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.