Change Therapy Case May Go to the Supreme Court

Sep 11, 2014

Philadelphia, PA – Today, the United States Court of Appeals for the Third Circuit issued its decision in King v. Christie, Liberty Counsel’s case on behalf of licensed mental health professionals who are providing and families who are receiving counseling to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity.

While the Third Circuit upheld the ban on change counseling, the decision conflicts with the Ninth Circuit Court of Appeals in the Pickup case involving a virtually identical law. In Pickup, the federal Court of Appeals found that professional counseling was not speech worthy of First Amendment protection, but in King the federal Court of Appeals found that such counsel is speech protected by the First Amendment. In fact, the King case found that the restriction on speech was content and possibly even viewpoint-based, but then instead of using what is called “strict scrutiny” for review, the court applied an “intermediate” level of review similar to commercial speech. This significant conflict as to whether counsel by licensed counselors is speech or not and what level, if any, of First Amendment protection such counsel should receive is significant and will need resolution by the U.S. Supreme Court.

Speaking of the Ninth Circuit’s decision from earlier this year, the court said that “the enterprise of labeling certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation.” Indeed, “even a cursory inspection of the line it establishes between utterances that ‘communicate information or a particular viewpoint’ and those that seek ‘to apply methods, practices, and procedures’ reveals the illusory nature of such a dichotomy.” These two statements reveal the crux of the split between the two courts to decide this issue, and it highlights the need for Supreme Court review.

Liberty Counsel represents two licensed mental health professionals, the National Association for Research and Therapy of Homosexuality, and the American Association of Christian Counselors.

“The laws banning counseling in this area are simply unconstitutional violations of free speech,” said Mat Staver, Founder and Chairman of Liberty Counsel. “While we are disappointed in the overall decision to uphold the law, we are glad that the Third Circuit finally recognized that the counseling that takes place with these minors is entitled to First Amendment protection. The Ninth Circuit flatly ignored that obvious truth and called this conduct not entitled to any protection,” Staver continued. “Liberty Counsel will ask the Supreme Court to review this decision, and we will not stop fighting until these laws are relegated to the dustbins of history,” Staver said. "Any decision upholding restrictions on what a counselor may say or a client may hear weakens the First Amendment and ultimately hurts counselors and clients,” concluded Staver.

Liberty Counsel is an international 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.


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