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Supreme Court declines to hear challenge to Washington 'gay conversion therapy' ban

Chief Justice of the United States John Roberts (R) walks with Associate Justice Neil Gorsuch during his investiture ceremony at the Supreme Court in Washington, U.S., June 15, 2017.
Chief Justice of the United States John Roberts (R) walks with Associate Justice Neil Gorsuch during his investiture ceremony at the Supreme Court in Washington, U.S., June 15, 2017. | REUTERS/Joshua Roberts

The U.S. Supreme Court has declined to hear an appeal filed by a Christian therapist against Washington state's ban on "gay conversion therapy," allowing the law to remain in effect.

In an orders list released Monday morning, the high court declined without comment a petition for a writ of certiorari in the case of Brian Tingley v. Robert W. Ferguson, Attorney General of Washington state, et al.

The decision received separate dissenting opinions from Justices Clarence Thomas and Samuel Alito. Thomas claimed that Washington had "silenced one side of this debate" through state law.

"A law that restricts speech based on its content or viewpoint is presumptively unconstitutional and may be upheld only if the state can prove that the law is narrowly tailored to serve compelling state interests," wrote Thomas.

Thomas argued that the state law was "viewpoint-based and content-based discrimination in its purest form" and "presumptively unconstitutional," adding that "the state must show that it can survive strict scrutiny before enforcing it."

In 2018, Washington Gov. Jay Inslee signed Senate Bill 5722 into law. The measure prohibited licensed therapists from engaging in sexual orientation change efforts therapy on underaged individuals.

Also referred to as "conversion therapy" or "reparative therapy" by critics, SOCE therapy involves counseling that attempts to reduce or eliminate same-sex sexual attraction in a person.

While the law exempts religious groups, Tingley filed suit against Washington in 2021, arguing that the exemption did not sufficiently protect the freedoms of religion and speech.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled unanimously against Tingley in September 2022, with Circuit Judge Ronald M. Gould writing the court opinion.

"States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel," wrote Gould, a Clinton appointee.

"Washington's law prohibits therapists from practicing conversion therapy on minors. It makes no reference to religion, except to clarify that the law does not apply to practice by religious counselors."

In January, the 9th Circuit voted to deny a full court rehearing for the lawsuit. Circuit Judge Diarmuid F. O'Scannlain, a Reagan appointee, authored a statement respecting the order but believing that the earlier panel opinion had an "erroneous" reasoning.

"In sum, under binding Supreme Court precedents, conversion therapy consisting entirely of speech cannot be prohibited without some degree of First Amendment scrutiny," wrote O'Scannlain.

"The panel cites no evidence for the implausible proposition that conversion therapy conducted entirely by means of speech risks direct physical harm. … Speech which risks psychological harm does not thereby become non-speech conduct entire without First Amendment protections."

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