I was too swamped yesterday to blog about this, but Prof. Howard Friedman (Religion Clause) has a characteristically excellent summary:
This week, two federal district court judges in the Eastern District of California, in two separate cases, reached opposite conclusions about the constitutionality of California’s new law (effective Jan. 1, 2013) totally banning mental health care providers from engaging in efforts to change the sexual orientation of anyone under under 18 years of age. In Welch v. Brown (ED CA, Dec. 3, 2012), Judge William Shubb entered a preliminary injunction barring enforcement of the Sexual Orientation Change Efforts legislation against the three plaintiffs who were challenging it in that case. He concluded that the law is a content-based regulation of speech subject to strict scrutiny:
Especially with plaintiffs in this case, it is ... difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message.... Duk is a Catholic and, with patients that share his faith, he discusses [tenets] of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.” ... Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”
However, in Pickup v. Brown (ED CA, Dec. 4, 2012), Judge Kimberly J. Mueller refused to grant a preliminary injunction to prevent the law from taking effect. She wrote in part:
Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct.... As SOCE therapy is subject to the state’s legitimate control over the professions, SB 1172′s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test.
The Pickup opinion also rejected parents’ parental rights claims, as well as children’s right-to-hear-speech claims. Go to the Religion Clause post for the links to the opinions.
Both cases seem likely to be appealed, and the Ninth Circuit should decide on the question within several months. For more on the deeper underlying First Amendment question — what restrictions may the government impose on professional-client speech? — see this post; for the Ninth Circuit precedents, see Conant v. Walters (9th Cir. 2002) and National Ass’n for the Advancement of Psychoanalysis (9th Cir. 2000).
I’m inclined to think that Judge Shubb’s opinion, which holds that the law is unconstitutional, is more consistent with the Ninth Circuit precedents, and that Judge Mueller’s opinion is mistaken in concluding that SOCE therapy — which may include not just physical actions such as electric shock therapy, but also “attempting to alter thought patterns by reframing desires [and] redirecting thoughts” — was not “speech.” This having said, the broader question of when the government, whether through the legislature, through professional licensing boards, or through malpractice decisions, may restrict and impose liability for professional-client speech on the grounds that the relevant government agency thinks it’s harmful (or even just not helpful) remains open. And that’s especially so if the case goes beyond the Ninth Circuit to the Supreme Court, which it well might.