Two appeals courts have disagreed on how to define “speech,” setting up a likely challenge to the U.S. Supreme Court over “change therapy” counseling, which aims to relieve unwanted same-sex attractions.
It’s illegal now in California and New Jersey for minors to receive such therapy, but for different reasons, warranting intervention by the highest court, argues Liberty Counsel.
California was the first state to make such therapy illegal for minors. The 9th U.S. Circuit Court of Appeals concluded the therapy, which mostly involves talking, is “conduct” rather than speech.
But when New Jersey made the therapy illegal for minors, the 3rd Circuit U.S. Court of Appeals determined it is speech but concluded it is not protected by the First Amendment.
“The laws banning counseling in this area are simply unconstitutional violations of free speech,” asserted Mat Staver, chairman of Liberty Counsel.
“While we are disappointed in the overall decision to uphold the [New Jersey] law, we are glad that the 3rd Circuit finally recognized that the counseling that takes place with these minors is entitled to First Amendment protection,” he said.
Staver said the 9th Circuit “flatly ignored that obvious truth and called this conduct not entitled to any protection.”
“Liberty Counsel will ask the Supreme Court to review this decision, and we will not stop fighting until these laws are relegated to the dustbins of history,” he said.
“Any decision upholding restrictions on what a counselor may say or a client may hear weakens the First Amendment and ultimately hurts counselors and clients,” Staver argued.
In the New Jersey dispute, Liberty Counsel represents two licensed mental health professionals, the National Association for Research and Therapy of Homosexuality and the American Association of Christian Counselors.
In both states, pro-homosexual lawmakers worked to forward laws that prohibit counselors from speaking to minors about ways to overcome unwanted same-sex inclinations, no matter the cause.
“While the 3rd Circuit upheld the ban on counseling, the decision conflicts with the 9th Circuit Court of Appeals in the Pickup case involving a virtually identical law,” Liberty Counsel said. “In Pickup, the federal court of appeals found that professional counseling was not speech worthy of First Amendment protection, but in King [the New Jersey case] the federal court of appeals found that such counsel is speech protected by the First Amendment.”
The legal team said the King case “found that the restriction on speech was content and possibly even viewpoint-based, but then instead of using what is called ‘strict scrutiny’ for review, the court applied an ‘intermediate’ level of review similar to commercial speech.”
“This significant conflict as to whether counsel by licensed counselors is speech or not and what level, if any, of First Amendment protection such counsel should receive is significant and will need resolution by the U.S.Supreme Court.”
Liberty Counsel said an appeal will be prepared.
In the King decision, Liberty Counsel noted, the court said “the enterprise of labeling certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation.”
Indeed, said Liberty Counsel, “even a cursory inspection of the line it establishes between utterances that ‘communicate information or a particular viewpoint’ and those that seek ‘to apply methods, practices, and procedures’ reveals the illusory nature of such a dichotomy.”
“These two statements reveal the crux of the split between the two courts to decide this issue, and it highlights the need for Supreme Court review,” Liberty Counsel said.
When the 9th Circuit released its opinion in the California case, there was a stinging rebuke in the dissent.
“May California remove from the First Amendment’s ambit the speech of certain professionals when the state disfavors its content or its purpose? – The Supreme Court has definitely and unquestionably said ‘No.’ It is no longer within our discretion to disagree,” said the minority opinion from Judge Diarmuid O’Scannlain.
He was joined by two other judges in the dissent, which said, “Legislatures cannot nullify the First Amendment’s protections for speech by playing this labeling game.”
“Indeed,” he said, “authoritative precedents have established that neither professional regulations generally, nor even a more limited subclass of rules, remain categorically outside of the First Amendment’s reach.”
Wrote O’Scannlain: “The panel cites no case holding that speech, uttered by professionals to their clients, does not actually constitute ‘speech’ for purposes of the First Amendment. And that should not surprise us – for the Supreme Court has not recognized such a category. … The Supreme Court has chastened us lower courts for creating, out of whole cloth, new categories of speech to which the First Amendment does not apply. But, that is exactly what the panel’s opinion accomplishes in this case.”
Staver said California legislators and judges “have essentially barged into the private therapy rooms of victimized young people and told them that their confusion, caused by the likes of a Jerry Sandusky abuser, is normal and that they should pursue their unwanted and dangerous same-sex sexual attractions and behavior, regardless of whether those minors desire their religious beliefs to trump their unwanted attractions.”
Brad Dacus, president of the Pacific Justice Institute, called the California decision a “dark day for those who believe in the First Amendment and the rights of parents over the proper upbringing of their children.”
“Make no mistake, we are not finished in our efforts to overturn this outrageous legislation,” he said.
California was the first state to approve such First Amendment limitations, and when New Jersey followed, attorney and WND columnist Matt Barber expressed concern.
“The connection between homosexual abuse and ‘gay identity’ is undeniable. Consider this: Researchers from the Centers for Disease Control and Prevention (CDC) have found that homosexual men are ‘at least three times more likely to report CSA (childhood sexual abuse)’ than heterosexual men,” he wrote. “Moreover, the Archives of Sexual Behavior – no bastion of conservatism – determined in a 2001 study that nearly half of all gay-identified men were molested by a homosexual pedophile: ’46 percent of homosexual men and 22 percent of homosexual women reported having been molested by a person of the same gender. This contrasts to only 7 percent of heterosexual men and 1 percent of heterosexual women reporting having been molested by a person of the same gender’ noted the study.”
He said besides the fact the laws violate the Constitution, the underlying claim isn’t true.
“For instance, both New Jersey Democrats and Christie cited the American Psychological Association, or APA, as justification for this gross infringement on the right of self-determination. Although, no doubt, the highly liberal APA supports this and similar Sandusky Laws for political reasons, the group’s own task force on change therapy – led entirely by members who themselves are ‘gay’-identified or known political activists – has had to admit, nonetheless, that homosexuality itself ‘refers to feelings and self-concept,'” he explained.
“Here’s the kicker: The APA also acknowledged that there is no evidence whatsoever that change therapy harms minors,” he said.