Counting to Four on LGBT without NMG

Justice Gorsuch has been consistent from Kastl to Edmo to Grimm to Bostock to Kincaid to Tingley.

Tingley v. Ferguson presented the question of whether a prohibition on conversion therapy violates the Free Speech and Free Exercise Clauses. Washington law prohibits any conversations that might encourage "change [of] an individual's sexual orientation or gender identity," while allowing conversations that "support … identity exploration" and "do not seek to change sexual orientation or gender identity." The Tingley petition was filed nearly a year ago in March 2023. There was a square circuit split on the issue between the Ninth and Eleventh Circuits. Yet Washington didn't even file a BIO. A response was requested on May 5, 2023. The case was then distributed for the September 26, 2023 conference, but the Court took no action. The case was relisted seven times, and rescheduled before the December 1 conference.

Today, at long last, the Court denied the petition. Justice Kavanaugh would have granted the petition, and Justices Thomas and Alito wrote dissents from the denial of certiorari. Alito noted that given the circuit split, "this case easily satisfies our established criteria for granting certiorari." But there was no fourth vote. Given that there were three noted votes for certiorari, we can presume one more vote would have been enough to grant the case. In most cases, where Justices Thomas and Alito complain that a case is not granted, Justice Gorsuch is right on board. But he was silent here. Should we be surprised? Nope.

After last term concluded, I drew a line across the arc of Gorsuch's jurisprudence with respect to gay, lesbian, and transgender issues: Kastl v. Maricopa County Community College District, Idaho Department of Correction v. Edmo, Gloucester County School Board v. Grimm, Kincaid v. Williams. On these issues, at least, his approach is consistent: The LGBT litigant prevails. Tingley presents something of the reverse: the government prevailed, while the litigant challenging the LGBT position lost. But the outcome is the same.

Let me lay down a marker. When a case about prohibiting gender surgery for minors reaches the Court, Justice Gorsuch will rule against the government. And I suspect Justice Barrett will be with him. We'll see if they prove me wrong.

Comments

[not guilty]

No quackery permitted in Washington state. https://www.courthousenews.com/wp-content/uploads/2023/12/tingley-thomas-dissent.pdf

Good!

That's not to say that conversion is not a thing. There are beaucoup ex-straights around.

[Rev. Arthur L. Kirkland]

Superstitious gay-bashers and transphobes are among my favorite culture war roadkill . . . and a core element of a white, male, right-wing blog with a vanishingly thin academic veneer.

[ReaderY]

I think there’s another potential angle. I think Justice Barrett in particular tends to take a fairly expansive view of the power of states to regulate health, including the practice of medicine.

And I suspect that has a lot to do with a pet issue of hers: abortion.

She’s been fairly consistent about it. She’s tended to be skeptical of constitutional challenges, including First Amendment challenges, to government health regulations of various kinds. Remember COVID regulations?

[SRG2]

A reminder of earlier attempts to silence doctors, but about guns.

https://en.wikipedia.org/wiki/Physician_gag_law

Clearly the relevant states approve of speech restrictions for medical providers, as does the NRA

[Rossami]

Rather a significant difference between attempts to regulate speech integral to health and attempts to medicalize a purely political opinion.

[Sarcastr0]

That it's political opinion and not integral to health is, itself, your opinion.

[Toranth]

Saying that gun ownership is "integral to health" opens the door to discussions on anything - are you prepared to have your doctor try to convert you because religious beliefs are "integral to health"?

[Josh R]

The case presents an interesting question.

NIFLA v Becerra established that regulations of professional conduct that incidentally burden speech are permissible. California's requirement that clinics inform women about abortion services was held not to be a regulation of professional. In contrast, the regulation requiring doctors to give certain information to the patient (e.g., the gestational age of the fetus) before performing an abortion was distinguished as a regulation of professional conduct.

At first blush, it seems to me bans on conversion therapy are easily regulations of professional conduct (the quackery of trying to change one's sexual orientation or gender identity). But, I'm not sure about the gun gag law. Is forbidding doctors from saying something as part of administering a health check up a regulation of professional conduct that only incidentally burdens speech? Or because it directly targets speech, does that argument not fly (note, the anti-conversion therapy law does not directly target speech).

[M L]

That's an incredibly broad regulation of speech. Such a law would prohibit "conversations" about Christianity, the Bible, Islam, etc on very mainstream topics, and a lot beyond that too of course.

[ReaderY]

The law on its face doesn’t prohibit “conversations.” It prohibits “therapy.”

The law as it stands (at least in many states) only permits licensed professionals to give “therapy,” and the constitutionality of the law is pretty well established. Anyone can have a conversation. Only doctors can give therapy. So what makes a law saying licensed professionals can’t do a certain type of therapy any more restrictive than this much more general, and much more restrictive, background law?

If all states get to say that only licensed doctors can provide therapy in general, and if red states get to say that their licensed doctors can’t provide abortion therapy, then why shouldn’t blue states get to say that their licensed doctors can’t provide LGBT conversion therapy?

Why shouldn’t sauce for the goose also be sauce for the gander?

I’d pretty much bet you that that’s Justice Barrett’s reasoning.

[M L]

That does provide better context.

However, requiring a license to do something doesn’t automatically mean you can put any limitations or conditions you wish on that license. Particularly, I don’t think requiring a license for “X,” or the permissibility of doing so, necessarily means you can altogether ban subset of X, “Y.” Nor does it somehow remediate such a ban if the ban would be otherwise problematic.

Abortion therapy? As in post-abortion or pre-abortion counseling? I believe Planned Parenthood and pro-life organizations both offer that, I wasn’t aware of any bans on it, if there is then that would probably seem like a broad speech restriction as well. If you’re actually just referring to abortion and trying to draw a parallel to that, that’s just dumb.

I do think that states should have the freedom to do what they want in these matters. Unfortunately, with the Federalization of Everything, that’s not what we have, for better or worse it is one size fits all, so whatever a state can do under the 1st amendment the federal government can do too, apparently.

As always, the devil is in the details, or lack thereof. But this law chills a broad array of speech. A Christian pastor or an Imam can’t express basic teachings of their religion, or a secular person for that matter can’t hold to prevailing traditional views of a decade or two ago, at least not in this (maybe narrow, for now) context of “therapy."

[Josh R]

A Christian pastor is free to say anything so long as they aren’t doing so when acting as a licensed therapist in an attempt to change a person’s sexual orientation or gender identity. The regulation strikes me as one on professional conduct (quackery, trying to change one’s orientation or identity) that incidentally burdens speech. It’s not unusual for regulations of conduct to impact speech and that’s OK so long as speech is not the target (in this case, some speech is involved in the quackery, but it’s the quackery that’s the target).

From NIFLA v Becerra:

States may regulate professional conduct, even though that conduct incidentally involves speech.

[Rev. Arthur L. Kirkland]

Bigots have rights, too . . . especially at the Volokh Conspiracy.

[not guilty]

Let's set aside the legal issues for a moment and put it in terms that religionists may understand. Do the haters really want self-loathing gay men, who as minors had undergone "conversion therapy," marrying their daughters, siring their grandchildren and getting loads of hot monkey buttsex on the downlow?

[getes]

Bostock was correctly decided and social conservatives are still seething about it 3 years later instead of trying to repeal the Civil Rights Act. Then they become free speech warriors when it comes to conversion therapy while supporting every crude attempt to ban drag shows and anything else they don't like. It's all so tiresome.