National Review Online
Tuesday, March 31, 2026
The power of government to regulate the professions,
especially in medicine and law, has created a lot of levers to enforce
conformity. That power can be exercised openly through lawmaking, and more
subtly by delegating licensing and disciplinary powers to quasi-public cartels
run by the professions themselves. In Chiles v. Salazar, the Supreme
Court struck a blow against the use of those powers to dictate orthodoxy and
stifle disfavored opinions. Still more encouragingly, Justice Neil Gorsuch’s
ringing opinion attracted a lopsided 8–1 majority, with only Justice Ketanji
Brown Jackson in dissent.
Chiles arose from yet another effort by Colorado
to ban dissent from “LBGTQ+” ideology, which was yet again defeated by a legal
team from Alliance Defending Freedom. A state law bans licensed counselors from
engaging in “conversion therapy” with minors, on penalty of fines and loss of
license. The law is flagrantly one-sided: It applies only to therapy
that aims to resolve gender dysphoria or to reduce homosexual attraction, while
permitting state-favored counseling in favor of gender transition and
homosexuality. It is coercive and destructive of parental authority: While blue states have schemed to let public schools “socially
transition” kids without telling their parents, Colorado won’t even let the
disfavored therapists talk to minors when both the minor and the parent
consent. It is speech-specific: Unlike red-state bans on irreversible surgeries
and puberty-blocking drugs, the law applies to purely talk-based therapies. And
it is harmful as well: Most children and teens suffering gender dysphoria can
outgrow the problem and learn to live in their bodies; talking through their
problems can help.
The Court called this what it is: discrimination against
a particular viewpoint. As Gorsuch wrote, “Colorado may regard its policy as
essential to public health and safety. Certainly, censorious governments
throughout history have believed the same. But the First Amendment stands as a
shield against any effort to enforce orthodoxy in thought or speech in this
country.” Even Justice Elena Kagan, joined by Justice Sonia Sotomayor,
emphasized that “the case is textbook. The law distinguishes between two opposed
sets of ideas—the one resisting, the other reflecting, the State’s own view of
how to speak with minors about sexual orientation and gender identity.” To
Kagan’s credit, she added that this is just as bad when her own side does it:
“It does not matter what the State’s preferred side is.” Justice
Jackson, who opened by urging that there is “no right to practice medicine
which is not subordinate to the police power of the States,” could use a
remedial course on that score.
The majority didn’t just strike down a one-sided state
rule on speech. It also rejected the theory that licensing boards and “experts”
can dictate terms to the rest of society on controversial questions. To the
state’s effort to characterize therapist speech as “conduct,” Gorsuch rejoined:
“The First Amendment is no word game. And the rights it protects cannot be
renamed away or their protections nullified by mere labels.” To the state’s
appeals to the power to license professions, the Court responded, “Whatever
traditional interest a State may have in ensuring a professional possesses a
particular set of qualifications, that interest does not automatically entail a
right to dictate a professional’s point of view.” And to the state’s appeals to
medical “experts,” the Court reminded us that “medical consensus . . . is not
static; it evolves and always has. A prevailing standard of care may reflect
what most practitioners believe today, but it cannot mark the outer boundary of
what they may say tomorrow. Far from a test of professional consensus, the
First Amendment rests instead on a simple truth: The people lose whenever the
government transforms prevailing opinion into enforced conformity.”
Colorado’s brazenness made this an easy case; Kagan
observed that “if Colorado had instead enacted a content-based but
viewpoint-neutral law, it would raise a different and more difficult question.”
Winning the easy cases, however, is the necessary first step. And the Court’s
skepticism of white-coated censors bodes well for a culture in which it is
legal to speak the truth.
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