The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Who Was The Fourth Vote For Cert In Chiles v. Salazar?
In December 2023, only three Justices would have granted in Tingley v. Ferguson, which presented the same issue.
In December 2023, the Court denied cert in Tingley v. Ferguson. This case presented the question of whether a prohibition on conversion therapy violates the Free Speech and Free Exercise Clauses. Justices Thomas, Alito, and Kavanaugh would have granted cert. There was a square conflict between the Ninth and Eleventh Circuits, as Justice Alito pointed out in his dissent. At the time, I speculated that Justice Gorsuch--a usual First Amendment stalwart--was unwilling to vote to grant cert in his LGBT-related case.
Fast-forward to March 2025. The Court granted cert in Chiles v. Salazar, on appeal from the Tenth Circuit, which presents the same issue as Tingley.
Who was the fourth vote in Chiles? Did Justice Gorsuch change his mind on the issue? Was Justice Barrett satisfied that sufficient percolation had occurred after another split with the Tenth Circuit? Perhaps Barrett or Gorsuch wanted to take this case only after Skrmetti was settled? Perhaps the climate of the day on transgender issues, in the wake of Skrmetti, make this issue more palatable? Who knows?
Chiles will be argued on October 7, the second day of the term.
