Isolated, Justice Jackson Labels First Amendment Ruling by Colleagues as ‘Irrational,’ Warns of Potential Disruption to Medical System

Justice Ketanji Brown Jackson found herself in solitary dissent as the Supreme Court ruled in favor of a Christian talk therapist challenging Colorado’s ban on conversion therapy. Jackson described the court’s decision as both “baffling” and “dangerous.”

The majority opinion, authored by Justice Neil Gorsuch and supported by all justices except Jackson—including Sonia Sotomayor and Elena Kagan—determined that Colorado’s Minor Conversion Therapy Law (MCTL) infringed upon the First Amendment. The law was challenged by Kaley Chiles, who claimed it restricted what she could communicate to minors dealing with “unwanted” same-sex attraction or gender dysphoria.

Gorsuch argued that Colorado’s law was misguided, stating, “In many applications, the State’s law banning ‘conversion therapy’ may address conduct—such as aversive physical interventions. But here, Ms. Chiles seeks to engage only in speech, and as applied to her the law regulates what she may say.” He further emphasized that labeling her speech as conduct or treatment did not change its nature, asserting, “The First Amendment is no word game.”

He went on to contrast the First Amendment’s vision with what he perceived as Jackson’s stance, where contemporary consensus dictates professional speech. “Any professional speech that deviates from ‘current beliefs about the safety and efficacy of various medical treatments’ could be silenced with relative ease,” Gorsuch noted, warning against such deference to prevailing views. “Fortunately, that is not the world the First Amendment envisions for us.”

“Today, tomorrow, and forever, too, any professional speech that deviates from ‘current beliefs about the safety and efficacy of various medical treatments’ could be silenced with relative ease. It is a consequence Colorado freely acknowledges. And one the dissent embraces. So what if that kind of reflexive deference to currently prevailing professional views may not always end well?” the justice remarked. “Fortunately, that is not the world the First Amendment envisions for us.”

As Law&Crime recounted during oral arguments in October, Chiles’ attorneys with the Alliance Defending Freedom made the case that Colorado’s law unconstitutionally censored and “silenced” Chiles by “ban[ning] voluntary conversation” between a licensed professional and a client under the threat of disciplinary action like “fines, probation, and loss of license.”

Telling the justices that Chiles’ work is solely speech, ADF emphasized it was her right to engage in “discussion” according to the client’s and their parents’ wishes about realigning identity with biological sex or reducing unwanted same-sex attraction and behavior.

At the time, Sotomayor and Jackson referred to studies that show conversion therapy is harmful and significantly ups the risk of suicide attempts. Jackson, in particular, found it a “little puzzling” that Chiles claimed to be subject to regulation by the state through licensure but exempt from following a science-based conversion therapy ban. In retrospect, the line of questioning was a sign of things to come.

In her lengthy dissent, Jackson said the “scientific literature confirms what anecdotal experiences suggest: Conversion therapy has harmed patients, particularly minors.” As a result, the justice concluded the state of Colorado was well within its right to “prevent its licensed talk therapists from using speech to harm the minors in their care.”

That every other justice has said otherwise raises a question about the “quality” of health care in America moving forward, Jackson continued.

“We are on a slippery slope now: For the first time, the Supreme Court has interpreted the First Amendment to bless a risk of therapeutic harm to children by limiting the State’s ability to regulate medical providers who treat patients with speech. What’s next? In the worst-case scenario, our medical system unravels as various licensed healthcare professionals—talk therapists, psychiatrists, and presumably anyone else who claims to utilize speech when administering treatments to patients—start broadly wielding their new-found constitutional right to provide substandard medical care.”

“It is baffling that we could now be standing on the edge of a precipitous drop in the quality of healthcare services in America. But the Court sees fit to bring us one step closer to that fate today,” she added.

It wasn’t baffling to Kagan and Sotomayor, however, who agreed that Colorado’s law “conflicts with core First Amendment principles because it regulates speech based on viewpoint.” The two said that if the state had “enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.”

ADF lead attorney Jim Campbell said in a statement that the Supreme Court delivered a “significant win for free speech, common sense, and families desperate to help their children.”

In a statement of her own, Chiles hailed the “victory for counselors and, more importantly, kids and families everywhere.”