At issue is the constitutionality of a 2012 California statute SB 1172, which prohibits mental health providers from engaging in conversion therapy, or as it’s also known — sexual orientation change efforts (“SOCE”)– with children. The bill states:
865.1. Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.865.2. Any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.
The California legislature spelled out its specific reasoning for adopting this law as follows:
(a) Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years.
The legislative notes then continue to lay out over a dozen groups of studies, task forces, medical groups, researchers, and healthcare organizations that have researched SOCE and found it to both ineffective at changing a person’s sexual orientation and also critically dangerous to LGBT children. The risks range from anxiety to depression to suicide to substance abuse. None of this should be of any surprise to anyone with even the slightest experience with the LGBT community. The California legislature, knowing that within its state lurk dangerous individuals hell-bent on “converting” LGBT kids, passed SB1172 to protect its children. The Legislature specified its intent as follows:
“California has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.”
But even SB1172’s good intentions and solid reasoning couldn’t deter the haters. Donald Welch is a licensed marriage and family therapist, who happens also to be a minister; according to court documents, he regularly preaches the gospel of “sex only during a heterosexual marriage.” Anthony Duk is a Catholic psychiatrist who likewise is said to be in the “gays are unnatural and sexual orientation is changeable” business. Aaron Bitzer is a young man who (according to court docs), after realizing he was attracted to other men, did some conversion therapy and saw the light; he is now on a crusade to “help” other young people shed their gayness and follow him through the valley of sexual repression.
Welch, Duk, and Bitzer joined forces and filed a lawsuit the day after SB1172 became law; they claimed the law violated their freedoms of speech, privacy, and religious exercise, and violated the Establishment Clause (that’s the one that prohibits Congress from making laws that prioritize one religion over the others). And if that doesn’t make you throw up in your mouth a little, check out the amicus brief filed by “Americans for Truth About Homosexuality,” which urges SCOTUS to take up this important case to protect Californians from the abnormal, immoral, and deviant behavior encouraged by godless scientists. No word yet on whether the brief will be amended to include citations to demonic possession evidenced by left-handedness.
The Ninth Circuit effectively told Petitioners to sell their crazy someplace else. It immediately threw out the free speech claim, and SCOTUS denied cert on that issue back in 2014. But the Homophobic Triple Threat would not be deterred. They continued with litigation on the religious freedom, privacy, and Establishment Clause claims. The Ninth Circuit slammed down all the petitioners’ arguments as being mistaken and misguided, and reminded everyone that SB1172 has nothing to do with religion; it only prohibits state-licensed mental health professionals from doing conversion therapy. Members of the clergy or religious counselors are still well within their rights to counsel their congregations however they see fit. Homophobic ministers who help their disciples pray the gay away may be abhorrent, but they’re legally unaffected by SB1172. As California’s brief in opposition to certiorari clarified:
“SB 1172 does not apply to ordained members of the clergy, or to pastoral or other religious counselors, who do not hold themselves out as licensed mental health professionals. Only state-licensed professionals acting as such are governed by the State’s regulatory scheme.”
On the pulpit, in a prayer group, or in private conversation, these people are free to spread this SOCE crap as far and wide as they like. These bigoted charlatans are simply not allowed to conduct professional therapy sessions or otherwise use state-issued licenses to spread their hate and irreparably damage children’s mental health.
This would probably be a good time to point out that these days, under a Republican president, we’ve heard a lot of talk about the importance of “states’ rights.” Petitioners’ brief lamenting SB1172, while likely destined for the trash heap over at the SCOTUS building, is a perfect example of individuals battling against the rights of states to legislate as they see fit. California passed SB1172 after significant inquiry into the history, effectiveness, and potential damage of conversion therapy. It chose to regulate the conduct of mental health professionals for the purpose of protecting children from harm. And importantly, the law focused on just the behavior legislators were trying to prevent, and did not stray into broader territory. If the Holy Order of Homosexuality Haters is interested in saving souls, it might do better to use an argument that isn’t diametrically opposed to conservative ideology.