Getting it Straight: A First Amendment Analysis of California's Ban on Sexual Orientation Change Efforts and its Potential Effects on Abortion Regulations

I. INTRODUCTIONI had AIDS. I was the only gay person left in the world [be]cause the government found all the other gays and killed them as children and if they found me, they would kill me. It's the perfect way to keep a child or a teen from coming out. We moved on to physical therapy. Physical therapy was my hands being tied down and blocks of ice being placed on my hands. Then pictures of men holding hands would be shown to me so that way I would associate the concept of the pain of ice with a man touching me. It worked really, really, really well. My dad could barely even hug me anymore [because] I would scream out in pain. Then we moved into heat. [C]oils would be placed around my hands and you'd be able to turn the heat on or off. So, now, if we had a picture of a guy and a girl hugging it was no pain. If we had a guy and a guy hugging, we had physical pain. We then went into the month of hell. The month of hell consisted of tiny needles being stuck into my fingers and then pictures of explicit acts between men would be shown and I would be electrocuted. At this point I was com1pletely done. GOD did not want me on this Earth anymore.1This is Sam Brinton's account of his experience with sexual orientation change efforts ("SOCE" or "conversion therapy").2 The purpose of SOCE is to change the sexual orientation of individuals through therapy, though most, if not all, efforts seek to convert homosexual3 persons to heterosexual persons.4 While not all SOCE involves the drastic measures that Sam endured, it remains a controversial therapy and the American Psychological Association ("APA") encourages mental health providers to avoid it.5 In response to the growing controversy regarding SOCE and concern about the potential harm that such therapy may cause, the California legislature banned mental health professionals from engaging in conversion therapy with individuals under the age of eighteen ("SB 1172").6 Any mental health provider that engages in SOCE with a minor thereby engages in professional misconduct, and the licensing board may censure that therapist.7 Within days of Governor Jerry Brown signing the ban against conversion therapy, SOCE therapists, advocates, and organizations filed two lawsuits challenging the constitutionality of the ban on First Amendment grounds and seeking preliminary and permanent injunctions to prevent the law from taking effect.8 Following appeals from the losing parties in both district court decisions, the Ninth Circuit held that SB 1172 is not an infringement of First Amendment free speech rights.9 The plaintiffs-appellants have since filed for a rehearing en banc.10This Comment discusses why the Ninth Circuit correctly determined that SB 1172 does not implicate free speech rights, and analyzes why SB 1172 does not unduly burden the free exercise of religion.11 This Comment shows that SB 1172 survives heightened scrutiny and discusses why the trial court that issued the preliminary injunction in Welch v. Brown erred by reviewing SB 1172 under strict scrutiny.12 Part II provides an overview of SB 1172, addressing the law as well as the legislative intent behind the law.13 Part II also discusses the original lawsuits challenging SB 1172 and the judges' differing decisions on the free speech challenges.14 Finally, Part II presents an overview of the law under the First Amendment, specifically with regard to free speech and the free exercise of religion.15 Part III provides a legal analysis of constitutional challenges to the ban on conversion therapy-the therapists' right to free speech and the minors' and parents' right to the free exercise of religion.16 This section discusses why SOCE is not protected free speech and shows how SB 1172 meets the rational basis test.17 Part III also shows that even if the Ninth Circuit vacated its decision on rehearing and held that SOCE is a form of protected speech, the Court should still only apply intermediate scrutiny-which SB 1172 survives-because SOCE constitutes fraud. …