The 9th U.S. Circuit Court of Appeals has refused to rehear a challenge to California’s ban on sexual orientation change therapy – but in the course of reaching that conclusion, has backhanded precedent from the U.S. Supreme Court, where is headed next, a minority opinion has concluded.

“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.”

The issue was California’s state law, SB1172, which banished statements that could be used by counselors or therapists to address unwanted same-sex attractions among young patients. Essentially, the pro-homosexual movement in the state legislature decided that counselors could advocate for same-sex feelings and proclivities, but not for heterosexual feelings and behavior.

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.”

Officials with Liberty Counsel, which is representing clients and counselors who want the speech restriction struck down, said they now will ask the Supreme Court to review the limit on the First Amendment.

The same issue also arose when New Jersey adopted a law similar to California’s, and that also is under court challenge.

Such limits of the First Amendment also have been proposed by pro-homosexual interests in Maryland, New York, Virginia, Washington and Massachusetts.

“The minors we represent do not want to act on same-sex attractions, nor do they want to engage in such behavior. They are greatly benefiting from this counseling. Their grades have gone up, their self-esteem has improved, and their relationships at home are much improved,” said Mat Staver, founder of Liberty Counsel.

“Legislators and judges in the state of California 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,” said Staver.

“We won’t give up. We will continue fighting to protect these young people from homosexual activists and tyrannical politicians for as long as it takes,” he said.

The 9th Circuit’s majority let stand, with minor modifications, an earlier panel decision affirming the state’s ban restricting First Amendment activities by any counsel from a licensed therapist to change unwanted same-sex attractions.

O’Scannlain said the legislature was simply trying to restrict ideas by “defining disfavored talk as ‘conduct.'”

“That is what these cases are really about,” he wrote.

In the New Jersey case, Staver’s brief argues, “The fact that change is one direction is permitted but change in the other direction is not undermines the state’s claim that it seeks to prevent harm.”

And he notes that such counseling is allowed if the counselor is not licensed.

“The state cannot ban what it erroneously deems is harmful in one setting while allowing the exact same alleged harm to go unregulated in another setting,” he said.

Supporters of the restrictions cite details from the American Psychological Association on the issue, but an APA task force that looked at the appropriate application of affirmative therapeutic intervention for adults noted that children were not represented.

As such, the APA said, “sexual orientation issues in children are virtually unexamined.”

Brad Dacus, president of the Pacific Justice Institute, called the earlier 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.

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