A shady practice.

Source: Petrified Collection

Protecting Gay Teens Trumps Religious Rights

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.”
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California’s ban on gay-conversion therapy for teens survived a free-speech challenge back in 2014. Now it’s survived another challenge claiming that the law targets religiously motivated conduct. The decision is legally correct -- but it’s a much closer case than the appeals court acknowledged. And it raises the extremely tricky question of how the state may regulate a psychiatric practice whose foundations are interwoven with religious beliefs.

The key to the free-speech decision from two years ago was that, California isn’t prohibiting speech per se. It’s outlawing a particular medical practice that happens to be accomplished in part through talking. Whether it’s a good idea or not, state legislatures have the legal authority to prohibit licensed providers from performing ineffective and potentially harmful medical treatments.

In other words, California almost certainly couldn’t ban an adult and a teen from sitting down together and talking to each other in a way that both believed would or could change the teen’s sexual orientation. Such a conversation would count as protected speech, outside the state’s authority to regulate. But when the conversation is instead treated as a medical therapy, it comes within the state’s authority to regulate the practice of medicine -- which is a course of conduct, even when it’s accomplished partly by the use of words.

Once they lost on free-speech grounds, the practitioners of gay-conversion therapy didn’t give up. They mounted a further challenge based on the establishment and free exercise clauses of the Constitution.

One advantage of the second challenge over the first is that it comes closer to capturing the subjective experience and motives of the practitioners of what they call “sexual orientation change efforts.” A 2009 report by the American Psychological Association said that “the population that undergoes SOCE tends to have strongly conservative religious views that lead them to seek to change their sexual orientation.”

The same is probably true for the practitioners of such therapy. In an earlier era, the profession of psychiatry saw homosexuality as a curable disease. But now that the profession has largely abandoned this view, those medical professionals who maintain it are often not coincidentally deeply religious. They accept the biblical prohibition on homosexual conduct as morally binding. And they reason that a good God would not have imposed that prohibition unless it were possible for humans to adapt themselves so as to obey it.

It’s not an accident, therefore, that the religiously oriented Family Research Council, for example, advocates gay-conversion therapy.

The U.S. Court of Appeals for the 9th Circuit rejected the practitioners’ religion-clause claims pretty summarily. The opinion first rejected the argument that the California ban violates the establishment clause by entangling the government with religion. It doesn’t, said the court, because it only targets clinical therapy. People remain free to pray with teens if they believe this may help them change their sexual orientation. This conclusion is certainly legally correct. The fact that some therapists might pray with patients in their sessions doesn’t mean the state can’t regulate the basic clinical course of conduct.

Then the court took on the more subtle question of whether it should matter that those who seek or perform conversion therapy are religiously motivated. The court admitted that there might be a constitutional problem if the law targeted only religiously motivated conduct. But it said that because the law includes all efforts to change sexual orientation, religiously motivated or otherwise, it doesn’t violate religious liberty. In other words, the court said, there wasn’t sufficient evidence to conclude that the primary effect of the law was to inhibit religion.

This issue is actually more complicated than the court made it sound. Suppose all or nearly all gay-conversion-therapy seekers and practitioners are religiously motivated -- an assumption that isn’t ridiculous. And suppose the state passed a law outlawing the practice on the ground that it was medically harmful -- while fully knowing that the practice is grounded in religious belief. Again, the assumption isn’t a heroic one. Would that violate the free exercise of religion?

The answer is controversial even among religious liberty scholars -- but it could well be yes. Compare a humanitarian ban on kosher or halal slaughter. In my hypothetical example, the legislature would know that believers practice such slaughter for religious reasons. The legislature’s own motives would be to make animal slaughter more humanitarian, say by requiring electrocution to kill the animal faster. Yet the overarching intended effect of the law would be to inhibit a religiously motivated practice. It’s possible that such a law might violate the free exercise clause, even if as written it applied to all slaughter, not just kosher or halal practices.

The point is that, when a social practice like medical therapy or animal slaughter is profoundly intertwined with religious motivation, the government can’t necessarily prohibit it just by saying that its own motives are secular -- even assuming they really are.

Yet the reason the court’s decision was nonetheless correct is that religious liberty isn’t absolute. Provided the state has a compelling interest in prohibiting a harmful practice, it’s allowed to prohibit it. The state could, for example, prohibit religiously motivated child sacrifice or widow-burning. Those practices could be entirely religious in nature -- but the state may still ban them because it has a compelling reason to combat the harm.

There’s a strong reason to believe that gay-conversion therapy for teens who can’t themselves fully consent is harmful. The state has a strong interest in prohibiting a potentially dangerous and unproven medical practice on that ground alone. It’s not that religious liberty isn’t implicated. It’s that it is overcome by other, stronger interests.

  1. Technically, the doctrinal question depends on whether the law targets all slaughter neutrally or just religious slaughter. But in practice this distinction is almost impossible to draw.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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

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