The Supreme Court’s 8-1 ruling this week in Chiles v. Salazar is about more than one Christian counselor in Colorado and the state’s ham-fisted attempt to silence her. It is a window into one of the defining tensions of our political moment: the collision between the intolerance of modern progressivism and the enduring discipline of those — whether originalist conservatives or old-school liberals — who still believe the Constitution means what it says.
Kaley Chiles is a licensed mental-health counselor who sits with clients, learns their goals, and tailors her methods to serve their self-determination. Some of her young clients, often from faith-filled families, hope to grow more comfortable with their biological sex and explore their identity through the lens of their religious beliefs. Colorado sought to make that conversation a punishable offense, potentially costing Chiles a $5,000 fine and her license. As she put it: “The law basically restricts the speech between me and my client. If your daughter were to say, ‘I think I am a boy,’ we can only affirm and validate that and assist with gender transition.”
That isn’t therapy. That is ideology under the law — the state as enforcer of a single approved orthodoxy, intolerant of any competing view, however sincerely held, however scientifically defensible.
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This is progressivism’s tell. It presents itself as the party of tolerance and inclusion, but its tolerance is strictly conditional. Colorado did not regulate a medical procedure. It reached into the confidential conversation between a counselor and a struggling child and declared that only one viewpoint was legally permissible: the state’s viewpoint. The First Amendment exists precisely to prevent that kind of official thought control.
Justice Neil Gorsuch, writing for the majority, applied the originalist discipline: Look at what the law actually does, not what the government claims it is doing. He wrote, “As applied here, Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express.”
That is viewpoint discrimination — the most constitutionally suspect form of speech regulation — and it demands the most rigorous judicial scrutiny. The First Amendment, Gorsuch wrote, “stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.” No exceptions for popular causes. No carve-outs for fashionable ideology.
What makes Chiles particularly illuminating, however, is not the majority opinion but the fracture it exposed within the court’s liberal bloc — a contrast between old-school liberalism and its progressive successor drawn in sharp relief.
Justices Elena Kagan and Sonia Sotomayor joined the majority and wrote separately to say why. Kagan appealed to classical free-speech principles that would have been uncontroversial among liberals of an earlier generation. “A law drawing a line based on the ‘ideology’ of the speaker — disadvantaging one view and advantaging another — skews the marketplace of ideas our society depends on to discover truth,” she wrote. Kagan’s concurrence is a reminder that there was once a liberalism that believed in those principles without reservation.
Her concurrence is also strategically slippery. By identifying Colorado’s error as viewpoint discrimination — permitting pro-transition counseling while forbidding counseling that helps minors embrace their biological sex — Kagan’s logic implies that the reverse law would face identical constitutional problems. As the medical consensus crumbles, a state interested in restricting pro-transition counseling will have increasing proof to satisfy even such rigorous judicial review.
Justice Ketanji Brown Jackson stood alone in dissent, and her solitude is instructive. She argued the ruling “opens a dangerous can of worms,” threatening “to impair States’ ability to regulate the provision of medical care in any respect.” Not one colleague joined her, not even Kagan and Sotomayor, who wrote that Jackson’s position “rests on reimagining — and in that way collapsing — the well-settled distinction between viewpoint-based and other content-based speech restrictions.”
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Jackson’s dissent is not a defense of medical regulation. It’s a defense of progressive orthodoxy, the conviction that approved ideas deserve protection and disapproved ones deserve suppression, using state licensure as its enforcement mechanism.
That is the through line from Colorado’s legislature to Jackson’s dissent. Chiles v. Salazar says otherwise. Twenty-three states and the District of Columbia have similar bans and are now on notice. The Constitution does not bend to prevailing orthodoxy.
Andrea Picciotti-Bayer is the director of the Conscience Project and recipient of the Religious Freedom Institute’s 2025 Religious Freedom Impact Award.
