Judge Ignores SCOTUS in MD Counseling Ban Opinion

Sep 23, 2019

GREENBELT, MD – U.S. District Judge Deborah Chasanow ignored binding Supreme Court precedent and issued an opinion dismissing Liberty Counsel’s lawsuit seeking a preliminary and permanent injunction against Maryland's law prohibiting minors from receiving voluntary counseling from licensed professionals to reduce or eliminate unwanted same-sex attractions or gender confusion. Liberty Counsel will immediately appeal this decision to the Fourth Circuit Court of Appeals.

In Doyle v. Hogan, Liberty Counsel represents Christopher Doyle, a licensed professional counselor in Virginia and Maryland. Doyle is challenging Maryland's SB 1028, which was signed into law by Maryland governor Larry Hogan and went into effect on October 1, 2018. Doyle counsels minors who voluntarily seek his help and are struggling with unwanted same-sex attractions, behaviors, and identity. Doyle’s counseling is provided solely through speech, but it is prohibited by Maryland’s counseling ban because the state disapproves Doyle’s viewpoint. 

In its decision, the district court ignored the Supreme Court's decision in National Institute for Family and Life Advocates v. Becerra (NIFLA), which rejected the notion that states can single out the speech of licensed professionals for lesser protection under the First Amendment. The district court relied upon the decisions in Pickup v. Brown and King v. Governor of New Jersey, both of which held counseling bans like Maryland's are permissible under the First Amendment because licensed professionals do not engage in fully protected speech when counseling clients. But in NIFLA, the Supreme Court specifically called out those decisions as incorrectly decided, reopening the door to constitutional challenges of counseling bans. The Maryland district court ignored NIFLA’s abrogation of Pickup and King, and repeated their error by assigning less First Amendment protection to Doyle’s counseling speech.

“In NIFLA, the Supreme Court upheld the First Amendment’s prohibition against censorship of professionals speech that the government doesn’t like, but the district court ignored that precedent and gave Maryland a pass on its unconstitutional counseling ban,” said Roger Gannam, Liberty Counsel’s Assistant Vice President of Legal Affairs, and one of the lead litigators in Liberty Counsel’s challenges of counseling bans around the country. “The Fourth Circuit Court of Appeals should reverse the district court and hold that Doyle’s counseling speech is entitled to full First Amendment protection.”

Liberty Counsel is a nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics. Liberty Counsel provides broadcast quality TV interviews via Hi-Def Skype and LTN at no cost.