Scrutinizing the Conversion of Scrutiny Applied to Conversion Therapy: A Ninth and Third Circuit Split

Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review

For four decades, homosexuality has not been considered a mental disease or defect.[1] Nonetheless, many parents attempt to subject their children to sexual orientation change efforts (SOCE) to ensure their maturation in a heteronormative lifestyle despite the many negative physical and mental health effects SOCE can have on an individual. Both California[2] and New Jersey[3] passed laws banning the practice of SOCE on minors by licensed mental health providers. Both of these laws were challenged and upheld in Pickup v. Brown[4] and King v. Governor of New Jersey,[5] respectively. Although the Ninth and Third Circuits upheld the laws, the level of scrutiny each court applied to the laws differed. The Ninth Circuit’s rational basis analysis ultimately favors opponents of SOCE, but the Third Circuit’s more practical and precise intermediate scrutiny analysis is the better of the two.

Analysis of the Split: Pickup and King

Pickup v. Brown

The plaintiffs in Pickup—practitioners, organizations advocating SOCE, and children undergoing SOCE and their parents—claimed that SB 1172 was unconstitutional as a violation of their First Amendment free speech rights and other constitutional rights.[6] In its analysis of the challenged law, the Ninth Circuit subjected SB 1172 to rational basis review.[7] It arrived at this decision by distinguishing conduct—like the treatment at issue here—from literal speech.[8] Types of professional conduct and speech lie on a continuum. One end represents pure advocacy of a professional opinion publicly.[9] The middle represents communication “within the confines of a professional relationship.”[10] The other end of the continuum, and the location of SB 1172, represents regulation of professional conduct that may have an incidental effect on free speech.[11] The court reasoned that SB 1172 only regulates conduct by banning SOCE, but does not ban supportive or informative speech about SOCE.[12] Thus, although SB 1172 may have an incidental effect on speech, it is ultimately subject to rational basis review as a regulation of professional conduct.[13] The court concluded “that the legislature acted rationally in protecting the well-being of minors by prohibiting mental health providers from using SOCE on persons under 18.”[14]

King v. Governor of New Jersey

The plaintiffs in King—individuals and organizations that provide SOCE—alleged that New Jersey’s A3371 was unconstitutional primarily on free speech grounds.[15] In its analysis, the Third Circuit applied intermediate scrutiny review to A3371, as contrasted with the rational basis review applied in Pickup.[16] The court reasoned that Pickup’s speech-versus-conduct dichotomy and subsequent continuum for professional speech is a gray area without any legal authority.[17] Nonetheless, the court found that SOCE counseling is speech for purposes of the First Amendment, but a less-protected version of speech.[18] Thus, SOCE is subject to regulation, especially because there is a connection between a trade closely concerned with public health and speech conducted in the midst of a professional relationship.[19]

Nonetheless, the court did not apply rational basis review for fear of opening a floodgate of regulation on professional speech that would impede the protection of the First Amendment.[20] Instead, the court determined intermediate scrutiny applied, mainly based on the similarities between commercial speech and professional speech.[21] Under this rubric, the law being challenged must (1) directly advance (2) a substantial government interest, and (3) not be more extensive than necessary to advance this interest.[22] The court held that the State has a substantial interest in protecting its citizens, particularly minor populations, and the increased fear of harm to a minor can be inferred from the number of professional and scientific organizations condemning SOCE.[23] Finally, the court reasoned that the law was not more extensive than necessary, because an informed consent requirement, despite the plaintiffs’ allegations, would be ineffective.[24] Thus, since the requirements of intermediate scrutiny were satisfied, the court upheld A3371.

Rational v. Intermediate Scrutiny

The Third Circuit’s refutation of the Ninth’s use of rational basis review is significant, especially since the Ninth Circuit’s application of rational basis review relied heavily on the differentiation of speech and conduct. Because therapeutic SOCE usually involves some form of physical action[25] mixed with the medical professional verbally communicating to the patient, the dichotomy created in Pickup leaves little direction for future courts deciding the constitutionally of similarly bans on professional “speech,” particularly when contrasted with the court’s analysis in King.

Meanwhile, the application of intermediate scrutiny based on the similarities between professional and commercial speech seems, ironically, more rational. Regulations limiting the operation of women’s health clinics have been subjected to rational basis review since Planned Parenthood v. Casey,[26] which has ultimately resulted in the closure of a plethora of women’s health clinics. If laws banning SOCE were scrutinized under rational basis review, then the same could happen to SOCE clinics. Thus, heightened scrutiny appears to benefit SOCE proponents. However, strict scrutiny review of SOCE bans would set too high a bar, since it could have the same religiously backed—and arguably morally reprehensible—effect as regulations exploiting the ruling in Casey. Thus, intermediate scrutiny review is most appropriate for this type of professional speech, especially given its comparison to commercial speech, with only the intended audience being different.

Ramifications of the Levels of Review Going Forward

The main question this split leaves open is what guidance, if any, these cases provide for future cases involving homosexual individuals. Although these cases deal plainly with minors, SOCE, and the First Amendment, courts in the past have extrapolated legal ambiguities and combined them to form a penumbra.[27] In King, the State had an interest in protecting the physical and psychological health of its minors, but that interest generally exists for all citizens.[28] A gradual extension or fragmentation of these cases could distort the precedent set until it is used in a manner in which it was not intended.

Nonetheless, given this potential extension of these cases, one might wonder if the rational basis review applied to SOCE bans can be transferred to apply to same-sex marriage cases or any other case involving the rights of homosexuals, especially since the goal of the National Organization for Marriage (a leading advocate for the “traditional definition of marriage”) has shifted its focus from completely stopping same-sex marriage to limiting additional rights and benefits for same-sex couples beyond marital rights.[29] If this extension does occur, then laws prohibiting certain benefits to homosexual individuals could more easily be upheld under a rational basis review, as long as a court determines that the government has any legitimate interest in prohibiting the benefits and that interest is rationally related to the law denying benefits. Although most, if not all, discriminatory laws should be subjected to heightened scrutiny, a judge might incorrectly apply the law from Pickup in order to exercise a form of judicial activism by denying these benefits to homosexuals.

Conclusion

Pickup and King correctly upheld the bans on SOCE. But because SOCE “therapy” has negative health ramifications for minors and adults and is scientifically disproven,[30] the difference in applicable standards of review between the Ninth and Third Circuits will likely have ramifications for future cases. Hopefully the lower scrutiny of the Ninth Circuit’s review will not be transferred to unrelated cases that do not directly relate to these two cases. The Third Circuit’s analysis is generally more reliable and predictable, because commercial and professional speech are reasonably similar, and because the Third Circuit’s standard provides more precise guidance for future cases. Meanwhile, the Ninth Circuit’s approach leaves too much to guessing as to its scope and application in future cases.

 

[1] Pickup v. Brown, 740 F.3d 1208, 1222 (9th Cir. 2014).

[2] See Cal. S.B. 1172, which prohibits mental health providers from practices that seek to change a minor’s sexual orientation.

[3] See N.J. Assemb. Bill 3371, which prohibits a person who is licensed to provide professional counseling from engaging in SOCE with a person under 18 years of age.

[4] Pickup, 740 F.3d at 1208 (9th Cir. 2014).

[5] King v. Governor of N.J., 2014 U.S. App. LEXIS 17545, *4 (3d Cir. 2014).

[6] See Pickup, 740 F.3d at 1225. The plaintiffs also asserted violations of expressive association, vagueness, overbreadth, and the parents’ fundamental rights. The court found all of these claims meritless.

[7] Id. at 1231.

[8] Id.

[9] Id. at 1227. The professional speech at this end has the greatest First Amendment protection.

[10] Id. at 1228. The professional speech in the middle would not be protected if it were stated outside the confines of the professional relationship.

[11] Id. at 1229. The professional speech at this end is subject to the state’s police power, even though there is an incidental effect on speech.

[12] Id.

[13] Id.

[14] Id. at 1231-32.

[15] King v. Governor of N.J., 2014 U.S. App. LEXIS 17545, *4 (3d Cir. 2014). The plaintiffs also alleged violations of vagueness, overbreadth, and free exercise of religion, all of which the court found meritless.

[16] Id. at *37.

[17] Id. at *23. The Third Circuit also took issue with professional speech automatically becoming conduct simply because it was professional and the general illusory nature of the continuum and dichotomy.

[18] Id. at *34-35. The court gave it a lower level of protection because of the knowledge required and trust individuals place in the professional’s knowledge.

[19] Id. at *26-27. The court reasoned that clients are likely to instill trust in the professional’s specialized knowledge, which could lead to harm of the client and citizens if there was no regulation.

[20] Id. at *44.

[21] Id. at *37. The court reasoned that the two types of speech have multiple similar aspects, including the value of the speech to listeners, subjection to government regulation, and knowledge of the speaker.

[22] Id. at *38. The court pulled the intermediate scrutiny test applied in Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S 557 (1980).

[23] Id. at *48-49.

[24] Id. at *54. The plaintiffs raised only the informed consent requirement as a less restrictive manner, but the court reasoned that the vulnerability of minors might lead them to being pressured to consent to SOCE counseling.

[25] See Pickup, 740 F.3d at 1222. Various methods utilized previously include providing electric shock, castration, inducing vomiting or paralysis, and snapping an elastic band.

[26] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[27] See e.g., Griswold v. Connecticut, 381 U.S. 479 (1965).

[28] King v. Governor of N.J., 2014 U.S. App. LEXIS 17545, *49 (3d Cir. 2014).

[29] See generally Nat’l Org. for Marriage, http://www.nomblog.com (last visited Oct. 24, 2014).

[30] Pickup v. Brown, 740 F.3d 1208, 1222 (9th Cir. 2014).

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