Much of Tuesday’s argument over whether a Colorado law banning conversion therapy violates the First Amendment will concern how searching the court’s review must be.
The parties’ briefs were in large part devoted to whether the law must survive the most demanding form of judicial review, known as strict scrutiny. That is the standard that ordinarily applies to laws that make distinctions based on the content of speech.
Lawyers for Kaley Chiles, the licensed therapist challenging a Colorado law banning counseling meant to change a minor’s gender identity or sexual orientation, argued that the state’s law runs afoul of that judicial standard.
“Because the state’s restriction silences Chiles’s counseling conversations based on viewpoint,” they wrote, “this application of the statute must satisfy strict scrutiny.”
Under such a test, the government must show that the challenged law furthers a compelling government interest and uses the least restrictive means to achieve it. That is a very hard standard to meet.
Ms. Chiles’s lawyers argued that Colorado can satisfy neither requirement. They assert that the therapy she offers helps rather than harms. They added that the law regulates both too much speech (including “caring, consensual and skilled counseling”) and too little (letting unlicensed people provide the same therapy and letting even licensed professionals provide it to adults).
Lawyers for Colorado argued that a more relaxed form of judicial scrutiny should apply. “Requiring the application of strict scrutiny to states’ regulation of harmful treatments that involve words would strip states of their power to protect patients from substandard care,” they wrote.
But the state’s lawyers added that the law could survive the more demanding standard.
“The state’s interest in protecting minors from ineffective and harmful health care practices is of the highest possible order,” they wrote. “The law is narrowly tailored to regulate only the one specific discredited practice of conversion therapy.”
Strict scrutiny is sometimes said to be strict in theory but fatal in fact. Only three Supreme Court decisions have upheld laws against First Amendment challenges in which strict scrutiny applied.
In the most recent one, in 2015, the court sustained a Florida law that prohibited judicial candidates from personally asking their supporters for campaign contributions. The ruling, Chief Justice John G. Roberts Jr. wrote, came in “one of the rare cases in which a speech restriction withstands strict scrutiny.”
The court also applied strict scrutiny in 2010 when it upheld a law that made it a crime to provide some sorts of benign assistance, in the form of speech, to groups the government said were engaging in terrorism.
Deciding Burson v. Freeman in 1992, the Supreme Court upheld a Tennessee law that created a 100-foot buffer zone around polling places barring electioneering, saying that it, too, had satisfied strict scrutiny.
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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