9th Circuit: Christian counselors can't offer 'quack medicine'

According to a federal appeals court in San Francisco, California legislators did not infringe on the free-speech rights of Christian counselors when they adopted a bill banning reparative therapy for minors.

In a ruling issued today, the 9th U.S. Circuit Court of Appeals declared the state legislature “acted rationally when it decided to protect the well-being of minors” by preventing licensed mental health care providers from trying to help children get rid of unwanted same-sex attraction.

Lawmakers approved the bill earlier this year, but a district court put it on hold while a group of therapists and parents pursued a legal challenge. The appeals court overturned that ruling, paving the way for the law to take effect immediately.

Lawyers with the Pacific Justice Institute (PJI) and Liberty Counsel, which represented plaintiffs in two separate challenges to the law, plan to appeal.

“This decision is a dark day for those who believe in the First Amendment and the rights of parents over the proper upbringing of their children,” said Brad Dacus, president of PJI. “Make no mistake, we are not finished in our efforts to overturn this outrageous legislation.”

Lawyers from PJI and Liberty Counsel argued the law infringes on counselors’ free speech rights and religious liberty because it prevents them from talking about something they believe in. But the court ruled the state’s policing power give it the authority to outlaw any practice it deems harmful, even if that practice is communicated primarily through speech.

The court also denied claims that the law infringes on parental rights. If the state has “reasonably” deemed a medical or mental health practice harmful, parents do not have the right to request it, the judges ruled.

In its opinion, the court emphasized two main issues: what the law does not do and what state lawmakers relied on to craft the ban.

The law does not apply to pastors, leaving them free to counsel minors about reparative therapy. It also does not prevent licensed counselors from recommending reparative therapy to parents and minors. It even allows counselors to refer patients to religious leaders, unlicensed therapists, or licensed counselors in another state for treatment.

In creating the ban, the first in the nation, California lawmakers relied on evidence and testimony claiming reparative therapy can be harmful and noting that proponents have not shown any proof of its efficacy. “Doctors are routinely held liable for giving negligent medical advice to their patients, without serious suggestion that the First Amendment protects their right to give advice that is not consistent with the accepted standard of care,” the judges wrote.

But Mat Staver, founder and chairman of Liberty Counsel, said the state has no right to outlaw something that has not been proved harmful, especially when clients are asking for and benefiting from it: “Legislators and judges in the state of California have essentially barged into the private therapy rooms of victimized young people and told them that their confusion, caused by the likes of a Jerry Sandusky abuser, is normal and they should pursue their unwanted and dangerous same-sex sexual attractions and behavior, regardless of whether those minors desire their religious beliefs to trump their unwanted attractions.”

Liberty Counsel is also fighting a similar ban in New Jersey, signed by Republican Gov. Chris Christie last week.