Bench Memos

California’s Ban on “Sexual Orientation Change Efforts” for Minors Put on Hold

Yesterday, federal Judge William B. Shubb of the Eastern District of California issued a preliminary injunction preventing SB 1172 from going into effect on January 1.  The law would prohibit all mental-health professionals registered or licensed by the state from offering “sexual orientation change efforts” (SOCE) to minors.  Although two of the plaintiffs proffered religious freedom as a ground for challenging the statute, Judge Shubb focused on the therapists’ freedom of speech.  While clinical practice in the mental health professions is generally understood to be conduct the state may regulate, much of what passes under the rubric of SOCE is “talk therapy,” and is grounded in the expression by clinicians, and the adoption by patients, of an opinion about the latter’s same-sex attraction.  As a matter of freedom of speech, therefore, the challenge merited the application of strict scrutiny to the statute.

Judge Shubb found that the statute was not viewpoint-neutral (quite the contrary, it expresses a strong viewpoint on the part of the legislature and targets another viewpoint for suppression), that the state’s conviction that SOCE may cause harm to minors was uncertain and unsupported by scientific studies to date, that the law was underinclusive (targeting only some but not all who may engage in SOCE), and that all things considered, the plaintiffs were likely to prevail on the merits and would be harmed in their ability to speak freely in their professions in the meantime.  Hence he enjoined the enforcement of the statute, pending further proceedings.  The opinion and order in Welch v. Brown can be found here–a good day’s work for freedom, and against the regnant liberal ideology in California.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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