A constitutional right to “cure” gays? No way, says the Ninth Circuit

In Pickup v. Brown, the Ninth Circuit Court of Appeals today decisively reaffirmed its decision from last August rejecting First Amendment and other constitutional challenges to California’s ban on so-called “gay conversion therapy” for minors. The practice, which is not endorsed by the country’s major mental health organizations,  involves trying to change minors from gay to heterosexual and is often sought by parents for their teenagers.  I wrote about the Ninth Circuit decision at the time, and won’t repeat the arguments here. The ruling today means that neither the original panel nor the entire en banc  appeals court will reconsider that decision.  The next stop for the therapists, if there is one, would be the Supreme Court.

Three judges — O’Scannlain, Bea, and Ikuta — dissented from the denial of rehearing en banc.  In his dissenting opinion, Judge O’Scannlain wrote that the appeals court had undercut the First Amendment by relabeling professional speech as “conduct” unprotected by the Constitution.

It’s true that the line between constitutionally protected advocacy and fully regulable treatment by licensed professionals can be difficult to draw.  But to say that counseling is absolutely protected speech because it consists of talking is to say that there can be little or no regulation of what mental health professionals do to their patients.  The Constitution protects political and religious quackery, but not quackery administered to vulnerable minors under the guise of treatment for something that is not a sickness.

UPDATE: You can find the Ninth Circuit panel and dissenting opinions in Pickup v. Brown here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/01/28/12-17681.pdf.  You can find my original post about the issue here: http://www.volokh.com/2013/08/29/ninth-circuit-upholds-gay-conversion-ban/.  I have been unable to insert these links in the text of the post.

Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.

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Eugene Volokh · January 29, 2014