The United States Supreme Court recently released its opinion in Chiles v. Salazar. The case dealt with a challenge to a Colorado law that prevents therapists from “engaging in ‘conversion therapy’ with minors . . . defining the term to include ‘any practice or treatment . . . that attempts . . . to change an individual’s sexual orientation or gender identity,’ as well as any ‘effor[t] to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions toward individuals of the same sex.” The law is not neutral: it allows and even encourages therapists to explore and affirm alternative “gender identities” and assist people “undergoing gender transition.” But talk therapy that approaches sex from a religious (or even just natural and sane) perspective is forbidden.
Ms. Chiles, a therapist in Colorado, filed a lawsuit claiming that the law as applied to her violated her First Amendment right to free speech by compelling her to speak in certain ways in her professional practice. The lower courts rejected her argument, claiming that the law governed a therapist’s conduct rather than her speech–a questionable factual claim, when Ms. Chiles’ professional conduct is literally that of speaking. The Supreme Court agreed with Ms. Chiles, holding that the Colorado law, when applied to talk therapy, constitutes viewpoint-based discrimination, violates the Free Speech Clause of the First Amendment, and must be subjected to strict scrutiny.
The outcome of the case is certainly a good one: freedom of speech that prevents a government from compelling people to speak the secular and unnatural message that alternate “gender identity” issues must be affirmed and celebrated is freedom to speak the truth and not be compelled to tell lies. This is a good thing and will allow therapists like Ms. Chiles to continue working to help young people accept their God-given sexual identities.
And yet, I can’t simply cheer for the outcome. While Chiles v. Salazar is a win that allows religious therapists to speak truly and freely on important issues of sexual identity, there are two very concerning issues signaled in the opinion: one a remaining problem for future cases and the other a disturbing philosophical hint in the opinion.
While this decision protects the freedom to speak the truth, the precedent set by Chiles v. Salazar only covers speech and leaves state governments free to continue potentially harmful regulation of conduct. The case does not fully address the larger question: may states regulate against harmful “therapies” conducted on minors and promote treatments that will actually help? The answer is “only sometimes.” The Supreme Court held last year in Skrmetti that Tennessee could ban “gender transition” procedures for minors. Because the Tennessee law at issue in Skrmetti did not discriminate on the basis of sex, but only on the basis of age and medical condition, the law was found not to violate the Equal Protection Clause. Could a state like Colorado, then, ban “de-transitioning” procedures for minors if the government erroneously thought they were harmful? Medical procedures that help restore to health someone who has been negatively affected by “gender transition” surgeries are not speech, after all. While Chiles v. Salazar protects certain speech, it still very much leaves the door open to states banning conduct that promotes the common good. Free speech and free expression precedents can only go so far when the law is divorced from the common good, from the truth that human nature and sex are real and immutable.
Perhaps more concerning than this incompleteness is the final paragraph of the opinion. While it is easier to discern a problem when the outcome of a case goes horribly wrong (see Bostock), a line of reasoning is seeded in this case that could be a watershed moment in further alienating conservatives and causing them to question where positivism and relativism lead us. The final paragraph of Justice Gorsuch’s majority opinion merits scrutiny:
We do not doubt that the question “how best to help minors” struggling with issues of gender identity or sexual orientation is presently a subject of “fierce public debate” . . . But Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.
Justice Gorsuch’s concluding thoughts go too far in stating that the point of the First Amendment is to be “a shield against any effort to enforce orthodoxy in thought or speech in this country.” (emphasis added). Of course, the US Constitution and our nation’s tradition assume and allow for a plurality of religious and political opinions. Preventing censorship of such opinions is a prominent feature of the Bill of Rights. But these rights are not infinite; it is incorrect to claim that the First Amendment is a shield against any“effort to enforce orthodoxy.” After all, blasphemy has been long accepted as an exception to freedom of speech. The blasphemy exception in particular seems to contradict the idea that the First Amendment is primarily meant to combat “any effort to enforce orthodoxy,” since blasphemy is a type of speech that was traditionally considered objectively bad, harmful, and therefore unprotected. The fact that blasphemy was a traditional exception to the Free Speech Clause and that blasphemy was a criminally prosecutable offense is striking because it means that the First Amendment was clearly consistent with an “effort to enforce orthodoxy.”
Justice Gorsuch is right that the American tradition is skeptical of government enforcement of certain points of view. This doctrine is particularly important and useful when governments hold secular, anti-religious, and even dangerous views – such as the view that a therapist must affirm a child’s delusion that he is a “gender” other than his sex. But the proper goal is not simply freedom of speech for the sake of speaking freely. Justice Gorsuch himself seems to understand this when he ends his opinion with the thought that a “free marketplace of ideas [is] the best means for discovering truth.” The purpose of freedom of speech is to ensure that truth is not suppressed.
Two ideas come into tension here. If freedom of speech exists for the sake of allowing truth to be spoken, there are forms of speech (and other conduct) that go beyond plurality of opinion and truth seeking into the realm of objective harmfulness to the common good. This is, again, why certain types of speech – such as blasphemy and obscenity – have long been viewed as exceptions that do not constitute constitutionally protected speech. At a certain point, it has to be accepted that not all speech or conduct is tolerable in a civil society. This has been accepted, not only in the classical tradition, but in the American founding and in any civilized society. Freedom always has limits and some things are always out of bounds. I retain a “base-line” skepticism regarding government attempts to compel or prevent speech–largely due to a very low opinion of the virtue and wisdom of our leaders and our culture. But it is important to keep the end (truth and goodness) in mind so we do not mistake the means (free speech in particular and freedoms in general) for ends. Freedom from any orthodoxy is not the goal of law. It is not the goal of the Constitution and the Bill of Rights. Free speech is not for the sake of freedom itself, but for the sake of seeking and speaking the truth.
