People who feel strongly about California’s attempt to ban gay “conversion therapy” were left pretty much in the dark last week when a federal appeals court put the law on hold, 11 days before it was scheduled to take effect.
What we know is that a three-judge panel of the Ninth U.S. Circuit Court of Appeals issued what it called an emergency order Friday preventing the state from enforcing the law, which would prohibit licensed therapists and counselors from engaging in “sexual orientation change efforts” with anyone under 18. The order will remain in effect until another court panel hears arguments, probably in the spring, and then rules on whether the law, the first of its kind in the nation, can take effect.
What we don’t know are the panel’s reasons, because it didn’t bother to state them. That’s within the court’s prerogative, but it’s a lot easier to make sense out of these decisions when they come with an explanation.
It seems safe to assume that the panel found some degree of plausibility in the main argument by the plaintiffs, a group of therapists, parents and children represented by conservative religious organizations — an argument that the law would violate free speech. That is, it would regulate the content of a therapist’s speech to a patient, and subject therapists to punishment by state licensing boards if their counseling reflected antigay viewpoints.
The counter-argument, adopted by a federal judge who had refused to block the law, is that the state is regulating conduct, not speech, and is merely prohibiting a practice that mainstream medical organizations have found to be harmful, while leaving therapists free to express their personal opinions.
At this stage of the case, the panel didn’t have to decide which side was right, but — in order to block the law — it must have concluded that the plaintiffs had a chance of prevailing. The three judges, Alfred Goodwin, Edward Leavy and Milan Smith, were all appointed by Republican presidents, but neither Goodwin nor Smith is generally viewed as a conservative. It was Goodwin, 10 years ago, who wrote the court’s ruling that declared the phrase “under God” in the Pledge of Allegiance to be an unconstitutional endorsement of religion. That ruling was reversed on appeal, but it indicated a broad conception of both free speech and religion that might shape the judge’s view of a therapist’s freedom of expression.
What’s harder to discern from the panel’s order is why it thought the law should be blocked while the case continues — in particular, what hardships the law might cause, and why those would outweigh the harms the state was trying to prevent.
The plaintiffs argue that their rights would be violated and that some youngsters who want to change their sexual orientation would be denied that opportunity, at least for a matter of months. The state, on the other hand, says the therapy is both deceptive and dangerous, leading to depression and self-destructive behavior. Maybe the panel found that argument implausible, or maybe the judges simply decided to preserve the status quo until the issues are sorted out.
Only three robed public servants, and perhaps their law clerks, know the answers. And for reasons of their own, they’re not telling.