Feb. 6 (Bloomberg) -- Counselors and patients opposed to California’s ban on gay-conversion therapy, which was upheld by a federal appeals court, asked the U.S. Supreme Court to decide whether the statute violates parental and free-speech rights.
In a petition filed today in Washington, lawyers for counselors and patients said the nation’s highest court should decide whether the law is constitutional. They maintain it censors their discussions and interferes with parents’ care for their children.
“Unless this court grants the petition and overturns the lower courts, government will have a new and powerful tool to silence expression based on a political or moral judgment about the content and purpose of the communications despite the First Amendment’s explicit prohibition against such governmental punishment,” Mathew Staver, a lawyer for counselors, said in an e-mailed statement.
California and New Jersey have laws barring licensed health-care providers from administering sexual-orientation conversion therapy to patients under 18. Both laws are being challenged by therapists and patients represented by Liberty Counsel, an Orlando, Florida-based nonprofit legal and policy group.
The measures were upheld by federal judges in both states who rejected arguments that the laws illegally restrict a form of protected speech, prompting the plaintiffs to appeal.
Three judges on an appeals court in San Francisco in August upheld the law, which applies to doctors, psychologists, family therapists and social workers. Violators are subject to discipline by state licensing bodies.
The panel said state lawmakers acted reasonably in limiting a treatment that health groups found to be harmful to minors. Proponents of the therapy say there’s no evidence that children are harmed by receiving counseling expressing views that same-sex attraction can be reduced or eliminated.
Protecting the well-being of children is a legitimate state interest, and the law “does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights,” the court said.
The law doesn’t bar unlicensed providers, such as religious leaders, from administering the therapy or prevent licensed providers from referring minors to religious leaders to get it, according to the ruling.
A larger panel of the court refused to reconsider the decision, with three judges dissenting. The appeals court’s ruling is on hold pending the Supreme Court’s decision.
The San Francisco appeals court ruling conflicts with a decision by a federal appeals panel in Richmond, Virgina, which found that the state’s authority to regulate dietitians didn’t extend to censoring their private conversations with people who contact them through their websites, Staver said in a court filing.
The ruling also conflicts with the decision of a separate panel in San Francisco that ruled a federal law blocking doctors from advising patients about using medical marijuana interfered with physicians’ speech, Staver said.
A federal appeals court in Philadelphia hasn’t yet scheduled a hearing on the challenge to the New Jersey law.
Nick Pacilio, a spokesman for California Attorney General Kamala Harris, declined to comment on the petition.
The California appeal case is Pickup v. Brown, 12-17681, U.S. Court of Appeals for the Ninth Circuit (San Francisco). The New Jersey appeal case is King v Christie, 13-4429, U.S. Court of Appeals for the Third Circuit, (Philadelphia).
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