MENTAL HEALTH
Conversion Ban Upheld
Maryland federal court rejects free
speech, religious liberty claims
BY ARTHUR S. LEONARD
A federal district judge
has dismissed a rightwing
lawsuit challenging
the constitutionality
of Maryland’s ban on conversion
therapy when practiced on minors.
The September 20 ruling from
Judge Deborah K. Chasanow
granted the state’s motion to dismiss
a suit brought by Liberty
Counsel on behalf of a conversion
therapy practitioner challenging
the state’s recently enacted law
providing that “a mental health
or child care practitioner may not
engage in conversion therapy with
an individual who is a minor.” The
Maryland Department of Health
and Mental Hygiene enforces the
ban through its professional licensing
process
The plaintiff, Dr. Christopher
Doyle, argued that the law violates
his right to freedom of speech and
free exercise of religion, and he had
sought a preliminary injunction
against the law’s operation while
the litigation proceeded.
Liberty Counsel immediately
announced an appeal to the Richmond
based Fourth Circuit Court
of Appeals, which has yet to rule on
a constitutional challenge against
a conversion therapy ban.
Several US Circuit courts have
rejected similar challenges. The
New Jersey statute, signed into law
by then-Governor Chris Christie in
2013, was upheld by the Philadelphia
based Third Circuit Court of
Appeals , which ruled that the state
has the power to regulate “professional
speech” as long as there was
a rational basis for the regulation.
The California statute, signed
into law in 2012 by then-Governor
Jerry Brown, was upheld by the
San Francisco-based Ninth Circuit
, which characterized it as a
regulation of professional conduct
with only an incidental effect on
speech, and thus not subject to the
court’s “heightened” standard of
scrutiny.
Liberty Counsel is also appealing
a ruling similar to the Maryland
decision by a federal court in
Florida to the Atlanta-based 11th
Circuit.
The task of protecting statutory
bans on conversion therapy
against such constitutional challenges
was complicated in June
2018 when Supreme Court Justice
Clarence Thomas, writing for a 5-4
majority in a case involving a California
law imposing notice requirements
on licensed and unlicensed
pregnancy-related clinics, wrote
disparagingly of the Third and
Ninth Circuit conversion therapy
opinions. The California statute
required the clinics to post notices
advising customers about pregnancy
related services, including
family planning and abortion, that
are available from the state, and
also required non-licensed clinics
to post notices stating that they
were not licensed by the state.
The clinics protested that the
statute imposed a content-based
compelled speech obligation that
violated their free speech rights
and was therefore subject to “strict
scrutiny.” Speech regulations of
this type rarely survive a strict
scrutiny constitutional challenge.
In that case, the high court reversed
a decision by the Ninth
Circuit, which had ruled that the
notices constituted “professional
speech” that was not subject to
“strict scrutiny.” In his opinion,
Justice Thomas rejected the idea
that there is a separate category
of “professional speech” that the
government is free to regulate. He
asserted that “this Court has not
recognized ‘professional speech’
as a separate category of speech.
Speech is not unprotected merely
because it is uttered by ‘professionals.’”
Thomas went on to observe,
“Some Court of Appeals have recognized
‘professional speech’ as a
separate category of speech that
is subject to different rules. These
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➤ CONVERSION THERAPY, continued on p.11
September 26 - October 9 10 , 2019 | GayCityNews.com
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