Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
In 2019, Colorado added the Minor Conversion Therapy Law to the Mental Health Practices Act. Under the MCTL, a mental health professional may not engage in “[c]onversion therapy with a client who is under eighteen years of age.”
Kaley Chiles, a licensed professional counselor in Colorado, sued in federal court in the District of Colorado, alleging the MCTL violates the free speech clause and free exercise Clause of the First Amendment, both on its face and as applied to her.
Chiles maintains that because of the MCTL, she has been “forced to deny voluntary counseling that fully explores sexuality and gender to her clients and potential clients in violation of her and her clients’ sincerely held religious beliefs.” She moved for a preliminary injunction to stop Colorado from enforcing the MCTL.
The district court denied relief. Both parties appealed.
The 10th Circuit Court of Appeals found no error in the district court’s conclusion that Chiles had standing. The court also found that she met the burden of providing “evidence that in the past [she] ha[s] engaged in the type of speech affected by the challenged government action.”
Chiles asked the 10th Circuit to reverse the district court’s order denying her motion for a preliminary injunction.
According to the opinion, the district court found Chiles had not met her burden of showing a likelihood of success on the merits of her First Amendment free speech and free exercise claims. The 10th Circuit agreed.
Chiles argued that the statutory definition of the MCTL, which plainly says therapy is treatment, is merely a “labeling game,” according to the opinion. Even if the government refers to talk therapy as treatment, Chiles maintained the MCTL “regulates speech at its core.”
The 10th Circuit found that the MCTL incidentally involves speech because an aspect of counseling conduct, by its nature, necessarily involves speech. According to the opinion, by regulating which treatments Chiles may perform in her role as a licensed professional counselor, Colorado is not restricting Chiles’s freedom of expression. The court concluded that Chiles’s First Amendment right to freedom of speech is implicated under the MCTL, but it is not abridged.
The 10th Circuit also concluded, as the district court did, that the MCTL is a regulation of professional conduct that incidentally involves speech.
The 10th Circuit found that the MCTL is rationally related to Colorado’s interest in protecting minor patients seeking mental health care from obtaining ineffective and harmful therapeutic modalities. It also didn’t disturb the district court’s finding that the MCTL comports with prevailing medical consensus and concluded the MCTL is rationally related to Colorado’s interest in ensuring its licensed mental health professionals comply with the prevailing standard of care in their field. It found the MCTL withstood rational basis review.
The 10th Circuit concluded that the district court committed no abuse of discretion in concluding Chiles failed to show a likelihood of success on the merits of her First Amendment free speech claim.
Chiles also challenged the district court’s ruling that she failed to demonstrate a likelihood of success on the merits of her free exercise claim.
The 10th Circuit agreed with the district court that MCTL is neutral and that the district court didn’t abuse its discretion in holding “Ms. Chiles has failed to meet her burden of showing the [MCTL] is not… generally applicable.”
The 10th Circuit affirmed.
Judge Harris Hartz dissented.
Hartz wrote that the case presented two distinct, but intertwined, fundamental and important questions. The first, which is addressed in the majority opinion, is when, if ever, speech is not speech under the first amendment.
According to Hartz, the majority opinion holds, in essence, that speech by licensed professionals in the course of their professional practices is not speech, but conduct. Because, says the majority opinion, engaging in the practice of a profession is conduct, any restriction on professional speech is just incidental to the regulation of conduct. In his view, and, more importantly according to Hartz, in the view of the U.S. Supreme Court, such wordplay poses a serious threat to free speech.
The second question for Hartz, which the majority opinion didn’t need to address because of the way it resolved the first issue, is whether a court should treat as “science” the pronouncements of prestigious persons or organizations that are not supported by sound evidence.
He wrote that for each field, there are appropriate standards for collecting and analyzing data and experience that are objective—that is, independent of the prestige of the persons expressing a view. Applying those objective standards, whether this application be called strict review, exacting review, rigorous review or some other term, is an essential task of the judiciary when “science” is invoked to justify restrictions on free speech.
According to Hartz, the issue in this case is whether to recognize an exception to freedom of speech when the leaders of national professional organizations declare certain speech to be dangerous and demand deference to their views by all members of their professions, regardless of the relevance or strength of their purported supporting evidence. As he understands controlling Supreme Court precedent, the answer is clearly no.
Hartz thinks reversal is required under the free-speech doctrine of the Supreme Court. Because of that, he wrote, he didn’t need to address the free-exercise-of-religion claim.