Conservatives set up possible Supreme Court challenge to gay conversion law

By John Roemer

Daily Journal Staff Writer

California's first-of-its-kind law banning gay conversion therapy for minors could be headed for the U.S. Supreme Court if conservative judges at the 9th U.S. Circuit Court of Appeals have their way.

The law, SB 1172, remains in effect despite litigation challenging the Legislature's right to prohibit state-licensed mental health providers from practicing so-called "sexual orientation change efforts" with clients under 18. Pickup v. Brown, 2014 DJDAR 1175.

The law has been copied by other states and has inspired a national debate about the harm that may be inflicted by attempts to influence sexual identity by aversive treatment, including electroshock and castration or by less drastic talk therapy.

In August a three-judge panel affirmed the law and lifted a temporary stay on its implementation. On Wednesday, the circuit announced a majority of its judges had voted against en banc review of that decision. The announcement provoked a strong protest by the circuit's leading conservative, Diarmuid F. O'Scannlain, joined by two others on the court's right wing.

O'Scannlain contended that the court is avoiding First Amendment scrutiny of the law by redefining disfavored talk therapy as "conduct." And he cited a 2010 U.S. Supreme Court decision to back up his claim that free speech principles aren't so easily circumvented.

Plaintiffs in Holder v. Humanitarian Law Project, 130 S.Ct. 2705, attacked a federal statute banning "material support" to terrorist groups, claiming the statute criminalized protected verbal communications. Although the high court upheld the statute, it first applied First Amendment scrutiny to its terms and rejected the government's argument that the statute only punished "conduct," writing that the "conduct triggering coverage under the statute consists of communicating a message."

"In other words," O'Scannlain wrote, using law Latin for arbitrary and dogmatic claims, "the government's ipse dixit cannot transform 'speech' into 'conduct' that it may more freely regulate."

Circuit Judge Susan P. Graber, joined by Chief Judge Alex Kozinski and Circuit Judge Morgan Christen -the original panelists in the case - filed an amended opinion Wednesday with an answer to O'Scannlain's argument.

SB 1172, Graber wrote, regulates only therapeutic treatment, not expressive speech, by licensed mental health professionals.

"In sharp contrast," she added, "Humanitarian Law Project pertains to a different issue entirely: the regulation of political speech by ordinary citizens. The plaintiffs there sought to communicate information about international law and advocacy to a designated terrorist organization. The federal statute at issue barred them from doing so, because it considered the plaintiffs' expression to be material support to terrorists."

Graber wrote that the therapists contesting SB 1172 "may express their views to anyone, including minor patients and their parents, about any subject, including [sexual orientation change efforts] ... The only thing that a licensed professional cannot do is avoid professional discipline for practicing [change efforts] on a minor patient."

Whether the U.S. Supreme Court will get involved is an open question. New Jersey has enacted a similar ban on sexual orientation change efforts. It was affirmed by a district judge and is now on appeal to the 3rd Circuit. Other states moving forward with comparable legislation include Massachusetts, Minnesota, Wisconsin and Pennsylvania.

David B. Cruz, a USC Gould School of Law authority on same-sex equality issues, said he thinks the panel's understanding of Humanitarian Law Project is more persuasive than O'Scannlain's.

"As the panel explains, what triggers SB 1172's coverage is conduct, attempting to do something, to bring about a change in a person's sexual orientation," he wrote in an email. "That seems to me sensibly on the conduct side of a communicating a message/engaging in conduct line, just as would be forming a contract, the regulation of which I seriously doubt the Supreme Court would subject to close scrutiny under the First Amendment."

Cruz noted that within the month he's been elected to the board of an educational organization affiliated with Equality California, which sponsored SB 1172 and is defending it in court.

A constitutional law scholar who has followed the case, Adam Winkler of UCLA School of Law, said, "What O'Scannlain ignores is the long tradition of regulating the professions, even when those regulations restrict speech. State bars prohibit lawyers from revealing client confidences, but that's not a First Amendment violation."

Mathew D. Staver, the attorney who founded Liberty Counsel, a Maitland, Fla., religious freedom lobby, and who argued against SB 1172 at the 9th Circuit, said he will ask the court to stay the law while he seeks a Supreme Court rehearing. "Judge O'Scannlain set the case up perfectly for a petition," he said. "Of course, if the 3rd Circuit sees things our way, then we have a split and and even stronger petition."

Shannon P. Minter, the legal director of the National Center for Lesbian Rights who argued in favor of the law before the 9th Circuit, said, "The fact that regulated practices sometimes make use of speech does not convert every state regulation of professional conduct into a free speech case. The dissent's analysis would require a dramatic shift in the existing legal framework applied to state regulations of licensed medical professionals."

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