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Federal Judge Slams Tennessee Anti-Drag-Show Law

Posted on: June 5th, 2023 by Art Leonard No Comments

U.S. District Judge Thomas L. Parker, who was appointed to the Western District of Tennessee bench by President Donald J. Trump, issued a ruling on June 2 holding that Tennessee’s recently adopted “Adult Entertainment Act” (AEA), which was intended to restrict drag shows, violates the First Amendment.  Judge Parker previously issued a temporary restraining order (TRO) in March to stop the law from going into effect before he could rule on the merits of the plaintiff’s constitutional claim.  His June 2 ruling came after a two-day hearing on May 22-23.

The opinion is cited as Friends of Georges, Inc. v. Mulroy, 2023 WL 3790583, 2023 U.S. Dist. LEXIS 96766 (W.D. Tenn., June 2, 2023).

Governor Bill Lee signed the AEA into law on March 2. It was supposed to take effect on April 1.  Friends of Georges, Inc., a non-profit group that presents drag shows to raise money for charitable causes, was scheduled to present a show in mid-April, and was concerned that it risked criminal prosecution, so it moved quickly to seek a TRO.  The original TRO was supposed to last just for a few days, but Judge Parker extended it and converted what would normally be a hearing on a preliminary injunction into a hearing on the merits.  As part of June 2’s ruling, he denied Shelby County District Attorney General Steven J. Mulroy’s motion to dismiss the case as “moot.”

The lawsuit was originally aimed at Governor Lee and the state attorney general as well as Mulroy, but the court determined that Mulroy was the appropriate defendant because the law was to be enforced by local prosecutors.  Much of the court’s opinion is devoted to refuting Mulroy’s arguments that the plaintiffs lacked standing to bring a pre-enforcement challenge.

The statute, surprisingly, never explicitly mentions drag shows.  Instead, it adds language to an existing Tennessee law regulating venues for adult entertainment by creating a new category – “adult cabaret entertainment” – which it defines as “adult-oriented performances that are harmful to minors, as that term is defined in Section 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”

The statute makes it a crime for “a person to perform adult cabaret entertainment on public property; or in a location where the adult cabaret entertainment could be viewed by a person who is not an adult.”  Unlike prior statutes that focused regulatory enforcement on the business that is providing the show, this statute focuses on the performers, threatening them personally with criminal liability that may result in fines or imprisonment.  A first offence is a misdemeanor.  A repeat offense is a felony likely to result in prison time.

The definition of “harmful to minors” means “that quality of any description or representation, whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors; is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and taken as a whole lacks serious literary, artistic, political or scientific values for minors.”  This wording was taken from the U.S. Supreme Court’s 1974 Miller v. California opinion, which set out a uniform definition of obscenity for purposes of the First Amendment.  Even though the First Amendment says that “Congress shall make no law abridging the freedom of speech,” the Supreme Court has long held that “obscene speech” is not protected from state prohibition by the First Amendment.  (A few stubborn textualists of an earlier generation on the Court rejected that exception, saying that “no law means no law.”)

Under Supreme Court precedents, if a state law can be classified as a content-based regulation of speech, it is subjected to “strict scrutiny” by the court, which means that the law is presumed to be unconstitutional unless the state proves that the law is necessary to achieve a compelling state interest, and that it is “narrowly tailored” to avoid unnecessarily restricting protected speech.

Judge Parker’s key ruling was that the AEA is a content-based regulation of speech subject to strict scrutiny.  “The AEA’s regulation of ‘adult-oriented performances that are harmful to minors under section 39-17-901’ does target protected speech, despite Defendant claims to the contrary,” he wrote.  “Whether some of us like it or not, the Supreme Court has interpreted the First Amendment as protecting speech that is indecent but not obscene.  Because the AEA’s text targets such speech, the Court finds it is a content-based regulation.  The AEA draws distinctions based on the message a speaker conveys: adult-oriented performances that are harmful to minors are sanctioned with a criminal penalty while others are not.  This fact alone does not make the AEA unconstitutional – but it does make it a content-based regulation that may be possibly subject to strict scrutiny review.”

Strict scrutiny definitely kicks in when a content-based regulation is not viewpoint neutral.  The court found that this law is not viewpoint neutral because it targets the individual performers for enforcement.  He observed that “the AEA’s text criminalizes performances that are ‘harmful to minors’ by ‘male or female impersonators,’ and the Court must grapple with that text.  The Court finds that this phrase discriminates against the viewpoint of gender identity – particularly, those who wish to impersonate a gender that is different from the one with which they are born.”

Furthermore, Judge Parker found that the AEA was enacted for an “impermissible purpose.”  Focusing on male or female impersonators “is evidence that the Tennessee General Assembly carelessly, if not intentionally, passed the AEA for the inappropriate purpose of chilling constitutionally-protected speech.”  Also, the law lacks a “textual scienter requirement” – that is, a requirement that the performer has “knowingly” violated the statute by presenting a performance that is harmful to minors, and it does not provide for any affirmative defenses, such as parental consent for their children to see the performance.

Here, the problem of vagueness entered in as well, because the language of the statute did not restrict its enforcement to adult entertainment venues, but extended to any place where minors could be present, which could be, said the court, “virtually anywhere,” echoing the words of an opponent of the bill during the legislative debate.

“For these reasons,” wrote Parker, “the AEA can criminalize – or at a minimum chill – the expressive conduct of those who wish to impersonate a gender that is different from the one with which they were born in Shelby County.  Such speech is protected by the First Amendment.”  The court quoted excerpts from the legislative history bolstering these conclusions.

While acknowledging that the state always has a compelling interest in protecting children, the court found that this statute was not “narrowly tailored” to achieve that interest, but rather, due to the vague contours of the statutory prohibition, lent itself to overly broad and subjective enforcement.  The law induces a “chilling” effect because it is hard for performers to find a bright line demarcating when their performance would be violating the statute.  This was certainly the case with Friend of Georges, which was unsure how to proceed with their drag show scheduled to be presented just two weeks after the statute was to go into effect.

Judge Parker viewed video recordings of past drag performances presented by Friends of Georges and saw the ambiguities that would make it unpredictable how law enforcement officers might apply the statutory language to particular performances.  The court found that there was a danger of “substantial overbreadth” in applying the vague statutory language, which would deter the plaintiffs from engaging in constitutional protected speech out of a reasonable fear of prosecution.

“The Tennessee General Assembly can certainly use its mandate to pass laws that their communities demand,” wrote Parker, alluding to “scores of concerned Tennesseans” who had “asked the Court to uphold the AEA because their State supposedly enacted it to protect their children….  But that mandate as to speech is limited by the First Amendment to the United States Constitution, which commands that laws infringing on the Freedom of Speech must be narrow and well-defined.  The AEA is neither.”

In addition to declaring the law unconstitutional, the court issued an injunction against Attorney General Mulroy’s office enforcing it.

Judge Parker’s decision can be appeal by defendant Mulroy to the U.S. Court of Appeals for the 6th Circuit.

Ninth Circuit Denies En Banc Rehearing in Washington Conversion Therapy Case, Setting Up Possible Supreme Court Review

Posted on: January 25th, 2023 by Art Leonard No Comments

On January 23, the U.S. Court of Appeals for the 9th Circuit announced denial of rehearing en banc in Tingley v. Ferguson, 47 F. 4th 1055 (9th Cir., September 6, 2022), in which a three judge panel, following 9th Circuit precedent in Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), rejected a First Amendment free speech challenge to Washington’s statute prohibiting licensed health care providers from performing “sexual orientation change efforts” (informally referred to as conversion therapy) on minors.  Alliance Defending Freedom (ADF), the anti-LGBT religious litigation group, represented Brian Tingley, a licensed Washington therapist, in challenging the law.  The National Center for Lesbian Rights (NCLR) represented Equal Rights Washington, a political group, as intervenor-defendant in the case.  The announcement and attendant dissenting opinions are published at 2023 WL 353213, 2023 U.S. App. LEXIS 1632.

District Judge Robert J. Bryan granted a motion to dismiss in 2021, see 557 F.Supp.3d 1131 (W.D. Wash.), in light of the 9th Circuit precedent of Pickup. A three-judge panel of Circuit Judges Ronald Gould, Kim Lane Wardlaw and Mark J. Bennett, affirmed, restating the legal analysis of the Pickup decision, which held that the law was regulating professional conduct, only incidentally affecting speech, in an opinion by Gould joined by Wardlaw (Clinton appointees) with a concurrence by Bennett (Trump appointee).

It takes a majority of the 29 active judges of the circuit to grant en banc review by an eleven-judge panel.  In announcing the denial of en banc review, the court released two dissenting opinions.  Senior Circuit Judge Diarmuid O’Scannlain, a Reagan appointee who couldn’t vote on the issue, nonetheless was moved to write about why he thought the 9th Circuit had to reconsider Pickup, and his dissent was joined by Circuit Judge Sandra Ikuta (George W. Bush appointee) and Circuit Judges Ryan Nelson and Lawrence VanDyke (Trump appointees).  Circuit Judge Patrick Bumatay (Trump appointee) wrote a separate dissenting opinion.

O’Scannlain’s dissent argued that Pickup was no longer good law.  In NIFLA v. Becerra, 138 S. Ct. 2361 (2018), a free speech case challenging California’s law requiring clinics providing reproductive health services to advise patrons about the availability of abortion providers, the Court had rejected the proposition that “professional speech” receives less First Amendment protection than other speech, and Justice Clarence Thomas, writing for the Court, specifically mentioned the Pickup decision as having erred on this point.  O’Scannlain wrote that “the Supreme Court has rejected Pickup by name… And other circuits have rejected Pickup’s holding, concluding instead that therapeutic speech is – speech, entitled to some First Amendment protection.”  He argued that “the panel’s defense of Pickup’s continuing viability is unconvincing.  We should have granted rehearing en banc to reconsider Pickup and so to resolve this circuit split.”  He also criticized the panel’s discussion of a “long tradition” of regulating professional conduct in the health care field as somehow supporting the law.

However, the panel had distinguished Pickup from NIFLA.  In the California statute at issue in NIFLA, the state was not regulating “therapeutic speech,” but rather was requiring clinics to convey the government’s message about availability of services that these clinics – which were devoted to dissuading pregnant women from terminating their pregnancy – did not want to provide.  Thus, it was compelled speech, in the view of the Court, and it violated the First Amendment for the government to compel the clinics to convey this message.  This is distinguishable from the conversion therapy statutes, which restrict licensed therapists from providing the therapy – which incidentally involves speech, although some may go beyond speech in their therapeutic methods – but do not restrict them from discussing conversion therapy with their clients/patients, or require them to state anything in particular about it.  The 3rd Circuit, evaluating New Jersey’s conversion therapy law in King v. Governor of New Jersey, 767 F.3d 216 (2014), differed from the 9th Circuit, holding that the law did raise free speech issues, but found that the state’s legislative findings support a legitimate interest to sustain the law.  Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020), which was subsequently denied rehearing en banc, rejected Pickup and struck down two local government bans on conversion therapy in Florida.  Thus, the circuit split on the free speech issue.

Judge Bumatay wrote separately to assert that “conversion therapy is often grounded in religious faith,” and that Tingley had alleged that “his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings.”  Bumatay developed this theme to conclude that this was actually a hybrid rights case, melding together free speech and free exercise of religion, which he insisted would require at least heightened scrutiny rather than the rationality approach taken by the panel in this case (and the panel in Pickup).  He would vote to rehear the case en banc in order to incorporate this additional consideration in evaluating whether Washington State had a strong enough justification to support overriding the therapist’s religious convictions.  He did concede that it is possible the court could find that the law survived heightened scrutiny depending on the strength of Washington’s case.

ADF brings cases challenging LGBTQ rights laws as part of a broad agenda to get the courts to condemn such laws, usually on religious freedom grounds.  Since it is a test case litigator, a cert petition is the next likely development in this litigation.  Although the panel majority strived to distinguish the NIFLA case, Justice Thomas’s dicta expressing disapproval of Pickup may stimulate the four votes on the Court necessary to grant certiorari.  And the combination of free speech and free exercise suggested by Judge Bumatay is likely to appeal to the conservative majority on the current Court, which could spell the end of laws banning conversion therapy in the United States – at least to the extent that therapy is carried out solely through speech, as the plaintiff therapists have argued in challenging these laws.

Given the timing of all this, a cert petition filed in February or March could not be granted in time for a hearing to take place during the current term of the Court, but Tingley v. Ferguson may loom as a significant LGBT-related case on the Court’s October 2023 calendar.

District Court Rejects Constitutional Challenge to Washington State’s Conversion Therapy Ban

Posted on: September 2nd, 2021 by Art Leonard No Comments

Senior U.S. District Judge Robert J. Bryan has dismissed constitutional challenges to Washington State’s Conversion Therapy ban (codified in Wash. Rev. Code Sections 18.130.20 and 18.130.180) brought by Brian Tingley, a licensed Marriage and Family Therapist, who asserted a violation of his free speech and free exercise of religion rights, as well as alleging a violation of due process.  Tingley v. Ferguson, 2021 WL 3861657, 2021 U.S. Dist. LEXIS 164063 (W.D. Wash., Aug. 30, 2021).  Equal Rights Washington had intervened to help named defendants, Washington Attorney General Robert W. Ferguson and others, in defending the law.  After Alliance Defending Freedom (ADF) filed suit on Tingley’s behalf, it sought a preliminary injunction against enforcement of the law, while defendants filed a motion to dismiss the case.  Judge Bryan granted defendants’ dismissal motion, and denied intervenors’ dismissal motion and Tingley’s motion for preliminary injunction as moot.  Judge Bryan’s ruling sets up the case for ADF to appeal, based on its argument that 9th Circuit decisions rejecting similar challenges to California’s Conversion Therapy ban are no longer “good law” in light of the Supreme Court’s ruling in NIFLA v. Becerra, 138 S. Ct. 2361 (2018).

Tingley alleged that he has violated the Washington law by providing therapy sought by minors who were unhappy about their same-sex attractions or discomfort with their biological gender.  Although his religious beliefs underly his opinions about sexual orientation and gender identity, he does not identify as a religious counselor who would be expressly exempted under the law.  The court determined that Tingley had individual standing to bring his challenge, but not representative standing for his clients.

To cut to the quick, Judge Bryan held that the 9th Circuit’s opinions in Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) and subsequent cases concerning the California law, are binding precedent in this case.  The essence of ADF’s free speech argument is that the Supreme Court’s rejection of a distinct category of “professional speech” subject to a lesser standard of 1st Amendment expression than other forms of speech in NIFLA v. Becerra had essentially overruled Pickup, and pressed home this point by citation to Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, 961 F.3d 1062 (9th Cir. 2020), in which that court noted in a citation that NIFLA had “abrogated” Pickup.  Not mentioned in Judge Bryan’s opinion is that Justice Clarence Thomas’s opinion for the Supreme Court in NIFLA spoke disparagingly about the treatment of “professional speech” in two conversion therapy cases, Pickup and King v. Governor of New Jersey, 767 F.3d 216 (3rd Cir. 2014), a similar ruling upholding New Jersey’s conversion therapy law.  Judge Bryan rejected this argument, finding that the basis of the Pickup ruling was a determination that the California law regulated professional conduct, the provision of a “therapy,” which incidentally involved speech, but the law was focused on the conduct, not the speech.

Bryan noted as well that the plaintiffs in Pickup and the New Jersey case had petitioned the Supreme Court after the NIFLA ruling to order the 9th and 3rd Circuits to recall their decisions concerning conversion therapy bans, but the Supreme Court rejected those petitions.  See Pickup v. Newsom, 139 S. Ct. 2622 (petition denied, May 20, 2019); King v. Murphy, 139 S. Ct. 1567 (petition denied, April 15, 2019).

Conceptualized as a regulation of licensed professional conduct, wrote Bryan, “the Washington Conversion Law is subject to rational basis review, it is rationally related to the State’s asserted interest ‘in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harm caused by conversion therapy.’”  Thus, the court found no violation of Tingley’s free speech rights.

On the Due Process claim, Bryan rejected Tingley’s assertion that the law was impermissibly vague, noting that the 9th Circuit had rejected this argument in Pickup regarding the similarly-worded California statute and finding that a “reasonable person” could figure out that what was outlawed was therapy intended to “alter a minor patient’s sexual orientation” or gender identity.  The 9th Circuit did not find either of those terms to be vague, finding ample definitions in dictionaries as well as the definitional provisions of the statutes.

As to the Free Exercise argument, Judge Bryan found that the 9th Circuit had rejected a similar argument in Welch v. Brown, 834 F. 3d 1041 (9th Cir. 2016), a companion case decided by the 9th Circuit together with Pickup.  The law does not target religion.  “Like in Welch,” wrote Bryan, “the object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.  Its object is to ‘protect the physical and psychological well-being of minors. . .  The Conversion Law does not, either in practice or intent, regulate the way in which Plaintiff or anyone else practices their religion.  Instead, it ‘regulates conduct only within the confines of the counselor-client relationship,’” citing Welch.  “Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.”

Bryan also rejected ADF’s argument that because both speech and free exercise were implicated, under a “hybrid rights” doctrine the law was subject to a higher level of judicial scrutiny.  “It is not clear that the hybrid rights exception ‘truly exists,’” he wrote, quoting the 9th Circuit’s opinion in Parents for Privacy v. Barr, 949 F. 3d 1210 (2020), but even assuming that it does, “the doctrine would compel a higher level of scrutiny for claims that implicated multiple constitutional rights, in this case free exercise and free speech.  Because the Court already established that Plaintiff’s claim does not implicate free speech, the hybrid rights exception does not apply and does not undermine the holding of Welch.”

ADF will certainly appeal this ruling to press the argument that NIFLA has “abrogated” Pickup and Welch and compels a ruling for their client on the free speech claim.  Striking down Conversion Therapy bans is a major item on ADF’s anti-LGBTQ agenda.

Intervenor Equal Rights Washington is represented by National Center for Lesbian Rights and pro bono counsel Raegen Nicole Rasnic of Skellenger Bender, PS, Seattle.  The court also received a brief on behalf of The Trevor Project, the Foundation for Suicide Prevention, and the American Association of Suicidology, identified as “Interested Partys.”

Judge Bryan was appointed to the court by President Ronald W. Reagan.

Church Loses Battle with Amazon Over Exclusion from AmazonSmile Program

Posted on: August 1st, 2021 by Art Leonard No Comments

The AmazonSmile Foundation, a tax-exempt corporation affiliated with Amazon.com, declined an application by Coral Ridge Ministries Media, a Christian ministry and media corporation, to participate in the AmazonSmile program, because the Southern Poverty Law Center (SPLC) listed Coral Ridge as a “hate group” on its website, due to Coral Ridge’s expressed views about homosexuality.  Under the Amazon Smile program, Amazon customers designate charities from a list approved by the Foundation to receive a donation from Amazon of 0.5% of purchases of qualifying goods and services from the Amazon.com website.   Under the terms of the program, “hate groups” may not participate, even if they would otherwise qualify as tax-exempt charitable organizations.

On July 28, the U.S. Court of Appeals for the 11th Circuit rejected Coral Ridge’s state law defamation claim against SPLC for labeling it a “hate group” and its religious discrimination claim against Amazon for excluding it from the Smile program.  Circuit Judge Charles Wilson wrote for the three-judge panel in Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 2021 WL 3184962.

Senior U.S. District Judge Myron Thompson had dismissed the lawsuit on both claims in September 2019, concluding that Coral Ridge’s allegations fell short of describing actionable defamation under Alabama law, and that the AmazonSmile program is not a public accommodation covered by Title II of the Civil Rights Act of 1964, which forbids discrimination because of religion.  See 406 F. Supp. 3d 1258 (M.D. Ala.). He alternatively found that allowing Coral Ridge’s claim would violate Amazon’s First Amendment rights, and that Coral Ridge’s factual allegations did not support a claim of discrimination because of religion.  While agreeing that Thompson correctly dismissed the case, the three-judge Court of Appeals panel ruled more narrowly than had Thompson on both claims.

To win a defamation suit, a plaintiff must allege that the defendant made a damaging false statement of fact about the plaintiff.  If the plaintiff is considered a “public figure,” which Coral Ridge conceded that it is, the plaintiff has to show that the false statement was made with “actual malice” by the defendant.  “Actual malice” is a term of art in defamation law.  It means that defendant made the false statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”

“Coral Ridge did not sufficiently plead facts that give rise to a reasonable inference that SPLC ‘actually entertained serious doubts as to the veracity’ of its hate group definition and that definition’s application to Coral Ridge,” wrote Judge Wilson, “or that SPLC was ‘highly aware’ that the definition and its application was ‘probably false.’”  In this case, Coral Ridge was quibbling with the definition of a hate group that SPLC stated on its website.  Since SPLC states its own definition, however, “it is hard to see how SPLC’s use of the term would be misleading,” wrote Judge Wilson.

While conceding that Coral Ridge rejected homosexuality based on religious beliefs, the church alleged that it “has never attacked or maligned anyone on the basis of engaging in homosexual conduct,” but even accepting that allegation as true – which the court would have to do in ruling on a motion to dismiss the case as a matter of law —  the court found that Coral Ridge’s allegation provided no basis for finding that SPLC intentionally or recklessly mislabeled the church, so it upheld Judge Thompson’s dismissal of this claim.

The discrimination claim against Amazon is more complicated.  For one thing, it is not clear that Amazon.com or its affiliate AmazonSmile Foundation could be considered public accommodations in their dealings with applicants to participate in the Smiles program.  While Judge Thompson had assumed without analysis that these defendants could be considered “places of public accommodation,” he found that the AmazonSmile program “did not qualify as a ‘service,’ ‘privilege,’ or ‘advantage’ under the statute,” or, alternatively, that it could violate the First Amendment for a court to order Amazon to donate to Coral Ridge.

Avoiding having to rule on the statutory issue, the court of appeals went directly to Amazon’s constitutional defense, which it found to be valid.  The Supreme Court has frequently ruled that donating money, whether to a charity or a political cause, is expressive conduct protected by the First Amendment.  That’s the basis, for example, for the Court’s decision striking down various campaign finance reforms by Congress, such as the infamous Citizens United case.  Judge Wilson quoted Harris v. Quinn, 573 U.S. 616 (2014), a Supreme Court ruling stating that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”  The court found that this ruling “mapped on” to Amazon’s constitutional argument.

Coral Ridge argued that because Amazon patrons select the charities to which 0.5% of their purchases would be donated, they are the real donors, treating Amazon as a mere conduit for their donations.  But AmazonSmile makes clear in its application process that Amazon exercises judgment about which charities can participate, and specifically states that entities designated as “hate groups” by SPLC are disqualified.  “We have no problem finding that Amazon engages in expressive conduct when it decides which charities to support through the AmazonSmile program,” wrote the judge.

The court drew an analogy to the Supreme Court’s ruling in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), that the South Boston Allied War Veterans Council had a First Amendment right to exclude the Irish-American Gay, Lesbian & Bisexual Group of Boston from the St. Patrick’s Day Parade organized by the Council.  The Supreme Court ruled that the state could not require the Council to let GLIB march, as that would be imposing on the Council a message that they did not wish to include in their parade.  The Massachusetts Supreme Judicial Court had ruled that the Parade was a public accommodation and GLIB was entitled to participate, but the Supreme Court unanimously reversed that ruling to protect the free speech rights of the parade’s organizers.

“In the same way that the Council’s choice of parade units was expressive conduct,” wrote Judge Wilson, “so too is Amazon’s choice of what charities are eligible to receive donations through AmazonSmile.  Applying Title II in the way Coral Ridge proposes would not further the statute’s purpose of ‘securing for all citizens the full enjoyment of facilities described in the Act which are open to the general public.’”  Consequently, the court concluded that Coral Ridge’s proposed interpretation of Title II “would infringe on Amazon’s first Amendment Right to engage in expressive conduct and would not further Title II’s purpose,” so it affirmed Judge Thompson’s decision to dismiss Coral Ridge’s religious discrimination claim.

Judge Wilson was appointed to the Court by President Bill Clinton.  Joining his decision were Circuit Judge Britt Grant, appointed by President Donald Trump, and Senior Circuit Judge Gerald Tjoflat, appointed by President Gerald Ford.  Senior District Judge Thompson was appointed by President Jimmy Carter.

Federal Appeals Court Says University Professor May Have 1st Amendment Right to Misgender Transgender Students

Posted on: March 29th, 2021 by Art Leonard No Comments

Nicholas Meriwether, a philosophy professor at Shawnee State University in Portsmouth, Ohio, was very concerned in 2016 when the University announced that its ban on gender identity discrimination would require professors to respect students’ gender identity by using appropriate pronouns to refer to them.  Meriwether, a devout Christian who rejects the idea that people can have a different gender identity than their genetic sex, protested to his department chair, who ridiculed his religious beliefs and told him to comply with the rule.  Now a federal appeals court panel has ruled that the Meriwether could have a 1st Amendment right to insist on misgendering transgender students based on his religious beliefs.  Meriwether v. Hartop, 2021 WL 1149377, 2021 U.S. App. LEXIS 8876 (6th Cir., March 26, 2021).

According to his federal court complaint, Meriwether says that the department chair exhibited hostility toward him and his beliefs during their meeting, stating that “adherents to the Christian religion are primarily motivated out of fear”; “the Christian doctrines regarding hell are harmful and should not be taught”; “anyone who believes hell exists should not be allowed to teach these doctrines”; “faculty members who adhere to a certain religion should be banned from teaching courses regarding that religion”; and “the presence of religion in higher education is counterproductive” because “the purpose of higher education is to liberate students” and “religion oppresses students.”

Meriwether, who had taught at Shawnee for 35 years, confronted the issue up-close in January 2018 when he returned from a semester on sabbatical leave and discovered, undoubtedly to his chagrin, that there was a transgender woman in his class, who is identified in the litigation as “Doe.”  Meriwether, believing Doe to be male, addressed Doe as “sir” in response to a comment Doe made in class discussion.  After the class, Doe approached Meriwether and advised him that Doe was a woman and should be addressed accordingly.  Doe threatened to file a complaint against Meriwether if he did not address her as female.

This led ultimately to the University putting a disciplinary note and warning in Meriwether’s file when he failed to abide by instructions to consistently address Doe as a woman or to just to use her last name when calling on or referring to her.  He tried to restrain himself from addressing Doe incorrectly, but slipped up on occasion, quickly correcting himself.  He told one administrator that he would be willing to comply with the rule by referring to Doe consistently as female if he could put an explanatory statement in his course Syllabus setting forth his religious views, but he was told that would itself violate the anti-discrimination rule.

Doe filed at least two complaints with University administrators against Meriwether, leading to findings that he had created a hostile environment for Doe, which he tried to refute by claiming that Doe had participated actively and well in class discussion and earned a high grade in his course.  Meriwether appealed these rulings and claimed that when his union representative tried to explain Meriwether’s religious freedom argument to the University President, that official just laughed and refused to listen.

U.S. District Judge Susan J. Dlott referred the University’s motion to dismiss Meriwether’s 1st Amendment lawsuit to a Magistrate Judge, Karen L. Litkovitz, who issued a Report and Recommendation in 2019 concluding that the case should be dismissed, because Meriwether’s failure to comply with the University’s rule did not involve constitutionally protected speech.  In January 2020, Judge Dlott issued a brief opinion agreeing with Litkovitz’s recommendation and dismissing the case.  Meriwether, represented by Alliance Defending Freedom, a staunchly anti-LGBT religious litigation group, appealed to the Cincinnati-based U.S. Court of Appeals for the 6th Circuit, which reversed Judge Dlott’s ruling on March 26, reviving the lawsuit and sending it back to the District Court for trial.

Judge Dlott’s decision adopting Judge Litkovitz’s recommendation to dismiss the case was based heavily on Garcetti v. Ceballos, a 2006 Supreme Court ruling that held, by a vote of 5-4, that when government employees speak or write as part of their job, their speech is “government speech” that is not protected by the 1st Amendment.  As Justice Anthony Kennedy interpreted the Court’s free speech precedents, an individual is protected by the 1st Amendment’s freedom of speech when they are speaking as a citizen on a matter of public concern, but not when they are speaking as a government official.  The case concerned a prosecuting attorney who claimed to have suffered unconstitutional retaliation for an internal memo he wrote and some testimony he gave in a criminal court hearing that met with disapproval from his supervisors.  The Supreme Court held that neither his memo nor his testimony enjoyed 1st Amendment protection because he was speaking as part of his job as a government official.

In a dissent, Justice David Souter raised the specter of censorship of public university professors who are employed to engage in scholarship and teaching and who would theoretically be deprived of academic freedom under such a rule.  Justice Kennedy responded in his opinion by acknowledging the academic freedom concern and observing that the Court was not deciding that issue in the Garcetti case.  Lower federal courts have been divided about the impact of Garcetti in cases involving educators seeking 1st Amendment protection for their speech.

In her opinion, Judge Litkovitz found that Professor Meriwether’s use of inappropriate terminology to refer to Doe was not protected speech, relying in part upon the Garcetti reasoning, and Judge Dlott accepted her conclusion.  But the 6th Circuit panel (which included two judges appointed by President Donald J. Trump) decisively rejected that view.

Writing for the unanimous panel, Circuit Judge Amul Roger Thapar seized upon Justice Souter’s dissent and Justice Kennedy’s acknowledgement that academic freedom concerns could create an exception to the Garcetti rule and insisted that Professor Meriwether’s claim that the University violated his 1st Amendment rights by disciplining him for his use of words in dealing with Doe should not have been dismissed.

“Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors,” wrote Judge Thapar. “Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed.”  The court insisted that the words Meriwether used reflected his religiously-based beliefs about gender, and as spoken in the classroom were part of his teaching and were thus communicating his point of view about a hotly debated and controversial subject of public concern.  As such, they enjoy 1st Amendment protection under the free speech provision.

Furthermore, pointing out the hostility with which Meriwether’s department chair and the University president had responded to his religiously-based arguments, the court relied on the Supreme Court’s Masterpiece Cakeshop ruling to find that his right to free exercise of religion also came into play in this case.  If speech on an issue of public concern enjoys 1st Amendment protection, then the University’s disciplinary action of placing a warning letter in Meriwether’s personnel file and threatening him with more severe sanctions for future violations would be subject to “strict scrutiny,” which means the University and those officials named as individual defendants would have the burden to show that there is a compelling justification for their actions and that the “accommodations” that Meriwether had suggested would defeat the University’s attempt to achieve its compelling goal.

In this case, the University’s justification lies in Title IX of the Education Amendments of 1972, which provides that schools receiving federal funding may not deprive any individual of equal educational opportunity because of sex.  In 2016, the Obama Administration informed the educational community that it interpreted that language to ban gender identity discrimination, and published a guidance document that instructed, among other things, that transgender students have a right to be treated consistent with their gender identity, including appropriate use of language in speaking to and about them.

The University argued that the 6th Circuit’s decision in the Harris Funeral Homes case, which later became part of the Supreme Court’s 2020 Bostock ruling, had confirmed its compelling interest in preventing discrimination against transgender students.  In that case, the 6th Circuit, and ultimately the Supreme Court, held that the ban on sex discrimination in employment under Title VII of the Civil Rights Act of 1964 applied to an employer’s discharge of a transgender employee when she announced her transition.

Judge Thapar rejected the argument.  “Harris does not resolve this case,” he insisted. “There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee’s transgender status.  The panel did not hold—and indeed, consistent with the First Amendment, could not have held—that the government always has a compelling interest in regulating employees’ speech on matters of public concern . . . . [It] would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into ‘enclaves of totalitarianism.’”

Furthermore, he wrote, “a requirement that an employer not fire an employee for expressing a transgender identity is a far cry from what we have here—a requirement that a professor affirmatively change his speech to recognize a person’s transgender identity.”

“At this stage of the litigation,” wrote Thapar, “there is no suggestion that Meriwether’s speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. Without such a showing, the school’s actions ‘mandate orthodoxy, not anti-discrimination,’ and ignore the fact that ‘[t]olerance is a two-way street.’”  He also rejected the argument that how Meriwether addressed Doe in the classroom deprived her of educational opportunity, pointing out Meriwether’s claim that Doe was an active participant in class discussion and earned a “high grade” in his course.

Thapar supported this view by noting that University President Jeffrey A. Bauer, in confirming the disciplinary decision, had conceded that Meriwether did not create a hostile environment for Doe, instead resting his decision on the assertion that Meriwether discriminated against Doe by addressing cisgender students consistent with their gender identity but not address Doe consistent with her gender identity.  Thus, Judge Thapar concluded, disciplining Doe was not necessary to effectuate Title IX’s policy of protecting educational opportunity.

The court’s opinion lacks any kind of discussion or understanding concerning the concept of “misgendering” and the harm that inflicts on transgender individuals.  In the court’s view, the victim here is Professor Meriwether, not Doe.  This reflects the same cavalier attitude towards misgendering recently displayed in a 5th Circuit decision denying a request by a transgender prisoner that she be referred to consistent with her gender identity in court papers, also treated dismissively by a Trump-appointed appeals court judge.  And it calls to mind a recent ruling by the 11th Circuit striking down on 1st Amendment free speech grounds an attempt by Florida municipalities to protect LGBT youth from the practice of conversion therapy, yet another opinion by a Trump-appointed judge.  The Trump Administration may technically be at an end, but it lives on in his appointment of a third of the active federal appeals court judges.

The only point on which the 6th Circuit panel affirmed Judge Dlott’s ruling was in her conclusion rejecting Meriwether’s argument that the University’s rule was too vague to meet Due Process standards.  The 6th Circuit panel found that Prof. Meriwether was clearly advised of the rule and was accorded Due Process, while finding fault with the lack of neutrality towards religion exhibited by his department chair and President Bauer.  The court ordered that Judge Dlott’s ruling dismissing the lawsuit be vacated, and that the case sent back to the district court for proceedings consistent with the 6th Circuit’s opinion.

 

 

Federal Appeals Court Rules Laws Against Conversion Therapy Using Solely Speech Violate the First Amendment

Posted on: November 22nd, 2020 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled on November 20 in Otto v. City of Boca Raton, 2020 U.S. App. LEXIS 36589, 2020 WL 6813994, that laws enacted by Boca Raton and Palm Beach County, Florida, prohibiting licensed therapists from performing conversion therapy on minors, violate the therapists’ rights to freedom of speech under the First Amendment.  The panel voted 2-1.  Two judges appointed by Donald Trump – Britt Grant and Barbara Lagoa – made up the majority.  Beverly Martin, appointed by Barack Obama, dissented.

Both of the local laws at issue were enacted in 2017.  In both cases, the local legislatures reviewed the voluminous professional literature condemning “sexual orientation change efforts” (SOCE), commonly called “conversion therapy,” as being fraudulent and causing potential harm to minors.  The legislatures concluded that this evidence was sufficient to justify outlawing the procedure.  Since local governments do not have authority to suspend or terminate a professional license granted by the state, instead they authorized fines to be imposed on licensed counselors who were found to have performed such “therapy.”  The local laws do not apply to unlicensed counselors, including religious counselors who are not required by the state to be licensed.

Nobody has actually been prosecuted under either law, but two licensed counselors, Robert W. Otto and Julie H. Hamilton, represented by lawyers from Liberty Counsel, an anti-LGBT legal organization, filed lawsuits claiming that the therapy they provide consists entirely of speech which cannot be outlawed by the government. They asserted that they do not claim that they can change a person’s sexual orientation, but that their therapy is intended to help their clients to “reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity.”  They also asserted that their patients “typically” have religious beliefs that conflict with homosexuality and “seek SOCE counseling in order to live in congruence with their faith and to confirm their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs.”

The plaintiffs also argued that their equal protection rights were violated because unlicensed counselors were not prohibited from performing SOCE, and that the localities were preempted from passing any law regulating the practice of therapists licensed by the state.  They sought a preliminary injunction barring enforcement of the laws while the case was pending, which was denied to them by the district court.  This appeal to the 11th Circuit sought to overturn the district court ruling and get the preliminary injunction pending a final ruling on the merits of their claims.

Similar laws passed by several states and other localities have been upheld against 1st Amendment claims.  Both the 3rd Circuit Court of Appeals in King v. Governor of New Jersey, 767 F. 3d 216 (2014), ruling on a New Jersey statute, and the 9th Circuit in Pickup v. Brown, 740 F.3d 1208 (2014), ruling on a California statute, have rejected the argument that this “talk therapy” is shielded from state regulation by the First Amendment.  They have held that the incidental burden on therapists’ speech was justified within the government’s legitimate role of regulating the practices of licensed practitioners, and the 3rd Circuit, in particular, held that when therapists are using speech in the context of providing “therapy,” that is professional speech that comes within the sphere of regulatory authority.  Furthermore, these other courts have recognized the compelling interest of states in protecting minors from harm.

In 2018, the Supreme Court ruled in a California case, National Institute of Life Advocates v. Becerra, 138 S. Ct. 2361, that a state law requiring reproductive health clinics that do not provide abortion services to provide their clients with information about the availability of such services from other providers, was an unconstitutional imposition of a speech requirement in violation of the 1st Amendment.  California sought to defend its law by invoking the concept of “professional speech” as falling within the sphere of legitimate state regulation.  Writing for the Court in that case, Justice Clarence Thomas rejected the idea that speech employed in the context of providing health care was a separate category of speech to be evaluated differently from other forms of speech that receive the full protection of the 1st Amendment.  He specifically criticized the 3rd and 9th Circuit conversion therapy opinions in this connection, rejecting the idea that speech should enjoy less robust constitutional protection because it was used by licensed counselors as their method of providing therapy.

Following Justice Thomas’s lead, the panel majority in this case held that the local laws should be reviewed under the “strict scrutiny” standard, as a content-based and viewpoint-based restriction on speech. This means that the laws would be treated as presumptively unconstitutional, placing the burden on the government to prove that they were necessary to achieving a compelling state interest and were narrowly tailored to avoid imposing unnecessary burdens on free speech.

Applying this strict scrutiny test, the majority of the panel concluded that the laws were unconstitutional.  Although Judge Britt Grant, writing for the majority, acknowledged that protecting children from harm is a compelling state interest, she rejected the argument that harm to children had been sufficiently shown to justify this abridgement of speech.

Pointing to the reports and studies that were considered by the legislatures in passing these laws, Grant wrote, “But when examined closely, these documents offer assertions rather than evidence, at least regarding the effects of purely speech-based SOCE.  Indeed, a report from the American Psychological Association [a Task Force Report from 2009], relied on by the defendants, concedes that ‘nonaversive and recent approaches to SOCE have not been rigorously evaluated.’  In fact, it found a ‘complete lack’ of ‘rigorous recent prospective research’ on SOCE.”  She also noted that the same report stated that “there are individuals who perceive they have been harmed and others who perceived they have benefited from nonaversive SOCE.’ What’s more, because of this ‘complete lack’ of rigorous recent research, the report concludes that it has ‘no clear indication of the prevalence of harmful outcomes among people who have undergone’ SOCE.”

“We fail to see,” Grant continued, “how, even completely crediting the report, such equivocal conclusions can satisfy strict scrutiny and overcome the strong presumption against content-based limitations on speech.”  Grant pointed out that people who claimed to have been harmed by SOCE practitioners can bring malpractice claims or file complaints with state regulators of professional practice, but he asserted that the state may not categorically outlaw the practice without stronger evidence that it actually causes harm.

When a plaintiff seeks a preliminary injunction barring enforcement of a challenged law before the trial court has ruled on the merits of the challenge, the plaintiff must show that it has stated a potentially valid claim and would suffer irreparable injury if the law can be enforced against them.  In this case, Judge Grant wrote, since the majority of the panel found the law to be unconstitutional, it was reversing the district court decision and sending the case back to the district court “for entry of a preliminary injunction consistent with this opinion.”

The dissenting judge, Beverly Martin, conceded that the challenged laws are subject to “strict scrutiny.”  In the face of Justice Thomas’s statements in the 2018 NIFLA decision, it seems likely that basing her dissent on the idea that these laws regulate professional conduct and not speech as such was not going to get anywhere.  But, she argued, this is that rare case where a statute that prohibits a form of speech based on its content and viewpoint could be justified as serving the compelling interest of protecting minors from harm.

She rejected the majority’s conclusion that the laws “restrict ideas to which children may be exposed” by pointing out that nothing in the laws prevents therapists from discussing with their minor patients “the perceived benefits of SOCE,” and also that the therapists “may recommend that their minor patients receive SOCE treatment from a provider elsewhere in Florida.”  The only limitation imposed by the laws was the actual practice of this “talk therapy” on their patients within the jurisdictions of Boca Raton and Palm Beach County.

Most of her dissent was devoted to dissecting the majority’s dismissive evaluation of the evidence on which the Boca Raton and Palm Beach County legislators had relied to find it necessary to ban conversion therapy in order to protect minors.  She rejected Judge Grant’s assertion that there is “insufficient evidence to conclude that SOCE is so harmful as to merit regulation.”  Pointing to the 2009 APA Task Force report, she quoted, “there was some evidence to indicate that individuals experienced harm from SOCE,” including nonaversive methods.  The Task Force Report went on to say that “attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.”  And the Report “catalogued recent studies reporting that patients who undergo SOCE experience negative consequences including ‘anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family, loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction.’”

She was particularly critical of Grant’s heavy reliance on the Report’s comment about the lack of “rigorous recent prospective research” on SOCE.  First, she wrote, “what studies have been done ‘show that enduring change to an individual’s sexual orientation is uncommon,’ and that there is, in fact, already ‘evidence to indicate that individuals experience harm from SOCE.”

Perhaps more significantly, she pointed out that rigorous research would require an unethical methodology.  She wrote, “the APA has cautioned that ‘to conduct a random controlled trial of a treatment that has not been determined to be safe is not ethically permissible and to do such research with vulnerable minors who cannot themselves provide legal consent would be out of the question for institutional review boards to approve.”

“To be clear,” wrote Martin, “the very research the majority opinion seems to demand is ‘not ethically permissible’ to conduct.  Thus, one implication of the majority holding is that because SOCE is too dangerous to study, children can continue to be subjected to it.  The majority opinion has the result of inviting unethical research that is nowhere to be found in First Amendment jurisprudence.”

Further, she noted, there is “the recognition that homosexuality is not a mental illness as well as the particular vulnerability of minors as a test-study population.  All of this evidence leads to the inescapable conclusion that performing efficacy studies for SOCE on minors would be not only dangerous (by exposing children to a harmful practice known to increase the likelihood of suicide) but pointless (by studying a treatment for something that is not a mental-health issue).”

She also criticized the majority for focusing on comments selectively quoted from one APA Task Force report, and discounting that “SOCE is a practice that has already been deemed by institutions of science, research and practice” – listing nine of them – “to pose real risks of harm on children.  It is reasonable for the Localities to enact the Ordinances based on the existing evidentiary record as to harm.”

She rejected the plaintiffs’ argument that the Ordinances were either too overinclusive or underinclusive to survive strict scrutiny review.  “I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility,” she concluded,” asserting that the plaintiffs are not entitled to a preliminary injunction.

At this point, the Boca Raton and Palm Beach County governments have strategic decisions to make.  The “luck of the draw” exposed them to a three-judge panel whose majority were Trump appointees.  Since this opinion is out of step with rulings by other federal courts of appeals, it is possible that the 11th Circuit would grant a motion for reconsideration en banc.

However, at present, six Trump appointees are balanced by four Obama appointees, one Clinton appointee, and an appointee of George W. Bush, so the “Trump judges” make up exactly half of the 11th Circuit bench, and the chances that the full circuit would overturn this ruling seem slim.

The defendants could also directly petition the Supreme Court for review.  But in light of the current line-up of that Court, to take this issue to that Court directly would really be tempting fate and, in the past, the Supreme Court has declined to review the constitutionality of anti-SOCE laws from other jurisdictions.

This is the first federal court of appeals to part company from the many cases rejecting First Amendment challenges to  these laws, increasing the likelihood that the Supreme Court would grant review, which could produce (in a worst case scenario) an opinion invalidating all the existing U.S. laws against conversion therapy.  On the other hand, a Supreme Court opinion upholding the constitutionality of these laws could encourage the current campaign to get more state and local governments to adopt them.  But given the odds, it may be particularly prudent for the defendants not to appeal, let the preliminary injunction go into effect, and concentrate on putting together a strengthened evidentiary record on the harms that SOCE does to minors to make it more likely they will prevail on the merits before the district court.

The court received five amicus briefs, all defending the challenged laws.  Among the organizations signing the briefs were the National Center for Lesbian Rights, Southern Poverty Law Center, Equality Florida Institute, Inc., The Trevor Project, American Psychological Association, Florida Psychological Association, National Association of Social Workers, National Association of Social Workers Florida Chapter, and American Association For Marriage and Family Therapy.

Kentucky Supreme Court Avoids Ruling on Clash Between Free Speech and Anti-Discrimination Law in T-Shirt Case

Posted on: November 3rd, 2019 by Art Leonard No Comments

In a case that drew 26 amicus briefs – an unusually high number for an argument in a Midwestern state high court, the Kentucky Supreme Court found an off-ramp from having to decide whether a small business that produces custom t-shirts has a right to refuse an order to print a shirt with whose message the business owner disagrees in Lexington-Fayetteville Urban County Human Rights Commission v. Hands on Originals, 2019 Ky. LEXIS 431, 2019 WL 5677638 (October 31, 2019).  The court decided that the appellant, the local human rights commission that had ruled against the business, had no jurisdiction because the entity that filed the discrimination complaint in the case was not an “individual” within the meaning of the local civil rights ordinance.

The case originated in February 2012 when a representative of the Gay & Lesbian Services Organization (GLSO), an advocacy organization in Lexington that was planning for its fifth annual Lexington Pride Festival, came to Hands On Originals, the t-shirt business, with an order for t-shirts to be used in connection with the Festival.  Hands on Originals is a small business with three owners, all of whom identify as Christians who operate the business consistently with their understanding of the Bible.  Their website has a non-discrimination statement, which includes “sexual orientations”, but says that “due to the promotional nature of our products, it is the prerogative of Hands on Originals to refuse any order that would endorse positions that conflict with the convictions of the ownership.”  The design that GLSO presented bore the name “Lexington Pride Festival” with rainbow-colored circles around an enlarged number “5” in recognition of the 5th year of the Festival, and no other text.  The employee who took the order reviewed it and quoted a price.

“The following month,” wrote Justice Laurence V. VanMeter in the court’s opinion, “a different GLSO representative contacted Hands On about the price quote and spoke with Adamson [one of the owners], who had not yet viewed the t-shirt design.  Adamson inquired into what the Pride Festival was and learned that the t-shirts would be in support of the LGBTQ+ community.  Adamson advised the GLSO representative that because of his personal religious beliefs, Hands On could not print a t-shirt promoting the Pride Festival and its message advocating pride in being LGBTQ+.  Adamson offered to refer GLSO to another printing shop.”  In the event, after word about this got out, a Cincinnati business printed the t-shirts for GLSO free of charge.  But GLSO’s president filed a complaint on behalf of the organization with the local human rights commission, charging violation of the Lexington-Fayetteville Human Rights Ordinance, which forbids discrimination against any individual based on their sexual orientation or gender identity by public accommodations.

The commission ruled in favor of the complainants, but was overruled by the Fayette Circuit Court, which instructed the commission to dismiss the charges.  The commission and GLSO appealed.  The Court of Appeals affirmed the circuit court, but the panel split, producing three opinions, out of which a majority concluded that the anti-discrimination provision was not violated by Hands On engaging in viewpoint or message censorship as a non-governmental entity.

Justice VanMeter’s opinion focused on the language of the ordinance, which provides that an “individual” claiming to be aggrieved by an unlawful practice can file a complaint with the commission.  The court concluded, by examining both the context of the ordinance and the contents of other states referenced in the ordinance, that “only an individual – being a single human – can bring a discrimination claim” under the ordinance.  Although an individual, a representative of GLSO, had filed the original complainant with the Commission, it was not filed in his individual capacity but rather as a representative of GLSO.  Thus, because “GLSO itself was the only plaintiff to file a claim” and “it did not purport to name any individual on whose behalf it was bringing the claim,” therefore GLSO “lacked the requisite statutory standing” to invoke the jurisdiction of the Human Rights Commission.

The court pointed out that Hands On “argued first to the Hearing Commissioner that GLSO, as an organization, did not have standing under the ordinance to bring a claim.”  The Hearing Commissioner rejected that argument, reaching a conclusion that the court rejects in this opinion: that an “individual” as named in the ordinance could also be an organization.  Hands On continued to push this argument through all levels of review, so it was not waived when the Kentucky Supreme Court agreed to review the lower court decisions.

“While this result is no doubt disappointing to many interested in this case and its potential outcome,” wrote Justice VanMeter, “the fact that the wrong party filed the complaint makes the discrimination analysis almost impossible to conduct, including issues related to freedom of expression and religion.  Normally in these cases, courts look to whether the requesting customer, or some end user that will actually use the product, is a member of the protected class.  And even when the reason for the denial is something other than status (conduct, for example), ways exist to determine whether the individual(s) (the requesting customer(s) or end user(s)) was actually discriminated against because of the conduct cited is so closely related to that individual’s status.  But in either scenario (whether the person allegedly discriminated against is the requesting customer or some end user) the individual is the one who has filed the lawsuit, so the court can properly determine whether that person has been discrimination against.”

VanMeter insisted that the court finds “impossible to ascertain” in this case whether the organization that filed the discrimination charge is a “member of the protected class.”  “No end user may have been denied the service who is a member of the protected class, or perhaps one was.  If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden” under the law.  “But without an individual . . .  this analysis cannot be conducted.”

This reasoning strikes us as hair-splitting in the extreme, but is not surprising considering that courts prefer to avoid deciding controversial issues if they can find a way to do so.  The Lexington-Fayetteville ordinance, by its terms, does not have protected classes.  Like the federal Civil Rights Act of 1964, it is a “forbidden grounds” measure, not a “protected class” measure.  Everybody, regardless of their race, is protected from race discrimination, for example.  There are no “protected classes” who have an exclusive claim to being protected against discrimination on any of the grounds mentioned in the ordinance.  Thus, VanMeter’s explanation is premised on a misconception of the ordinance.  But, as a decision by the Kentucky Supreme Court on a question of state law, it is final unless or until it is overruled by the Kentucky Supreme Court or rendered irrelevant by an amendment to the ordinance.  As it stands, however, it creates a large loophole in the coverage of the ordinance that was probably not intended by the local legislative bodies that enacted the measure.

Six members of the seven-member court sat in this case.  Four members of the court concurred in VanMeter’s opinion.  Justice David Buckingham wrote a separate concurring opinion.  Although he agreed with the court that GLSO lacked standing to file the charge, he wanted to express his view that the “Lexington Fayette Human Rights Commission went beyond its charge of preventing discrimination in public accommodation and instead attempted to compel Hands On to engage in expression with which it disagreed.”  He found support in the U.S. Supreme Court’s 1995 decision overruling the Massachusetts Supreme Judicial Court’s ruling that the organizers of the Boston Saint Patrick’s Day Parade case had violate the state’s human rights law by excluding a gay Irish group from marching in the parade, and a ruling earlier this year by the 8th Circuit court of Appeals reversing a district court decision concerning a videographer who sought a declaration that his business would not be required under Minnesota’s civil rights laws to produce videos of same-sex marriages.  In a lengthy opinion, Justice Buckingham cited numerous cases supporting the proposition that the government crosses an important individual freedom line when it seeks to compel speech.  “Compelling individuals to mouth support for view they find objectionable violates that most cardinal constitutional command,” he wrote, “and in most contexts, any such effort would be universally condemned.”  While reiterating his support for the ruling on “standing” by the majority of the court, he wrote, “if we were to reach the substantive issues, I would affirm the Fayette Circuit Court’s Opinion and Order,” which was premise in this First Amendment free speech argument.

Because the court’s decision is based entirely on its interpretation of the local ordinance and various Kentucky statutory provisions and avoids any ruling on a federal constitutional issue, it is not subject to appeal to the U.S. Supreme Court, which a straightforward affirmance of the Court of Appeals ruling on the merits would have been.

Most of the amicus briefs were filed by conservative and/or religious groups seeking affirmance of the Court of Appeals on the merits, and it is clear that the amici were determined to make this a major “culture wars” case in the battle against LGBTQ rights.  One amicus brief was filed on behalf of ten states that do not forbid sexual orientation or gender identity discrimination in their state civil rights laws.  There were also amicus briefs from progressive groups (including progressive religious groups) urging the court to reverse the Court of Appeals on the merits.  The only LGBT-specific organizational brief was filed by Lambda Legal.

Federal Judge Voids Tampa Ban on Conversion Therapy

Posted on: October 18th, 2019 by Art Leonard No Comments

U.S. District Judge William F. Jung ruled on October 4 in Vazzo v. City of Tampa, 2019 U.S. Dist. LEXIS 172734, 2019 WL 4919302 (M.D. Fla.), that the state of Florida’s pervasive regulation of professional health care deprives the city of Tampa from the authority to impose sanctions on licensed health care workers who perform “conversion therapy” on minors.

Jung’s ruling was a startling departure from the way most courts have responded to challenges against laws cracking down on the charlatans who engage in this discredited practice.  Several federal courts, including some courts of appeals, have rejected challenges based on the 1st and 14th Amendments, but those cases mainly involved state laws.  Although the challengers in the Tampa case – Robert L. Vazzo, David Pickup, and Soli Deo Gloria International, Inc. – made those same constitutional arguments, which provided the basis for their case to be in federal court, Judge Jung resolved the case on a state law basis that appeared to be a mere make-weight in the original Complaint.

Tampa passed its ordinance in April 2017.  It bans “therapy” within the City by medical doctors and mental health professionals intended to assist minors to avoid being gay or transgender.  The ordinance uses the term “conversion therapy,” but the practice is also sometimes referred to as “sexual orientation change efforts” or SOCE.  The ordinance cites numerous professional studies discrediting SOCE and contending that it may be harmful to minors, and also cites decisions by the U.S. Courts of Appeals for the 3rd and 9th Circuits upholding New Jersey and California statutes making the performance of this “therapy” a violation of licensing standards that could subject the practitioners to penalties and possible loss of licensure.  A New Jersey state court has also condemned the practice under that state’s consumer fraud statute.

The Tampa City Council stated its intention to protect minors from being subjected to a potentially harmful practice, premised on its authority to exercise its police power for the public safety, health and welfare.  Enforcement was assigned to the same city employees who enforce other standards and codes.

Vazzo, a marriage and family therapist licensed in Florida, practices SOCE on minors, claiming that his treatment may help minors “reduce or eliminate same-sex sexual attractions, behaviors or identity,” and claiming that his therapy is rendered entirely in speech.  He also claimed that all clients initiate SOCE counseling by giving informed consent; a questionable assertion when they are minors who, under the law, are recognized as having only limited capacity to give legal consent to a variety of things.  As a practical matter, this normally involves parents who want to “cure” their children from being gay or trans and give consent to the SOCE practitioner on their children’s behalf.

Co-plaintiff David Pickup was the lead plaintiff in a case challenging California’s state law ban on SOCE, and claims in this case that he had intended to get Florida certification and treat patients in Tampa.  The other plaintiff is an organization that refers individuals, including minors, for SOCE treatment.

Jung invoked a doctrine called “implied preemption.”  When a state pervasively regulates a particular activity, it may be found to have “occupied the field” of regulating that activity, thus depriving local governments of doing the same, particularly if the local regulation may conflict in some way with the state regulation or interfere with the state’s ability effectively to regulate.  By contrast, the doctrine of “express preemption” applies to situations where the state constitution or a state law or regulation explicitly reserves sole authority over a particular subject to the state.  Thus, application of implied preemption requires the court to provide a justification for finding that the local government should not be allowed to regulate a particular activity, whereas “express preemption” relies on a clear statement by the legislature that its regulation of a field is exclusive.

Analyzing implied preemption in this case, Judge Jung wrote, “There is no grant of authority by the Florida legislature to municipalities to substantively regulate healthcare treatment and discipline.  The State, not localities, occupies this field. . .  Here, there is nothing local or unique to Tampa about SOCE that would suggest the statewide, uniform medical regulation regime should vary because of Tampa’s peculiarities, and should vary across the State, from town to town and from county to county. The matter legislated against – SOCE – is statewide, not Tampa-specific.  And, a uniform and statewide system of healthcare treatment and practitioner discipline already exists, for sound reasons.  Implied preemption is a disfavored remedy because cities have broad powers to address municipal concerns.  But substantive regulation of psychotherapy is a State, not a municipal concern.”

The judge also suggested that the Tampa Ordinance “encroaches upon” five state-mandated areas.

First, he found that Florida’s constitution protects a broad right of privacy against government intrusions, which “suggests that government should stay out of the therapy room.”

Second, he notes that Florida court cases recognize that “with very few exceptions, parents are responsible for selecting the manner of medical treatment received by their children,” and the ordinance interferes with the right of parents to select SOCE for their children.

Third, he points to the state’s statutory “Patient Bill of Rights,” which protects a patient’s right to select the course of treatment that he or she deems best.  He finds that “the Tampa Ordinance enters this area at odds with this portion of the Florida statutory scheme.”

Fourth, he notes a provision of the Florida law regulating health care which states, as “legislative intent,” that “citizens be able to make informed choices for any type of health care they deem to be an effective option for treating human disease, pain, injury, deformity, or other physical or mental condition,” and that “the health care practitioner may, in his or her discretion and without restriction, recommend any mode or treatment that is, in his or her judgment, in the best interest of the patience in accordance with the provisions of his or her license.”  He asserts that the Tampa Ordinance seeks to place a restriction where state law says there should be none.

Fifth, he asserts that the Tampa Ordinance interferes with the state’s statutory doctrine of informed consent.  Florida law allows health care workers to perform procedures with the informed consent of their patients, by protecting doctors against liability for performing procedures with a patient’s informed consent “so long as the substantial risks and hazards are fully disclosed and accepted.”  He finds that the Tampa Ordinance “simply ignores this well-known and broad Florida concept of informed consent,” subjecting health care practitioners to potential sanctions if they perform SOCE with the full informed consent of their patients.

In effect, he finds, if opponents of SOCE want to see the government restrict health care practitioners from engaging in this practice, they have to convince the medical boards that control the licensing practice that they should condemn SOCE as a violation of standards, or get the legislature to ban the practice.  “Tampa’s divergent standard for punishing errant mental health therapy is relevant in the preemption analysis because it creates a danger of conflict with an area pervasively regulated, for which the Legislature has stated a policy of statewide uniformity,” he concluded, noting particularly the detailed regulations and educational requirements for those seeking to hold the kind of licensing certification that Vazzo has earned.

Judge Jung, treading in controversial waters, goes on to challenge the competency of the Tampa City Council to set standards for medical practice.  “With due respect for the citizen legislators on the Tampa City Council, none are skilled in mental health issues,” he wrote, “nor are any of the City’s code enforcement personnel.  In contrast the Florida Department of Health, with its skilled adjudicatory bodies, is equipped to address this dynamic area of psychotherapy.”  Then he challenges the “certitude” of the City Council’s factual findings by cherry picking isolated statements from statements by the city’s expert witnesses in this case that might be used to impugn some of the conclusions about SOCE and its effects.  Asserting that “the field of gender expression is especially complex,” he suggests that it is best left to the state regulators.

Having decided the case entirely on preemption grounds, Judge Jung expressed no view regarding the constitutional arguments under the 1st and 14th Amendments.  Those arguments have been mainly rejected by the courts, although some uncertainty has been injecting into this field by comments made by Supreme Court Justice Clarence Thomas last year in an unrelated case, in which he castigated the concept of “professional speech” and cited with disdain the 3rd and 9th Circuit decisions mentioned above for having used that concept to analyze the 1st Amendment free speech issues.

Ironically, at the same time as Judge Jung was rendering his decision, rulings rejecting challenges to anti-conversion therapy laws passed by two other local Florida governments are on appeal before the 11th Circuit Court of Appeals.  The Florida legislature and state house, fully controlled by Republicans, are not going to address this issue, which is why Florida has been a hotbed of local legislative activity.  It will be interesting to see whether the preemption issue is raised by the 11th Circuit in considering the appeals in those cases, and whether the City of Tampa – which has an out lesbian mayor and a very political active LGBTQ community – will seek to appeal this ruling.

Vazzo and his co-plaintiffs are represented by lawyers from Liberty Counsel, an advocacy legal organization that seeks to deny liberty to LGBTQ people whenever possible.

Judge Jung, appointed by President Donald Trump, has been on the bench for barely a year.

 

 

Alliance Defending Freedom Asks Supreme Court to Revisit Religious Exemption Issue

Posted on: October 1st, 2019 by Art Leonard No Comments

Alliance Defending Freedom (ADF), a religious freedom litigation group, is asking the Supreme Court to take a second look at Arlene’s Flowers v. State of Washington, No. 19-333 (Docketed September 12, 2019), in which the Washington Supreme Court held that a florist who refused to provide her usual custom floral design and installation wedding services for a same-sex couple had violated the state’s anti-discrimination law, and did not have a valid 1st Amendment defense.  The Washington court’s original decision was vacated by the Court in June 2018 for reconsideration in light of the Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), but the Washington Supreme Court reiterated its earlier holding, 441 P.3d 1203 (Wash. 2019), finding that the record of proceedings in the Superior Court and the Supreme Court in the earlier litigation showed no evidence of hostility to religion and thus was not affected by the Supreme Court’s ruling in Masterpiece.

The Petition proposes two questions for review:  1. Whether the State violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and 2. Whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.

In the first question, the Petitioner asks the Court to take up the underlying constitutional issues in Masterpiece Cakeshop, which the Court evaded in its opinion, and to resolve them once and for all, pointing to litigation from around the country in which small businesses had declined to provide goods or services for same-sex weddings, based on the religious beliefs of the proprietors, and had been hauled into state human rights commissions or courts on charges of violating anti-discrimination laws.  There have been mixed results in these cases.  Beginning with a recalcitrant wedding photographer in New Mexico and continuing with cases involving bakers, florists, commercial wedding venues, stationers and videographers, administrative agencies and courts consistently ruled against allowing religious belief exemptions from generally-applicable anti-discrimination laws covering sexual orientation.  However, more recently, there has begun what may be a pendulum swing in the opposite direction, sparked in part by persistent appeals by ADF from adverse administrative and trial court rulings in affirmative litigation seeking declaratory judgments to establish religious exemptions.

In Masterpiece, the Court found several grounds taken together upon which to reverse the Colorado Court of Appeals’ ruling against the baker, most notably characterizing some public comments by Colorado commissioners that the Court found to evidence open hostility to the baker’s religious views.  The Court also noted an inconsistency in the Colorado Commission’s dismissal of complaints against bakers by a religious provocateur who sought to order cakes decorated to disparage same-sex marriages and was turned down.  The Court also noted that at the time the couple approach the baker, same-sex marriage was not yet legal in Colorado, so the baker could have believed he had no obligation to make such a cake.  While reasserting the general principle that businesses do not enjoy a religious freedom exemption from complying with public accommodation anti-discrimination laws, the Court observed that litigations raising religion freedom claims are entitled to a “neutral” forum to decide their cases, not one evidencing hostility to their religious views.

In Arlene’s Flowers, ADF had filed a statement with the Court after Masterpiece suggesting that evidence of hostility could be found in that case, and the Washington Supreme Court took the remand as a charge to scour the record for signs of such, which it did not find.  The Washington court read Masterpiece to be focused solely on the hostility or non-neutrality of the forum deciding the case.  That case did not involve a hearing before an administrative agency, as the first decision was by the trial court.

In its second proposed question, ADF argues that this was error by the Washington Supreme Court, contending that while the Masterpiece ruling was based on open hostility by commissioners, it could not properly be read to impose a ban on governmental hostility only on government actors performing the function of adjudicating cases.  ADF argues that the Attorney General of Washington evinced hostility and discrimination against religion by seizing upon news reports to come down hard on the florist, threatening litigation if she did not certify that in future should would provide her services to same-sex couples for weddings, making public comments criticizing religious objection to providing such services, and failing to bring similar action based on news reports about a coffee-shop owner expelling “Christians” from his establishment “based on religious views they expressed on a public street.”  ADF also criticized as “unprecedented” the Attorney General’s action in suing under the state’s Consumer Protection Law as well as the anti-discrimination law.

The Petition’s statement of facts is artfully written to suggest a saintly woman who loves gay people and happily sells them flowers for a variety of occasions, but just balks at providing custom weddings services based on her sincerely-held religious beliefs.  It argues that there is no evidence in the record of hostility toward gay people by the florist, emphasizing the long relationship she had selling floral goods to the men whom she turned down for wedding-related services, and maintaining that she had not turned down their business because they were gay but rather due to her religious objections to their wedding, and trying to draw that distinction as requiring dismissal of the discrimination complaint entirely.

The Petition argues that the Washington  Supreme Court took too narrow a view of the Supreme Court’s doctrine concerning the obligation of the government to refrain from hostility towards religion, pointing to cases where the Court had found legislatures as well as adjudicators to have violated the 1st Amendment, and argued that executives, such as the Attorney General, were no less bound by the First Amendment.  The Petition builds on a recent ruling by the 8th Circuit in the videographer case reported last month, Telescope Media Group v. Lucero, 2019 WL 3979621 (Aug. 23, 2019), and seeks to position the Petitioner, a florist, in the same category of First Amendment expression.  In effect, the Petition asks the Court to hold that any business that engages in creative expression for hire cannot be compelled to provide its services for an activity of which it disapproves on religious grounds.

Without making it a central part of the argument, the Petition notes several instances in which various members of the Court have suggested a need to reconsider its long-standing precedent in Employment Division v. Smith, 494 U.S. 872 (1990), intimating that this is the ideal case to do so.  That was the case that reversed decades of 1st Amendment free exercise precedents to hold that religious objectors do not enjoy a privilege to refuse to comply with religiously-neutral state laws of general application that incidentally may burden their free exercise of religion.  Employment Division prompted Congress to pass the Religious Freedom Restoration Act, applying the pre-Employment Division caselaw to the interpretation of federal statutes, and leading many states to pass similar laws.  A ruing overruling Employment Division and reinstating prior would law would, in effect, constitutionalize the Religious Freedom Restoration Act, making it more difficult in many cases for LGBTQ people suffering discrimination to vindicate their rights through legislative action, since the state and federal legislatures cannot overturn a Supreme Court constitutional ruling.

Federal Court Dismisses Challenge to Maryland Law Against Conversion Therapy for Minors

Posted on: September 24th, 2019 by Art Leonard No Comments

On September 20, U.S. District Judge Deborah K. Chasanow of the federal district court in Maryland granted that state’s motion to dismiss a lawsuit brought by Liberty Counsel on behalf of a conversion therapy practitioner who was challenging the state’s recently enacted law that provides that “a mental health or child care practitioner may not engage in conversion therapy with an individual who is a minor.” The ban is enforceable  through the professional licensing process enforced by the Department of Health and Mental Hygiene.  The named defendants are Governor Larry Hogan and Attorney General Brian Frosh.  The case is Doyle v. Hogan, 2019 WL 4573382, 2019 U.S. Dist. LEXIS 160709 (D. Md., Sept. 20, 2019).

The plaintiff, Christopher Doyle, argued that the law violates his right to freedom of speech and free exercise of religion, seeking a preliminary injunction against the operation of the law while the litigation proceeds.  Having decided to dismiss the case, however, Judge Chasanow also denied the motion for preliminary relief as moot.  Liberty Counsel immediately announced an appeal to the U.S. Court of Appeals for the 4th Circuit, which has yet to rule on a constitutional challenge against a conversion therapy ban.

Several U.S. Circuit courts have rejected similar challenges.  The New Jersey statute, signed into law by Governor Chris Christie, was upheld by the 3rd Circuit Court of Appeals, which ruled that the state has the power to regulate “professional speech” as long as there was a rational basis for the regulation.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014). The California statute, signed into law by Governor Jerry Brown, was upheld by the 9th Circuit, which characterized it is a regulation of professional conduct with only an incidental effect on speech, and thus not subject to heightened scrutiny by the court.  Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2015).  Liberty Counsel is also appealing a similar ruling by a federal court in Florida to the 11th Circuit.

The task of protecting statutory bans on conversion therapy against such constitutional challenges was complicated in June 2018 when U.S. Supreme Court Justice Clarence Thomas, writing for the Court in a 5-4 decision involving a California law imposing certain notice requirements on licensed and unlicensed pregnancy-related clinics, wrote disparagingly of the 3rd and 9th Circuit conversion therapy opinions.  National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). The California statute required the clinics to post notices advising customers about pregnancy-related services, including family planning and abortion, that are available from the state, and also required non-licensed clinics to post notices stating that they were not licensed by the State of California.  The clinics protested that the statute imposed a content-based compelled speech obligation that violated their free speech rights and was subject to “strict scrutiny.” Such speech regulations rarely survive a strict scrutiny constitutional challenge.

The Supreme Court voted 5-4 to reverse a decision by the 9th Circuit, which had ruled that the notices constituted “professional speech” that was not subject to “strict scrutiny.”  In so doing, Justice Thomas rejected the idea that there is a separate category of “professional speech” that the government is free to regulate.  He asserted that “this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’”

“Some Court of Appeals have recognized ‘professional speech’ as a separate category of speech that is subject to different rules,” Thomas observed, citing among examples the 3rd Circuit and 9th Circuit conversion therapy cases.  “These courts define ‘professionals’ as individuals who provide personalized services to clients and who are subject to ‘a generally applicable licensing and regulatory regime.’ ‘Professional speech’ is then defined as any speech by these individuals that is based on ‘[their] expert knowledge and judgment,’ or that is ‘within the confines of [the] professional relationship,’” this time quoting from the 3rd Circuit and 9th Circuit opinions.  “So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny,” again citing the 3rd and 9th Circuit cases.

After reiterating that the Supreme Court has not recognized a category of “professional speech,” Thomas does concede that there are some circumstances where the court has applied “more deferential review” to “some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech,” and that “States may regulate professional conduct, even though that conduct incidentally involves speech.”  But, the Court concluded, neither of those exceptions applied to the clinic notice statute.

As a result of Justice Thomas’s comments about the 3rd and 9th Circuit cases, when those opinions are examined on legal research databases such as Westlaw or Lexis, there is an editorial indication that they were “abrogated” by the Supreme Court.  Based on that characterization, Liberty Counsel sought to get the 3rd Circuit to “reopen” the New Jersey case, but it refused to do so, and the Supreme Court declined Liberty Counsel’s request to review that decision.

Liberty Counsel and other opponents of bans on conversion therapy have now run with this language from Justice Thomas’s opinion, trying to convince courts in new challenges to conversion therapy bans that when the practitioner claims that the therapy is provided solely through speech, it is subject to strict scrutiny and likely to be held unconstitutional.  The likelihood that a law will be held unconstitutional is a significant factor in whether a court will deny a motion to dismiss a legal challenge or to grant a preliminary injunction against its enforcement.

Liberty Counsel used this argument to attack conversion therapy ordinances passed by the city of Boca Raton and Palm Beach County, both in Florida, but U.S. District Judge Robin Rosenberg rejected the attempt in a ruling issued on February 13, holding that despite Justice Thomas’s comments, the ordinances were not subject to strict scrutiny and were unlikely to be found unconstitutional. She found that they were covered under the second category that Justice Thomas recognized as being subject to regulation: where the ordinance regulated conduct that had an incidental effect on speech.  Otto v. City of Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019).

Liberty Counsel argued against that interpretation in its more recent challenge to the Maryland law.  It argued in its brief, “The government cannot simply relabel the speech of health professionals as ‘conduct’ in order to restrain it with less scrutiny,” and that because Dr. Doyle “primarily uses speech to provide counseling to his minor clients, the act of counseling must be construed as speech for purposes of First Amendment review.”

The problem is drawing a line between speech and conduct, especially where the conduct consists “primarily” of speech.  Judge Chasanow noted that the 4th Circuit has explained, “When a professional asserts that the professional’s First Amendment rights ‘are at stake, the stringency of review slides ‘along a continuum’ from ‘public dialogue’ on one end to ‘regulation of professional conduct’ on the other,” continuing: “Because the state has a strong interest in supervising the ethics and competence of those professions to which it lends its imprimatur, this sliding-scale review applies to traditional occupations, such as medicine or accounting, which are subject to comprehensive state licensing, accreditation, or disciplinary schemes.  More generally, the doctrine may apply where ‘the speaker is providing personalized advice in a private setting to a paying client.’”

And, quoting particularly from the 3rd Circuit New Jersey decision, “Thus, Plaintiff’s free speech claim turns on ‘whether verbal communications become ‘conduct’ when they are used as a vehicle for mental health treatment.”

Judge Chasanow found that the Maryland statute “obviously regulates professionals,” and although it prohibits particular speech “in the process of conducting conversion therapy on minor clients,” it “does not prevent licensed therapists from expressing their views about conversion therapy to the public and to their [clients.]”  That is, they can talk about it, but they can’t do it!  “They remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients.”  But, the statute is a regulation of treatment, not of the expression of opinions.  And that is where the conduct/speech line is drawn.

She found “unpersuasive” Liberty Counsel’s arguments that “conversion therapy cannot be characterized as conduct” by comparing it to aversive therapy, which goes beyond speech and clearly involves conduct, usually involving an attempt to condition the client’s sexual response by inducing pain or nausea at the thought of homosexuality.  She pointed out that “conduct is not confined merely to physical action.” The judge focused on the goal of the treatment, reasoning that if the client presents with a goal to change their sexual orientation, Dr. Doyle would “presumably adopt the goal of his client and provide therapeutic services that are inherently not expressive because the speech involved does not seek to communicate [Doyle’s] views.”

She found that under 4th Circuit precedents, the appropriate level of judicial review is “heightened scrutiny,” not “strict scrutiny,” and that the ordinance easily survives heightened scrutiny, because the government’s important interest in protection minors against harmful treatment comes into play, and the legislative record shows plenty of data on the harmful effects of conversion therapy practiced on minors.  She notes references to findings by the American Psychological Association Task Force, the American Psychiatric Association’s official statement on conversion therapy, a position paper from the American School Counselor Association, and articles from the American Academy of Child and Adolescent Psychiatry and the American Association of Sexuality Educations, Counselor, and Therapists.  Such a rich legislative record provides strong support to meet the test of showing that the state has an important interest that is substantially advanced by banning the practice of conversion therapy on minors.

Having reached this conclusion, the judge rejected Liberty Counsel’s argument that the ban was not the least restrictive way of achieving the legislative goal, or that it could be attacked as unduly vague.  It was clear to any conversion therapy practitioner what was being outlawed by the statute, she concluded.

Turning to the religious freedom argument, she found that the statute is “facially neutral” regarding religion.  It prohibits all licensed therapists from providing this therapy “without mention of or regard for their religion,” and Liberty Counsel’s Complaint “failed to provide facts indicating that the ‘object of the statute was to burden practices because of their religious motivation.’”  She concluded that Doyle’s “bare conclusion” that the law “displays hostility toward his religious convictions is not enough, acting alone, to state a claim” that the law violates his free exercise rights.  She also rejected the argument that this was not a generally applicable law because it was aimed only at licensed practitioners.  Like most of the laws that have been passed banning conversion therapy, the Maryland law does not apply to religious counselors who are not licensed health care practitioners.  Because the law is enacted as part of the regulation of the profession of health care, its application to those within the profession is logical and has nothing to do with religion.  As a result, the free exercise claim falls away under the Supreme Court’s long-standing precedent that there is no free exercise exemption from complying with religiously-neutral state laws.

Having dismissed the First Amendment claims, Judge Chasanow declined to address Liberty Counsel’s claims under the Maryland Constitution, since there is no independent basis under the court’s jurisdiction to decide questions of state law.

Joining the Office of the Maryland Attorney General in defending the statute were FreeState Justice, Maryland’s LGBT rights organization, with attorneys from the National Center for Lesbian Rights and Lambda Legal.  Also, the law firm of Gibson Dunn & Crutcher of Washington, D.C., submitted an amicus brief on behalf of The Trevor Project, which is concerned with bolstering the mental health of LGBT youth.

Senior District Judge Chasanow was appointed to the court by President Bill Clinton in 1993.