Justices Thomas and Alito Want a Constitutional Right to Pray Away the Gay

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Earlier this week the Supreme Court denied a petition for a writ of certiorari in a case challenging the State of Washington’s prohibition on “conversion therapy”—which aims to turn gay, transgender, and other queer folks straight and cisgender. As every Supreme Court practitioner and a great many Court watchers know, the denial of a cert petition does not affirm the lower court decision; neither does it express any view of the case’s substantive merits. Therefore, under ordinary circumstances, a cert denial would not be news.

Nonetheless, the Court’s cert denial in the conversion therapy case, Tingley v. Ferguson, is noteworthy because of dissents from the denial of cert by Justices Clarence Thomas and Samuel Alito. In addition to dignifying anti-LGBTQA+ quackery as a form of medicine, they endorsed a view of free speech that, if applied consistently, would utterly undermine the regulation of the practice of medicine.

The Washington Law, the Lower Court Rulings, and the Cert Petition

A Washington State law enacted in 2018 as SB 5722 forbids licensed health care providers to engage in conversion therapy on a patient under age eighteen. Brian Tingley, a licensed marriage and family therapist who is a conservative Christian, challenged the law as inconsistent with his First Amendment right to freedom of speech and other rights. The U.S. Court of Appeals for the Ninth Circuit rejected all of those challenges. Tingley then sought en banc review. Although four judges would have granted such review, the full court denied it. Tingley next petitioned the U.S. Supreme Court.

In addition to Justices Thomas and Alito, Justice Brett Kavanaugh also noted that he would have granted the cert petition. Justice Kavanaugh did not state his reasons for wishing to grant review, but one can presume that they were similar to one of the reasons offered by both Justices Thomas and Alito: there is a split of authority among the circuits; they juxtaposed the Ninth Circuit decision upholding Washington’s prohibition on conversion therapy with a 2020 decision of the Eleventh Circuit invalidating (at least preliminarily) local conversion therapy bans in Florida. A circuit split is a standard ground for the Supreme Court to hear a case, and so there is nothing especially notable about the fact that three Justices thought the Court ought to have granted review in Tingley on that ground.

However, Justices Thomas and Alito went much further than to call for review. They clearly indicated that they would invalidate any and all conversion therapy bans. Justice Alito stated: “It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.” Justice Thomas tendentiously described Tingley’s cert petition as posing the question “whether Washington can censor counselors who help minors accept their biological sex.”

Talk Therapy is Therapy

The actual Washington law is not nearly so restrictive as the dissenting Justices asserted. As the Ninth Circuit panel opinion explained,

Washington’s law does not prevent health care providers from communicating with the public about conversion therapy; expressing their personal views to patients (including minors) about conversion therapy, sexual orientation, or gender identity; practicing conversion therapy on patients over 18 years old; or referring minors seeking conversion therapy to counselors practicing “under the auspices of a religious organization” or health providers in other states.

All that the Washington law forbids is conversion therapy practiced by licensed providers on minors.

Nonetheless, Tingley and Justices Thomas and Alito think that SB 5722 is censorship because conversion therapy is a form of talk therapy; it is accomplished through words.

But so what? Suppose a patient in the early stages of HIV infection goes to a medical doctor. Standard antiretroviral treatment will greatly reduce the patient’s risk of developing full-blown AIDS. Imagine, however, that the particular doctor the patient visits does not administer the standard treatment. This doctor believes it is better to “pray away the AIDS.” Such prayer therapy would be accomplished entirely through words. Nonetheless, it would be a gross violation of professional standards for a licensed medical professional to administer prayer therapy when the standard of care is an effective medicine.

Conversion therapy is no different. Justice Thomas claims in his Tingley dissent that “[t]here is a fierce public debate over how best to help minors with gender dysphoria.” Even if that’s true, however, that does not make Washington’s regulation of health care providers a regulation of speech. Moreover, whatever the state of public debate, there is no serious medical debate—much less a fierce one—over the efficacy of conversion therapy. As the Ninth Circuit observed, “every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.”

The Broader Context

Indeed, even if there were a genuine multi-sided medical debate over whether conversion therapy is ever indicated for minors, that would not be a basis for judges to substitute their amateur medical views for those of the government officials tasked with making the relevant determinations. The Washington State Board of Health presented the state legislature that adopted SB 5722 with a report that canvassed the available research and concluded that “conversion therapy is associated with negative health outcomes such as depression, self-stigma, cognitive and emotional dissonance, emotional distress, and negative self-image.” Unless the state health board and state legislature were wildly out of step with the underlying science (and they were not), there is no more reason for a judge to overrule that sort of decision than there is to overrule a decision by the Food and Drug Administration that some drug is or is not an effective treatment for cancer, diabetes, or any other condition.

Worryingly, Justices Thomas and Alito may regard the potential of their view about conversion therapy to undercut pharmaceutical regulation as a feature, not a bug. Two days after the Supreme Court denied cert in Tingley, it granted cert in a case involving access to the abortion pill mifepristone. The good news is that the Court declined to hear the plaintiffs’ appeal from the portion of the lower court ruling that said it was too late to challenge the original FDA approval of mifepristone in 2000. The bad news is that in Tingley two Justices demonstrated their eagerness to give effect to their own ideologically driven views about medicine—signaling that they will likely also be eager to invalidate the FDA decisions that broadened access to a drug that, following Justice Alito’s 2022 majority opinion overruling Roe v. Wade, is the best hope for thousands of women whose other avenues to abortion the Court has enabled theocratic politicians around the country to cut off.

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