By DEACON MIKE MANNO
(Editor’s Note: Deacon Mike Manno, an attorney, is director of deacons for the Diocese of Des Moines and host of Iowa Catholic Radio’s Faith On Trial program [www.iowacatholicradio.com]. He can be reached at deaconmike@iowacatholicradio.com.)
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This month the U.S. Supreme Court declined to hear an appeal of a Ninth Circuit decision upholding a controversial California statute banning licensed mental health providers from engaging in sexual orientation change efforts (SOCE), more popularly known as reparative or conversion therapy, with minors.
And it comes on the heels of two Democratic senators, Patty Murray of Washington and Cory Booker of New Jersey, reintroducing a bill to ban such therapy nationwide.
A little background. SOCE, or conversion therapy, is similar to most other mental health therapies. A parent, sensing something amiss with a child, takes the child to a therapist, counselor, or psychologist. The mental health professional will then work with the patient to overcome whatever unwanted behaviors or emotions are present, and to deal with whatever underlying causes there may be. Sometimes it works, sometimes it doesn’t.
But in California — and several other states — if the minor is dealing with unwanted same-sex attraction, the therapist is prohibited from addressing that issue, except to affirm the child’s “gayness” even if the child himself wants help to suppress those feelings.
The California legislation, Senate Bill 1172, was enacted in 2012 and went into effect the following year. It banned the practice of SOCE but allowed the therapist to use conversion therapy in the event the child said he or she wanted to change gender: that was okay. The statute applies to any licensed counselor, psychotherapist, or any licensed mental professional even if that counselor is clergy or working in a religious school or institution. The bill begins:
“The Legislature finds and declares that: a) Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years….”
There follows paragraph after paragraph of findings (b through n) that purport to outline all the medical and psychological studies that support the proposition. Of course, the verbiage, while sounding like sound science, is little more than LGBT propaganda.
Those supposed scientific findings were really engineered by homosexual advocacy groups, mingled with a hardy dose of political correctness, to cajole organizations like the American Psychiatric Association (APA) and others to normalize same-sex attraction.
A good explanation of how that was done can be found in Robert R. Reilly’s 2014 book Making Gay Okay (Ignatius Press); see in particular chapter 7, “Sodomy and Science.” Of course not all psychotherapists agree, but bolstered by an aggressive LGBT lobby, liberal legislators were able to write into law a prohibition against any counseling that might seek to affirm the child’s biological sex.
The Pacific Justice Institute filed suit in federal district court to block the enforcement of the law, claiming that the law violated the therapist’s freedom of speech, freedom of religion, and parents’ fundamental right to care for their children.
The plaintiffs in the case were Donald Welch, an ordained minister and licensed family therapist; a Catholic psychiatrist, Anthony Duk, and Aaron Bitzer, a man who underwent conversion therapy and wanted to use it to help others.
A similar case filed in another district was dismissed but the Welch court granted an injunction against the state that lasted for about 18 months. Ultimately both suits were appealed to the Ninth Circuit which upheld the law and further review was denied by the Supreme Court.
The circuit court in upholding the law noted that SOCE “began at a time when the medical and psychological community considered homosexuality an illness,” and: “Currently, mainstream mental health professional associations support affirmative therapeutic approaches to sexual orientation that focus on coping with the effects of stress and stigma. But a small number of mental health providers continue to practice, and advocate for, SOCE therapy.” Of course, if the court had read Mr. Reilly’s book it might have found differently.
In ruling against the law’s opponents’ argument that it curbed mental health professionals’ free speech rights, the court held that the law only regulated conduct not speech, even though the banned therapy consisted entirely of talk. The court found that a professional’s speech is evaluated on a continuum. At one end of the continuum is a professional engaged in public dialogue advocating a treatment considered outside the medical mainstream. There the professional’s First Amendment rights are the strongest. At the center of the continuum is where the speech is made “within the confines” of a professional relationship. There the professional’s speech (or non-speech) is subject to “reasonable licensing and regulation by the State.”
At the other end of the continuum, where the state’s ability to control is the greatest, is in regulation of conduct that may have an incidental effect on speech. Thus, according to the court, since SB 1172 regulated conduct it passed muster. “We further conclude that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone.”
Therefore, the court reasoned, the test to determine if the infringement on First Amendment rights was constitutional was found at the lowest threshold possible: Is the law rationally related to a compelling state interest? The state interest found in the bill to protect “the physical and psychological well-being of minors including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual ordination change efforts” was sufficient to uphold the law against a free speech challenge.
Also argued was that the law interfered with the rights of parents to raise their children as they see fit. To that argument the court found that parental rights were “not without limitations” and held that “Plaintiffs cannot compel the State to permit licensed mental health professionals to engage in unsafe practices, and cannot dictate the prevailing standard of care in California based on their own views.”
Other arguments against the statute were dismissed as well, including plaintiffs’ argument that SB 1172 infringes on religious freedom. The court’s answer was simple: The law neither advances nor inhibits religion “because the law regulates conduct only within the confines of the counselor-client relationship.” Further, the law “applies without regard to the minor’s motivation for seeking treatment.”
The court then cavalierly suggested that if minors want SOCE treatment “they can do so when they turn 18.”
When the plaintiffs sought a review of the panel opinion by the entire Ninth Circuit, the court denied the request, but an interesting dissent to that denial was filed by Judge Diarmuid Fionntain O’Scannlain, a Reagan appointee. He posed the question, “May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as ‘conduct’?”
And he warned: “Empowered by this ruling of our court, government will have a new and powerful tool to silence expression based on a political or moral judgment about the content and purpose of the communications. The First Amendment precisely forbids government from punishing such speech on such grounds.”
As to the speech vs. conduct argument, he wrote that “legislatures cannot nullify the First Amendment’s protections for speech by playing this labeling game.”
The case was appealed to the Supreme Court. On Monday, May 1 the court declined to hear the appeal. That may have ended the legal questions, but it left children suffering from gender confusion issues in limbo.
Children, especially in this cultural mix, are bombarded with mixed messages concerning sex and sexual identity. Some actually suffer from gender dysphoria while others are confused by messages around them. Yet at this critical time in their development they are being denied one specific form of treatment because a group of politicians and lawyers — most with no mental health training — have decided that it is not politically correct and might not conform to their political leanings.
And therapists too, have been denied a tool that they can use to assist these children who are most in need of compassionate, not politically correct, treatment, especially when research teaches that 90 percent of the children who flirt with sexual identity confusion will ultimately grow out of it.
Perhaps there is a good reason why the Supreme Court would not take the case; it has refused to hear similar cases, most notably one from a similar New Jersey law. Perhaps the justices are waiting for a better time or a different make-up of the court. Unfortunately, the affected children don’t have the time to wait. Neither does society.
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