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Colby Cosh: Colorado's progressives probably wish they had a notwithstanding clause right about now

Conversion therapy ban ruled unconstitutional political censorship by U.S. Supreme Court

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On Tuesday morning the U.S. Supreme Court overturned a Colorado law that forbade licensed therapists from engaging in “conversion therapy” with minor patients. Business as usual for those wicked Republican marionettes, some of you will no doubt say. We have all heard horror stories about conservative religious families who hire people to isolate, intimidate and even physically torment kids who have off-label sexual orientations or feelings about gender. But Colorado’s law regulating therapists was very broad indeed — so broad that, in the view of the court, it engaged the First Amendment in an unacceptable way.

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The suit against Colorado was brought pre-emptively, in advance of the law ever being applied, by a therapist who says she approaches minor patients without any preconceptions and uses talk alone, in a private setting, to establish and clarify their own goals. Some of the clients, she says, are convinced of their orientation or gender identity and just need help navigating relationships. Some, however, genuinely want to “reduce or eliminate unwanted sexual attractions, change sexual behaviours,” or learn to accept bodies that they’re uncomfortable with.

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Set aside the possibility that this person is a fairy-tale witch hoping to de-gay and cis-ify Colorado. The question before the court was: assuming her therapeutic practice is actually as she describes it, can the state regulate it? The text of the law not only bans any practice or treatment that has the goal of “chang(ing) an individual’s sexual orientation”; it outlaws any “effort to change behaviours or gender expressions” at all. Justice Neil Gorsuch wrote the majority opinion of the court, denouncing the law as political censorship in the guise of medical regulation, and it was signed by an unsurprising group of concurrers: Chief Justice John Roberts, along with Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett.

The surprise, for those who accept a caricatured view of the U.S. Supreme Court, is that two of the three liberal judges also concurred with the ultra-libertarian Gorsuch. Justices Sonia Sotomayor and Elena Kagan agreed completely with Gorsuch’s logic on the First Amendment issue, and contented themselves with a separate concurrence, holding out the theoretical possibility that a more narrowly written rule might pass muster. States regulating talk-only therapeutic practice could conceivably write “content-based” but “viewpoint-neutral” guidelines that would conform to the Constitution — but Colorado utterly failed to do that.

The score against Colorado was therefore 8-1; only Justice Ketanji Brown Jackson dissented, writing a dismayed diatribe that criticized the majority for abandoning vulnerable Americans and leaving them without state protection in the face of unscrupulous and ill-regulated practitioners. (Her dissent comes in for some criticism in the Kagan-Sotomayor concurrence, exemplifying the schisms that sometimes appear on the court’s rump left — and, of course, sometimes within its right-wing majority.)

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Tuesday’s ruling in Chiles is naturally of interest because Canada has a federal ban on “conversion therapy,” along with analogous free-expression guarantees in its own Constitution. Our anti-conversion law is written differently from Colorado’s, a little, and our free-speech rights are in general guarded more flaccidly than the First Amendment is. But I can’t help observing that we also have a strong federal structure that would allow for … wait for it … the last-ditch use of the derogatory “notwithstanding clause,” if poor Colorado only had access to one.

The critics of the clause are innumerable. Is there one among them, even one, who reads the endless howling liberal reportage about the nasty, dreadful U.S. Supreme Court and thinks “Huh, you know, that odious little Section 33 actually might come in handy one day?” I’ll put my ear to the ground and wait, almost certainly in vain.

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