Editors at National Review Online assess the latest major US Supreme Court decision.
The power of government to regulate the professions, especially in medicine and law, has created a lot of levers to enforce conformity. That power can be exercised openly through lawmaking, and more subtly by delegating licensing and disciplinary powers to quasi-public cartels run by the professions themselves. In Chiles v. Salazar, the Supreme Court struck a blow against the use of those powers to dictate orthodoxy and stifle disfavored opinions. Still more encouragingly, Justice Neil Gorsuch’s ringing opinion attracted a lopsided 8–1 majority, with only Justice Ketanji Brown Jackson in dissent.
Chiles arose from yet another effort by Colorado to ban dissent from “LBGTQ+” ideology, which was yet again defeated by a legal team from Alliance Defending Freedom. A state law bans licensed counselors from engaging in “conversion therapy” with minors, on penalty of fines and loss of license. The law is flagrantly one-sided: It applies only to therapy that aims to resolve gender dysphoria or to reduce homosexual attraction, while permitting state-favored counseling in favor of gender transition and homosexuality. It is coercive and destructive of parental authority. …
… It is speech-specific: Unlike red-state bans on irreversible surgeries and puberty-blocking drugs, the law applies to purely talk-based therapies. And it is harmful as well: Most children and teens suffering gender dysphoria can outgrow the problem and learn to live in their bodies; talking through their problems can help.
The Court called this what it is: discrimination against a particular viewpoint. As Gorsuch wrote, “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.” Even Justice Elena Kagan, joined by Justice Sonia Sotomayor, emphasized that “the case is textbook. The law distinguishes between two opposed sets of ideas—the one resisting, the other reflecting, the State’s own view of how to speak with minors about sexual orientation and gender identity.”
