SAN FRANCISCO California's controversial law that bans change therapy for teens who have unwanted same-sex attractions could be headed to the U.S. Supreme Court after an appeals court rejected a petition to rehear the case.
The U.S. Ninth Circuit Court of Appeals let stand Jan. 29 an earlier decision by a panel from that court upholding the law signed by California Gov. Jerry Brown in 2012. The first-of-its-kind law, which now has been copied in other states, prevents licensed counselors from trying to change a minor's sexuality, even if the therapy is desired by the patient.
Liberty Counsel, which made the petition for a rehearing, said it will ask the Supreme Court to review the case.
Judge Diarmuid O'Scannlain wrote a dissent by three judges, stating that the law should be reconsidered on free speech grounds. The panel had concluded that the law does not violate the First Amendment because it regulates "conduct" rather than "speech."
O'Scannlain, a Reagan appointee, said the panel disregarded Supreme Court precedent and "simply asserts that some spoken words those prohibited by SB 1172 are not speech." SB 1172 is the law's legislative name.
"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," O'Scannlain wrote. "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."
Liberty Counsel has filed two similar cases on change therapy in New Jersey after Gov. Chris Christie signed a bill into law last August banning state-licensed counselors from trying to help children under 18 reduce or eliminate same-sex attraction.
Similar bills have been proposed in Massachusetts, Maryland, New York, Virginia and Washington.
"The minors we represent do not want to act on same-sex attractions, nor do they want to engage in such behavior," Mat Staver, chairman of Liberty Counsel, said in a statement. "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.
"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 ... 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," Staver said.
Pacific Justice Institute, a pro-family group based in Sacramento, won a preliminary injunction preventing SB 1172 from taking effect for more than a year until the three-judge panel from the Ninth Circuit reversed the injunction, agreeing with the state that the law should not be analyzed under First Amendment principles because it was a professional regulation.
"We will continue the fight to protect the freedom of counselors and young people seeking help with their same-sex attractions," Brad Dacus, president of Pacific Justice Institute, said. "Throughout this process, we have been astounded by the lengths to which LGBT activists and the state of California have gone to distort science, free speech principles and common sense.
"The implications of this case reach far beyond this issue," Dacus said, "and we are optimistic that the Supreme Court will rectify the Ninth Circuit's latest attempt to defy its precedents."
Pacific Justice Institute plans to file a petition for certiorari with the Supreme Court.
The Los Angeles Times editorial board, commenting Jan. 31 on the Ninth Circuit's decision, said O'Scannlain raised an important question regarding whether psychotherapy should be viewed as conduct rather than speech.
"This page opposed enactment of the law against sexual conversion therapy, not because we approve of such therapy (we don't) but because legislators shouldn't ban a procedure performed by even a minority of licensed professionals without conclusive evidence that it's harmful," the editorial board said. "Such evidence does not exist.
"Still, the issue in this case wasn't whether the law was a wise exercise of the Legislature's power to regulate healthcare; it was whether the measure violated the 1st Amendment."