'Gay Conversion' and the First Amendment

A federal judge tells California not to silence therapists until their therapy is proven harmful.

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Last April, Gabriel Arana, the online editor of The American Prospect, wrote a powerful account of his experience as a teenager with psychotherapy designed to "cure" him of being gay. The therapy failed, but Arana experienced the failure as his own. He went off to college feeling like "a leper with no hope of a cure." Close to suicide, he checked into a mental hospital and slowly began to recover from the toxic "therapy." After hearing Arana's story, the most significant proponent of "restorative therapy," Robert L. Spitzer, apologized for publishing a study that supported its usefulness.

There's increasing agreement among mental health professionals that gayness can't, and shouldn't, be "cured," and that trying to do so can hurt young people. So the California legislature almost certainly felt itself justified earlier this year in passing S.B. 1172, which outlaws use of "sexual orientation change efforts" ("SOCE") by licensed therapists for patients less than 18 years old.

On Monday, Federal District Judge William Shubb put the new law on hold, on the grounds that it probably violates the First Amendment rights of therapists who want to practice SOCE. Judge Shubb actually made his ruling as narrow as possible: Until a trial can be held to determine whether the law passes First Amendment muster, the state cannot enforce it against the three plaintiffs -- two therapists and another man who, involved in SOCE when he was young, now wishes to become a therapist. But the injunction covers only those three; others have to bring their own lawsuits.

Nonetheless, I imagine many gay-rights advocates are appalled. The bill is designed to prevent harm to the young, and it does so by limiting the behavior of professionals who have state licenses. Why should the First Amendment block such a well-intentioned effort?

Well, consider this case: Marijuana is a Schedule I substance, meaning, in essence, that the federal government, after looking at the scientific evidence, has concluded that 1) it can't ever do anybody any good medically, 2) it may do some people harm, and 3) it is easily diverted and abused.

In 1996, the government formally warned doctors not to recommend that their patients consider marijuana for pain or other conditions, even if the doctor thought it would help. Doctors who disobeyed would lose their licenses to prescribe federal "controlled substances" -- effectively putting them out of the medical business.

Federal courts blocked the new policy. The Ninth Circuit said that it "condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient. Such condemnation of particular views is especially troubling in the First Amendment context."

In the bill it passed this year, California's legislature cited an American Psychological Association task force report that warned that SOCE has led to "confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources."

But though the weight of psychological opinion has turned against it, some therapists still believe that it does young patients good. Many of them, like the two therapists in Welch, are affiliated with religious bodies that believe homosexuality is immoral.

At its heart, the statute forbids a therapist's communication to a patient: I think that you can change your sexual orientation and if you want to, I will help you. And thus it embodies what First Amendment lawyers call a "viewpoint-based restriction." Therapists are free to counsel patients that their gay sexual orientation is a good thing, and are free to counsel against SOCE; those who give the opposite advice face state-mandated loss of their therapists' licenses.

Viewpoint basis triggers what is called "strict scrutiny" -- which means that the government has to prove that 1) the speech it is trying to ban actually causes serious harm, and 2) the ban covers the speech that is harmful, and no more.

In yesterday's decision, Judge Shubb found that the statute hasn't passed the "actually causes serious harm" prong. He cited a recent APA report that said "there is a dearth of scientifically sound research on the safety of SOCE. ... Thus, we cannot conclude how likely it is that harm will occur from SOCE."

A lot of people are going to be unhappy with Judge Shubb. His opinion, however, did not say that SOCE isn't harmful. It said that the government has to prove the level of harm before it can ban it. If that seems too restrictive, also consider this: Opponents of legal abortion claim that women who have abortions suffer long-term psychological and physical harm. They have a few studies they claim support that contention. What if a state legislature were to order doctors never to recommend a legal abortion?

A federal court would make them prove their claims. And in both cases, that's the right decision.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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