A divided Supreme Court declined on Monday to decide whether a Washington state law that prohibits licensed therapists from practicing conversion therapy on children violates the First Amendment. The announcement was part of a list of orders released from the justices’ private conference on Friday. The justices granted one new case from that conference, involving the power of federal courts to review a federal employee’s case after he missed a filing deadline, on Friday afternoon.
The conversion therapy question came to the Supreme Court in the case of Brian Tingley, a Washington marriage and family counselor. Tingley went to court in 2021 to challenge a state law, known as Senate Bill 5722, that added conversion therapy – the practice of seeking to change a declined person’s sexual orientation or gender identity through counseling – for minors to the list of violations that can lead to the loss of a therapist’s license. Tingley argued that the law violates the First Amendment, because it would limit his right to speak freely when counseling his younger clients on issues relating to sexual orientation or gender identity.
The district court dismissed Tingley’s lawsuit. It relied on a 2014 ruling by the U.S. Court of Appeals for the 9th Circuit, Pickup v. Brown, that had upheld a nearly identical California ban on conversion therapy.
Tingley appealed to the 9th Circuit. He pointed to the Supreme Court’s 2018 decision in National Institute for Family and Life Advocates v. Becerra, holding that “crisis pregnancy centers” opposed to abortion were likely to prevail in their First Amendment challenge to a California law that required them to disclose information to their patients about the availability of abortion. That ruling, Tingley contended, made clear that the 9th Circuit’s decision in Pickup was no longer good law.
The 9th Circuit rejected that argument and upheld the Washington law. In NIFLA, the court of appeals explained, although the Supreme Court criticized the idea that professional speech always receives less protection under the First Amendment, it also reiterated that states can regulate the conduct of professionals like counselors, even if the regulation also affects speech.
Backed by a group of 12 states, led by Idaho, and several different religious organizations, Tingley came to the Supreme Court in March, asking the justices to take up his case. After repeatedly considering the case at each of their conferences since late September, the justices on Monday rejected Tingley’s appeal, with Justice Brett Kavanaugh indicating that he would have granted his petition.
Justices Clarence Thomas and Samuel Alito both penned dissents from the court’s denial of review. In a five-page opinion, Thomas emphasized that government officials cannot dictate “what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” But under S.B. 5722, Thomas contended, “licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment.” Expressing “no doubt that the issue” in Tingley’s case “will come before the Court again,” Thomas stressed that “[w]hen it does, the Court should do what it should have done here: grant certiorari to consider what the First Amendment requires.”
In a shorter opinion, Alito argued that it “is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.” Because the courts of appeals are divided on the constitutionality of laws like S.B. 5722, Alito continued, “this case easily satisfies” the Supreme Court’s “established criteria for granting certiorari,” and – like Thomas – he “would grant review.”
The justices turned down a request by a group led by Robert F. Kennedy, Jr., to join a case alleging that government officials pressured popular social media platforms to suppress or censor speech criticizing COVID-19 policies or vaccine or mask mandates. The case, Murthy v. Missouri, was filed by a group of individual social media users and two states.
A federal district judge in Louisiana issued an order that would limit the ability of government officials to communicate with social media platforms about their content moderation policies. After a federal appeals court upheld the order but narrowed its scope, the Biden administration came to the Supreme Court, asking the justices to put the lower court’s order on hold. The justices granted that request and agreed to weigh in on the merits of the case, which is likely to be argued early next year.
Kennedy, an environmental lawyer and anti-vaccine activist, announced in October that he would run for president in 2024 as an independent. He argued that he should be allowed to intervene in the case both to defend his own interests, because he has a similar case pending in the lower courts and “has been specifically targeted by the Federal Government’s efforts to induce social media censorship.” Moreover, he added, he has an “unassailable” right to sue – a right that the Biden administration disputes for the current challengers in the case.
The justices did not explain their decision to reject Kennedy’s request. Alito dissented from the denial of Kennedy’s motion to intervene, explaining that he would have granted it because doing so would not significantly hurt the current challengers or the Biden administration but “may cause irreparable harm” to Kennedy.
“Our democratic form of government is undermined if Government officials prevent a candidate for high office from communicating with voters,” Alito wrote, “and such efforts are especially dangerous when the officials engaging in such conduct are answerable to a rival candidate. I would allow him to intervene to ensure that we can reach the merits of” the challengers’ claims “and to prevent the irreparable loss of” Kennedy’s First Amendment rights, Alito concluded.
The justices also called for the Biden administration’s views in one case, E.M.D. Sales v. Carrera, a case involving the employer’s burden of proof to show that an exemption to the Fair Labor Standards Act applies. There is no deadline for the U.S. solicitor general to file her brief.
Last Friday’s conference was the last regularly scheduled conference until Jan. 2024. However, in recent years the justices have issued a second set of grants following their final December conference, so more grants could follow later this week.
