Ketanji Brown Jackson dissents as Supreme Court revives challenge to Colorado ‘conversion therapy’ ban
ketanji brown jackson broke from the Supreme Court majority Tuesday as the justices, by an 8-1 vote, sent a challenge to Colorado’s ban on “conversion therapy” for young people back to the lower courts under a tougher legal test. The case centers on Kaley Chiles, a licensed counselor who argues the 2019 law discriminates against her based on the views she expresses in talk therapy. At issue now is how lower courts should evaluate the law under the First Amendment, after the Supreme Court said the 10th Circuit used the wrong standard.
Supreme Court orders stricter review of Colorado law
In a 23-page opinion, Justice Neil Gorsuch wrote that a federal appeals court should have applied “strict scrutiny” to decide whether Colorado’s ban violates the First Amendment as applied to Chiles. The Supreme Court reversed the earlier ruling from a divided panel of the U. S. Court of Appeals for the 10th Circuit and sent the case back for another look under that more demanding framework.
Gorsuch framed the question before the court as “a narrow one”: whether Colorado’s ban on conversion therapy violates the First Amendment as applied to the talk therapy Chiles provides, and whether the 10th Circuit was correct to apply “rational basis review. ” The appeals court had treated the law as regulation of conduct—professional treatment that “also happened to involve speech”—and therefore used the least stringent test, concluding the law passed that low bar.
The Supreme Court rejected that approach. Gorsuch emphasized that the court “has long held” laws regulating speech based on subject matter or “communicative content” are “presumptively unconstitutional, ” triggering strict scrutiny. Under strict scrutiny, the government must show a restriction on speech is narrowly tailored to serve a compelling government interest, and Gorsuch underscored how rarely such regulations survive.
Ketanji Brown Jackson stands alone in dissent
Justice Ketanji Brown Jackson was the lone dissenter. She warned the majority’s reasoning “could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers. ” Her dissent put patient safety and professional standards at the center of her concern as the case returns to the lower courts.
The majority, though, pointed sharply to viewpoint discrimination concerns. Gorsuch wrote that in cases like Chiles’, Colorado’s ban “censors speech based on viewpoint. ” He tied that to core First Amendment principles, writing that the Constitution “reflects … a judgment that every American possesses an inalienable right to think and speak freely, ” and faith in a “free marketplace of ideas” as a way to discover truth. He described viewpoint-based speech suppression as an “egregious” assault on those commitments.
What the counselor argues—and what happens next
Chiles went to federal court in Colorado to challenge the constitutionality of the 2019 law and to block Colorado from enforcing it against her. She contended she did not attempt to “convert” her clients. Instead, she said she tries to help clients “with their stated desires and objectives in counseling, ” which she said sometimes includes clients seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in “harmony with one’s physical body. ”
The Supreme Court’s decision does not end the dispute; it resets it. The justices directed lower courts to re-examine the challenge using strict scrutiny, a standard the majority signaled could be difficult for the state to satisfy in this setting. In the next phase, the lower courts will apply that test to the First Amendment claim as it relates to the talk therapy at the center of the case, with ketanji brown jackson’s dissent marking a stark warning about the potential consequences for professional healthcare oversight.
