Anti-gay Therapy Ban Upheld

A federal appeals court let stand an August ruling that upheld California’s first-in-the-nation ban on gay conversion therapy for youths, despite the objections of three conservative judges.

The order Wednesday by the 9th U.S. Circuit Court of Appeals rejected a request that the full court reconsider the ruling before an 11-judge en banc panel.  The rehearing request garnered just three of the 14 votes necessary to order a rehearing.

Judge Diarmuid O’Scannlain, from the court’s conservative wing, said in dissent the decision allows the state government “a new and powerful tool to silence expression.”  He said what the majority in the original opinion was really doing was avoiding First Amendment scrutiny by defining unpopular talk as “conduct.”

Judges Carlos Bea and Sandra Ikuta joined O’Scannlain in reasoning that the therapy should be considered constitutionally protected speech.

The 2012 law bans Sex Orientation Conversion Efforts, SOCE, to prevent mental health professionals from counseling young people with an aim to eliminate same-sex attraction, behavior or identity.  The law, se to take effect January 1, 2013, had been blocked while the courts sorted out its constitutionality.

Judge Susan Graber found in August that the legislature had demonstrated it acted rationally in deciding to protect the well-being of minors by prohibiting the use SOCE on people under 18.  Chief Judge Alex Kozinski and Obama appointee Morgan Christen joined in the opinion. (earlier coverage here.)

Case: Pickup v. Brown, No. 12-17681



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