California’s S.B. 1172, which prohibits state-licensed mental health providers from engaging in “sexual orientation change efforts” (commonly known as “conversion therapy”) with minors, withstood another 1st Amendment challenge in a new decision by the San Francisco-based U.S. Court of Appeals for the 9th Circuit in the case of Welch v. Brown, 2016 U.S. App. LEXIS 15444, 2016 WL 4437617, announced on August 23.
A unanimous three-judge panel of the court of appeals affirmed a ruling by U.S. District Judge William B. Shubb that the law does not violate the religious freedom rights of mental health providers who wish to provide such “therapy” to minors or of their potential patients.
In a previous ruling, the court had rejected the plaintiffs’ claim that the law violated their free speech rights. They had argued that such therapy mainly involves talking, making the law an impermissible abridgement of freedom of speech. The court had countered that this was a regulation of health care practice, which is within the traditional powers of the state. As such, the court found that the state had a rational basis for imposing this regulation, in light of evidence in the legislative record of the harms that such therapy could do to minors.
In this case, the plaintiffs were arguing that their 1st Amendment religious freedom claim required the court to apply strict scrutiny to the law, putting the burden on the state to show that the law was narrowly-tailored to achieve a compelling state interest. They contended that the law “excessively entangles the State with religion,” but the court, in an opinion by Circuit Judge Susan P. Graber, said that this argument “rests on a misconception of the scope of SB 1172,” rejecting the plaintiffs’ claims that the law would prohibit “certain prayers during religious services.” Graber pointed out that the law “regulates conduct only within the confines of the counselor-client relationship” and doesn’t apply to clergy (even if they also happen to hold a state mental health practitioner license) when they are carrying out clerical functions.
“SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship,” she wrote, a conclusion that “flows primarily from the text of the law.” Under a well-established doctrine called “constitutional avoidance,” the court was required not to interpret the statute in the manner suggested by the plaintiffs. This conclusion was bolstered by legislative history, ironically submitted by the plaintiffs, which showed the narrow application intended by the legislature. Thus, “Plaintiffs are in no practical danger of enforcement outside the confines of the counselor-client relationship.”
Plaintiffs also advanced an Establishment Clause argument, contending that the measure has a principal or primary purpose of “inhibiting religion.” Graber countered with the legislature’s stated purpose to “protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and to protect its minors against exposure to serious harm cause by” this “therapy.” The court found that the “operative provisions” of the statute are “fully consistent with that secular purpose.” A law that has a secular purpose with a possible incidental effect on religious practice is not subject to strict scrutiny under Supreme Court precedents. Again, the court pointed out, religious leaders acting in their capacity as clergy are not affected by this law.
The court also rejected the contention that a minor’s religiously-motivated intent in seeking such therapy would be thwarted by the law, thus impeding their free exercise of religion. The court pointed out that “minors who seek to change their sexual orientation – for religious or secular reasons – are free to do so on their own and with the help of friends, family, and religious leaders. If they prefer to obtain such assistance from a state-licensed mental health provider acting within the confines of a counselor-client relationship, they can do so when they turn 18.”
The court acknowledged that a law “aimed only at persons with religious motivations” could raise constitutional concerns, but that was not this law. The court said that the evidence of legislative history “falls far short of demonstrating that the primary intended effect of SB 1172 was to inhibit religion,” since the legislative hearing record was replete with evidence from professional associations about the harmful effects of SOCE therapy, regardless of the motivation of minors in seeking it out. Referring in particularly to an American Psychiatric Association Task Force Report, Judge Graber wrote, “Although the report concluded that those who seek SOCE ‘tend’ to have strong religious views, the report is replete with references to non-religious motivations, such as social stigma and the desire to live in accordance with ‘personal’ values.” Thus, wrote the court, “an informed and reasonable observer would conclude that the ‘primary effect’ of SB 1172 is not the inhibition (or endorsement) of religion.”
The court also rejected the argument that the law failed the requirement that government be “neutral” concerning religion and religious controversies. It also rejected the argument that prohibiting this treatment violates the privacy or liberty interests of the practitioners or their potential patients, quoting from a prior 9th Circuit ruling: “We have held that ‘substantive due process rights do not extend to the choice of type of treatment or of a particular health care provider.’”
Attorneys from the Pacific Justice Institute, a conservative legal organization, represent the plaintiffs. The statute was defended by the office of California Attorney General Kamala D. Harris. Attorneys from the National Center for Lesbian Rights, with pro bono assistance from attorneys at Munger, Tolles & Olson LLP, filed an amicus brief defending the statute on behalf of Equality California, a state-wide LGBT rights political organization.