Judges disagree about constitutionality of California sexual orientation change efforts ban

Howard Friedman, Religion Clause

This week (5 December 2012), two federal district court judges in the Eastern District of California, in two separate cases, reached opposite conclusions about the constitutionality of  California’s new law (effective Jan. 1, 2013) totally banning mental health care providers from engaging in efforts to change the sexual orientation of anyone under under 18 years of age.  In Welch v. Brown, (ED CA, Dec. 3, 2012), Judge William Shubb entered a preliminary injunction barring enforcement of the Sexual Orientation Change Efforts legislation against the three plaintiffs who were challenging it in that case. He concluded that the law is a content-based regulation of speech subject to strict scrutiny:

Especially with plaintiffs in this case, it is … difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message….  Duk is a Catholic and, with patients that share his faith, he discusses tenants of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.”  … Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

However, in Pickup v. Brown, (ED CA, Dec. 4, 2012), Judge Kimberly J. Mueller refused to grant a preliminary injunction to prevent the law from taking effect.  She wrote in part:

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct…. As SOCE therapy is subject to the state’s legitimate control over the professions, SB 1172’s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test.

Liberty Counsel announced that it will file an appeal in the case.