In a ruling yesterday (in Catholic Charities v. Whitmer), a divided Sixth Circuit panel ruled that therapists who “offer counseling in the form of ‘talk therapy’”—“literally, spoken words and nothing more”—are entitled to a preliminary injunction against a Michigan law that would ban such counseling for minors if that counseling “seeks to change an individual’s sexual orientation or gender identity.”
In his excellent majority opinion (joined by Judge Joan Larsen), Judge Raymond Kethledge determines that the law inflicts a “near-certain violation” of the therapists’ First Amendment rights. The law discriminates not just on the basis of content but also on viewpoint: it “codifies ‘a particular viewpoint—sexual orientation is immutable, but gender is not—and prohibit[s] the therapists from advancing any other perspective.’” (Quoting Eleventh Circuit ruling.) The law does not fall within “any long-settled tradition of regulating speech” and is therefore “subject to the strictest of scrutiny,” which it cannot remotely satisfy.
Beyond the merits, another issue that divides the majority and the dissent (by Judge Rachel Bloomekatz) is whether the panel should have decided this matter, as the legal question is essentially the same as what the Supreme Court is addressing in Chiles v. Salazar (argued in October). As Judge Kethledge points out, “the Supreme Court has repeatedly affirmed that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” (Internal quotes omitted.) The district court wrongly denied injunctive relief, and failure to correct its error would preserve an unconstitutional status quo for what could be the many months until the Court rules.
Congrats to the Becket Fund on its victory!