In an 8-1 decision released Tuesday in the case of Kaley Chiles v. Patty Salazar, executive director of the Colorado Department of Regulatory Agencies, et al., the high court concluded that Colorado’s ban unlawfully regulated the speech of Christian therapist Kaley Chiles.
Justice Neil Gorsuch delivered the opinion of the court, writing that “we conclude that the courts below failed to apply sufficiently rigorous First Amendment scrutiny in this case.”
“While the First Amendment protects many and varied forms of expression, the spoken word is perhaps the quintessential form of protected speech. And that is exactly the kind of expression in which Ms. Chiles seeks to engage,” said Gorsuch.
“Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express.”
Gorsuch noted that “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country” and that “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”
The opinion reverses the 10th U.S. Circuit Court of Appeals' decision and sends the case back for further legal proceedings, with the majority opinion.
Justice Elena Kagan authored a concurring opinion, joined by Justice Sonia Sotomayor, writing that if Colorado had enacted "a viewpoint-neutral law, it would raise a different and more difficult question.”
“Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward,” she continued. “We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression because, as the Court holds, Colorado’s is not one.”
Justice Ketanji Brown Jackson was the lone dissent, arguing that, as a licensed medical professional, Chiles does not enjoy the broad First Amendment protections others do.
“Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional,” wrote Jackson. “Under our precedents, bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care.”
Jackson believes that Colorado had the right to ban the therapy for minors due to multiple mainstream medical organizations denouncing the practice.
“The conclusion that a State can regulate the provision of medical care even if, in so doing, it incidentally restricts the speech of some providers, fully comports with the First Amendment’s animating principles,” she added.
“My colleagues’ contrary conclusions are puzzling, for a standards-based healthcare scheme cannot function unless its regulators are permitted to choose sides.”
In 2019, Colorado passed the Minor Conversion Therapy Law, which prohibited "gay conversion therapy" for minors, after multiple similar bills had failed in previous legislative sessions.
Daniel Ramos, executive director of the LGBT advocacy group One Colorado, released a statement at the time saying that it was a "significant step in protecting our LGBTQ youth."
"No young person should ever be shamed by a mental health professional into thinking that who they are is wrong," stated Ramos. "Mental health care should be ethical and affirming for all people — including LGBTQ young people."
Chiles challenged the law in September 2022, claiming that the measure violated the Free Speech Clause and Free Exercise Clause of the First Amendment of the Constitution.
A three-judge panel of the 10th U.S. Circuit Court of Appeals ruled 2-1 against Chiles in September 2024, upholding an earlier district ruling in favor of the state ban.
Circuit Judge Veronica Rossman, a Biden appointee, wrote for the panel majority that "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."
"By regulating which treatments Ms. Chiles may perform in her role as a licensed professional counselor, Colorado is not restricting Ms. Chiles' freedom of expression," she added. "In other words, Ms. Chiles' First Amendment right to freedom of speech is implicated under the MCTL, but it is not abridged."
Circuit Judge Harris Hartz, a George W. Bush appointee, dissented, arguing that the majority failed to explain why "talk therapy is to be afforded lesser First Amendment protection than speech in general."
"Is the majority stating that professional speech should be treated differently under the First Amendment from identical speech by a nonprofessional? That would fly in the face of what the Supreme Court has recently told us," Hartz wrote.
Last October, the Supreme Court heard oral arguments in the case, with James Campbell of the Alliance Defending Freedom arguing the case on behalf of Chiles. He stated that Colorado’s ban wrongfully censors “widely held views on debated moral, religious and scientific questions.”
“Aside from this law and recent ones like it, Colorado hasn’t identified any similar viewpoint-based bans on counseling,” Campbell said in his opening comments. “These laws are historic outliers.”
Sotomayor questioned the purpose of the legal challenge, saying that there had been “six years of no enforcement” of the law, as no one had been prosecuted under the ban.
Campbell countered that the ban had a “credible threat of enforcement,” noting that recently “there have been anonymous complaints filed against” Chiles and that “those complaints are now being investigated by the state of Colorado for allegations that she’s violating” the ban.
Originally published by The Christian Post
