U.S. Supreme Court Justice Amy Coney Barrett mentioned in a recent interview that many observers, dependent on results-oriented media coverage, do not recognize that many of the Court’s decisions are unanimous. This includes decisions on issues, like religious freedom, that are characterized by some as divisive.
This may be explained by the reality that constitutional principles are reasonably clear on some important matters, so that it is easier for the justices to come to a consensus in a particular dispute. That is likely the explanation for a recent decision involving undeniably sensitive issues – sexuality and gender identity – but which resulted in an opinion joined by all but one of the justices.
The case involved a mental health therapist in Colorado who challenged a state law that prohibited any counseling practices that attempt to change sexual orientation or gender identity or associated practices and expression. By contrast, the law specifically allows counseling practices that affirm gender identity and sexual orientation and facilitate gender transition.
Regardless of opinions about appropriate therapies, it is not difficult to see the free speech problems with this approach. Justice Neil Gorsuch identifies it at the very outset of the majority opinion: “Kaley Chiles is a mental-health counselor in Colorado. In this case, we consider her First Amendment challenge to a state law regulating what she may say when speaking with her clients.”
It helped that the therapist did not contest the state’s authority to prohibit “what she herself calls ‘long-abandoned, aversive’ physical interventions.” Her concern was the application to her practice, in which “she provides only talk therapy, employing no physical techniques or medications.”
The Court explained that regulations based on the subject matter of speech or that “dictate what particular ‘opinion or perspective’ individuals may express on that subject” are “viewpoint discrimination” and almost always unconstitutional (possible exceptions are “fraud, defamation, and ‘fighting words’”).
The law here, the Court found, was clearly a form of prohibited viewpoint discrimination:
Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express. For a gay client, Ms. Chiles may express “[a]cceptance, support, and understanding for the facilitation of . . . identity exploration.” [Colorado Statute] §12–245–202(3.5)(b)(I). For a client “undergoing gender transition,” Ms. Chiles may likewise offer words of “[a]ssistance.” §12–245–202(3.5)(b)(II). But if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it.
This type of discrimination is clearly prohibited by the First Amendment.
The Court’s concluding observation explains how the justices, who may have different opinions about the underlying policy issues, could come to a consensus as to the constitutional question:
[T]he 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. However well-intentioned, any law that suppresses speech based on viewpoint represents an “egregious” assault on both of those commitments.
This principled devotion to constitutional commands may surprise some who form their ideas about the Court’s work from the results-oriented criticisms of some politicians and media. For those who recognize the crucial need to preserve the integrity of our constitution, however, it is welcome indeed.
