Constitutional Law

The 11th Circuit Was Right To Strike Down Bans On Conversion Therapy, But It Also Exposed A Great Hypocrisy

Conversion therapy is based on bigoted religious metaphysics, and it can be heartbreakingly harmful, but government compelling or restricting doctor speech also plainly violates the First Amendment.

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Last week a divided panel of the U.S. Court of Appeals for the Eleventh Circuit held that municipal bans on so-called conversion therapy violated the First Amendment’s guarantee of free speech. Specifically, the panel recognized these bans as a form of content- or viewpoint-based restriction. Although many, like myself, no doubt view a therapy designed to “convert” LGBT citizens as bigoted, and therefore, highly controversial, the Eleventh Circuit correctly notes that “the First Amendment has no carveout for controversial speech.” In other words, even the most hateful and revolting viewpoint is nevertheless covered under the First Amendment’s guarantee. With this decision, however, the Eleventh Circuit has created a circuit split. Although the case is therefore likely to go before the Supreme Court to settle the split, as others have noticed, the tangled nature of the issue makes the ultimate outcome far from certain.

It would be too easy to say that a religious conservative supermajority Supreme Court will, of course, declare that conversion therapy — which is derived from a far-right religious view of homosexuality — has First Amendment protection. The problem for conservatives is that using this reasoning puts into question the conservative policy of government compelling doctors to make religious antichoice speech and desired conduct in cases of abortion. For those who may not be aware, religious conservative legislatures have passed laws compelling doctors to make women undergo unnecessary, emotionally disturbing, and downright humiliating procedures in cases of abortion. It is difficult to square how the government compelling doctors to declare anti-abortion viewpoints does not disturb First Amendment guarantees, yet so-called bans on “conversion therapy” amount to government impermissibly compelling a viewpoint.

Blatant contradiction and government favoritism, however, are parts of modern Supreme Court First Amendment doctrine. Navigating this minefield is either going to be increasingly difficult for the Supreme Court to justify, or with a new super-conservative majority the court will simply abandon all pretenses of applying the First Amendment objectively. The only certainty is these types of cases involving First Amendment claims against government-mandated medical practices will keep coming up in courts. For example, I have no doubt that when COVID-19 vaccines become available many businesses as well as local and state governments will require mandatory vaccination in order to return to work or to places like public school. I also have no doubt that many religious citizens will bring claims arguing that mandatory vaccination of any form encroaches on First Amendment guarantees. Of course, the Supreme Court has long recognized the authority of state police power to impose mandatory vaccination necessary to protect the health of residents. The only question is whether a new super-conservative majority will continue to carve out exclusive exemption for or favoritism of religious conservative viewpoints.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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