It may not seem like it, but there was actually some very good news from the Supreme Court yesterday. Early yesterday morning, the Supreme Court refused to hear a challenge to California’s ban on the use of conversion therapy on gay and lesbian minors.
Back in 2012, California became the first state to ban the use of therapy intended to change the sexual orientation of LGBT minors. This practice, also known as “pray away the gay,” is not endorsed by any mainstream psychological or medical association, and there is overwhelming anecdotal evidence that it does substantially more harm than good. Moreover, several leading proponents of this therapy have recanted their views. Last summer, Exodus International, the largest of the “ex-gay” outfits, disbanded and publicly apologized for its support of conversion therapy. Its president, Alan Chambers, said that so much harm had been done by its promotion of conversion therapy that “we can’t do anything but close this down.” John Paulk, once the poster child for the “success” of conversion therapy, renounced the movement in 2013 and has since admitted that even when he was a spokesman for the ex-gay movement, he was still a gay man at heart.
The law was originally due to take effect on New Year’s Day 2013, but in December 2012, two religious right legal groups, the Pacific Justice Institute and Liberty Counsel, challenged it on First Amendment grounds–specifically, that the ban violated the free speech rights of counselors who use the therapy and of people seeking to be “cured” of being gay. In August, a panel of the Ninth Circuit Court of Appeals sided with California, ruling that the state was well within its rights to regulate professional treatment, even when that treatment is almost entirely delivered via speech. The ruling noted that the California law was based on the “well documented, prevailing opinion of the medical and psychological community” that conversion therapy not only doesn’t work, but poses “serious harm” to those undergoing it. Yesterday’s decision by the Supreme Court not to grant?certiorari clears the way for the law to take effect. An injunction barring the law’s enforcement had been in place since two days before Christmas 2012, but will be lifted in just a few days. Once the law takes effect, using conversion therapy on clients under 18 will be considered unprofessional conduct in California, and anyone who engages it will face discipline by licensing boards.
The bill’s author, state senator Ted Lieu–who is all but certain to succeed Henry Waxman in Congress–called the decision to turn down the appeal “a victory for child welfare, science and basic humane principles.” Meanwhile, Mat Staver of Liberty Counsel, who argued on behalf of several families of kids undergoing conversion therapy, claimed that his clients had been “victimized twice–first by the likes of Jerry Sandusky, and second by legislators and judges.”
New Jersey passed a nearly identical law to California’s law last year, and it is currently making its way through the courts. Staver is very optimistic that the New Jersey law will be appealed all the way to the Supreme Court as well. But considering the Supreme Court’s current makeup, the decision to deny cert is not a good sign for proponents of “pray away the gay.” It takes the votes of four justices for a case to be granted cert, and conventional wisdom would have suggested that the court’s four conservatives–Chief Justice John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito–would have voted to take up the case. I could be wrong, but if there weren’t four votes to bring this case before a Court as closely divided as this one, there probably weren’t five votes to overturn the law. The only plausible fifth vote in a 5-4 ruling to overturn a law like this one would be Justice Anthony Kennedy. But from where I’m sitting, it’s hard to see how the man who wrote the opinion that effectively neutered the Defense of Marriage Act would vote to overturn a law banning conversion therapy.
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Darrell Lucus is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
