Just a few posts ago, I was trumpeting the First Amendment’s Freedom of Speech with consequences — you’re free to call for the execution of the President, but a consequence of that is you’re going to get a visit from the Secret Service.
This is another post about limits of free speech, in this case with so-called conversion “therapy:” Forcing your teenage child to go to a psychologist to “cure” them of being gay. Most indications show that this – rather than being helpful (since being “gay” is not something you can cure or talk yourself out of) – it’s quite destructive, not only leading to depression among the teen, but anger from the parent when their false hope is dashed.
Several states across the US have been taking steps to ban this practice (I blogged several months ago about this in New Jersey): New Jersey and California have such bans, others are being considered in Maryland, New York, Virginia, Washington (state of), and Massachusetts. Many über-conservatives are challenging this under the First Amendment protection of free speech. And losing. Every time. The latest in California set WND’s anti-homo-in-chief, Bob Unruh, off enough to write, “9th Circuit Ignores Precedent, Change-Therapy Ban Stands.”
The news is that the 9th Circuit Court of Appeals didn’t just rule against the challenge of the ban, they wouldn’t even re-hear it. But, there were dissenting opinions:
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.
For background, Unruh informs us: “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.”
I think that this is a fine line, personally. I would much rather see licensing and accreditation agencies policing this based on the latest science rather than legislatures. Yes, conversion therapy is bad, but do I think that the legislature should set professional policy in a science? No. But, to my knowledge, the professional licensing agencies weren’t doing anything, so should the legislature be able to step in?
I’m not a legal scholar, but to me, this kind of ruling is the opposite of what abortion rights activists are successfully using to quash laws that require a doctor to describe a fetus to a woman and say various other things before getting an abortion. Those laws are being ruled unconstitutional in part because it is the state setting rules on a doctor’s speech. Then again, maybe the difference is that’s the state requiring the doctor to say something whereas this is prohibiting the doctor from saying something. Hmmmmm…
The problem, in my opinion, is that this is a very slippery slope. This is also likely headed to the US Supreme Court at some point, and it will be interesting to see how they rule.
For what it’s worth, the article got 24 ratings (4.5/5 stars) and 57 comments.