We Shall All Be Healed (part three)
My original draft title for the series was “Deadname and Wolverine”, which is probably in bad taste but I’m pretty proud of it and wanted you to see it.
Part One
Part Two
Part Three (you are here)
Part Four
Part Five
Something important to remember about Catholic Charities v. Whitmer is that it was filed in federal court, to settle a question of constitutional law. The argument from the plaintiff’s is not about the interpretation of a specific statutes and which parts of the law apply and which don’t; the argument is that the entire law violates the United States Constitution. There are six specific constitutional arguments in the original complaint, and at least five of them are terrible.
The five claims I consider terrible are the First Amendment ones; the Fourteenth Amendment claim is perhaps less terrible, but we’ll get there in a minute. I don’t see this as a legitimate First Amendment case, because this isn’t a criminal case and it doesn’t involve a criminal statute. Emily McJones, or the therapists at CCJLH, will not go to jail under HB 4616 if they attempt to practice conversion therapy on minors. They could, instead, be found in violation of Michigan’s Public Health Code and subject to professional penalties, the most severe of which would be a permanent loss of their license, as determined by a state disciplinary subcommittee. Which is not, counter to the original complaint, a loss of constitutional rights. Now, my opinion is that banning a certain practice within a professional licensed field, as a requirement for avoiding sanctions and similar penalties, seems like a perfectly reasonable thing for the state to do, without violating a citizen’s constitutional rights.
But that's not just my opinion, it’s the opinion of the federal Ninth Circuit, who already decided the specific question “do bans on conversion therapy for minors count as violations of the First Amendment?” in the 2013 case Pickup v. Brown. The first statewide ban on conversion therapy for minors came over a decade ago in California, and practitioners of conversion therapy sued the state (“Brown” is then-Governor of California Jerry Brown1) and made exactly the same arguments that the plaintiffs are making now in Catholic Charities v. Whitmer; the Pickup case also argued that “SB 1172 [California’s conversion therapy ban] violates the First and Fourteenth Amendments by infringing on SOCE [conversion therapy] practitioners’ right to free speech, minors’ right to receive information, and parents’ right to direct the upbringing of their children. They also argued that SB 1172 is unconstitutionally vague.” It’s the same! It’s all exactly the same! And honestly, that’s a relief for me, because I’m not an attorney and don’t really understand the law at all, so I was thrilled to see that my exact legal questions had already been decided by a federal judge eleven years ago and everything was already written down for me. The takeaway that had already been conveniently written down for me was this:
“Plaintiffs were unlikely to show a violation of the SOCE practitioners’ free speech rights or the minors’ right to receive information. As for vagueness, the court ruled that the text of the statute is clear enough to put mental health providers on notice of what is prohibited. Finally, the court ruled that SB 1172 does not implicate parents’ right to control the upbringing of their children because that right does not encompass the right to choose a specific mental health treatment that the state has reasonably deemed harmful to minors.”
Specifically, California had a strong interest in regulating mental health care in their state, which outweighed free speech concerns, and that laws like SB 1172 and similar regulations were “not adopted because of any disagreement with psychoanalytical theories but for the important purpose of protecting public health, safety, and welfare.” There would be legitimate free speech concerns for mental health professionals if they were making public statements to contribute to public discourse, but they aren’t allowed to just say whatever the hell they want when they’re treating a client. While there are some good one-liners and citations in the opinion like “A doctor may not counsel a patient to rely on quack medicine. The First Amendment would not prohibit the doctor’s loss of license for doing so,” or “[T]he First Amendment . . . does not insulate the verbal charlatan from responsibility for his conduct”, the most succinct statement of the case law is this:
“The First Amendment tolerates a substantial amount of speech regulation within the professional-client relationship that it would not tolerate outside of it. And that toleration makes sense: When professionals, by means of their state-issued licenses, form relationships with clients, the purpose of those relationships is to advance the welfare of the clients, rather than to contribute to public debate.”
We’re supposed to be dealing with professionals here! Lawyers also lose their law license if they repeatedly try in court to blame crimes on magical elves! They won’t go to jail for it, but they won’t be taken seriously as lawyers either! So they can go on the street corner and talk about the magical elves all they want! That’s what’s at play in Catholic Charities v. Whitmer as well. In fact, it’s almost exactly the same set of claims, which were already decided. Under current federal case law, the CCJLH therapists and Emily McJones are more than welcome to meet with people struggling with their sexual orientation or gender identity and tell them “have you tried being not gay?” in their personal capacities. They can stand on a street corner and yell “HAVE YOU TRIED BEING NOT TRANS” at any passerby that they assume are transgender by making bizarre assumptions about dress and gait. They will not face any criminal penalties for doing so, ever. But they can’t do these things on the clock, while working as a professional in a regulated field which often comes with life-or-death stakes. If they do, they still won’t face any criminal penalties, but they may find that they have made some career-limiting moves. If I say stupid things while I’m working, I also may face professional consequences; for example, I can’t yell slurs at my coworkers (and that’s fine, I would never want to do that to any of my non-Italian coworkers), and if I did yell slurs at my coworkers and got fired, I couldn’t cry “free speech”. That’s not what free speech is.
At the time of this writing, there were also two amicus briefs filed on behalf of the plaintiffs. One is from David Wiedis of “Serving Leaders Ministries, a Christian ministry that provides counseling services to pastors, ministry leaders, and their families to help them deal with the pressures of ministry and the devastation to families and churches that results from the lack of pastoral care for ministry leaders.” The bulk of the brief speaks to the benefits of integrating religion into talk therapy, in support of the plaintiffs’ claim that HB 4616 threatens their free exercise of religion. The second amicus brief is from conservative think tank Ethics in Public Policy Center, which appears to argue that the science on conversion therapy is not settled (it is), and that transgenderism might be harmful and possibly made up (the research cited in the brief includes several pieces we discussed earlier this week that have already been debunked). Neither brief contributes to that key question on whether this is really a first amendment issue at all.
The sixth claim in Catholic Charities v. Whitmer was more interesting to me; namely, that HB 4616 was too vague and could be capriciously enforced. I thought there was something to that, mainly because it would be kind of difficult for me, your average Dumb Guy Who Tries to be Moral, to determine what is and isn’t conversion therapy. But that was also covered in the Pickup v. Brown case:
“Considering that SB 1172 regulates licensed mental health providers, who constitute “a select group of persons having specialized knowledge,” the standard for clarity is lower. Indeed, it is hard to understand how therapists who identify themselves as SOCE practitioners can credibly argue that they do not understand what the ban on SOCE prohibits.”
The plaintiffs in Pickup included the National Association for the Research and Treatment of Homosexuality, which explicitly marketed itself as the place to go for conversion therapy, so the Ninth Circuit found their vagueness claim hollow. It’s unrelated to the merits of the case, but Pickup was also decided three years after one of NARTH’s high-profile advisors, George Rekers, had gotten caught taking a male sex worker on a ten-day European vacation, which I’m only bringing up here because it’s very funny. McJones and CCJLH might have more of a shot here than NARTH did, if only because they clearly practice faith-based therapy with a broad range of clients with a broad range of treatment needs, so they can more credibly claim that they don’t know where the line is; as we discussed yesterday, though, this then undercuts a more important claim in the case, that HB 4616 threatens to wipe out their entire business.
And even then, HB 4616 and SB 1172 both only ban the practice of conversion therapy on minors. All of the plaintiffs we’ve looked at can keep doing all of the conversion therapy they want as long as their clients are 18 or older, further undercutting the idea that these bills could chill their speech and destroy their business. As the Pickup case pointed out, if the ban on conversion therapy was meant to be a blanket ban on speech, it sure left room for a lot of speech, making targeted, bigoted, anti-Christian enforcement seem much more difficult:
“SB 1172 does not do any of the following: Prevent mental health providers from communicating with the public about SOCE. Prevent mental health providers from expressing their views to patients, whether children or adults, about SOCE, homosexuality, or any other topic. Prevent mental health providers from recommending SOCE to patients, whether children or adults. Prevent mental health providers from administering SOCE to any person who is 18 years of age or older. Prevent mental health providers from referring minors to unlicensed counselors, such as religious leaders. Prevent unlicensed providers, such as religious leaders, from administering SOCE to children or adults. Prevent minors from seeking SOCE from mental health providers in other states.”
So everything works out, the plaintiffs lose, and that makes sense to me. But here’s the most interesting part of the whole thing: the plaintiffs in Pickup did appeal again to the Supreme Court, who declined to hear the case and let the California ban remain in place. Now, we have a different Supreme Court in 2024 than we did in 2013, and we all know that the new one is way worse, even with Scalia being dead now. In fact, the 2018 Supreme Court expressed some skepticism towards the Ninth Circuit’s argument in Pickup, citing that case and writing that “this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.”” The Supreme Court was looking at different First Amendment questions at the time and didn't really spend too much time on Pickup, but if Clarence Thomas was able to write that and get four other justices to sign on to it, it doesn’t surprise me that conservative attorneys - and we’ll get to them later this week - would try to take another swing at overturning conversion therapy bans and appeal all the way back up to a Supreme Court that looked a lot more likely to take their side than they were ten years ago. Maybe that's what's going to eventually happen here, I don't know. It would take a couple of years, but it's easy to see the series of events where a local chapter of Catholic Charities brings about the Supreme Court case that eventually rules that conversion therapy is good and cool, and that we can in no way stop doctors and therapists from doing it if they want to, and if they do want to do it, you have to let them keep their licenses.
That can't possibly be the whole ball game, though, right? A Catholic organization and a Catholic therapist are just so sick of gay and trans children that they will get a lawyer and go to federal court, all to claw away for themselves some sort of right to tell children to stop being gay and trans in a clinical setting? They're that desperate to do it, even though it goes against all of the standards and research of their profession, even though it doesn't even seem to be that critical to their business, even though it requires legal arguments that were already tried and rejected eleven years ago? They just want to do it anyways? Is this motivated by anything other than spite or fear felt towards gay and trans people?
Obviously, I can't answer that, I can't get inside these people's heads. What I will say is that it certainly seems consistent with our church's relationship to legislative and judicial processes over the past decade.
Brown and the state were represented in court by the office of the California Attorney General, which at the time was headed by a woman named Kamala Harris.