I'm not a scientist, but this looks like love.

Photographer: Timothy Clary/AFP/Getty Images

Support Gay Teens, Not Bad Laws

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

So-called conversion therapies to make gay people straight are based on poor science or none, and U.S. President Barack Obama was right to condemn them. But the president was wrong to encourage the passage of more laws like the one in California that bans the use of such therapy on minors. Legislatures, whether state or federal, make terrible judges of the scientific validity of medical therapies. And setting a precedent for lawmakers to prohibit treatments because they consider them to be morally mistaken is even worse. It opens the door to the legislation of morality in the guise of protecting public health and safety.

California's law banning conversion therapy for minors was subject to a constitutional challenge on free-speech grounds. I found the constitutional case to be a close call. On the one hand, doctors, especially psychologists and psychotherapists, should be free to engage in whatever speech they deem to be therapeutic. On the other hand, the state wasn't barring speech because of its ideas -- it was barring a course of medical treatment that the state considers harmful, much as a state might ban or permit medical marijuana. On close examination, I concluded that the law fell into a category where conduct is being banned that incidentally burdens speech. The government has a strong interest in promoting health and protecting minors -- strong enough to justify the ban. And the U.S. Court of Appeals for the 9th Circuit upheld it.

But concluding that a state has the constitutional authority to criminalize conversion is a very different thing from concluding that state legislatures should use their power to regulate therapies. Ordinarily, professional bodies do the difficult, specialized and expert work of determining what medical therapies work. The Food and Drug Administration, of course, regulates new drugs, and occasionally a state court might become involved in a medical malpractice case where it must determine whether a physician has followed sound medical practice. In each case the government entity is guided by the expertise of medical professionals.

That division of labor deserves to be protected. Unlike an agency or a court, a legislature is a collective decision-making body that is extremely bad at making subtle scientific determinations. For every serious expert who can be introduced to testify on one side of an issue, there’s a charlatan who can be introduced on the other. Lawmakers aren't trained to understand science. Unlike judges or agencies, they aren't under any obligation to explain the reasoning of their decisions.

Thus, when a legislature passes a law banning a particular form of medical therapy, it's likely to be influenced more by popular preferences and moral beliefs than by science. The circumstances of a ban on gay-conversion therapy might make this reality seem superficially attractive: After all, wouldn't it be heartening to know that elected legislators reject the homophobia that seems to be implicit in the idea that homosexuality is a disease?

This moral impulse underlies at least some of the advocacy for laws banning conversion therapy. It can't be a pure coincidence that Obama’s statement comes as the U.S. Supreme Court is poised to hear oral argument on the question of a constitutional right to same-sex marriage.

But, in fact, a little foresight should suggest that it's a terrible idea for the legislature to ban a medical therapy on moral grounds. Imagine what legislatures of the past would've done to the talking cure, which has become such a basic part of our medical and cultural framework. Sigmund Freud and his early psychoanalytic followers encouraged patients, including young women, to talk about repressed sexual fantasies. If they thought they had the authority, U.S. legislatures would no doubt have banned this practice in the early 20th century as immoral and corrupting. Some state legislatures might be prepared to do exactly the same in the 21st.

The distinction between early psychoanalysis and gay-conversion therapy can't just be that the latter is based on bad science. Although Freud claimed a medical-scientific basis for psychoanalysis, his arguments were controversial in his own day and denied by many in the medical establishment on several continents. Indeed, scientific consensus on the benefits of classic psychoanalysis has remained elusive, with many critics continuing to deny the medical value of the practice.

The distinction also can't be that gay-conversion therapy is harmful to patients. Almost all medical treatments, including talk therapy, carry some component of risk. Even when performed correctly, a medical therapy can be harmful if the patient falls on the unlucky side of a statistical distribution. Of course, the best science suggests that gay-conversion therapy doesn't work and is generally harmful, but as I’ve already suggested, legislators are bad judges of that data and evidence.

So before instinctively supporting laws that would ban gay-conversion therapy, remind yourself that there's a difference between condemning some practice as harmful and wrong, and encouraging legislatures to outlaw it. If liberals support the idea of legislatures banning medical practices they don't like, the same liberals may live to regret it when legislatures with different social values outlaw therapies whose development they favor. To the extent possible, the legislature should keep out of medical consulting rooms -- whether what's being treated there is the body or the mind.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net