Court questions compelling interest for gay therapy ban

A three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments Wednesday about California’s ban on sexual orientation change therapy targeting minors.

The appeals court is considering two challenges to the law which resulted in conflicting rulings last December: A California federal judge granted one lawsuit a preliminary injunction, ruling the law violates First Amendment rights, while another judge denied an injunction in the second lawsuit, saying the government had enough grounds to discredit the therapy. The ban, which was supposed to go into effect Jan. 1, has been put on hold pending the court’s decision.

The main issue revolved around whether therapy encouraging minors to resist their same-sex attraction was considered a type of speech, which would be protected by the First Amendment, or a conduct, which the government can more easily regulate.

The panel, which includes two judges appointed by Democrats and one by a Republican, has not taken any action yet and will issue a written ruling later.

During Wednesday’s hearing, Reagan-appointed Chief Judge Alex Kozinski, noted the U.S. Supreme Court struck down a California ban of violent video games because the state failed to show a compelling reason to infringe on game-makers free speech rights to manufacture the products.

He said it appeared the same argument could be applied to the evidence lawmakers relied on in passing the prohibition on sexual-orientation change therapy.

"We really don't have anything compelling, as I see it," Kozinski said. "Government has to have a compelling interest in curtailing speech."

California Deputy Attorney General Alexandra Robert Gordon, who is defending the ban, cited mainstream medical organizations' opposition to the therapy, which she said is risky and based on the “discredited notion that homosexuality is a disease.”

Gordon also pointed to the testimony before the state Legislature by several people who said they were harmed by the counseling.

But Kozinski replied that lawmakers also heard testimony from people who said they benefited from the counseling. "There is evidence going both ways," Kozinski concluded.

The law says therapists and counselors who treat minors in an attempt to change their same-sex attraction would engage in unprofessional conduct and be subject to discipline by state licensing boards. Only unlicensed pastors and lay counselors would be able to perform sexual orientation change therapy.

“Our position is that the communication in psychotherapy is protected speech whether or not it’s also conduct,” said Kevin Snider, chief counsel for Pacific Justice Institute, who represents plaintiffs in the first lawsuit. “A couple of them thought it is an issue of conduct but we pointed out a specific Supreme Court case [Holder v. Humanitarian Law Project], which said just because it’s conduct doesn’t make it not speech.”

The outcome of this case will be closely watched as legislators in New Jersey and Pennsylvania consider adopting similar bans. Lawyers for the families, practitioners and national associations of Christian mental health counselors argued that the ban also infringes on their freedom of religion.

"The state has determined that the only permissible message [is that] same-sex attractions, behavior, or identity are to be accepted, supported and understood, thus suppressing all other viewpoints to the detriment of licensed professionals and their vulnerable minor clients," the lawyers said.

"The viewpoint of counselors who in their professional judgment determine that same-sex attractions conflict with the religious and moral beliefs of clients and are not desired, is silenced by SB 1172. This raises a serious constitutional question."

The Associated Press contributed to this report.