The modern conservative movement, which many would agree dates back to 1955 when William F. Buckley Jr. founded National Review, has often been a slightly raucous circus underneath a big tent.
Classical liberals, libertarians, fusionists, Reaganites, neocons, nat-cons, free-cons, along with the new/alt/woke right have become experts at forming circular firing squads. This has left some asking the question, “What has conservatism effectively conserved?”
One aspect of the center-right coalition, the conservative legal movement, can point to a recent success story in the recent U.S. Supreme Court ruling in Chiles v. Salazar, and it is a success that is essential for any potential success in cultural renewal. This is because it is the story of not only maintaining but also strengthening our nation’s constitutional protection of and respect for free speech.
To recap the case, attorneys from Alliance Defending Freedom sued Colorado officials on behalf of Kaley Chiles, a licensed professional counselor in Colorado, who, as a committed Christian, seeks to live out her faith in every aspect of her life, including her work. Her clients come to her with a variety of personal goals. Some seek freedom from sexual behaviors such as pornography use. Others wish to regain comfort with their biological sex.
These are private, deeply intimate matters. Unfortunately, the state of Colorado attempted to force its way into these private counselor-client conversations — all in violation of Kaley’s freedom of speech.
Colorado legislators passed a law in 2019 that targets the speech of counselors, specifically in private conversations with clients about gender identity. The law bars licensed counselors from saying anything to clients under the age of 18 that “attempts or purports to change an individual’s . . . gender identity.”
Notably, the law censors speech in only one direction. It enables counselors to “assist” anyone who is “undergoing gender transition.” Counselors may push young clients toward a gender identity different from their sex, which will often lead to harmful drugs and procedures, but not help clients regain peace with their biological sex — even when that is the client’s personal goal.
The law threatens severe penalties for counselors who provide this help, including thousands of dollars in fines and even loss of licensure.
More than 20 states have passed similar laws targeting counselors’ speech, leaving counselors like Kaley with two options: Keep silent, or face government punishment. This is textbook viewpoint discrimination by the government. The U.S. Supreme Court decided in favor of Kaley on March 31.
Upon closer examination of the decision, Chiles v. Salazar is much more than one win. It is the culmination of years of effective advocacy at the high court. This was ADF’s 17th U.S. Supreme Court victory. Four previous cases ADF argued were cited copiously in the Chiles majority opinion and concurrence. National Institute of Family and Life Advocates v. Becerra was cited or referenced 16 times by the majority. Reed v. Town of Gilbert was cited twice by the majority and three times by the concurrence. Tingley v. Ferguson was cited four times by the majority. 303 Creative v. Elenis was also cited by the majority. Other cases in which ADF played a supporting role such as Rosenberger v. Rector and Visitors of the University of Virginia, Good News Club v. Milford Central School District, Susan B. Anthony List v. Driehaus, Boy Scouts of America v. Dale, and McCullen v. Coakley were also cited by the majority and/or concurrence.
Adding to the success of decades of work that built these cases and others is the fact that Chiles was an 8–1 decision. A court made up of varying interpretive approaches to the U.S. Constitution was united in near unanimity in protecting free speech. Only Justice Ketanji Brown Jackson accepted Colorado’s position that counseling is unprotected speech.
Free speech is essential to a flourishing republic. If any government is allowed to put a thumb on the scale in favor of one viewpoint and outlaw another, there can be no hope for civil discourse. For the free market of ideas to function, it must be free.
Conservatives may lament the current state of the culture, politics, and any number of segments of American life, but the hope of renewal rests on the ability to freely engage in the often-raucous national conversation. And the freedom to do so is firmly secured by our First Amendment and those who defend it well. Conservatives of all stripes should take heart and unflinchingly take a stand.