The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The South Carolina Attorney General's opinion, issued last week, is here; here's the Conclusion, though you'll see that the A.G. acknowledges that there's a split of opinion among federal appellate courts on the subject:
While courts have reached varying conclusions regarding whether an ordinance [or statute] banning conversion therapy violates the First Amendment, we think a court is likely to conclude that the First Amendment is infringed by the Columbia ordinance. The Eleventh Circuit decision in Otto, which concluded that the First Amendment is violated in such circumstances, is well reasoned, and follows the Supreme Court's decision in NIFLA. As the Court in Otto concluded, "[p]eople have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender." We agree.
The NIFLA Court had recognized that "professional speech" is "not a separate category of speech and "is not unprotected merely because it is uttered by "professionals."' According to the NIFLA Court, "content-based regulations 'in the fields of medicine and public health'" can be particularly dangerous. In our view, the Columbia ordinance is content-based, and thus would be subject to strict scrutiny. Under such an exacting standard, the Columbia ordinance is likely to be struck down by a court. As discussed above, our Supreme Court invalidated a Hilton Head ordinance prohibiting nude or semi-nude dancing as content-based. Thus, it is our opinion that a South Carolina court would likely follow these decisions and deem the Columbia ordinance invalid as violative of the First Amendment.
In addition, there is the issue of the power of a local government to regulate or legislate in an area which is also regulated or licensed by the State. Our Supreme Court has consistently held that a local government is impliedly preempted under its Home Rule powers as to any regulation "which requires statewide uniformity." See S.C. Const. Art. VIII, § 14. In Vazzo v. City of Tampa, the District Court concluded that the regulation of conversion therapy is prohibited at the local level because the "substantive regulation of psychotherapy" is "a state, not a municipal concern." Thus, a court, employing this analysis, may well deem that an ordinance, such as that adopted by of the City of Columbia, is impliedly preempted as an attempt to regulate a statewide area of concern rather than a local matter. Moreover, inasmuch as a $500 fine is imposed for each "offense," a court may see the ordinance as making unlawful a lawful activity under state law..
Of course, our opinion herein expresses no view either favoring or opposing conversion therapy or an ordinance banning such activity. Such are policy questions for the General Assembly. We strongly support equal dignity for all. We simply advise herein with respect to what a court is most likely to conclude if, the Columbia ordinance, or one similar to it, is challenged in court. We believe a court is likely to hold that the Columbia ordinance is invalid as suppressing free speech and also that the ordinance is an effort to exercise powers which a municipality does not possess. Moreover, the Columbia ordinance is likely overly broad, and even void for vagueness. It would, of course, be up to a court to invalidate the ordinance as such authority does not rest with this Office.
While we appreciate and respect the efforts of the City of Columbia in protecting equal dignity for all persons, the City cannot adopt an ordinance that likely violates the State and federal Constitutions. The right to free speech and free expression and thought cannot be undermined or violated, even for a salutary purpose.