Liz and Rebecca cover Chiles v. Salazar, the case before the Supreme Court seeking to strike down a Colorado law banning mental health professionals from practicing “conversion therapy” on children. They explain the details of the case and discuss the hypocrisy of a ruling striking down the ban. They also recount the October 7th oral arguments, where the majority of justices signaled support for a ruling that will nullify state laws in half the country protecting LGBTQ youth from these discredited harmful practices.
Background
Amicus briefs
SCOTUSblog – “Does Colorado’s “conversion therapy” ban violate free speech?”
The American Psychiatric Association’s position on conversion therapy
The American Psychological Association’s position on conversion therapy
The American Medical Association’s position on conversion therapy
“LGBTQ Policy Spotlight: From Conversion “Therapy” Laws Protecting LGBTQ Youth”
Rebecca Markert: Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with Americans United for Separation of Church and State.
Liz Cavell: And I'm Liz Cavell with the Freedom From Religion Foundation. Today we're going to cover the Chiles v Salazar case. This case involves the conversion therapy ban in the state of Colorado, recently heard at oral argument by the US Supreme Court. So before we get into the details of the case, Rebecca and I just want to briefly talk about what we're talking about in this case when we're talking about this talk therapy treatment modality that is conversion therapy because I think as usual with these religious litigants trying to undermine LGBTQ rights and safety, the facts of what we're talking about kind of get a little bit muddled up at the Supreme Court. So let's just briefly talk about the reality of what we're talking about when we say conversion therapy.
Rebecca Markert: Conversion therapy treatments are any treatments which attempt to change an individual's sexual orientation from homosexual to heterosexual. This therapy includes individual talk therapy, behavioral therapy, any sort of aversion therapy, group therapy like retreats or inpatient treatments. So, there's a really good description of what conversion therapy is posted on the Chiles v. Salazar page for the Trevor Project, and I just want to read what they say there to kind of get everybody to understand what it is, how it's traditionally been used and what we mean when we're talking about this because a lot of these ideas are going to come up during the oral argument. So they say conversion therapy refers to practices that seek to change someone's sexual orientation or gender identity. Despite their name, these practices are in no way legitimate therapy and lack any standards or basis in evidence. These unscientific practices are rooted in outdated ideas that LGBTQ+ people are unnatural or need to be cured. Historically, these practices have involved behavior modification and painful aversive treatments as well as discredited psychoanalytic theories such as the claim that being gay is caused by faulty parenting, trauma, or abuse. These practices have been rejected by every mainstream medical and mental health organization for decades. Every major medical and mental health association in the country condemns conversion therapy. That includes the American Psychiatric Association, the American Psychological Association, American Medical Association.
Liz Cavell: And this is really important because the fact that all of these medical and mental health professional associations do not endorse the practice of conversion therapy and support actually protecting especially youth patients from the practice of conversion therapy means that that is the standard of care in the practice as set by the profession. So the actual professionals practicing in the medical profession, the practice of psychiatry, the mental health professions, the standard of care as set by those industries themselves, the professionals, is that conversion therapy is harmful and it shouldn't be practiced.
Rebecca Markert: More than 20 states have these types of laws banning conversion therapy. There are currently 23 states and Washington, D.C. that protect youth minors from conversion therapy and to date, no court has invalidated any of those laws. These are laws that protect young people from conversion practices like Colorado's law, and they have broad bipartisan and even religious support. They have this bipartisan support. Even Republican legislators have supported legislation that protects youth from conversion therapy. Since 2012, those measures have been supported by Republicans more than a thousand times, and there are many religious groups that continue to express support for ending these types of practices, which can be very dangerous to the mental health and physical wellbeing of children in our country. There have been nearly 400 religious leaders across the globe calling for an end to conversion therapy worldwide. Most Americans reject conversion therapy and support efforts to protect minors from its harms. In 2025, just this year, there was a poll that found the majority of adults in the United States, so 56% think that you should be protected from efforts like conversion therapy.
Liz Cavell: Right. Again, just setting the stage here, this practice is both rejected by the professional standard of care in both the medical and the psychiatry and mental health professions, and it's really a ultra-conservative religious view, even on the fringes of what is supported by religious Americans writ large and even conservative politicians writ large. We're still talking about a fringe practice and an ultra-conservative Christian worldview. Again, thinking about what this Supreme Court chooses to hear and to elevate above laws that have been on the books without incident for many years in what Rebecca just told you is half of the states of the country. And so that's just setting the stage for once again what the Supreme Court decides to scoop up and give this full hearing to and potentially reverse and undo how widespread the effect will be and how not supported by the majority this will be. Again, this is carving out for special treatment, these fringe ultra-religious views that are harmful to LGBTQ Americans, especially youth.
Rebecca Markert: We'll get into the facts of the case here. This is the setup in Colorado, Colorado bans conversion therapy just six years ago in 2019. Their law is known as the Minor Conversion Therapy Law, the MCTL, and this law bans mental health professionals from providing clients under the age of 18 with conversion therapy, but there is an exception for anyone engaged in the practice of religious ministry. So that means that the pastor at your church can talk to you about conversion therapy, but licensed professionals who are engaged in the practice of mental health treatment are prohibited from using conversion therapy.
Liz Cavell: Right. This is not an uncommon statutory scheme, right? All 50 states have all kinds of laws on the books that regulate the practice of medicine and other professional practices within the state. The practice of law is heavily regulated by state law in terms of what you can and can't do that would harm or take advantage of or exploit clients. And so it's no difference what's going on in Colorado. They have laws on the books that regulate the professions that operate with state licensure in their state, and one of those laws as of 2019 is banning licensed mental health professionals, not clergy, not religious counselors, but licensed mental health professionals from engaging in conversion therapy only on minors again. Okay, so talking about the sweep of this law and the harms to the free speech interests of the plaintiff who we're going to talk about in a second, it's important to understand the context, the law. This is not novel, what the state of Colorado is doing and the fact that there's already a wide exception to protect religious actors in this space, religious counselors and religious speech, and we're only talking about minors, which should be of the utmost importance in terms of the state interest in protecting patients from harmful practices.
Rebecca Markert: The petitioner in this case is Kaley Chiles. She is a Christian and a licensed counselor in Colorado, she lives in Colorado Springs. She claims that the law violates her free speech and her free exercise rights by preventing her from counseling people in accordance with her beliefs on issues relating to gender identity, gender roles, and sexual attraction. She believes that "clients can accept the bodies that God has given them and find peace" and "that people flourish when they live consistently with God's design, including their biological sex." That's the end of that quote. So she wants to engage in conversion therapy. She is represented by none other than drum roll Alliance Defending Freedom.
Liz Cavell: What, that's so unlikely
Rebecca Markert: So you can probably guess what their interest is in this case. Also, numerous briefs were filed by other Christian nationalist allies like the Becket Fund, Liberty Justice Center, the Manhattan Institute and others. The US government also filed in support of ADF.
Liz Cavell: Which has become the pattern in these cases before the Supreme Court in the current administration. So just like a little of the procedural history, how this case made its way to the Supreme Court. So again, this was a Colorado Federal District Court that upheld the conversion therapy ban. In other words, the law does not violate the Constitution was appealed to the 10th Circuit Court of Appeals, which has jurisdiction over Colorado. And that court also upheld Colorado's law reasoning that Colorado enacted the law based on evidence of the harms of conversion therapy and as part of its legitimate effort to regulate the healthcare profession, which again is extremely common and a subject of state legislation in all 50 states. So the Circuit Court of Appeals found that the law primarily regulates therapist's conduct not speech. It only has an incidental effect on speech and it doesn't violate religious freedom.
You've probably heard Rebecca and I talk in past cases about the level of judicial scrutiny. That's always an important factor when the courts are reviewing a law. In this case, at the 10th circuit, the court reviewed the law under rational-basis review. It's the least stringent review. It found the law unconstitutional because it served a legitimate state interest. And so ADF obviously appealed to the US Supreme Court, couldn't get there fast enough, but they only appealed the free speech issue. They decided to frame this as a free speech case because they, I think, see their best shot as talk therapy equals speech because talking is famously speech. So really tried to undermine the lower court's view, which has been the view I think, of the practice of mental health counseling for decades, which is that regulating it is lawful, it's not a violation of free speech. Talk therapy is not the same thing as pure speech. It's also conduct that is the delivery of a mental health treatment. And so there is an interest that the state has in regulating that to some extent. And so ADF decided to appeal on the free speech issue. The Supreme Court gleefully took this case up and here we are.
Rebecca Markert: And they're there on a preliminary injunction or after a preliminary injunction was issued. This is not a final merits decision.
Liz Cavell: As is typically the case with these constitutional cases.
Rebecca Markert: Our organizations, both Americans United and FFRF, got involved in this case even though they are up on appeal over a free speech issue and not the religion issue. Obviously, religion is undergirding this entire case. It's not the sole focus, but our groups wanted to get involved because of the tangential relation to the religion clauses here. AU submitted a brief that urged the court to affirm anti-conversion therapy law saying that it doesn't violate the First Amendment. And again, although there was no religious freedom claim before the court, the Alliance Defending Freedom and other Christian nationalist groups that I mentioned before continue to argue and portray the law as anti-religion. So our organization really wanted to set the record straight and do that through religious voices. So we argued that the law was not enacted with anti-religious animus and does not target religion. We submitted this brief on behalf of several different religious organizations including Christian, Jewish, Hindu, Muslim, and Unitarian Universalists. They all support the law because they believe that all children should be protected from harm and feel safe and included and supported. And these are the groups that when I was talking about how there is bipartisan support for laws like the MCTL, these religious groups are groups that were supportive of the laws as well.
Liz Cavell: And like Rebecca said, ADF makes a strategic decision to only pursue their free speech claims before the court probably I think in large part to shroud the constant every single term drumbeat of religious favoritism cases that come to the Supreme Court where it's literally ultra-conservative Christian litigant versus the health and safety of LGBTQ Americans and maybe Americans are getting kind of tired of that game. And so, oh, this will just be a pure free speech case, but it is always the subtext that this is religious speech, so you should care a lot more. It's deserving of more rights and protection and any government attempts to regulate it is hostile to religious people and hostile to Christians and it's persecutory. That's always the narrative that's being spun in these cases, even when strategically they're calling it a free speech claim. It was a similar thing in the 303 Creative case, a similar kind of a narrative. This is a pure speech, it's creative endeavor. It's just such a pure creative expression of speech. But really religion is kind of a huge part of the narrative in how I think both these cases are being brought and also the way that the Supreme Court, the ultra-conservative majority on the court is hearing and receiving them. So FFRF also filed an amicus brief in Chiles and decided to focus on the standing issue in this case. So we argued that Chiles, the mental health counselor, actually has no legal standing to sue. Like so many of these litigants, she wants to practice conversion therapy. It's extremely essential to her worldview. She didn't actually practice it and also wasn't disciplined or suffering any consequences for having done it. There's really no evidence that she had done it. Again, it's just one of these, it was kind of like the 303 Creative plaintiff where she really had a burning desire to not build those websites for gay couples. And she really was chilled from acting on her conscience. But again, nobody was really asking her to build them. She'd never been disciplined or in any other way had the law enforce against her. She just wanted to have the United States Supreme Court adjudicate her claim just in case it's kind of a similar vibe here. It was this speculative chain of what she was worried about or what her injury was. She might be perceived as having violated this law if a minor client later changes their sexual orientation after talking to me, that might happen. None of this had happened. There was no evidence that she even conducted this type of therapy. The way this would work in practice is that a complaint would be raised against you and it would be like a grievance against your professional license cayse that's the way the law is operating, Colorado grants her license to practice mental health counseling in the state, and if somebody later grieved her for having been harmed by conversion therapy they received from her, then a process would start by which she might face some enforcement or threats on her license.
But none of that has ever happened. So our brief basically pointed this out and also wanted to really document the fact that this is a pattern at this court of these ultra-conservative Christian litigants basically speculating and fabricating these legal injuries and controversies where none really exists, and basically just calling out the Supreme Court for its willingness to take up these cases when it wants to. But all the history of cases that both FFRF and AU have faced over the past decades that the court has not hesitated to deny standing to our organizations when we are seeking relief that would negatively impact our interests, but is speculative or there's not a real harm or they've bent over backwards to avoid hearing the merits of cases where the winners would be our organizations trying to uphold the Establishment Clause concerns. So just kind of pointing out, there's no standing in this case and we need to stop ignoring the fact that this court is taking up these cases to issue these sweeping changes of law.
This is half the country's laws about to be invalidated by this case where really there's actually no case or controversy and no one has suffered an injury that's actually hugely anomalous under the law and just trying to point that out and stop letting it skate by. And it ended up being, I think a really good call because at least on the side of Colorado, there weren't any other briefs that talked about standing. So it kept it in the conversation and I think as we'll talk about in a minute, it came up at oral argument as well, which I think is worthwhile.
Rebecca Markert: It was a big topic at the Supreme Court during oral arguments as a late breaking standing argument.
Liz Cavell: Of course a very annoyingly talked about argument, but at least one that was addressed by the court that was otherwise not really a focus of the case, and I'm sure will not be a focus of the decision given everything we have just talked about and what the court is. But it's worth, I think, at least kind of like with the anti-religion issue, it's worth staking out the position that, hey, there's a reality that exists here and you're not going to get to hear this whole entire case without it being anywhere in the record. So I think that was fulfilling.
Rebecca Markert: Right. So the question that's posed by the petitioner before the court is whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conducts or violates the free speech clause. So again, just to note, this isn't going up on any sort of religion grounds, not her free exercise claim. It's going up on free speech. And I want to talk a little bit about the conversation that came up at oral argument about the type of therapy that she wants to provide. We said at the outset of this show, conversion therapy is this, and there was a lot of discussion at oral argument about what that therapy would look like and this distinction between talk therapy and other types of therapy that might include medication or as we mentioned before, things like aversion therapy, which could include electric shock treatments and things like that.
And Justice Sotomayor really tried to suss that out to try to figure out what is the type of therapy that she wants to provide. And the attorney, attorney Campbell from ADF says, it's just talk therapy. There's nothing else involved at all. And because it's just talk therapy that implicates the free speech clause. He says specifically this, "Ms. Chiles helps clients when their goals are to resolve gender dysphoria by getting comfortable with their body and realigning their identity with their sex. She helps them if they're experiencing unwanted same sex attraction, if that's their goal to reduce it, and she helps them deal with issues of unwanted same sex behavior." This was also something that I thought was really interesting was the focus on this is all what the client wants. She's only engaging in this type of therapy if the client, the minor child, comes to her and says, this is what I would like you to help me figure out.
Liz Cavell: And again here's where an actually robust understanding of standing in these cases might come in handy. Because if that's true, you might never see a scenario where an unhappy or harmed client would ever come with a grievance that would set an enforcement mechanism into action. You just have clients who, they're the ones initiating conversion therapy and saying, please give me conversion therapy, almost like it's like an off-label drug use. You're coming to your doctor saying, listen man, I know this is not the done thing, but this is what I want you to provide me. And then you engage in it and I guess somehow everybody's happy. And it's only Colorado that's getting in the way. You wouldn't really have standing to challenge the law because again, nobody would be being harmed. It's just this whole fictional world where the only problem here is Colorado putting these laws into place and everybody else is just trying to do this consensual thing. But again, it kind of ignores the fact that, well talk to me about how that affects your standing, but that's just a little sidebar from me that I find really annoying.
Rebecca Markert: But what I found interesting was the way that they are framing what she wants to do then may not actually violate the law.
Liz Cavell: Well, exactly. That's all. The more reason why she doesn't have standing to bring this challenge, what she's seeking to do doesn't even sound like it violates the law at times and especially during oral arguments. That was a big, big flavor of the way that, hey, all our client is seeking to do here is this. And what's being described is not a very clear violation of the law that is even at issue.
Rebecca Markert: Right. Justice Sotomayor, her first question straight out of the gate at the beginning of oral argument is about standing. And she points out that this law has been in effect for six years and in that time there has been no enforcement of the statute. The lawsuit was initiated three years ago. So in the three years prior to the lawsuit being filed, no enforcement, especially against Chiles. And in the three years since the lawsuit has been we its way through the courts, no enforcement. So she's not really in any imminent danger of being prosecuted under the law. And the state is contending that they're not going to go after her because as we mentioned before, what she seeks to potentially do may not even be a violation of the law.
Liz Cavell: What she's describing, the state is saying, yeah, that doesn't sound to us like it violates the law. So we're all in agreement here basically.
Rebecca Markert: Right. And the attorney for ADF, her attorney responds well, but actually there have been anonymous complaints. And so there could be investigations ongoing. And so that is the danger here and why she would then have standing to sue. And like we said before, this is very similar to 303 Creative where nothing is happening to this person. And just really highlights, once again, like Liz said, this is really just the court finding standing when they want to find it and they want to rule on a particular issue.
Liz Cavell: And for all the talk that there was on standing, which was very gratifying personally to me and my colleagues, I'm sure there will be zero, maybe a footnote, zero or something in dissent discussion of standing in the opinion here it is a fait accompli that the Supreme Court wants to hear this case and they standing is just a tool for when you don't want to hear a case.
Rebecca Markert: So you don't think that there would be something in a potential dissent either.
Liz Cavell: It may be in dissent or in a footnote.
Rebecca Markert: Oh okay.
Liz Cavell: In the majority opinion, there will not be a grappling with standing. It'll just be like the attorney guy said there were anonymous complaints, probably nothing in the record to that effect, but who cares? And that's enough for us. So moving on.
Rebecca Markert: And was it Justice Gorsuch? I can't remember when Stevenson from Colorado was up. There was one Justice who was all of the other courts found standing, so there's no reason.
Liz Cavell: Yes, that was Gorsuch. Even though we sua sponte address this all the time when we don't want to find standing and no one has to address it because it can always be considered at any time by the courts. So in other words, it's one of the legal issues that a party does not have to raise. The court can always consider it, it's jurisdictional, but Gorsuch would just like to point out no other lower courts address standing, so we shouldn't have to.
Rebecca Markert: And that's what also was so frustrating listening to this oral argument too, especially when they kept saying Gorsuch kept calling it a late breaking standing argument. I think Justice Barrett also glommed onto that depiction of it. And like Liz said, this is something that they always have to address. So it's not really late breaking if it actually affects whether the court can hear the case.
Liz Cavell: So late breaking messaging was actually so stark. It was like literally there is definitely a group text where they talked about how they were going to message it because it was a very abnormal number of times for multiple people to use the term late breaking to describe something. It was bizarre. And again, it is never something that is late breaking because it is always an issue that can and should be raised by the court when it's lacking. And the court does it all the time when they don't want to hear cases, they happily address standing sua sponte on their own initiative without argument by the court. It is not something that can be waived or stipulated to by the parties.
Rebecca Markert: I'm still just laughing at your group text because it could also be like a Signal Chat come on.
Liz Cavell: Oh, good point.
Rebecca Markert: But also, I mean they were using the late breaking words, they also kept referring to the footnote on page blah blah, blah. Everybody was using the same language. So definitely was like, here, this is the strategy like hut, hut go.
Liz Cavell: Literally. And which is more gratifying in terms of our amicus. They know damn well there's no standing in this case and it's an issue and we should probably all get on the same page for what's our best message in this oral argument for how we downplay the significance of the fact that there's no standing in this case and we still really want to make a sweeping decision. It's cool.
Rebecca Markert: Yeah, but again, there was a lot of time devoted to standing, but probably very little ink devoted to standing in the actual opinion when that comes down. Another thing that I wanted to talk about was Justice Barrett because she brought up medical malpractice and basically was talking about that almost as if, I mean probably not almost as if I think she's using it as, hey, if there are harms to children, there are other ways for that to be not necessarily rectified, rectified feels like the wrong word, but there are other ways for you to solve that harm or get justice for children who may have been the subject of some sort of dangerous conversion therapy program. And so she's saying, okay, so it's protected free speech, but medical malpractice, if Chiles is deviating from the standard of care, there's a whole nother area of lawsuits that one could go to protect children from that potential harm.
Liz Cavell: So that would mean, in other words, the person harmed the minor harmed could sue personally sue the provider for medical malpractice? It's a separate cause of action that has nothing to do with government regulation and that would also involve the deviating from the standard of care, but that the state of Colorado can't set that standard of care based on the professional standard of care set by the industry because of free speech reasons. So yeah, I thought that was significant in asking those questions. Justice Barrett is seemingly acknowledging that such malpractice laws or causes of action are valid. So in other words, accepting that there can be a professional expert standard of care that we would adhere to or that would be valid in some other cause of action that didn't involve the government and free speech concerns. And that is by no means the vibe of several of the other justices, including I think Gorsuch and obviously Alito and always Thomas. I don't think Kavanaugh spoke actually at this one, which was weird.
Rebecca Markert: No, he did not talk at all.
Liz Cavell: But I think it's interesting you bring up Barrett's questions about malpractice because one of the important things, themes that sort of arose out of the oral arguments and infuriating was the fact that so many justices on this court seem to be just unaccepting of the very idea that there could be medical expertise, there could be a standard of care set by the actual professionals in the experts in the profession and that the law could recognize those things. And so you had all this questioning, gross questioning by Samuel Alito as usual, he's got a reputation to uphold trying to make these false equivalencies between, well, how is this different from the old laws that used to call feeble-minded individuals to be sterilized by the government and that was the standard of care. And Gorsuch even ran with this too, and his more his less gross version of this.
But the same thing, which is however many decades ago, a hundred years ago, homosexuality was considered a mental health disorder and conversion therapy was the standard of care and that was the experts. So I guess shouldn't trust healthcare professionals to set the standard of care. And then the subtext is we nine people should set the standard of care and we're super into anti LGBTQ practices, so just trust us. And so just this questioning that sort of all centered around the idea of is it even valid for the state of Colorado to rely on the professional standard of care? All those organizations that reject conversion therapy that Rebecca listed at the top, is it even valid for Colorado to base their law on this when they're restricting what types of practices mental health professionals can do? The idea that the court doesn't, all the members of the court don't even acknowledge whether or not experts, health professionals should even have any say in what the standard of care is is really alarming. And that was just kind of a through line on a lot of the questioning that came out about how is this different than this law that was awful, that was the medical standard of care a hundred years ago. And how is this different than that? That part was kind of chilling.
Rebecca Markert: Do you think that Justice Barrett was being reasonable or trying to find middle ground or–
Liz Cavell: Yes, I do. I think that was her maybe a sophisticated way of saying a similar thing, but I think even Gorsuch somewhat seemed to sort of concede that malpractice is a thing that licensed professionals can be sued if they do something disastrous to a client or patient or whatever. I do think that Barrett kind of set a more moderate path on that question, but again, it's because they're trying to feel out where they can draw the line here because Gorsuch tried to distinguish that from what he's calling a prior restraint on speech by Colorado, which is what this law is. Malpractice is something different after the fact. You get sued. This is the government trying to stop your speech before you've even uttered it. And that's a prior restraint. Of course that's all BS because this too is something that has not been enforced in any way.
It's not stopping her from doing anything. It hasn't been enforced against her. It could only be enforced after the fact. There's no big brother doesn't kick down your door the second you start doing your conversion therapy and pinch your mouth closed. It's a thing that gets enforced after the fact against your professional license. So really not that different from a malpractice suit, but okay, but Gorsuch is using that as an anchor point and Barrett's probably doing the same thing in her mind, feeling out for where the boundaries are so that they can build what their case obviously in Chiles's favor is going to be. And on what basis?
Rebecca Markert: I want to talk a little bit about that prior restraint argument because that is something that the US government, the Deputy Solicitor for the US got some oral argument time in this case and was saying this is a prior restraint which is unconstitutional. And do you think that that is an argument that, I mean we heard like you just said, Gorsuch was jumping on that bandwagon too. Do you think that that is going to be the critical part of the opinion?
Liz Cavell: Yeah, that part was harder than usual to read the tea leaves about because there definitely was some disagreement or it seemed like they were still working it out how they would strike down the law or how soon or how realistic whether or not maybe there is a world where they again send it back to the lower court because by the way, the court does not have to, in fact, it's not normal for the court to say, oh, the lower court used the wrong standard of review and we don't need to give them a chance to review it under that standard. We're just going to review it, strike down the law, this is the new law of the land. Boom. That's what they've been doing. That's what they did in Mahmoud. They don't have to do that because Kavanaugh didn't speak at all, Kagan was her usual sort of, you got a vibe there that maybe she was casting about for some sort of horse trade to be made on how this gets decided. And so it just was a little bit harder to suss out how soon the court would strike down the law and on what basis. I still think it's real wishful thinking to imagine that this court would send it back down and do the small C conservative thing,
But an open question because of how the oral arguments went and who spoke and what they said. That part was a little harder to be super confident about. And I don't know how much the prior restraint kind of analysis will figure, but I do think that is the way that that will be the accepted frame to understand the law, that it's a prior restraint on speech that it burdens speech, not conduct as every other court found, Hey actually when you're doing therapy on someone that's conduct, yes it involves talking, but we can do nuance in our world. So I do think that will be the consensus of the court. It's just an open question I think about how they're going to decide to resolve it in terms of the standard of review and actually striking down the law.
Rebecca Markert: So let's talk about the medical treatment aspect of the argument. Justice Jackson really honed in on this throughout the argument talking about this type of therapy as medical treatment and really asking the attorneys to explain why it is or isn't considered medical treatment. She says talking is a tool like any other tool that you would use in medical treatment, so like a scalpel or some sort of drug when you're treating somebody for a certain condition and she really was asking the ADF attorney, how is this different and if it is different, doesn't that lead then to types of counseling being treated differently under the Constitution and is that a correct way of doing it?
Liz Cavell: Right. A very rooted-in-reality understanding of the issue, which is why states have regulated talk therapy treatment forever and not thought twice about it ever as a prior restraint on speech. This is not a normal argument or framing. It's not like these geniuses at ADF were the first to ever think, holy shit, this is speech. There's talking going on here. You guys. That's the part that is just like you almost weep when Justice Jackson gives voice to this reality of like, Hey guys, this is actually all just part of medical treatment. When you go to your doctor, you're a medical doctor or she doesn't just walk in the room and silently touch your body, look at it silently, walk out and then just silently hand you your prescription. Talking is actually part of most medical treatment modalities. It's not pure free speech. Your doctor doesn't have a free speech without any regulation by the state to come in and say, you've actually kind of let yourself go, Liz, I think you should kill yourself. That's not a valid–
Rebecca Markert: I'm not trying to laugh at that. That's actually like a scary thing.
Liz Cavell: It's not funny, right? But a doctor could do it and be like, my speech. It's like, no, you're a licensed professional and the body that licenses you is the state government. And so yes, they have some say in how you provide medical treatment with their license. That's what gives you credibility to do what you do. And so yeah, some of the things you do involve talking, but that doesn't turn them into pure speech, which can't be interfered with on any basis.
That's just absurd. And so Justice Jackson is trying to more politely than that, get around with hypotheticals and just sort of explaining how is this different from this tool versus that tool. But you're just using talk, talking to accomplish a goal, a treatment goal. Why is it different than shock therapy? Why is it different than aversion therapy? There needs to be a basis in law how that's different rather than just saying talk equals free speech and there's no nuance there. That is not the law. That is not how free speech doctrine has existed in our country and in our courts for decades.
Rebecca Markert: And it's not how medical treatment works. Like you said, they are coming in and they're talking to you about things and there were many hypotheticals in the oral argument brought up or many examples rather that are, I think it was Justice Jackson, it might've been Justice Kagan who came in and basically said, well, if there's a problem with your heart, the doctor might come in and say, Hey, you need to lower your cholesterol, you should eat less red meat. And then there's also drugs that you could take to help do that and other you can exercise, you can do all that kind of stuff. And that's why I was laughing a little bit. You went really dark from the Liz, you let yourself go. You should convince suicide. I was thinking you are like the doctor was going to tell you maybe lay off the cupcakes.
Liz Cavell: That would be valid. I'm thinking something that would be illegal and the state could make it illegal for you to say it to me in this context of this professional patient-doctor relationship. I've heard cocaine really might help you lose weight. Something like that. That is not okay. It's not the standard of care. It's illegal, it's harmful, and the state could prevent you from saying it to your patients. The state prevents people all the time. Talk about next in our outline is the hypocrisy subheading, which is in every one of these oral argument recaps. But there are many states where, for example, legislatures are passing laws where along, well they did this before, they could just outright ban abortion where doctors actually have to read this statement about abortion regret or all this bs. I literally hear these are the words the state is prescribing for you to say as a provider, abortion care provider to your patients, you have to say them because we are the state and we regulate care. And you don't see the Supreme Court getting all hot and bothered about prior restraint. This Supreme Court in cases like that or not prior restraint, compelled speech free speech free speech. This is pure talking. That's not how courts analyze these cases. Yes, there are speech concerns there, but there are other concerns that are valid interests as well when we're talking about delivering patient care under the licensure of the state. And this is not new. The justices know this is not groundbreaking.
Rebecca Markert: There is a really great quote from Justice Jackson because she does keep coming back to this during the oral argument she says, but it's just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests and would just be prescribing medication for that rather than talking with her client. So again, just pointing out how the two types of therapy would be treated differently constitutionally and how that really just doesn't make any sense.
Liz Cavell: Right? No. And her attorney's response to that is, well, yeah, no, it's just speech. I dunno what to tell you. Talking to your patient is pure speech. It's talk therapy. There's nothing else to it. I mean to the point where you make it sound like any idiot could do it, you might as well go talk to your friends. This is nothing. This is just a person talking to a person. There's no treatment. There's no like methods or treatment modalities at work here. This is just two people talking.
Rebecca Markert: So Stevenson brought this up to the attorney for Colorado, and there's just really no way to divorce that talk from impacting the conduct. All therapy is, of course is helping somebody conduct themselves in a certain deal with issues. It's so frustrating to me that they are trying to make this distinction, which is just not a distinction at all.
Liz Cavell: It's the typical thing at this court, which is the rewriting of reality. And we all pretend that that's the reality and there's some sort of factual basis there that really warrants this massive departure from the law. Then everyone has to accept it so that the Supreme Court can do what it wants.
Rebecca Markert: No, it does harken to the 303 Creative case, the masterpiece cake shop case, all of these cases that
Liz Cavell: Kennedy much?
Rebecca Markert: Just, oh, I don't disagree with you wanting to get married. I just don't want to bake a cake for you.
Liz Cavell: Well, here's the one I love. It's not your status as a gay person.
Rebecca Markert: Yes, that's what I was going for.
Liz Cavell: As a gay customer. I'm not discriminating against you. I won't sell anyone your wedding cake, even a straight person that wants to buy your wedding cake for your kind of wedding. So then therefore, boom.
Rebecca Markert: Yes, yes.
Liz Cavell: It's like the epitome of just slimy squirmy, just factual manipulation.
Rebecca Markert: Totally, totally.
Liz Cavell: To reach a point that inevitably is always going to be the same place, which is heads, I win, tails, you lose.
Rebecca Markert: Right, right.
Liz Cavell: Well, speaking of hypocrisy, how do we feel the court treated the idea and the concept of talk therapy versus the provision of gender affirming care? Where was all the free speech rally crying when we were talking about the concept of providing gender affirming care at this court?
Rebecca Markert: Well, where it was Liz, they just didn't like the outcome that you were going for in that particular case.
Liz Cavell: Yeah, I don't remember all the pure speech talk and the Skrmetti opinion, but maybe I missed that section.
Rebecca Markert: Right, right.
Liz Cavell: I leapfrog you earlier on the Justice Alito and the standard of care.
Rebecca Markert: Well, that's okay if we want to go back to that.
Liz Cavell: I mean, I just found it significant in that it's this conflation of person being confined in a feeble-minded house who was sterilized by the government. That is somehow the same as what's happening to Chiles in Colorado is just total bs. But the whole thing undergirding, his whole line of questioning is he is absolutely against the idea of medical expertise. It's all changing, it's all fluid, it's nothing. It means nothing. The states don't have a valid interest in legislating based on it and we don't have to pay any attention to.
Rebecca Markert: And it was a frustrating line of questioning too, obviously bringing up all of these cases that are really a dark part of Supreme Court history. And I also just think, pretend that you care or you would've been on the right side of history in that particular case.
Liz Cavell: I love it too. It's so rich just coming out of the mouth of Justice Alito, even Gorsuch being like, well, in the 1970s homosexuality was considered a disorder by the mental health profession and the subtext is and wasn't that so wrong? But he's like them were the good old days.
Rebecca Markert: Right. Exactly.
Liz Cavell: It's so pathetic.
Rebecca Markert: So pathetic, so pathetic. And I want to talk a little bit about the studies because the studies about the harm that conversion therapy does to young children came up quite a bit. We mentioned it at the outset of this show. There are a bunch of medical organizations that say that this is a dangerous practice. There are a lot of studies that show it's dangerous for children, it causes them psychological harm, it can cause them physical harm, they can hurt themselves, they can die by suicide. And all of that continually comes up and the attorney for ADF says, well, all of those studies have serious flaws. And the reason that they're flawed is because they're lumping a whole bunch of different types of therapy together. So they're not parsing out just purely talk therapy. They're lumping talk therapy, which Chiles wants to engage in with all of those other aversive practices that we all agree apparently are very dangerous. And then the other thing that was interesting that I thought he said was just this type of talk therapy, the stuff that she wants to do, just pure talking to her client about aligning their sexual identity, their sexual orientation and gender identity with their biological sex, all of that type of therapy, actually, the studies show that that brings them closer to God and closer to their religious community and is just better for them because it helps support their religion.
Liz Cavell: Just, yeah, the studies
Rebecca Markert: The studies
Liz Cavell: They've shown it.
Rebecca Markert: So let's ignore all of the majority of the studies that have come out and just focus on these ones that bring you closer to God.
Liz Cavell: Well, the vibe is don't trust any science that supports LGBTQ kids, but trust anything you find that could be remotely referred to as a study or a scientific opinion that does the opposite. And if you follow that path, you will be led to the righteous choice.
Rebecca Markert: And I also just thought that the attorney for Colorado, I felt so sorry for her because she just seemed exasperated in being like all of this stuff that you're talking about, it's been debunked over and over again, and we know that these practices are harmful. We know that when this happens to children, they try and try and try and they fail and there's significant mental and physical repercussions as a result. You could hear how frustrated and upset she was getting is just like, do we really have to talk about this? This is unbelievable,
Liz Cavell: Right? It's just frustrating because again, none of this is about this. This is all just a total charade. The ADF is not really worried about free speech in any meaningful way. And we all know that the law here regulates treatment, mental health treatment, and sometimes words and talk are involved in medical treatment, and that doesn't make it regulatable. It's just all a farce because the court is just eager to further and further say that states do not have the power to protect LGBTQ people or even kids from anything inflicted on them by anyone with basically a religious viewpoint that's different from the consensus, the expert consensus, literally the world consensus. I think the UN even has called for a global ban on conversion therapy. To go back to Rebecca's points at the top, there are a lot of culture war issues around LGBTQ stuff, especially trans stuff that are actually very controversial. Conversion therapy is not really one of those. And yet here we are just doing theater about how this is actually a really big free speech watershed moment that no one thought of until now. But actually it turns out we've been regulating the pure speech of mental health professionals in violation of the Constitution for as long as mental health care has existed. It's absurd.
Rebecca Markert: Right? So we talked about the standard of review. The court is trying to decide if they should apply strict scrutiny or rational basis, and when they decide which one, if they decide that strict scrutiny is the test they do, they have to send it back to the lower court.
Liz Cavell: We've talked around it, but just a lot of what we're saying kind of fits into a decision to send the case back to the lower court because we know, as you can hear from our description of oral arguments and just the fact of this court, the court is definitely going to find that this should have been subject to strict scrutiny. They're going to find that the court should have reviewed this with the highest level of scrutiny, and it would be basically when laws are subject to strict scrutiny, they rarely survive. So the idea is Colorado would have to show a lot to defend this law under strict scrutiny. And that didn't happen at the lower court. And so all this stuff Rebecca's talking about that came up at oral arguments about the studies, the studies show this, and actually the studies show that, well, there wasn't a lot of argument or briefing or anything in the court below about the studies.
And the Colorado brought this up at oral argument like, well, we could have done a lot more fact finding on what the studies show and how significant the medical consensus is and the harm. In other words, the government's interest, how strong and compelling the government's interest in protecting kids from this harmful practices. But we didn't do that because no one has ever thought that these laws needed to be reviewed under strict scrutiny. So the thing to do would be to send it back to the lower court to have that kind of a full hearing on the issues that would relate to strict scrutiny, which is how strong is the government's interest in doing this law and can that overcome the free speech interest on the other side? Is the law narrowly tailored enough and with a strong enough government interest to survive strict scrutiny. There's factual components to making that analysis, and that wasn't done in the courts below. So the thing to do would be if they insist that strict scrutiny applies here to send it back, and that would really obviate some of the confusion and concerns around what are we saying when we say studies show, right? The liars are just happy to say, well, studies show actually everyone loves being right with God. Well, what are you talking about in the record? What studies in the record are you pointing to? And Colorado certainly has a lot of factual support for their interest in banning conversion therapy. But again, there's not a big record on that because as this court so often is want to do, they are creating a whole new system of law around how these cases should be decided. But then not giving lower courts the chance to decide them, just saying, and actually this is what the rule will be. This is how strict scrutiny will apply, even though I don't have any additional facts about what makes this a compelling interest and how it's tailored.
Rebecca Markert: And that was the funny part of the oral argument when Justice Sotomayor was asking Attorney Campbell from ADF, shouldn't this just be sent back down? And he says, oh no, you did this similarly in Mahmoud, the Supreme Court was able to decide it and not send it back. And she replied, I dissented in that case. Correct. And he was like, oh yeah, I remember it was a humorous part of the oral argument.
Liz Cavell: But that's exactly what they're seeking, right? No, just keep doing what you're doing. You did it in Mahmoud. You don't forget about the lower courts. You don't have enough information, but just pretend you do and just make the ruling that you want to make. And that's exactly what's going on. And so I don't think the court will hesitate to do it, but it's not clear where the five votes are in terms of sending it back versus just deciding it on strict scrutiny. If I had to bet my one hundred dollars, I would bet that they are just going to overturn it.
Rebecca Markert: Well, so that's what we can move to predictions. So it seemed pretty clear that there is going to be a majority in favor of Chiles, the Christian therapist here. How do you think it falls like 6-3, 7-2?
Liz Cavell: If they just go it strict scrutiny and the law is overturned, it violates free speech. I think that's probably a 6-3 proposition.
Rebecca Markert: You do? Yeah. Yeah. I mean, I feel like Kagan was really sort of, I couldn't figure out where she was falling. And maybe you're right. If it's just a straight up, it's strict scrutiny, we're handling it right here, it's overturned. I think she might have said, okay, strict scrutiny applies, but we should send it back down for the lower court to apply that test. I dunno, I was getting the feeling from her line of questioning and the way that she was talking to both sides of the case, that she was one that was more unpredictable.
Liz Cavell: She signaled more openness to applying strict scrutiny.
Rebecca Markert: Yeah
Liz Cavell: And I think the question is, is that some sort of potential leverage to get the court to agree to remand it rather than decide it?
If she just full out did a full Mahmoud I'm joining you, we're doing strict scrutiny, and I totally agree with this court, we should overturn it, I'd be surprised and disappointed and not for the first time.
Rebecca Markert: Right. And Kavanaugh, as you sort of teased earlier, Kavanaugh asked zero questions during the entire oral argument, which is interesting because usually he jumps in to do his sort of frat, bro, Hey, can't we all get along here? But he didn't say anything. And I don't know if that is a signal towards where he would fall, but I'm guessing he's probably going to be in the majority here too.
Liz Cavell: Yeah, I mean, I don't see him departing from his side at all, but I do think it was somewhat notable that he didn't ask questions. It's not like Thomas used to be where he's known for being a man of few words if only, but so it was just notable he didn't speak. Who knows? But I mean, I would never in a million years bet even a Diet Coke that he would break with the conservatives.
Rebecca Markert: Yeah. Well it's definitely the vibes that we were getting from the oral argument. Sounds like there is going to be a favorable opinion for the Christian therapist here. The opinion is probably going to come down sometime in June 2026. It could come down earlier because this was one of the first cases heard in the October term. But again, it is one of the culture war type cases. So it may the actual opinion, especially because they sounded to be so divided on how they actually wanted to handle this case, it might be something that takes a little bit longer. So I wouldn't be surprised if we didn't get an opinion until maybe early June.
Liz Cavell: Yeah, I agree. It's going to be one of those fun pride month ruining decisions that we all have come to love and expect. Right? I didn't like it. No, not fun. Well, the last word is the infuriating thing is that this court is just doing an imaginary thing. They did this in Skrmetti. Barrett talked about this at oral argument in a way that was like this imagined dispute where we pretend that the medical community is actually undecided on these things. She brought up. Can states pick a side? Tennessee says gender affirming care is dangerous to children. Some say conversion therapy is dangerous. Can states pick a side when the medical community just doesn't know, and there's competing strands, she calls it. And it's like the medical community does have a position. There are not competing strands in the medical community.
Rebecca Markert: Yeah
Liz Cavell: You have a competing strand of thought with the medical community that is not the same thing. And it's this imaginary controversy that the court, even the serious conservatives on the court spin this in. All these oral arguments where they use this imagined controversy in the medical community to make whatever choice they want to make about a state's authority to do something under the law, like guaranteed this case outcome will be completely logically at odds with Skrmetti. They will make no sense as consistent rules of law because the idea of medical debate and controversy is just this BS frame that the justice is used to find a way to let states do what they want it to do and stop states from doing what they don't want it to do. And the through line is this ultra-conservative religious view of how we think about LGBTQ rights, existence, and safety. So don't expect any sort of logical consistency between the decisions we see this term and any past decisions because you won't find it.
Rebecca Markert: Yes. And never underestimate the hypocrisy of the majority of the justices on the Supreme Court.
Liz Cavell: Yeah.
Rebecca Markert: So that is it for today's episode. I'm Rebecca Markert.
Liz Cavell: And I'm Liz Cavell. If you haven't already, please follow us on our socials. We're on Facebook, Instagram, Bluesky, and X. And please remember to let us know how you're liking the show by leaving us a review. You can also find us at we-dissent.org. Thanks for listening.
Rebecca Markert: We Dissent is a joint production of the Freedom From Religion Foundation and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell and me, Rebecca Markert. Other production support comes from Greta Martens, audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
