Conflict in the Courts as Federal Judges Issue Divergent Rulings on Gay Conversion Quackery

Many cheered when California became the first state to ban gay conversion therapy, what is called by its proponents “reparative” therapy (because gay people need to be repaired), that form of quackery that pretends to be able to turn gay people into heterosexuals.

Governor Jerry Brown signed the bill (SB 1172) into law in October.

The ban is set to go into effect on January 1, 2013 and will protect minors from predators like Marcus Bachmann.

That is, if the law is allowed to stand. On Monday and Tuesday, within a 24-hour span of time, we saw two federal judges issue divergent rulings regarding the new law.

On Monday, U.S. District Judge William Shubb, in response to a suit filed by three plaintiffs, issued a 38-page injunction against the ban, claiming that the law might violate the First Amendment rights of anti-gay therapists.

Yes, even quackery is protected by the First Amendment:

“Because the court finds that SB 1172 is subject to strict scrutiny and is unlikely to satisfy this standard, the court finds that plaintiffs are likely to succeed on the merits of their . . . claims based on violations of their rights to freedom of speech under the First Amendment.”

Minors be damned, argued the plaintiffs, a family therapist/minister, a Catholic medical doctor/board-certified psychiatrist, and a former therapy client, who says he is attracted to other men but thinks conversion therapy can “help.”

On Tuesday, U.S. District Judge Kimberly J. Mueller refused to block the ban, saying that there is no reason the that “The court finds there is no fundamental or privacy right to choose a specific mental health treatment the state has reasonably deemed harmful to minors.”

The LATimes reports that,

Citing the opinions of 10 groups that conversion therapy doesn’t work, Mueller ruled that the Legislature and governor had sufficient grounds to enact the ban. A study by a task force of the American Psychological Assn., she noted, found that conversion therapy can “pose critical health risks” to those who undergo it.

“The findings, recommended practices and opinions of 10 professional associations of mental health experts is no small quantum of information,” she wrote.

Mueller’s conclusion was that “The court need not engage in an exercise of legislative mind-reading to find the California Legislature and the state’s governor could have had a legitimate reason for enacting SB 1172.”

But Judge Shubb ruled there was not sufficient evidence that conversion therapy could make its victims commit suicide, that such claims are “based on questionable and scientifically incomplete studies that may not have included minors.”

Perhaps unsurprisingly, Shubb, 74, is a George H.W. Bush appointee. Mueller, 55, was appointed by Barack Obama.

It apparently did not matter to the judge the the American Psychological Association says that, “To date, there has been no scientifically adequate research to show that therapy aimed at changing sexual orientation (sometimes called reparative or conversion therapy) is safe or effective,” and that,

“Furthermore, it seems likely that the promotion of change therapies reinforces stereotypes and contributes to a negative climate for lesbian, gay, and bisexual persons.”

Conservative Christians accuse Democrats of being pro-pedophilia while opponents of conversion therapy stress the psychological abuse of minors. Sen. Ted Lieu (D-Los Angeles), who wrote SB 1172, said of Mueller’s ruling, “On behalf of the untold number of children who can expect to be spared the psychological abuse imposed by reparative therapy, I’m thrilled that today’s ruling by Judge Mueller will continue to protect our children from serious harm.”

Matt Staver of Liberty Counsel somehow manages to claim that,”The California governor and legislature are putting their own preconceived notions and political ideology ahead of children and their rights to get access to counseling that meets their needs.” Patently, Staver needs to take a look in the mirror before he begins to condemn “preconceived notions and political ideology.”

Staver complained, “A number of minors who have struggled with same-sex attraction have been able to reduce or eliminate the stress and conflicts in their lives by receiving counseling of their choice which best meets their needs and religious convictions. This bill will harm children, stress families, and place counselors in a catch-22, because they will be forced to violate their licensing ethical codes.”

But as Judge Mueller pointed out, those seeking help based on their religious convictions were still free, under the law, to seek help from religious institutions as long as licensed therapists were not involved.

The plaintiffs in that case immediately appealed Mueller’s ruling.

California Attorney General Kamala D. Harris said that her office “will continue to protect California minors by vigorously defending this law,” and her spokesperson, Lynda Gledhill said with regard to Shubb’s ruling that, “Our office is still evaluating an appeal.”

As a result of the conflicting rulings, the law will now go before the U.S. 9th Circuit Court of Appeals, which will ultimately decide its fate.

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