Monday, a judge ruled that the ex-gay therapists aligned with the Pacific Justice Institute challenging California’s new law (SB 1172) banning the treatment for minors could continue their practice while their lawsuit proceeded. Today, in contrast, a different federal judge, Obama appointee Kimberly J. Mueller, rejected the Liberty Counsel and NARTH’s similar request for an injunction. In her decision, Mueller argued that the ex-gay therapists were not likely to demonstrate that the law infringes on their Constitutional rights to discuss sexual orientation change efforts (SOCE):
Here, plaintiffs have not demonstrated a likelihood of success on the merits of their claim that SB 1172 will subject mental health professionals to discipline if they merely recommend SOCE to minor patients, or discuss it with them, or even present them with literature about SOCE… [I]n contrast, the state’s insistence that the statute bars treatment only, and not the mention of SOCE or a referral to a religious counselor or out-of-state practitioner, is consistent with a fair reading of the statute itself. […]
Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct. Given the weight of the authority on the question and the nature of the record before the court, plaintiff therapists have not shown they are likely to succeed in bearing their burden of showing that the First Amendment applies to SOCE treatment; they have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection.
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. SB 1172 passes the rational basis test.
Mueller pointed out that a First Amendment claim is no more applicable for minors than it is for practitioners, as they are not impeded from receiving information about SOCE, only the therapy itself. She also found that parents do not have a fundamental or privacy right to choose mental health treatments deemed harmful to minors, noting that SB 1172 does not impose criminal penalties on parents nor prevent them from accessing ex-gay therapy from unlicensed providers. Unlike Judge Shubb, Mueller was more convinced by mainstream medical professionals than the fringe ex-gay therapists:
The findings, recommended practices, and opinions of ten professional associations of mental health experts is no small quantum of information. Even if all of the studies and reports upon which the California Legislature relied were inconclusive or flawed, SB 1172 still would be a valid legislative enactment… The court need not engage in an exercise of legislative mind reading to find the California Legislature and the state’s Governor could have had a legitimate reason for enacting SB 1172.
The two cases have already diverged and could well be steering toward different conclusions. At the foundation of both is the understanding that shame-based ex-gay therapies and family rejection harms young people. At least one of the judges hearing these cases seems to acknowledge that reality.