The U.S. District Court for the Eastern District of California has recently issued two decisions testing a California law that prohibits mental health providers from providing “sexual orientation change efforts with a patient under 18 years of age.” Such efforts include
any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.
In Welch v. Brown there were three plaintiff-counselors, two of whose beliefs are described as follows:
Duk is a Catholic and, with patients that share his faith, he discusses tenants 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.”
The court analyzed whether the statute in question abridged the plaintiffs’ First Amendment rights to freedom of speech. Because the regulation targets a particular kind of speech, the regulation would have to pass the rigorous test of “strict scrutiny” to be constitutional. The government rarely wins when strict scrutiny is applied, and this case would be no exception.
The First Amendment, the court explained, is a protection for unpopular opinions:
That public perception in favor of this law may be heightened because “it appears that homosexuality has gained greater societal acceptance . . . is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not.”
Accordingly the court granted the plaintiffs a temporary injunction against enforcement of the regulation.
The key to the conflicting ruling in Pickup v. Brown was that court’s refusal to apply strict scrutiny to the regulation. The government only had to have an easily met “rational basis” for the law because
plaintiffs have not shown they will be able to establish that SOCE therapy is expressive speech and thus within First Amendment purview…Plaintiffs also are not likely to succeed on the merits of the therapists’ First Amendment claims, given judicial recognition of the state’s role in regulating the medical profession.
The Pickup case found that the state has broad powers to regulate professions, including the power to regulate mental health providers as it did here.
The most significant difference between the two cases may be the position on whether this therapy is speech protected under the First Amendment. The regulation in question proscribes “any practices by mental health providers that seek to change an individual’s sexual orientation.” [italics added] The Welch court applied strict scrutiny – and consequently ruled against the regulation – because it found that “at least some forms of SOCE, such as ‘talk therapy,’ involve speech and the Ninth Circuit has stated that the ‘communication that occurs during psychoanalysis is entitled to First Amendment protection.’” Pickup, on the other hand, held that the regulation proscribes actions, not speech; that would seem to be an extremely limited understanding of “any practices” a mental health provider may employ.