The Supreme Court, for the third time, has slapped down another attempt by Colorado to control what people say, think, and do regarding sexuality and the sexes.
First, the Colorado Civil Rights Commission told Jack Phillips that he may sell baked goods only if he’s willing to include messages that violate his religious beliefs. The Supreme Court said that violated Phillips’ First Amendment rights. Up next, Colorado’s “anti-discrimination” law allowed creative entrepreneurs, like web designer Lorie Smith, to do business only if they, too, would include messages in their work that violated their religious beliefs. Again, the Supreme Court said this violated the First Amendment.
But Colorado had another law, this one dictating what licensed counselors like Kaley Chiles may say to their young clients about sexuality and the sexes. They may, the law says, provide acceptance, support, and assistance for “an individual’s … identity exploration and development.” That much might sound OK, but it only works in one direction. Counselors may help an individual who wishes to separate so-called gender identity from his or her sex, but not those who wish to align them.
In other words, a counselor in Colorado may help a boy — even without his parents’ permission — accept that he’s actually a girl, but must tell a girl — even with her parents’ permission — who doesn’t want to be a boy that she has to go elsewhere.
The law uses the extremely broad brush of “conversion therapy” to include everything from discredited and abandoned physical techniques to the “talk therapy” that Chiles uses. That’s no doubt intentional, a rather crude attempt at guilt-by-association, but seriously misleading. And the First Amendment flag has to go up whenever the government attempts to dictate what you must or can’t say.
Colorado is being especially authoritarian here. Under this law, any person who thinks a counselor is saying the wrong thing may file a complaint with a regulatory board, which triggers a disciplinary review process that can result in a counselor losing his or her license. This invites activists to target mental health professionals with such complaints, knowing that even the rumor of a disciplinary proceeding, no matter how bogus, can ruin a professional’s reputation.
Equally undeterred, the Supreme Court on March 31 held that this violated Chiles’ First Amendment right to freedom of speech. The First Amendment’s “jealous protections for the individual’s right to think and speak freely,” wrote Justice Neil Gorsuch for an 8-1 majority, means that government attempts to control the content of speech are “presumptively unconstitutional.” This Colorado law did not ban counselors from talking about sexuality and the sexes, but dictated what they may say when they do. Attempting to control the opinions or perspectives an individual may express, Gorsuch wrote, presents “even greater dangers” and constitutes an even more blatant violation of the First Amendment.
This time, the Supreme Court repudiated Colorado’s authoritarian tendencies by a resounding margin, with Justice Ketanji Brown Jackson the lone dissenter. As she did during the argument in this case, Jackson suggested that there’s no difference between physical interventions like electric shocks and simply talking. She insisted that a ban on certain speech affects speech “only incidentally.” Yes, she really did.
The bottom line, the court said, is that “Colorado seeks to suppress views Ms. Chiles wishes to express.” This law “trains directly on the content of her speech and permits her to express some viewpoints but not others. … Colorado does not regulate speech incident to conduct; it regulates ‘speech as speech.’”
This is a page right out of the authoritarian handbook. Gorsuch closed the court’s opinion with this observation that’s worth quoting fully: “Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.”
Thomas L. Jipping, a senior legal fellow at The Heritage Foundation, is the deputy director of Heritage’s Edwin Meese III Center for Legal and Judicial Studies.
