Legislation Banning Sexual-Orientation Therapy Spurs Litigation

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California Senate Bill 1172, signed into law by Governor Jerry Brown in September, will go into effect January 1, 2013. The law, which bans sexual-orientation therapy, has spurred litigation challenging its constitutionality.

Earlier this month, two federal judges weighed in on cases brought before the US district courts, ultimately delivering distinctly different judgments. The first case, presented by the Pacific Justice Institute (PJI), led to a temporary restraining order preventing California from enforcing the ban on the three plaintiffs until a comprehensive ruling on the law’s merits is established.

The plaintiffs of the case included Donald Welch, a licensed therapist, Anthony Duk, a medical doctor and certified psychiatrist, and Aaron Bitzer, a student who has experienced beneficial sexual-orientation therapy. US District Judge William Shubb, who presided over the case, ruled on December 3rd that the law may impede the 1st Amendment rights of therapists opposed to homosexuality.

The PJI, a non-profit legal organization based in Sacramento, has deemed the ruling a success in its efforts to defend religious, parental, and other constitutional rights. PJI President Brad Dacus remarked on the organizations readiness to continue its efforts,

“This victory sends a clear signal to all those who feel they can stifle religious freedom, free speech, and the rights of parents without being contested. We at PJI are ready to fight this battle all the way to the Supreme Court, if necessary.”

Not entirely at odds, though still conflicting with Judge Shubb’s ruling, US District Judge Kimberly J. Mueller upheld the contested law the following day in the Pickup v. Brown case filed by Liberty Counsel in October. Judge Mueller adjudicated California has reasonable grounds to regulate such medical practices and the law would not hinder therapists’ freedom of speech. On December 7th, Liberty Counsel responded by filing a request to repeal Judge Mueller’s ruling and asked that the Ninth Circuit Court of Appeals block the law before it goes into effect.

The differences between Judge Mueller’s and Judge Shubb’s approaches to the cases and subsequent rulings apply to topics beyond sexual-orientation therapy. When called on to reconcile the judges’ decisions, the Ninth Circuit must determine whether the law regulates therapists’ conduct, as Mueller stipulates, or if it inhibits free speech, as Shubb’s considers it might.