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The number of people on the left willing to call this decision striking down Colorado's law against ‘conversion therapy’ illegitimate or even obviously wrong makes me sad. I understand disagreeing or being disappointed but when a decision is 8-1 and persuades the majority of justices appointed by your party you might want to consider whether you are missing something. I think most people at least claim to believe the court should act on principle not just look at the outcomes -- so at a minimum your conviction this was obviously wrong should be expressed without reference to the specifics of conversion therapy.

I personally find the majority’s arguments very convincing, the court just said that there is a free speech interest in what psychologists can say when talking to clients. Sure, I think what Colorado banned is usually a bad and harmful practice but the problem is that isn't what the court gets to decide. If the court says Colorado can ban conversion therapy then Alabama can ban psychologists from encouraging minors to transition. And appealing to what the APA says about what constitutes valid treatment obviously doesn't change that -- the fact a bunch of other people agree something is bad isn't a valid constitutional argument and you can't use private organizations as an end run around the first amendment.

For very good reason there is strong precedent saying that the democratic process gets extreme latitude in their determination of things like how harmful or desirable a practice might be. Such determinations are both factually intensive and deeply value bound so -- absent clear disallowed pretextual intent (eg racial Animus) the court defers to the legislature. That means that the choice facing the court wasn't whether conversion therapy is a good thing but how much control states can exercise over what a psychologist can say to children. There is no world in which the court could consistently let this law stand and then strike down similar bans in conservative states about gender affirming counseling. Indeed, it wasn't even if Colorado's law can stand -- they only decided it needs to meet strict scrutiny and if you do think the law is necessary the best argument you can make imo is that it meets strict scrutiny.

Besides, it's dubious if this law actually does any work protecting children. Its a great way to express your values about what is and isn't good parenting but even with this law the kind of parent who wants that kind of advice can just take their children to talk to their pastor instead. Are we really sure that children are better off if their parents refuse to take them to a licensed psychologist at all -- at least they are trained. And the price of this dubious benefit is that it would have allowed conservative states to essentially cut off access to important advice about gender dysphoria, abortions or other contested social issues.

You can still disagree with the decision of the court. Jackson’s dissent is a perfectly reasonable coherent position that is simply less speech protective. And one can make arguments on both sides about which is the closer fit with prior precedents. Personally, I support stronger 1a protections and feel that overall they more divided we are as a country the more important they are. But Jackson doesn't even attempt to deny the fact that her approach would give similar latitude to conservative states to ban things like a therapist encouraging a patient to explore their gender. Her position is basically that it's too important to be able to regulate the quality of medical care to so highly protect medical provider speech.

If you favor that view, fair enough, but what it doesn't allow you to do is to ignore the force of the arguments that convinced Kagan and Sotomayor. None of the justices dispute the point that a principled rule isn't going to distinguish between this regulation in Colorado and a regulation banning speech encouraging gender affirming care a conservative state may pass.

BREAKING: The Supreme Court, in an 8-1 vote, held on Tuesday that Colorado's law banning conversion therapy regulates speech based on viewpoint, subjecting it to strict scrutiny and likely rendering it unconstitutional when lower courts apply today's decision.

Justice Neil Gorsuch writes for the court; Justice Ketanji Brown Jackson dis…

Apr 1
at
2:24 AM
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