Box Turtle Bulletin

Ninth Circuit Court Upholds California’s Gay Therapy Ban for Minors

The Ninth Circuit Court of Appeals has upheld California’s law banning licensed profesionals from providing Sexual Orientation Change Efforts (SOCE) to minors. The critical point during oral arguments before the court was whether the ban infringes on therapists’ free speech rights or regulates professional conduct. In the unanimous decision by Chief Judge Alex Kozinski and Circuit Judges Susan P. Graber and Margan Christien, the court settled on the latter.

In the opinion written by Judge Graber, the court began by describing what the law, known as SB 1771, does and does not do (PDF: 171KB/36 pages):

Importantly, SB 1172 does not do any of the following:

• Prevent mental health providers from communicating with the public about SOCE
• Prevent mental health providers from expressing their views to patients, whether children or adults, about SOCE, homosexuality, or any other topic
• Prevent mental health providers from recommending SOCE to patients, whether children or adults
• Prevent mental health providers from administering SOCE to any person who is 18 years of age or older
• Prevent mental health providers from referring minors to unlicensed counselors, such as religious leaders
• Prevent unlicensed providers, such as religious leaders, from administering SOCE to children or adults
• Prevent minors from seeking SOCE from mental health providers in other states

Instead, SB 1172 does just one thing: it requires licensed mental health providers in California who wish to engage in “practices . . . that seek to change a [minor’s] sexual orientation” either to wait until the minor turns 18 or be subject to professional discipline. Thus, SB 1172 regulates the provision of medical treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic.

The court drew on several precedents, including a case involving unlicensed psychoanalysts, who had claimed that being sanctioned by the state for being unlicensed amounted to an infringement on their free speech rights because, after all, they were only talking in their counseling sessions. Prior courts held that “communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation.” The court also drew on another case in which a doctor’s prescribing privileges were beign revoked because he recommended medical marijuana for his patient. That court drew a distinction between the doctor’s recommendation — a discussion that occured in the office — and the doctor’s prescribing it — which had not occurred — in its ruling in the doctor’s favor. Based on those two cases:

We distill the following relevant principles from NAAP and Conant: (1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3)
nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.

The only remaining question before this court, then, was “whether or how the First Amendment applies to the regulation of specific mental health treatments.” The court chose to approach that question by “view(ing) this issue along a continuum.” At one end is where a professional is speaking publicly as an advocate. At that end, First Amendment protections are at their greatest. But moving toward a middle ground are laws which require doctors to “disclose truthful, nonmisleading information to patients about certain risks of abortion.” In that setting, a previous court had found that “the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” (Emphasis in the original.) Also, doctors do not enjoy First Amendment protections for giving negligent medical advice to their patients:

Thus, the First Amendment tolerates a substantial amount of speech regulation within the professional-client relationship that it would not tolerate outside of it. And that toleration makes sense: When professionals, by means of their state-issued licenses, form relationships with clients, the purpose of those relationships is to advance the welfare of the clients, rather than to contribute to public debate.

The far end of the court’s continuum is in the regulation of professional conduct, were that conduct is the provision of a medical service, even if that service is in the form of speech.

Most, if not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment. When a drug is banned, for example, a doctor who treats patients with that drug does not have a First Amendment right to speak the words necessary to provide or administer the banned drug. …

Senate Bill 1172 regulates conduct. It bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. Senate Bill 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors.

Moving from First Amendment considerations, the court then ruled that California’s legislature had a rational basis for regulating SOCE for minors, that SB 1172 is not unconstitutionaly vague or overly broad, and that it does not infringe on parents’ fundamental rights to determine the care their children would recieve:

We are unaware of any case that specifically addresses whether a parent’s fundamental rights encompass the right to choose for a child a particular type of provider for a particular treatment that the state has deemed harmful, but courts that have considered whether patients have the right to choose specific treatments for themselves have concluded that they do not.

…[T]o recognize the right Plaintiffs assert would be to compel the California legislature, in shaping its regulation of mental health providers, to accept Plaintiffs’ personal views of what therapy is safe and effective for minors. The aforementioned cases lead us to conclude that the fundamental rights of parents do not include the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful.

Therefore, SB 1172 does not infringe on the fundamental rights of parents.

The Ninth’s ruling settled two conficting lower-court rulings. In one case brought by the PAcific Justice Institute on behalf of two NARTH-associated therapists and a student who claimed to have benefited from SOCE, the lower court granted a very limited preliminary injunction against the state of California from enforcing the law. In a second case brought by Liberty Counsel on behalf of NARTH member David Pickup and backed by NARTH, the lower court denied their petition for an injunction.

NARTH has issued a statement saying that it plans to appeal the Ninth Circuit’s ruling:

At a time when adolescents who experience themselves as being the wrong biological sex are allowed to pursue sexual reassignment surgery, licensed therapists who are willing to assist youth with unwanted same-sex attraction and behaviors will be prohibited from even talking to minors in a manner that could be construed as promoting the pursuit of change.

Politicians and non-elected judges have seen fit to approve of such encroachments on personal and professional freedoms in spite of the fact that the American Psychological Association admits the exact causes of same-sex attractions are not known, virtually no research exists directly addressing the modification of same-sex behaviors and attractions with minors, and the prevalence of harm from such change efforts is unknown and has therefore not been established as being any greater than the rates of harm documented for psychotherapy in general. Furthermore, much research has documented that fluidity in sexual attractions and identity often occurs naturally and is particularly pronounced in adolescence and early adulthood, which suggests the viability of therapeutic change efforts for some youth.

These facts make it clear that science is not at the forefront of this effort to restrict freedoms. If that were the case, gaps in our knowledge of this area would be addressed through a bipartisan program of research, not by the heavy hand of government squelching professional practice in order to appease powerful interests of activists within professional associations and lobbying groups. NARTH sincerely hopes that these crucial facts will be considered by a more receptive judicial audience in the future.

Judge Issues Temporary Injunction Against California’s Gay Therapy Law

U.S. District Court Judge William Shubb has issued a very limited temporary injunction which bars the state of California from enforcing its ban on Sexual Orientation Change Efforts (SOCE) for minors when the law goes into effect on January 1. Judge Shubb limited the injunciton’s effectivity to the three ex-gay therapists who have sued to overturn the measure. According to the Associated Press:

U.S. District Court Judge William Shubb made a decision just hours after a hearing on the issue, ruling that the First Amendment rights of psychiatrists, psychologists and other mental health professionals who engage in “reparative” or “conversion” therapy outweigh concern that the practice poses a danger to young people.

“Even if SB 1172 is characterized as primarily aimed at regulating conduct, it also extends to forms of (conversion therapy) that utilize speech and, at a minimum, regulates conduct that has an incidental effect on speech,” Shubb wrote.

The judge also disputed the California Legislature’s finding that trying to change young people’s sexual orientation puts them at risk for suicide or depression, saying it was based on “questionable and scientifically incomplete studies.”

The injunctions applies only to the three plaintiffs: psychiatrist Anthony Duk, marriage and family therapist Donald Welch, and student Aaron Blitzer who is studying to become an SOCE provider and who claims that he is now heterosexual after having undergone ex-gay therapy. Duk was a speaker at NARTH’s 2011 convention in Phoenix. Blitzer claims that he is now heterosexual after having undergone ex-gay therapy. The three plaintiffs are being represented by the Pacific Justice Institute.

In granting the injunctions, Judge Shubb indicated that the plaintiffs stand a good chance of getting the law struck down on constitutional grounds.

Last October, Gov. Jerry Brown signed S.B. 1172, making California the first in the nation to prohibit licensed professionals in the state from providing SOCE for minors. Therapists who violate the ban will be subject to discipline by the professional organization responsible for their licensing. The bill does not prohibit therapists from providing SOCE to adults, nor does it affect unlicensed counsellors, pastors, and other ex-gay therapy providers such as religious-based ex-gay ministries.

NARTH co-founder Joseph Nicolosi recently admitted that about half of all NARTH clients are teens. NARTH and Liberty Counsel have also joined forces to fight the ban in a separate case in Federal Court.

Update:  Judge Shubb’s ruling is available here (via Scribd).

More amicus, more animus

Those who oppose civil equality simply can’t restrain themselves from supporting the Proponents of Proposition 8. Although history is going to be rather unkind to them (and we will both document and remember), there is almost a sense of desperation to the compulsion to go on record as favoring inequality, supporting supremacist attitudes and expressing dismay that their views may be held up to inspection.

Today I have a whole long list of amicus briefs to add to those who previously have come down on the side of institutionalized discrimination. You can check them all out here.

Robert P. George, Sherif Girgis, and Ryan T. Anderson – You may recall that Robert George was one of the founders of the National Organization for Marriage. His argument is that the state does indeed have interest in enforcing private moral or religious beliefs. Further, “a belief that a relationship between a man and woman is inherently better than a relationship between two men or two women” and “moral disapproval of homosexuality” are both legitimate bases for legislation. And because any position has some moral values assigned, then therefor the value of heterosexual supremacy is a perfectly fine one on which to base law. Oh, and Lawrence v. Texas only applies to criminal law.

NARTH (yes, NARTH!!) – Typical NARTHian science to argue that homosexuality is not immutable and therefore gay people should not have rights. Example “the study also found that those who report themselves as homosexuals showed variety in their sexual experiences when measured on a continuum: 65 percent of homosexual men and 84 percent of homosexual women reported having had heterosexual intercourse.” Lots of discussion of studies from decades gone by in which psychotherapy resulted in “functioning as heterosexual” and a lot of misrepresentation of the work of others (Spitzer and Jones and Yarhouse, for example.)

Pacific Justice Institute – The Greeks and the Romans didn’t allow gay marriage so neither should we. They started with “the Greeks and Romans were clearly not homophobic” but just couldn’t resist the impulse to put in every example of Greek or Roman condemnation that could be found and concluded “Hence, defining marriage as a union of a man and a woman reflects not only the collected wisdom of the citizens, but of the ages as well.”

The States of Indiana, Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah and Wyoming. – More specifically, the attorneys general of these states. The argument: Walker exceeded his judicial authority; the Federal Courts have no jurisdiction over marriage. Loving was justified “to uphold the core guarantees of the Fourteenth Amendment” but Perry would “recast the basic parameters of marriage.” The rest was a rerun of the Proponents’ failing arguments in court.

American College of Pediatricians – Remember this totally bogus group from the lie-ridden letter crafted by NARTH but sent under their name? They are back with the predictable “Think of the Children!! Children need a mommy and a daddy. Ignore what the real professional groups say” message.

Center for Constitutional Jurisprudence (John Eastman) – Eastman was NOM’s special pick for CA Attorney General – he lost badly in the Republican primary, 16 points below Steve Cooley, who had opposed Proposition 8. Reading this political rant (it really can’t be called a legal argument), I am relieved that this guy has no chance of representing my state in court… or at least not this year. His argument: ” The Initiative Proponents have standing to defend Proposition 8, both as Agents of the State and in their own right”.

Becket Fund for Religious Liberty – Gay equality is incompatible with religious liberty. If gay people are treated as full citizens and granted equal access to civil marriage, then those religious individuals and groups that oppose civil equality and support heterosexual supremacy might be sued for discrimination. Those people who operate “job training programs, child care, gyms and day camps” would not be able to discriminate, and if they did, they might not get taxpayer dollars with which to deny gay people access. And that’s why the voters approved Proposition 8: to support “religious liberty” to discriminate against gays. (They got $500 K from the Knights of Columbus last year)

National Legal Foundation – These folk call themselves “a Christian public interest law firm” but are best known as the legal team who defended Cincinnati’s Issue 3, which would have amended the city charter to ban any city laws and policies that would prohibit discrimination against gay Cincinnati residents in employment, housing, and other areas. They disagree with Walker’s finding of fact and argue that the Ninth Circuit should revisit and reverse them. In the Cincinnati case, the Sixth Circuit reversed a number of the lower court’s findings and NLF gloatingly says that this court should do the same. They fail to mention that the US Supreme Court reversed the decision and found that Cincinnati violated the US Constitution.

Eagle Forum (Phyllis Schlafly) – The Proponents and Imperial county have standing. And if they don’t have standing, then there’s no case and the whole thing should be thrown out entirely, including Judge Walker’s ruling.

Concerned Women of America – Gays are politically powerful, have powerful allies, significant funding, and the public is growing in support. So discrimination against gay people should not be subjected to heightened scrutiny. “As of June 1, 2009, thirty-one states and the District of Columbia had state laws regarding “hate crimes” based on sexual orientation.” (I wonder what else 31 states had?)

National Organization for Marriage (NOM – Brian Brown and Maggie Gallagher) – Ah, NOM, we knew you’d participate. NOM has a number of interesting arguments. Yes, there are “children need a mommy and daddy” and “marriage is about procreation” and “you’re redefining marriage”, but they also have these fascinating (and oh-so-classy) things to share:

Men will no longer be willing to support their children: “When society simply weakens its support for the ideal that children should be cared for by both the man and the woman who made them, children end up disproportionately in the care of solo mothers. What will happen when the law and society rejects that view altogether as irrational bigotry? If the district court has its way, we will find out.”

Same-sex marriage will lead to polygamy and incest: “If, as the district court suggests, marriage were to become an essentially private, intimate, emotional relationship created by two people to enhance their own personal well-being, it is wrong, discriminatory, and counterproductive for the state to favor certain kinds of intimate relations over others. Sisters can cohabit and commit, and so can best friends in non-romantic relationships. Three people can cohabit and commit, too. Why can’t these people claim marriage as well? Once a key feature of marriage has been deconstructed, other historic features of marriage will become much harder to explain and defend, both in law and culture.”

And my very favorite: Look at Massachusetts; If you allow gay marriage then – oh noes – people will support it. “Data from Massachusetts likewise does little to alleviate concerns that same- sex marriage could lead to negative consequences. To the contrary, the data relied upon by the district court actually suggests a weakening in the marriage culture in the years immediately following the same-sex marriage ruling in Massachusetts. … In 2009, amicus curiae National Organization for Marriage commissioned a survey in Massachusetts of attitudes about marriage five years into that state’s experiment with same-sex marriage. The survey found that ―in the five years since gay marriage became a reality in Massachusetts, support for the idea that the ideal is a married mother and father dropped from 84 percent to 76 percent.”

Paul McHugh – McHugh is perhaps best known for his anti-transgender activism. But he’s joining in amicus to declare that you can’t define “homosexual” and it’s not fixed or immutable (presumably unlike race which is always and ever immediately discernible). Because while many people fit all three definitions (attractions, behavior, identity) there are exceptions. So therefore someone who is same-sex attracted, in a relationship with another person of the same sex, and who identifies as being gay should not be considered to be homosexual because, after all, there are people in the closet.

And because you can’t define “homosexual” then a woman in love with her same-sex partner ought not be able to marry her. Further, because there is no gay gene (unlike the African-American gene). It may be caused by education (I love this one): Because “It may very well be the case that on average lesbians and gay men in the United States have a higher educational level than comparable heterosexual men and women”, there therefore, “Education and socioeconomic levels have also been suggested as contributing factors to homosexuality.” Really? By whom? That has to be the worst example of correlation = causation that I’ve seen in a while.

But to understand the depth of McHugh’s basic dishonesty and lack of any sense of moral character, you have to consider ” Identical twin studies confirm that homosexual orientation is not genetically determined.”
Actually, twin studies have found that genetics contribute 35-39% for men and 18-19% for women. In other words, while it’s not fully genetically determined, McHugh is implying the opposite of what the studies have found.

Eugene Dong – No idea who this guy is but his argument is this: It’s expensive to have children so the state benefits by subsidizing and benefiting heterosexuality so as to perpetuate the human race.

American Civil Rights Union (sort of an anti-ACLU) – fundamental rights are limited to those that are deep-rooted in American history and tradition.

Catholics for the Common Good – God’s definition of marriage pre-exists any state recognition. They make the usual arguments (including quoting the Pope as an authority), but their real objection is found in their request to file the amicus: “…because the district court’s opinion enshrined a re-definition of marriage in California law that may expose this and similar organizations and persons of good will to claims of discrimination…” It’s the Maggie complaint, “If you treat gay people equally under the law, then those of us who want to treat them as inferior will be called bigots.”

And one woman, Tamara L. Cravit, wrote in to say that the Proponents do not have standing. So far she’s the only pro-plaintiff amicus brief.

Gov and AG will not be forced to appeal Prop 8 decision

As anticipated, the Pacific Justice Institute’s lawsuit to force Governor Schwarzenegger and Attorney General Brown to appeal Judge Walker’s decision in Perry v. Schwarzenegger was laughed out of court. Okay, I don’t know that anyone laughed (they may have just rolled their eyes) but is was “summarily denied”.

PJI and Meese argue nonsense, sue Governor and AG

Is there a polite way of saying, “dumber than a bag of hammers”? Because if so, I think that Pacific Justice Institute may deserve the title. (WaPo)

A conservative legal group is trying to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend California’s gay marriage ban in court.

The Pacific Justice Institute petitioned the 3rd District Court of Appeal in Sacramento on Monday for an emergency order that would require the two officials to appeal a ruling that overturned Proposition 8.

And they have got former Attorney General Ed Meese to support them.

Meese, who served one term as attorney general under President Ronald Reagan and Reagan’s legal adviser when he was governor of California, said that Schwarzenegger and Brown’s positions were at odds with his own experience.

“Governor Reagan never refused or declined to defend a state law or state constitutional provision, regardless of his own opposition or dislike for a challenged provision,” he wrote. “As attorney general, I never refused or declined to defend a law on the basis that I disagreed with the law as a matter of policy.”

Okay, I’m not an attorney. But you don’t have to have studied law to know that no one has the obligation to appeal a decision.

Perhaps if there had been no defense of the proposition, they might have an argument. But Proposition 8 had its day in court and it lost. Mightily.

The Governor, and the Attorney General are not automatons who as a matter of rote appeal every court decision that comes their way but are officials elected to make decisions, including evaluating the cost and effectiveness of appeal and determining the best interest of the State.

I’ll be quite astonished if this suit (in State court, incidentally) isn’t thrown out on its ear.