A Short Take on Chiles v. Salazar

Another religious freedom case in a free speech guise

The Supreme Court ruled this week, 8-1, in Chiles v. Salazar, that Colorado may not apply its ban on conversion therapy for minors to prohibit a licensed counselor's talk therapy. Justice Gorsuch wrote for the Court; Justice Kagan concurred, joined by Justice Sotomayor; Justice Jackson dissented. The Court held that, as applied to therapist Kayla Chiles's conversations with clients, Colorado's law discriminates on the basis of viewpoint and therefore triggers the most searching First Amendment scrutiny.

A couple points. First, this is not, formally speaking, a religion case. It's a Free Speech Clause case. Indeed, as far as I can tell, the word "religion" does not even appear in the Court's opinion. But the case is religion-adjacent. Chiles described herself in the litigation as a practicing Christian whose views about sex and gender are informed by her faith, and she said that some clients seek her out because they want counseling consistent with those convictions. So although religion is not part of the Court's doctrinal analysis, it is very much part of the background.

That feature places Chiles in a familiar line of First Amendment cases. Think of 303 Creative, another Gorsuch opinion. Or Barnette, the WWII-era flag salute case. Both were free speech cases in doctrinal terms, but religious conviction supplied much of the underlying human drama. One sees something similar here. Disputes touching religious freedom often come to the Court not under the Religion Clauses, but in the guise of free speech. Religion influences what people say--or don't say.

The key to the Court's reasoning is viewpoint discrimination. Colorado's law allows counseling that affirms a minor's sexual orientation or gender identity, but forbids counseling that seeks to help a minor change or redirect sexual orientation or gender identity. For the Court, that means the State is not simply regulating treatment as such. It is permitting one side of a contested moral and psychological question while suppressing the other. That, the Court says, is about as serious a First Amendment problem as one can have.

Second, it's notable how little work the formal strict-scrutiny framework seems to do once the Court reaches that conclusion. The Court says that content-based restrictions ordinarily trigger strict scrutiny, and that viewpoint discrimination is an especially egregious form of content discrimination. But it does not linger over the familiar steps of balancing: compelling interest, narrow tailoring, least restrictive means. Instead, once the Court identifies viewpoint discrimination, the case is largely over. The rest of the opinion is devoted mostly to rejecting Colorado's efforts to characterize the law as regulation of professional conduct rather than speech. Chiles thus resembles 303 Creative in this way as well. In 303 Creative, too, the Court avoided applying the strict-scrutiny balancing test in a serious way.

For those interested, I discuss Chiles in a short Legal Spirits episode, here.