from Kozinski.
“It doesn’t have to be breathtaking, even a small prohibition on speech is a problem,” he said. “If it implicates speech you have to have compelling reasons,” he said.
He repeatedly asked, without success, for the state’s “strongest evidence” that the therapy causes harm.
Gordon cited a compilation of studies that the therapy is scientifically discredited, ineffective and “we call it unprofessional.” But that failed to satisfy Kozinski.
“You are giving me your view. Point to the most compelling thing” in the legislature’s review, he asked.
She countered that in the arena of medical marijuana, the court rejected a law that barred doctors from recommending use of marijuana to their patients. Recommending it is speech, but prescribing it is treatment and treatment is what the state has banned in gay conversion therapy, she said.
Wardlaw and Judge Susan Graber both questioned whether, by striking down the law as a free speech violation, the court would be opening the door to the use of discredited aversion therapy for homosexuality. Aversion therapy has been called dangerous by professional therapy organizations since 1994 and is illegal in some countries.
Under the terms of California’s law, no one under the age of 18 may be submitted to gay conversion therapy, which relies on talking to a therapist.
Plaintiffs include parents who assert their parental rights are under attack, as well as licensed professional counselors and professional counseling associations, including the National Association for Research and Therapy of Homosexuality and the American Association of Christian Counselors.
The appeal also includes one 15-year-old, identified only as John Doe, who is receiving counseling and wants to continue.