Supreme Court on Colorado’s “Conversion Therapy” Law – First Amendment Protection Is Especially Needed for Controversial Speech

Chiles v. Salazar

“Supreme Court Allows Licensed Mental Health Practitioners to Traumatize Children.”
- Human Rights Campaign

"People flourish when they live consistently with God's design, including their biological sex."
​- Kaley Chiles, Christian therapist

The U.S. Supreme Court’s 8-1 decision on Tuesday in Chiles v. Salazar will no doubt be heard as a battle cry for culture warriors on both sides of the “gay conversion therapy” debate. The Court, however, stepped out of the culture-war framing to identify a clear constitutional principle – the First Amendment protects speech even when the government, and many medical professionals, disagree with the premise of that speech.

The case revolves around therapist Kaley Chiles, who contends that she does not seek to “cure” clients of same-sex attractions or to “change” clients’ sexual orientation. Instead, she says she assists clients with their stated desires and objectives in counseling, “which sometimes includes clients seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one’s physical body.”

This practice still violated a Colorado law banning licensed counselors from engaging in talk therapy for minors that opens the way for them to accept traditional sexuality. The law did not regulate conduct and “conversion therapy” alone. It regulated words – conversations between counselor and client. And it did so selectively, permitting one set of viewpoints while prohibiting another.

Justice Neil Gorsuch, writing for the Court, found that when the government targets speech based on its content or viewpoint, it triggers the Constitution’s highest level of scrutiny. As the Court held, Colorado’s law “regulates speech based on viewpoint” and must therefore be treated as presumptively unconstitutional. 

The Sotomayor-Kagan Concurrence

Gorsuch issued a ringing declaration that the First Amendment stands as a safeguard against efforts “to enforce orthodoxy in thought or speech.” What makes this decision especially noteworthy is not just the majority opinion, but the concurrence by liberal Justices Elena Kagan and Sonia Sotomayor that Chiles should be allowed to continue her talk therapy.

As Justice Kagan explained, when a state suppresses “one side of a debate while aiding the other, the constitutional issue is straightforward.” To underscore this point, the Justices asked opponents of this opinion to imagine if a state were to pass a law requiring conversion therapy for youths – and counselors were forbidden by law from advising their clients otherwise.

One thing is for certain – this opinion will have a lasting impact across the country. More than 20 states have enacted similar laws, and all now face renewed constitutional scrutiny. But the larger question is not about any one policy. It is about whether the government can dictate what professionals may say based on ideological approval.

Today, the disfavored speech involves counseling on sexuality and identity. Tomorrow, it could involve climate policy, public health guidance, or political dissent.
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Once the government is empowered to silence “wrong” ideas, every idea becomes vulnerable. The Court deserves praise for recognizing that the First Amendment was at stake in this case – and coming to the defense of free speech.

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