Protecting Gay Teens Trumps Religious Rights

[rug]

Aug 29, 2016 9:30 AM EDT
By Noah Feldman

California’s ban on gay-conversion therapy for teens survived a free-speech challenge back in 2014. Now it’s survived another challenge claiming that the law targets religiously motivated conduct. The decision is legally correct -- but it’s a much closer case than the appeals court acknowledged. And it raises the extremely tricky question of how the state may regulate a psychiatric practice whose foundations are interwoven with religious beliefs.

The key to the free-speech decision from two years ago was that, California isn’t prohibiting speech per se. It’s outlawing a particular medical practice that happens to be accomplished in part through talking. Whether it’s a good idea or not, state legislatures have the legal authority to prohibit licensed providers from performing ineffective and potentially harmful medical treatments.

In other words, California almost certainly couldn’t ban an adult and a teen from sitting down together and talking to each other in a way that both believed would or could change the teen’s sexual orientation. Such a conversation would count as protected speech, outside the state’s authority to regulate. But when the conversation is instead treated as a medical therapy, it comes within the state’s authority to regulate the practice of medicine -- which is a course of conduct, even when it’s accomplished partly by the use of words.

Once they lost on free-speech grounds, the practitioners of gay-conversion therapy didn’t give up. They mounted a further challenge based on the establishment and free exercise clauses of the Constitution.

https://www.bloomberg.com/view/articles/2016-08-29/protecting-gay-teens-trumps-religious-rights

https://casetext.com/case/pickup-v-brown

[anoNY42]

1. It seems to me that the same reasoning can apply to the second case

"It’s outlawing a particular medical practice that happens to be accomplished in part through talking. Whether it’s a good idea or not, state legislatures have the legal authority to prohibit licensed providers from performing ineffective and potentially harmful medical treatments. "

Just change "talking" to "talking about religion". If the court already considers the therapy a "medical procedure", then it seems that the court could easily find the state can regulate it regardless of religious context.

[rug]

2. That's an astute argument.