➤ CONVERSION THERAPY, from p.11
as medicine or accounting, which
are subject to comprehensive state
licensing, accreditation, or disciplinary
schemes. More generally,
the doctrine may apply where ‘the
speaker is providing personalized
advice in a private setting to a paying
client.’”
Then, quoting particularly from
the Third Circuit’s New Jersey decision,
Chasanow wrote, “Thus,
Plaintiff’s free speech claim turns
on ‘whether verbal communications’
become ‘conduct’ when they
are used as a vehicle for mental
health treatment.”
The judge found the Maryland
statute “obviously regulates professionals,”
and although it prohibits
particular speech “in the process
of conducting conversion therapy
on minor clients,” it “does not prevent
licensed therapists from expressing
their views about conversion
therapy to the public and to
their clients.” That is, they can
talk about it, but they can’t do it!
“They remain free to discuss,
endorse, criticize, or recommend
conversion therapy to their minor
clients,” Chasanow concluded.
But, the statute is a regulation
of treatment, not of the expression
of opinions. And that is where the
conduct/ speech line is drawn.
Chasanow found “unpersuasive”
Liberty Counsel’s arguments
that “conversion therapy cannot be
characterized as conduct” by comparing
it to aversive therapy, which
goes beyond speech and clearly involves
conduct, usually an attempt
to condition the client’s sexual response
by inducing pain or nausea
at the thought of homosexuality.
She pointed out that “conduct is
not confi ned merely to physical action.”
The judge focused on the goal
of the treatment, reasoning that if
the client presents with a goal of
changing their sexual orientation,
Doyle would “presumably adopt the
goal of his client and provide therapeutic
services that are inherently
not expressive because the speech
involved does not seek to communicate
Doyle’s views” — but rather
the aim of the client, or more likely
the client’s parents.
The judge found that under
Fourth Circuit precedents, the appropriate
level of judicial review is
“heightened scrutiny,” not “strict
scrutiny,” and that the Maryland
ordinance easily survives heightened
scrutiny, because the government’s
important interest in
protecting minors against harmful
treatment comes into play, and
the legislative record shows plenty
of data on the harmful effects of
conversion therapy practiced on
minors.
Chasanow refers to fi ndings by
the American Psychological Association
Task Force, the American
Psychiatric Association’s offi cial
statement on conversion therapy, a
position paper from the American
School Counselor Association, and
articles from the American Academy
of Child and Adolescent Psychiatry
and the American Association
of Sexuality Educations, Counselor,
and Therapists. Such a rich
legislative record provides strong
support in meeting the state’s obligation
to show it has an important
interest that is substantially
advanced by banning the practice
of conversion therapy on minors.
The judge also rejected Liberty
Counsel’s arguments that the ban
was not the least restrictive way
of achieving the state’s legislative
goal and that it is unduly vague. It
was clear to any conversion therapy
practitioner what was being
outlawed, Chasanow concluded.
Turning to the religious freedom
argument, she found that
the statute is neutral on its face
regarding religion. It prohibits all
licensed therapists from providing
this therapy “without mention
of or regard for their religion,” and
Liberty Counsel’s complaint “failed
to provide facts indicating that the
‘object of the statute was to burden
practices because of their religious
motivation.’”
Chasanow also rejected the argument
that this was not a generally
applicable law because it was
aimed only at licensed practitioners.
Like most of the laws that
have been passed banning conversion
therapy, the Maryland law
does not apply to religious counselors
who are not licensed health
care practitioners. Because the law
regulates the health care profession,
its application to those within
the profession is logical and has
nothing to do with religion. As a
result, the free exercise claim falls
away under the Supreme Court’s
precedent that there is no free exercise
exemption from complying
with religiously-neutral state laws.
SHANA TOVA
from Israel Center
of Conservative Judaism
May the trumpeting of the shofar
herald in a sweet new year
filled with good health,
prosperity and peace for all.
Israel Center of Conservative Judaism,
located in Flushing, Queens,
prides itself on being an inclusive,
caring congregation.
With the approaching High Holidays,
we would like to take the opportunity
of inviting Jewish members of the LGBT +
community to join the ICCJ family.
We look forward to worshiping, learning
and celebrating the
full range of life-cycle events with you.
Renew your Jewish connection today!
2
For more information or a tour
please contact Rabbi Moshe Saks
complimentary
High Holiday
tickets
per family
or the Synagogue office
718-591-5353
Israel Center of Conservative Judaism
167-11 73rd Avenue
Fresh Meadows, Queens
iccj2004.org
10 % off
synagogue dues
for new members
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