The Controversy of Gay Conversion Therapy: The Ninth Circuit Will Be The First to Weigh In

By September 4, 2013

By: Jorge R. Delgado
The Ninth Circuit Court of Appeal soon will address the constitutionality of California’s first-of-its-kind ban on gay conversion therapy for minors.  The controversial therapies stem from the now widely discredited belief that homosexuality is a curable disease.  Pickup v. Brown, No. 2:12-CV-02497-KJM-EF, 2012 WL 6021465, at *2 (E.D. Cal. Dec. 4, 2012).
A minority view to the contrary remains, which is supported largely by conservative political and religious views.  Practitioners of these therapies have been described as using treatments “ranging from the novel and humorous to the appalling and dangerous.”  Jonathan Sacks, “Pray Away the Gay?” an Analysis of the Legality of Conversion Therapy by Homophobic Religious Organizations, 13 Rutgers J.L. & Religion 67, 70 (2011).  These include electroshocks, the inducement of nausea while watching same-sex erotic images, and hypnosis.

California passed Senate Bill 1172—codified in Cal. Bus. & Prof. Code §§ 865–865.2—to ban the conversion therapies in any form.  The law states that “[u]nder no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.”  Cal. Bus. & Prof. Code § 865.1.  “Sexual orientation change efforts,” often abbreviated as “SOCE,” include “any practices by mental health providers that seek to change an individual’s sexual orientation.”  Cal. Bus. & Prof. Code § 865(b)(1).   Those practices are deemed “unprofessional conduct,” and could subject a mental health provider to discipline. Cal. Bus. & Prof. Code § 865.2.
Two district judges in the Eastern District of California have been asked to preliminarily rule on the ban’s validity, and the two reached different decisions.  First, in Welch v. Brown, No. CIV. 2:12–2484 WBS KJN, 2012 WL 6020122  (E.D. Cal. Dec. 3, 2012), the Honorable William B. Shubb issued a preliminary injunction barring the enforcement of SB 1172 against an ordained minister licensed as a marriage and family therapist, a board certified psychiatrist, and a former gay therapy patient pursuing a doctorate in the field.  The court found SB 1172 was a viewpoint and content-based regulation on the plaintiffs’ free speech, which subjected the law to strict scrutiny review.  The court reasoned, in essence, that the California Legislature sent “a consistent and unequivocal message that  . . . SOCE is ineffective and harmful,” which the court viewed as “integrally intertwined with viewpoints, messages, and expression about homosexuality.”  Applying strict scrutiny, Judge Shubb agreed the physical and psychological well-being of minors is a compelling state interest, but was skeptical of the evidence that gay conversion therapy caused such a problem.  In his view, the inadequacy of studies on the subject showed, at best, “that SOCE may cause harm to minors.”
The following day, the Honorable Kimberly J. Mueller, in Pickup v. Brown, reached the opposite conclusion, denying a preliminary injunction sought by several mental health professionals, the National Association for Research and Therapy of Homosexuality, the American Association of Christian Counselors, and two sets of parents on behalf of two minors.  Contrary to Welch, this court found SB 1172 to be content and viewpoint neutral.  The court reasoned the law barred only the objectionable treatments and not the discussion of SOCE or referrals to persons not covered by the statute.  Moreover, the court found the treatments themselves were not protected speech, but rather non-expressive conduct, which did not merit special First Amendment protection.  The court further recognized and upheld the state’s role in regulating the medical profession.
Additionally, the court in Pickup addressed two issues not reached in Welch: the First Amendment rights of the minors and the parents.  Concerning the former, the court noted the First Amendment protects listeners as well as speakers.  However, as the court already had concluded the statute did not infringe on protected speech, it considered the minors’ claim the “flip side of that coin.”  As to the parents, the court rejected the argument that California’s ban infringed on the right of parentage, finding that “there is no fundamental or privacy right to choose a specific mental health treatment the state has reasonably deemed harmful to minors.”
The plaintiffs subsequently appealed Judge Mueller’s decision to the Ninth Circuit, which has yet to render a decision.  Oral argument was heard in April of this year before Chief Judge Alex Kozinski, Judge Susan Graber, and Judge Morgan Christen, who were critical of the arguments raised by both sides.  The decision will be watched closely by many given that other states—such as New Jersey and Massachusetts—are considering similar laws.
As may be guessed, politics will likely play a deciding role in how the court rules.  Notably, Judge Shubb (who declared the law unconstitutional) was appointed in 2004 by George W. Bush.  Judge Mueller, on the other hand, who upheld the law, was appointed in 2010 by President Barack Obama.  Of the current three-judge panel considering the law, Chief Judge Kozinski was appointed by Ronald Reagan in 1985, Judge Graber was a 1998 appointee of Bill Clinton, and Judge Christen was appointed in 2012 by President  Obama.
The full version of this article was originally published in CABA Briefs.