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PaperclipPerfector  2d ago (text post)   7306 thread views

Culture War Roundup for the week of March 30, 2026

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[disclaimer: I'll try to keep personal feelings and experiences out of this one, simply because I don't think most readers here are going to want to hear it, but it will inevitably color my takes.]

LGBT Talk / Conversion Therapy: Chiles v. Salazar

SCOTUS holds:

On matters of sexuality and gender, Ms. Chiles’s clients, including minors, come to her with different goals in mind. Some “are content with” their sexual orientation and gender identity and seek assistance only with “social issues, family relationships,” and the like. In cases like those, Ms. Chiles does not try to persuade her clients to “change their attractions, behavior, or identity,” but aims instead to help them address their stated goals. Other clients, however, come to her hoping to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] bod[ies].” And in these cases, too, Ms. Chiles seeks to help her clients reach their own stated objectives. In doing so, she does not prescribe any medicines, perform any physical treatments, or engage in any coercive or aversive practices. All Ms. Chiles offers is talk therapy.

In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in “conversion therapy” with minors. The State reports that it adopted the law “in response to a growing mental health crisis among Colorado teenagers and mounting evidence that conversion therapy is associated with increased depression, anxiety, suicidal thoughts, and suicide attempts.” Any Coloradan who thinks a licensed counselor is engaging in conversion therapy may file a complaint with a regulatory board. A complaint, in turn, triggers a disciplinary review process that can yield a fine, probation, or the loss of a license.

Colorado’s law banning conversion therapy, as applied to Ms. Chiles’s talk therapy, regulates speech based on viewpoint, and the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny.

The opinion, by Gorsuch and joined by a somewhat surprising seven other justices, is pretty standard free speech fare: the statute bans one view and not the other, the state offers little if any historical or legal support for its ban, and it's both an outlier and a recent outlier. The state tried to compare the ban here to requirements to disclose factual, noncontroversial speech during commercial activities, and ran into a brick wall when the case formalizing that standard did a Solomon-level splitting to start with.

The concurrence, by Kagan and joined by Sotomayor, tries to cabin this ruling to its four corners, and saying that viewpoint-neutral restrictions on medical speech would have a much lower bar to pass. Where the state here banned only one side of a controversial topic, but encouraged the other, a law that merely banned this topic in this context entirely could merely need evidence that the state's interests were significant enough and connected enough. Given that we're talking Colorado, here - home of Masterpiece Cakeshop - it's not impossible that the state will try to squeak a neutral-in-theory rule under this view.

It's... somewhat difficult to imagine what that would look like, though. Kagan, during oral arguments, motioned toward a theoretical law that prohibited violating the standard of care, but that would be so wide as to revive the nondelegation doctrine, not least of all because that can range from a creature of statute to a PDF thrown together by randos to five competing and conflicting opposing philosophies. A genuine universal ban by counselors on LGBT-related talk therapy would impact the LGBT movement far more than it would social conservatives. The Colorado statute here specifically excluded "Assistance to a person undergoing gender transition" for several reasons, but the necessity for such therapy before most reasonable doctors would recommend surgical or serious chemical interventions is no small part of it. Restrictions on types of therapy might be more easily be tailored to only hit one side or the other, but while aversive- or confrontational-focused conversion therapy are common focuses for progressive outrage (whether the underlying incident was genuine or not), they're both little-used and little-liked even by social conservatives now, and a restriction that leaves sexual orientation change talk therapy on the table is likely to be seen as an unacceptable compromise.

The dissent is, no surprise, Jackson, and it's a doozy:

“[T]here is no right to practice medicine which is not subordinate to the police power of the States.”

There are steelmen to the Colorado law. Chiles does not contest it as applied to aversives, and even if they did work, they're well-within the bounds of behaviors that states have long-regulated (and which social-conservatives have argued for regulating as recently as Skrmeti). A lot of these programs don't work, don't seem to care that they don't work, and are unwilling to consider alternative approaches that would fit their goals or the goals of their patients but would not match expectations (caveat: not all of them, and some like the SF Kaiser clinic might have been a little more open-minded than the already-libertine-seeming publicly-disclosed records). There are a mass of complicated First Amendment caselaw, epicycle on epicycle, that have left too many opportunities for motivated justice to find outlier or non-representative historical support for hilariously unconstitutional arguments.

Jackson's dissent bulldozes them. She tries to draw the statute here as merely incidentally restricting speech coincidental to restrictions on conduct, by defining conduct to include wide varieties of speech so long as the regulators motivations were pure. Her view of the First Amendment and this statute do not merely condone prohibitions far broader than cruel or harmful ones. One note compares the law here to the speech requirements in Casey, where abortion providers were required to give 24-hour notice of the possible risks and complications of procedures - but the law in Casey specifically required providers to give both the risks of abortion and carrying the fetus to term (and other alternative procedures).

It's just a mess, and it's not just me saying that: Kagan and Jackson have dueling footnotes over it.

I'm genuinely confused what Jackson's goal is, here. Bulverism's a fun sin, and all, but for all I've been unimpressed by her Munsingwear asides, I'd at least expect some sort of deep strategic or tactical focus, and it's not just me finding it jank at best (cw: ai analysis of legal documents, aka worth about as much as you paid for it). If the best she's aiming for is to throw the First Amendment to the proverbial wolves of whatever third-party organization can define professional standards, it seems a dissent like this will only motivate people to burn those orgs down faster, and damn whatever happens to the commons in the process.

Some smaller notes:

  • Colorado tried to moot this case at the last moment, again, and the law has (supposedly) never been actually brought to bear. Part of Chiles surmounting that particular barrier is clearly support from SCOTUS (and Colorado's defense not focusing much on the mootness argument), but it's also partly downstream of Colorado seemingly not knowing or understanding what they were trying to moot: the final briefs are entirely talking past each other.
  • There's a more subtle problem that came up repeatedly in oral arguments, and in strangely absent in the final opinion: whether the law would apply to counselors, outside of the context of treatment. The state argued, at length, that it would not, just as it would not apply to non-licensed paid counselors (such as life coaches). I'm glad that SCOTUS didn't take it as an out -- there's a basically no coherent or consistent way to make the distinction work in practice -- but it's weird that it only gets mentioned as evidence that this regulated speech-qua-speech, because it doesn't really fit well there (indeed, this section of the opinion, pg 17, seems to conflate whether the state admitted that other people could give the same advise, with whether other people could lawfully act on the advise).
  • "JUSTICE ALITO: Three generations of idiots are enough?" Bell is still pretty clearly on the minds of SCOTUS, even if no one else of importance puts it high on the list. Hard to tell how much it's genuinely left them worried about following consensus off a cliff, rather than a tool to say they think consensus has gone off a cliff, but still bizarre given the case's status.
  • (As the mirror to Jackson's showboating, there's a section of the opinion that has Alito's fingerprints all over it, where the opinion points out that Colorado's idea of deference to medical consensus would have once permitted not just Bell-style eugenics, but specifically against recognizing homosexuality as acceptable. I'm... skeptical that this will be persuasive to anyone who's not already sold on the free speech arguments. The simple response of 'but my side isn't wrong' hits too hard, here.)
  • I'm generally skeptical of the LGBminusT perspective where trans stuff is primarily or solely an anchor, but I think it's very unlikely that that this case ends up here without the specific context of original-gender affirmation therapy focusing on minors. Even strong advocates of sexual orientation change therapy don't argue for a sizable success rate -- Nicholas Cummings rather infamously claimed an 67% success rate, of which only 20% (aka <14% of total) actually changed orientation rather than calmed the fuck down about being gay, and that for a sample with heavy selection effects -- while the persistent rates for very young children and gender stuff are a lot more favorable to social conservatives.
  • This isn't going to end everything, one way or the other. Trivially, this is just at the motion for preliminary injunction stage, and technically speaking it's just a remand for the lower court to issue a preliminary injunction. You'd think that would be a nitpick, but wouldn't be the first time.
  • One of Jackson's mentions is to Mathew [sic] Shurka's past experiences with sexual orientation conversion therapy, which reading the full background happened under an organization then called JONAH. Emphasis on the past tense, though, since it's been defunct since 2015. Because it got sued into rubble, under a legal theory near-certain to survive the logic of this case. At the time, there were widespread ground preparation for similar lawsuits. In an ideal world, versions focused on the actually-scammy organizations would become prominent and leave better therapists and providers to more seriously consider and describe the limits of their capabilities and theories. I'm not optimistic that there will be good target selection: even at the time, the feds were already getting aimed at other orgs that, while near-certainly wrong, weren't so obviously lying about it. And, of course, this law wouldn't have applied to JONAH or People Can Change (now Brothers Road), either.

A bigger note: Even on the strict law-of-the-case matter, this is going to be a mess. There's been active lawsuits dating back to at least California's SB 1172 in 2012, which was upheld by the Ninth Circuit in 2013, in a case that SCOTUS named and shamed in 2017. There's been a circuit split since 2020's Otto v. City of Boca Raton; cases had reached SCOTUS as far back as 2014, and as recent as 2023, only to have cert denied. 23 states have laws that are near mirrors of this one, another 4 states have partial variants. One was overturned days after SCOTUS granted cert in this case. I... do not expect clarity from the First, Second, Third, or Ninth Circuit in the next year, outright. We might not know for the Tenth Circuit, or just the bounds of Colorado, specifically, in a year.

From a legal realism perspective, it doesn't 'matter'. This specific law hadn't been enforced yet, and indeed (despite that decade-plus legal limbo and wide spread), I couldn't find any clear cases of legal enforcement. If a licensing board was going to pull a therapist's card over this sorta thing, they can readily and rapidly find other fig leafs causes, even while focusing on the exact same therapy.

From a more pragmatic one than even that, though, the court's intransigence seems likely to have a longer-term impact. At minimum, this points to a no-go-zone for a philosophy, and one that's been allowed to sit for well over a decade: whatever natural resistance the psychiatric world might have toward social conservatives, this one there on top of that, and coincidentally no one in good standing with the APA will ever argue in favor of these policies, a note that should be relevant even or especially if they are clearly wrong. Therapists are more law-abiding than average (at least on the job), and even a purely illusory law will lead the marginal therapists to be just that little bit more cautious, even if only in extreme outlier cases.

Thanks for this writeup, an interesting case. I'm sure Kagan regrets that someone like Jackson is going to be her ideological ally until she retires.

Do you see any more interesting cases on the horizon for this term? Do you see anything that's likely to get granted cert this term? Especially any gun cases?

Do you see any more interesting cases on the horizon for this term?

Absolute biggest is the birthright citizenship case, Trump v. Barbara. Probably drops last day of the term, between the late sitting and its controversial nature win or lose. The Trump EO is less obviously crazy than it seems at first glance, and Native Americans needing a separate statute for automatic citizenship is both a good argument in Trump's favor and what should be the correct solution here, but it's literally unprecedented stare decisis issues and I think it ends up with Roberts punting to Congress if anything is gonna change, maybe two dissenters. Other immigration cases are pretty well-known and not hugely likely to be ground-shaking. Noem v. Al Oltro Lado is gonna blow up and also be just embarassingly stupid.

Trump v. Slaughter is the big independent agencies question, and it's kinda a fact-specific mess, but whatever lines it draws are going to be weird and novel and probably impactful, if for stupid reasons. And the media's gonna love the name.

There's a Voting Rights Act case, it's going to Alito unless he pissed multiple other justices off in the last couple weeks (possible; he was trying to throw Robinson to overboard, and with some cause), and it's going to be a massive culture war touchpoint. I'll admit I don't pay a lot of attention to that caselaw, though, and it's possible it vanishes into paroxysms of technicalities. Bost, already released, falls into a similar boat - it's a good thing and important that questionable laws re: voting processes can be challenged, but I don't think the specifics of that case matter much.

For already-argued gun cases, the two big ones are Wolford (Hawaii's "vampire rule") and Hemani ("possession by drug addict" with a ton of other background stuff). Wolford's a gimme and unfortunately also likely to be extremely limited to its four corners as a result -- it's the exact type of law Bruen specifically said not to do, and SCOTUS only granted on the tightest limits of that question -- but Hemani (to my surprise!) is looking like it could be closer or even favorable rather than the pro-gun-control shutout I expected.

Do you see anything that's likely to get granted cert this term? Especially any gun cases?

Likely? Hard to say.

Trans stuff: Foote v Ludlow is getting a lot of relists; it's basically the question in Mirabelli, squarely presented (if in the most culture-war-heavy loading), the lower court decisions were a charlie foxtrot, there's a messy circuit split. But the facts are contested (and not just whether the kid is genderqueer: the school argues that the 'secret transition' policies might not exist, kinda?), and 303 Creative seems to have given SCOTUS more caution on that. But

There's a few qualified immunity / excessive force cases that are popping up, though I'm pretty convinced that's the libertarian equivalent of Lucy with the football, even compared to gun stuff. I think there's a few cert petitions up around voting policies, but I follow those very loosely.

For gun stuff, there's a bunch of them all scheduled for 4/17 now, but that's not really much info. From most to least likely cert (or GVR)...

Hardware cases: Grok has Duncan v. Bonta around 40%, and it's gotten GVR'd before. I'm... not quite so optimistic, given Snope. Still, Duncan (and Gators and Viramontes and Lamont and Higgins, all getting constantly relisted) are in many ways the last real chance to handle this case as a matter of first impression: every circuit that's going to have a hardware ban has something on final judgement coming up or resolved. Anything after this will get much more circumscribed legal and factual analysis, not to mention how much it would radicalize even the moderates post-Snope. Benson in D.C.'s left a circuit split, technically, even if it's certain to get en banc'd? But Benson's ultimately an as-applied challenge, significantly more controversial than any Safe Professional Nice Guy that SAF and such have brought for their carefully farmed cases, and it's DC. As ironic as it would be for Heller's Gun Question to end up before SCOTUS again over a decade later after Heller II, it just would be a weird case to wait for. But Roberts and Kavanaugh may just want to punt forever.

Concealed carry permits: Gardner is a potential sleeper: critical and strictly federal question, extremely gun-friendly facts, and ultimately is trying to throw an innocent woman in prison for not having a license she couldn't even apply to get. But the facts are hugely specific, it's something that could be thrown as requiring a futile expression and remanded, and SCOTUS has ducked on variants of this question before. It's also a major underdog: Gardner had to file in forma pauperis before the normal gunnie sphere even heard about the case, though she thankfully has real representation now.

Public transportation carry: Schoenthal's also up for cert, but it's an even longer shot. The lower circuit opinion cut an absolute hole in Bruen, but it's not even unusually bad on that at this point, and while public transportation is important, it's important in a way that the justices are near-certain to flinch from.

Prohibited persons: there's an absolute mess of them, they're almost all ugly and controversial cases, so I'd love to say zero shot from a court that ducked questions like "are counterfeit cassettes signs of future violence". But there is Hemani. On the gripping hand, the feds have (temporarily) put an appeal and reversal process for federal prohibited persons, so there's even more reason to punt the question here.

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