Mixed rulings on lawsuits against California's gay therapy ban

Two California federal judges issued opposing rulings this week in separate lawsuits filed against California’s law banning minors from receiving counseling to change their sexual orientation.

On Monday, federal Judge William Shubb granted a preliminary injunction for three plaintiffs represented by Pacific Justice Institute (PJI), ruling that the law violates the First Amendment rights of therapists who oppose same-sex attraction.

"Because the court finds that SB 1172 is subject to strict scrutiny and is unlikely to satisfy this standard, the court finds that plaintiffs are likely to succeed on the merits of their … claims based on violations of their rights to freedom of speech under the First Amendment," Shubb wrote.

But a day later, Judge Kimberly J. Mueller refused to block the law in a separate case, with plaintiffs represented by Liberty Counsel. Mueller said the Legislature and governor had enough grounds to enact the law, since multiple health groups have discredited the therapy.

"The court need not engage in an exercise of legislative mind-reading to find the California Legislature and the state's governor could have had a legitimate reason for enacting SB 1172,'' Mueller wrote.

Liberty Counsel immediately filed an appeal with the 9th U.S. Circuit Court of Appeals to block the law before it goes into effect Jan. 1.

California became the first state in the nation to pass this type of bill in September. The bill, introduced by state Sen. Ted Lieu, D-Torrance, banned sexual orientation change therapy for all minors and required adults to sign a release form stating that the counseling is ineffective and possibly dangerous.

Liberty Counsel’s Mat Staver, whose plaintiffs include two minors who benefitted from this type of counseling, said that if the law goes into effect minors will see a 180-degree difference when they walk into counseling sessions after Jan. 1. They will be told same-sex attraction is “normal and natural,” and they should change their morals and beliefs, rather than their attraction, Staver said: “This is a blatant violation of First Amendment rights because it bans one viewpoint on sexual attraction.”

Matthew McReynolds, a staff attorney at PJI, said the different rulings boil down to how the judges view this type of therapy, as speech or conduct. Shubb saw the law as a governmental effort to target a particular message that it wanted to suppress. Mueller saw the therapy as a conduct, which she compared to medical treatment, such as access to different kinds of drugs or medical marijuana. Courts give more deference to legislation if it governs conduct.

“We demonstrated that [sexual orientation change efforts] may involve some conduct, but quite a lot of pure speech,” McReynolds said. “Under the statute, if someone went to one of our clients and sought to diminish same-sex attraction, and had just a couple of sessions just talking about their past, childhood, this could still be subjugated to discipline, if they seem to try to change sexual orientation.”

The law also is broad and sweeping, banning for minors any practice that seeks to change sexual orientation—not just limited to reparative therapy or conversion therapy. Even the state validated these concern in narrowing the statue to argue their case, McReynolds said. The state argued that religious counsellors in churches are not covered by the law unless they hold themselves out as licensed counselors, a distinction that could be confusing.

“Our clients have no idea what they mean by ‘unless’ - at what point would they be crossing the line to do something that the state considers unprofessional?” McReynolds said. “And really the most concerning thing is that its not at all clear when an ordained minister who is also a licensed therapist could be disciplined for communicating the teachings of his church or telling a young person what the Bible says about homosexuality or morality.”

The mixed rulings mean PJI and Liberty have a long battle before them that eventually will lead to the 9th Circuit. Legislators in other states, including Pennsylvania and New Jersey, who are considering adopting similar regulations, are watching the case closely.

The law’s most disastrous consequence is its effect on parental rights, McReynolds said.

“One interpretation of [Mueller’s] opinion is that the government can do almost anything to restrict parents’ rights, so long as they find some possibility that it harms the children,” McReynolds said. “I see that as a sobering and alarming path that the court is taking.”