SALON

Wednesday, Apr 17, 2013 8:30 PM UTC

Appeals court hears challenge to gay therapy ban

By and

Topics: From the Wires, ,

SAN FRANCISCO (AP) — A federal appeals court on Wednesday grappled with California’s first-in-the-nation bid to bar licensed mental health professionals from offering therapies aimed at making gay and lesbian teenagers straight.

A three-judge panel of the 9th U.S. Court of Appeals closely questioned both sides during the 90-minute hearing as it considered two challenges to the ban on “sexual-orientation change” counseling of minors that was signed into law last fall.

The “pivot point” of the legal debate, as Judge Morgan Christen called it, appears to be whether such counseling is speech protected by the First Amendment or medical treatment that can be regulated by government.

Chief Judge Alex Kozinski noted the U.S. Supreme Court struck down a California ban of violent video games because the state failed to show a compelling reason to infringe on game-makers free speech rights to manufacture the products.

He said it appeared the same argument could be applied to the evidence lawmakers relied on in passing the prohibition on sexual-orientation change therapy.

“We really don’t have anything compelling, as I see it,” Kozinski said. “Government has to have a compelling interest in curtailing speech.”

California Deputy Attorney General Alexandra Robert Gordon, who is defending the ban, cited mainstream medical organizations’ support of the law, and testimony before the state Legislature by several people who said they were harmed by the counseling.

Kozinski replied that opponents of the law also testified before lawmakers that they benefited from the counseling.

“There is evidence going both ways,” Kozinski concluded.

Lawyers for parents of children who are undergoing the counseling and licensed professionals who administer the “talk therapy” argued the ban goes too far. But Mathew Staver, founder of the Liberty Counsel and a lawyer opposing the law, said there is “no evidence of harm.”

The ban was to take effect Jan. 1. The appeals court put the law on hold until it resolves the issue, which has yielded to contradictory lower court rulings so far. The court issued no decision Wednesday and will publish a written ruling later. Several other states are considering similar legislation.

The law says therapists and counselors who treat minors with methods designed to eliminate or reduce their same-sex attractions would be engaging in unprofessional conduct and subject to discipline by state licensing boards. The activities of pastors and lay counselors who are unlicensed but provide such therapy through church programs would not be covered.

The cases before the appeals court was brought by professionals who practice sexual-orientation change therapy, two families who say their teenage sons benefited from it, and a national association of Christian mental health counselors. They argue the ban infringes on their free speech and freedom of association and religious rights. The counselors also argue it jeopardizes their livelihoods.

“The state has determined that the only permissible message (is that) same-sex attractions, behavior or identity are to be accepted, supported and understood, thus suppressing all other viewpoints to the detriment of licensed professionals and their vulnerable minor clients,” lawyers for the families, several practitioners and the professional group said.

“The viewpoint of counselors who in their professional judgment determine that same-sex attractions conflict with the religious and moral beliefs of clients and are not desired, is silenced by SB 1172. This raises a serious constitutional question.”

Supporters, including Gov. Jerry Brown and Attorney General Kamala Harris, say the prohibition on “reparative” and “conversion” therapy is necessary to protect children from a coercive practice that can put them at increased risk of suicide. They also say the therapy’s efficacy has been questioned or rejected by every major mental health professional association.

Harris has argued the law “is based on a scientific and professional consensus reached decades ago that homosexuality is a normal expression of human sexuality and not a disease, condition, or disorder in need of a ‘cure.’”

Reflecting the competing issues before the appeals court, the two Sacramento-based trial judges who handled the lawsuits in December reached differing conclusions on whether the ban violates the U.S. Constitution.

One refused to block the law after ruling the plaintiffs were unlikely to prove the prohibition unfairly tramples on their civil rights and should therefore be overturned. The other said he found the First Amendment issues presented by the ban to be compelling and ordered the state to temporarily exempt the three people named in the case before him.

The panel hearing the cases Wednesday consists of Chief Judge Alex Kozinski, who was appointed by Ronald Reagan in 1985, Judge Susan Graber, a 1998 Bill Clinton appointee, and Judge Morgan Christen, a 2012 appointee of President Barack Obama. The judges have no deadline for issuing a decision.

Lisa Leff

More Lisa Leff.

Paul Elias

More Paul Elias.

You Might Also Like

More Related Stories

Featured Slide Shows

7 motorist-friendly camping sites

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 9

Sponsored Post

  • White River National Forest via Lower Crystal Lake, Colorado
    For those OK with the mainstream, White River Forest welcomes more than 10 million visitors a year, making it the most-visited recreation forest in the nation. But don’t hate it for being beautiful; it’s got substance, too. The forest boasts 8 wilderness areas, 2,500 miles of trail, 1,900 miles of winding service system roads, and 12 ski resorts (should your snow shredders fit the trunk space). If ice isn’t your thing: take the tire-friendly Flat Tops Trail Scenic Byway — 82 miles connecting the towns of Meeker and Yampa, half of which is unpaved for you road rebels.
    fs.usda.gov/whiteriveryou


    Image credit: Getty

  • Chattahoochee-Oconee National Forest via Noontootla Creek, Georgia
    Boasting 10 wildernesses, 430 miles of trail and 1,367 miles of trout-filled stream, this Georgia forest is hailed as a camper’s paradise. Try driving the Ridge and Valley Scenic Byway, which saw Civil War battles fought. If the tall peaks make your engine tremble, opt for the relatively flat Oconee National Forest, which offers smaller hills and an easy trail to the ghost town of Scull Shoals. Scaredy-cats can opt for John’s Mountain Overlook, which leads to twin waterfalls for the sensitive sightseer in you.
    fs.usda.gov/conf


    Image credit: flickr/chattoconeenf

  • Nordhouse Dunes Wilderness Area via Green Road, Michigan
    The only national forest in Lower Michigan, the Huron-Mainstee spans nearly 1 million acres of public land. Outside the requisite lush habitat for fish and wildlife on display, the Nordhouse Dunes Wilderness Area is among the biggest hooks for visitors: offering beach camping with shores pounded by big, cerulean surf. Splash in some rum and you just might think you were in the Caribbean.
    fs.usda.gov/hmnf


    Image credit: umich.edu

  • Canaan Mountain via Backcountry Canaan Loop Road, West Virginia
    A favorite hailed by outdoorsman and author Johnny Molloy as some of the best high-country car camping sites anywhere in the country, you don’t have to go far to get away. Travel 20 miles west of Dolly Sods (among the busiest in the East) to find the Canaan Backcountry (for more quiet and peace). Those willing to leave the car for a bit and foot it would be remiss to neglect day-hiking the White Rim Rocks, Table Rock Overlook, or the rim at Blackwater River Gorge.
    fs.usda.gov/mnf


    Image credit: Getty

  • Mt. Rogers NRA via Hurricane Creek Road, North Carolina
    Most know it as the highest country they’ll see from North Carolina to New Hampshire. What they may not know? Car campers can get the same grand experience for less hassle. Drop the 50-pound backpacks and take the highway to the high country by stopping anywhere on the twisting (hence the name) Hurricane Road for access to a 15-mile loop that boasts the best of the grassy balds. It’s the road less travelled, and the high one, at that.
    fs.usda.gov/gwj


    Image credit: wikipedia.org

  • Long Key State Park via the Overseas Highway, Florida
    Hiking can get old; sometimes you’d rather paddle. For a weekend getaway of the coastal variety and quieter version of the Florida Keys that’s no less luxe, stick your head in the sand (and ocean, if snorkeling’s your thing) at any of Long Key’s 60 sites. Canoes and kayaks are aplenty, as are the hot showers and electric power source amenities. Think of it as the getaway from the typical getaway.
    floridastateparks.org/longkey/default.cfm


    Image credit: floridastateparks.org

  • Grand Canyon National Park via Crazy Jug Point, Arizona
    You didn’t think we’d neglect one of the world’s most famous national parks, did you? Nor would we dare lead you astray with one of the busiest parts of the park. With the Colorado River still within view of this cliff-edge site, Crazy Jug is a carside camper’s refuge from the troops of tourists. Find easy access to the Bill Hall Trail less than a mile from camp, and descend to get a peek at the volcanic Mt. Trumbull. (Fear not: It’s about as active as your typical lazy Sunday in front of the tube, if not more peaceful.)
    fs.usda.gov/kaibab


    Image credit: flickr/Irish Typepad

  • As the go-to (weekend) getaway car for fiscally conscious field trips with friends, the 2013 MINI Convertible is your campground racer of choice, allowing you and up to three of your co-pilots to take in all the beauty of nature high and low. And with a fuel efficiency that won’t leave you in the latter, you won’t have to worry about being left stranded (or awkwardly asking to go halfsies on gas expenses).


    Image credit: miniusa.com

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 9

Related Videos

Comments

 0 Comments

Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

follow salon

Most Read

Popular on Reddit

links from salon.com

vote
Let's Stop Screwing Around and Impeach James Clapper: After lying to Congress about all the different ways the NSA's spying on us, Director of National Intelligence James Clapper lies about how he lied. Call the White House at 202 456-1111 and Tell Obama to Get Rid of Clapper
122 points123 points | 8 comments
vote
Machiavelli doesn’t belong to the 1 percent | "The Prince" is oft-quoted on Wall Street, but its author was a hero of the working class who despised elites
70 points71 points | 18 comments
vote
We must hate our children
61 points62 points | 11 comments
vote
Machiavelli doesn’t belong to the 1 percent | "The Prince" is oft-quoted on Wall Street, but its author was a hero of the working class who despised elites
53 points54 points | 16 comments
vote
Let's Stop Screwing Around and Impeach James Clapper: After lying to Congress about all the different ways the NSA's spying on us, Director of National Intelligence James Clapper lies about how he lied. Call the White House at 202 456-1111 and Tell Obama to Get Rid of Clapper
61 points62 points | 6 comments

From Around the Web

Presented by Scribol
listener_new_rect The Listener: "The Joker": Laughing at life's deepest sorrows