Two Federal Judges in California recently decided challenges to California’s ban on Sexual Orientation Change Efforts or SOCE (known as SB1172). SB1172 would prevent licensed mental health professionals from engaging in therapy aimed at changing the sexual orientation of minors.
Both cases decided whether SB1172 should be blocked from going into effect until a trial can be held to determine its constitutionality. In one case, Welch v. Brown, the Judge concluded that two mental health professionals, Donald Welch and Anthony Duk would be harmed by SB1172 because, as part of therapy they provide, they express their views that homosexuality is wrong based on their religious beliefs. The Judge blocked SB1172 temporarily but limited the effect of the injunction to the two individuals challenging the law.
In another case, Pickup v. Brown, the judge concluded that SB1172 did not risk violating the first amendment rights of therapists challenging the law. This is because the judge found that it did not prohibit licensed therapists from mentioning SOCE or referring patients to religious counselors or out-of-state practitioners of SOCE. It only prohibited them from engaging in specific treatment intended to change sexual orientation. The judge in this case refused to block the law, saying that it is a reasonable restriction on the sorts of treatment that may be provided by a licensed mental health professional. The judge said that the state may properly restrict the types of therapy performed to protect the public from damaging therapy that has not been shown to be effective.
Mr. Welch is a licensed marriage and family therapist and an ordained minister who claims that as part of his therapy he expresses the view that homosexuality is a sin and would not be able to do so under the current law. Dr. Duk is a medical doctor and board certified psychiatrist who claims that part of his treatments include discussing his views with patients that based on his Catholic faith, “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.” The Judge in Welch concluded that this specific type of speech would be prohibited under SB1172 and so blocked the law from going into effect until he could determine at a trial if SB1172 violates the first amendment rights of Mr. Welch and Dr. Duk.
The primary disagreement between the two cases is not on what the law says about restrictions of professional speech. Instead, the disagreement is over the reach of SB1172 itself. The text of the law defines sexual orientation change efforts as:
“any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”
It seems clear to me that the law does not in any way prohibit Dr. Duk from sharing his views with patients that “homosexuality is un-natural and is changeable.” It is only when he goes one step further and attempts to change the sexual orientation of his patients that he is in violation of SB1172. That being said, I think the Judge in Welch properly blocked the law from going into effect until trial because his ruling only applied to the two professionals before him.
Considering that the two federal judges disagreed as to the reach of the law, it is proper that the Judge in Welsh prevented the law from going into effect until a full trial can be held. If the law does in fact prohibit them from expressing their views as the Judge concluded, they would suffer a violation of their first amendment rights to free speech when the law goes into effect. On the other hand, if after a trial, it is found that the law does not prohibit them from expressing their religious views, the judge can rule that SB1172 does not violate their first amendment rights.
Practically speaking what do these two rulings mean for SB1172 going forward? For right now, the law will go into effect as planned except as it pertains to the two professionals who challenged the law in Welch. If the judge in Welch rules at trial that SB1172 is unconstitutional, we will almost certainly see the 9th Circuit weigh in on the case. For more information on the responses to the decisions from the parties involved in the case, check out an article by Prop8trialtracker.com
UPDATE: The 9th Circuit decided that there was no First Amendment violation in the case because the law does not have a very broad reach. The Court held that because the law does not prohibit any protected speech, it is perfectly constitutional. Practically speaking, the challenges are likely to fizzle out now that the law has been declared constitutional in its scope.
It may seem like the law as described by the 9th Circuit does not really prohibit much. If licensed therapists are free to recommend patients to SOCE and religious leaders are free to administer SOCE, does the law have any bite at all? That remains to be seen.
I believe in the First Amendment strongly enough that I think California took the right path by crafting a narrow regulation that regulates the speech they are allowed to regulate. The medical profession is heavily regulated for the protection of patients and so we rightly prevent licensed medical professionals from engaging in harmful treatments.