Chiles v. Salazar

Hey everyone, this is Leon from Prologue Projects. On this week's episode of 5-4, Peter,

“Reannon and Michael are talking about Child's V Salazar. A case that was decided just a few weeks ago”

in ruling the challenges Colorado's 2019 law banning therapists from trying to talk gay, trans and queer minors into becoming straight. As you hear, case was brought by a therapist who had teamed up with a right-wing nonprofit to argue that the Colorado ban on conversion therapy and

infringed under first amendment rights. The central question in the case was whether or not a state

can regulate the speech of a talk therapist. And in an 81 decision, the court ruled that the issue required so-called strict scrutiny, which means the case now goes back down to the lower court or intensive review that presumes the law and question is unconstitutional. And would likely lead to it being struck down. This is 5-4, a podcast about how much the Supreme Court sucks. Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have sent our civil

rights to the far side of the moon, like the Artemis spacecraft. I'm Peter. I'm here with Reannon. Hey, everybody. And Michael. I love spaceship. I do. I eat that up. I think it's so cool. It's cool. And I guess it's the Artemis, too. Yes, the Artemis. We tried to grab onto the

one bit of good news that has happened all year for the metaphor this week. It's been cool.

I watched a new segment about how they can't get farce out of the space shuttle. There's no way. You can do like scrubbing technology, but like inevitably space shuttles all become filled with farts. They smell like farts. Yeah. Yeah, and so it's just like a just a big farty little spaceship. We can go to the far side of the moon, but we can't get farts out of the spaceship. That's correct. I mean, that- Well, that's just like ruins. You know, as a kid,

“I wanted to be an astronaut. Yeah, you're like, not anymore. Well, you have to the keys to be the”

one with the worst farts. That way, it's like kind of funny, right? That way, it's something you're doing to everyone else. Right. That way, you're bullying people. Yeah. That's right. So, yeah, you served your dominance in the- Yeah. I wanted to be one of those things where like the president is interviewing you, right? And he's like, how is it going? And everyone's like Peter's ruining it. Peter's ruining it with his terrible farts. There's a video going around

today of Pete Heggset that just rip and farts at the podium at a press conference. But it's like not real, but it's very funny. You wish it were real. Yeah. Yeah. Well, there's been just to go on it. Another far-related tangent there. There are- There are long-band rumors that President Trump is losing control of his faculties. Yeah. He just smells like shit. He just smells like shit. He's - It's like a B-shed, D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D-D.

- B-B-shedding, and every room needs the end. - I just hope that's true. - Oh, it's true in my heart at the very least.

- There's always a tell all that comes out of every presidency, right?

And I want the Trump one to focus primarily around the fact that he's shooting his pants all the time. - This is not hard to believe, I believe that. - There's a video a few weeks ago, maybe a month ago, where he was talking, I think he was in the oval office, and you can hear, with sounds like a very wet fart, and you can see somewhere behind him be like, huh? - Make like a little face and look at him and then the press conference ended, like very abruptly after that.

“- Right, remember that. - Right, remember that.”

- It's like, "Oh, if you shut his pants." - Our producers just wrote us a note. "Is there a gassy Supreme Court Justice?" "Thank you, Alley, for trying to tie this into the Supreme Court." - Yeah, she said, "Bring a home, y'all, bring your home." - I think Claire, thanks for not just writing, move on, please.

Please stop this, just pass this stuff. We don't have a gassy Supreme Court Justice anymore. It used to be Breyer. - It was Breyer, right? - Right, right. - Take a shit during oral argument. - Which is so cool, dude. - During COVID, yeah.

- You got to hand it to him for that one. - Yeah. - The absolute audacity to be like, "I'm gonna take a shit." - All right, this week's case works. - Child's V Salazar, it's a case from just a couple of weeks ago about conversion therapy. A conversion therapy, of course, pseudo-scientific therapy intended to convince a gay or transgender person

usually a child that they are, in fact, not gay or transgender. - Mm-hmm. - Colorado has a law that prohibits licensed therapists from doing conversion therapy

- Yeah. - Made up bullshit, right, but an entrepreneurial homophobic therapist challenged a lot,

saying that it violated her first amendment freedom of speech.

“She wanted to tell these kids switch back, you know?”

- This is her right. - Yeah. And this Supreme Court, in an eight to one decision, eight to one, says she's got a point. - Yeah. - Kaylee. Kaylee. - Kaylee child. - Kaylee child. - Kaylee child. Kaylee. Kaylee wants to be a therapist. - Imagine having a therapist named Kaylee.

- I'm good. You know, I'll figure it out myself. - I'm gonna go ahead and walk myself back from the ledge. Thank you so much. - Yeah. Yeah. All right, before we get into Kaylee, this fucking clown-ass piece of shit asshole loser.

“Let's talk about conversion therapy. I'm sure listeners know this, but like Peter said, conversion therapy”

is defined broadly as a group of so-called therapies, right, different methods of giving this kind of therapy. But it's a therapy that seeks to change an individual's sexual orientation or gender expression. Like Peter said, conversion therapy when it's used is often used against used to harm children, right, because it's usually family members, parents, guardians who are trying to intervene on, you know, a child's expression of their sexual orientation or their gender identity.

Conversion therapy broadly known in the science in the literature on therapy as harmful. This is dangerous to children. You know, overall bad, we'll talk about some stats and associated, you know, kind of like the research on conversion therapy in just a little bit. So Colorado, along with many other states in the past, I would say decade or so, but in Colorado's case, it was in 2019, the state banned conversion therapy for children.

The act, quote, prohibits a licensed physician specializing in psychiatry or a licensed certified or registered mental health care provider, from engaging in conversion therapy with a patient under 18 years of age.

The Colorado law defines conversion therapy basically how I just did efforts to change an individual's sexual orientation,

including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings towards individuals of the same sex. Colorado passes this law and it looks like the 23 other states and the district of Columbia that have passed similar laws. It has this ban on conversion therapy for kids, but it also gives a religious exemption. There's a religious exemption in the law that says, yeah, mental health providers, licensed mental health providers,

can't do conversion therapy for kids, but not religious counselors. State of Colorado doesn't have anything to say about how a religious counselor might give their counseling. So Colorado passes this law and in comes Kaylee Childs, a licensed counselor in Colorado, and she's filing a lawsuit pre-enforcement. The law hasn't gone into effect, and Kaylee Childs is already filing a lawsuit,

saying wait a minute, this is viewpoint discrimination, this is against my first amendment right,

to give talk therapy with my own personal viewpoints without any hindrance from the state of Colorado.

“Now, why would Kaylee Childs have this lawsuit ready to go pre-enforcement, right?”

Well, just one step behind Kaylee Childs, who's behind her, but the ADF, the alliance defending freedom that fucked up conservative legal organization that has astroturfed cases going up to the Supreme Court all over the country. But importantly, listeners will remember, the ADF is also the organization that engineered 303 creative. The case about the supposed web designer who was asked to make a wedding website for a gay couple, and another Supreme Court case, Masterpiece Cake Shop, which was about a baker who was asked to make a cake for a gay couple.

Now, not only has alliance defending freedom, astroturfed and basically Lego built all three of these cases along with many more, but just to note that this is like homophobic transphobic bullshit in terms of Supreme Court cases, specifically astroturfed by the ADF, those three also all came out of Colorado. Weird shit that the ADF is up to in that state. So, let's talk a little bit about Kaylee Childs, this perfect little plaintiff that the ADF found and used to take this case all the way up to the Supreme Court to challenge conversion therapy bands for minors.

So, she doesn't even really do like kid therapy, right, like how often has this come up in her therapy, if at all, I actually really doubt it. She says in the case in the briefing that she's a practicing Christian who views her career as an outgrowth of her faith. She says she doesn't quote try to help her patients, change their attractions, behavior or identity.

She believes instead that her clients can accept the bodies that God has given them and find peace, okay.

So, like, I'm not trying to change them because I don't believe that what they have is legal. I don't believe that being gay is real, I don't believe that being trans is real, so. I don't think that was in her, you know, her course work. That doesn't necessarily doubt it. I highly doubt it, but yeah, whatever her website and, you know, her sort of like public pronouncements throughout the case are, you know, all these Christian girl autumn quotes or whatever, but she also just wrote an op ed for Fox News.

“Obviously, we know we're covering this case on this podcast, the monster wins. She fucking won, right?”

And right after the case comes down, she writes an op ed for Fox News folks, not only celebrating and praising the Supreme Court and saying, you know, this was the right decision.

And I won, and this was my first amendment, right? And blah, blah, blah. But says quote, this victory calls for further action.

I'm just going to conclude with counselors to rethink gender ideologies claim that it's possible to be born in the wrong body and to recommit to protecting young people. She goes into supposed research that says that gender dysphoria is basically just a phase, just a passing thing that kids go through and actually gender affirming care leads to children doing harmful drugs and getting surgeries that have no proven benefits. So this is who this woman is.

“Maybe I'm getting ahead of myself here. But I thought this is about her free speech, right?”

And all of a sudden, she's like, actually, the course of care that I'm recommending is the only responsible one.

That's right, exactly exactly. So this is who this person is taking a case up to the Supreme Court. We're completely astro-terfed by some of the worst actors in the legal system in this country, the Alliance defending freedom and it gets ping ponged up and down the appellate system until it lands here at the Supreme Court. All right. Let's talk about the law here. The fundamental legal question is about free speech, right? Say things to their patients. So is the government allowed to regulate what they say or is that an unconstitutional violation of free speech or somewhere in between?

“There's really no question that this law regulates what a therapist can legally say. It is a restriction on their speech, right?”

But what kind of restriction is it? Right. The court scrutinizes certain kinds of restrictions more than others, specifically the big question is whether this qualifies as viewpoint discrimination. If a law treats different viewpoints differently, that is considered viewpoint discrimination and is presumptively unconstitutional. Neil Gorsuch writes the majority here. He says that this is viewpoint discrimination. The law forbids any therapy aimed at changing someone's sexuality or gender identity, but does not forbid affirming someone's sexuality or gender identity.

That is viewpoint discrimination and therefore it is presumptively unconstitutional per Neil Gorsuch. I think at a glance you might think that makes sense that the therapist is allowed to say one thing, but not another. Therefore, the law is discriminating based on viewpoint. The problem with that, where this gets thorny, is that a therapist isn't really expressing viewpoints in the traditional sense, right? They are providing medical care. Yes. Therapy isn't really an expression of the therapist believes the therapist is obligated to provide counsel with the goal of improving the patient's condition.

Right? Yes. So Gorsuch himself starts off this opinion by quoting the plaintiff who says that she does not quote impose her values or beliefs on her clients. When she says this, I feel like she is conceding the central point. She's saying, "Look, I'm just offering therapy. I'm not imposing my beliefs, but if you're not trying to impose your beliefs, if you're not offering up your beliefs, then you're admitting that it's not really a meaningful first amendment issue."

Yeah.

Then it's not speech that's like contemplated in the first amendment to be protected from government intrusion.

“Right. You know, when a doctor suggests that you take a couple of Tylenol, they might be expressing their viewpoint in a sense, right?”

But not in a way that implicates the first amendment, right? They're not expressing a personal belief in the same way that someone who's holding up a protest sign is or something like that. Right? Talk therapy isn't exactly the same, but it's very similar in the sense that the therapist goal is not to express their views. It's to help the patient, right? Right. So think about the Pandora's box that this is opening up. States regulate the so-called speech of medical professionals in all sorts of ways. Just as Jackson brings up a couple of good examples in her dissent, many state laws prohibit doctors from encouraging suicide. They prohibit doctors from telling anorexic patients to eat less.

These rules also discriminate based on viewpoint, right? If you believe them majority, the idea to be a little technical is that these laws are prohibiting substandard care. Right. If that's all viewpoint discrimination, it makes it really difficult to prohibit substandard medical care, especially in the therapy context. Right. Now, Gorsuch does not really have a good response to this. What he says is that this functionally creates a first amendment free zone where the state can just escape the first amendment by labeling things, substandard care, right?

And that's why he doesn't like this whole idea that like the medical profession is sort of like outside of the protection of the first amendment.

“Right. But I think that sort of dodges the issue, which is that if states are allowed to regulate medical care at all, right?”

They need to be able to declare some care to be substandard, right? If they can't do that, they can't really regulate medicine effectively. Any professional licensing, right? Like we as lawyers like have ethical obligations, right? Like certain certain things that we can't say in court, right? It's to the judge that we can't say to clients, you know, all of these things. It's my first amendment, right to subborn per tree. Sorry. Right. Right. There are standards.

I will say you should be allowed to curse the judge off.

I don't want to get sidetracked here, but it's like it's a first amendment issue when this lady is trying to do weird abuse of shit to children.

But I can't tell a judge to fuck off when he's being rude.

“Yeah. Yeah. No. It's fucked up. No. And I think like what this really highlights, what's going on here, what they won't say is that at least for the six conservatives is that they just disagree with what the medical consensus is.”

Right. They disagree that trans identity is a real thing that that that it's good and helpful to affirm trans and gay and queer identities, right? Just disagree. And they don't like it. They don't like that they don't get to say. They don't get to put their finger on the scale here, right? Because they're crystal fascist tricks. Now, there is one glaring example of the courts hypocrisy that again gets raised by the dissent. And it's in planned parenthood VKC, the case about abortion rights from the early 90s, that case held up informed consent laws.

And informed consent laws are these laws that require doctors who are giving providing an abortion to basically recite to the person receiving the abortion or planning to receive the abortion, the risks of the abortion. Except not recite the actual risks as the doctor understands them, but as the, you know, as the state is mandating, right? Mandatory statement by the doctor when providing certain medical care. So this gets this seems like a pretty obvious contradiction. Why is this therapist not being allowed to do conversion therapy free speech issue, but the state can require doctors to read a statement about the risks of abortion, right?

Gorsuch is response to this is a little bit technical. I'm just going to explain it. I don't think it makes sense if you understand it. But he says, well, that's different because it's not just speech. It's incident to conduct. It's because the abortion is like a real like a physical medical procedure, right? The speech is sort of like tied up with that in a way that makes it less of a speech issue incomprehensible. There are several times where he was making his little arguments that I was like, what the fuck are you talking about? Like you're just saying words, dude.

That's also, especially in the trans context, let me tell you where that speech sometimes leads, right?

Usually in First Amendment jurisprudence, it's worse to make someone say something.

Overshadowed is to prevent them from saying something, right? That doesn't get factored in here. The other lingering question, which listeners may have thought of by this point, is whether this would make malpractice by therapists basically protected by the constitution, right? Yeah, because she received substandard care, doesn't it? Medical professional is now protected by the First Amendment. Right, and Gorsuch says that it wouldn't, his reasoning, again, is just nonsense.

“He says like, well, that's different because in a malpractice case, you have to prove damages, which quote provides breathing room for free speech.”

But with this law, you get fined just for speaking without anyone having to show damages.

The implication here is that Colorado can't ban conversion therapy because it's protected by the First Amendment.

But you could maybe sue if a therapist does it? This is bizarre. You have a First Amendment right to commit a tort, essentially. I do not understand it either speech is protected by the constitution or it is not. Right, it's just nonsensical to me. And I think what's happening is that when you try to apply the First Amendment to medical care like this, the whole framework for state regulation of medical care just starts falling apart and grudge is just trying to like hold it together with his hands and some duct tape and tell you that it's fine.

Right. Yeah, I feel like what's that issue here, but like what nobody is really talking about, even if you disagree with the majority as we do. But there's a sort of tension between the state's power to regulate medical care and medical procedure and that kind of thing

and the First Amendment that like this tension actually doesn't need to be there, right?

Like there's a sort of mass societal benefit to the state being able to regulate medical care in this way, which does mean restricting some forms of speech because that's better for everybody in society, right? But what you see here with like over-waying or like over-emphasizing or or boosting the importance of the First Amendment on these scales is that you see conservatives discount the collective benefit of the state's regulatory power. The collective benefit to society as a whole and prioritize the right of a single individual over all of that, right?

“And that's what's that tension here, but like isn't really discussed.”

Yeah. One last thing to point out here is that Gorsuch makes it clear that this only applies to talk therapy. It does not apply to any physical conversion therapy techniques, right? Things like shock therapy, right? Because those are conduct rather than speech.

This is so bizarre. Now obviously this is good, right? Because at least some forms of conversion therapy are remaining restricted. Sure. But I don't know if this logic actually follows because if you're saying that a therapist providing care is expressive in the First Amendment context,

I don't see how other forms of care aren't the same thing, right? Like if I think as a doctor that a certain surgery would help you isn't performing that surgery the way of expressing that viewpoint, right? Obviously this is silly, but I think this is where the opinion should lead, right? If you're being intellectually honest about it, right?

“If what you're saying is that my medical opinion about what care you should receive is like a First Amendment issue, right?”

Then I think it should carry over into physical care. But of course it just says no, that's different. Yeah, they can be very forgiving about what counts as expressive conduct in other scenarios, right? When it comes to religious liberty, it's like providing your employees insurance that covers Birth Control is based. Is making a website not conduct like that?

When they want to, they can be like, if you squint in really try to see it, that's expressive. That's that's right. And other times they're like, no, right? Because they're unprincipled hacks, right? Like, yeah, I do love the idea of like surgery as a First Amendment thing.

It's like I have a constitutional right to do the surgery on you. And we were talking about this earlier, but this is funny. This case seems to provide doctors with like a First Amendment basis for providing you with medical care. But you don't actually have anything in the Bill of Rights that would allow you to refuse medical care, right?

Because of what they've done to the 14th Amendment, where substantive due process is hollowed out,

“you're right to like bodily autonomy doesn't really exist in the Constitution, right?”

Yeah. But doctors now have constitutional rights to fuck up your shit. The last thing we should clarify here is that this case does not technically strike this law down. What it says is that it is subject to strict scrutiny.

It says this is viewpoint discrimination and a law that engages in viewpoint discrimination must be subject to the highest level of scrutiny.

So it is presumptively unconstitutional, but they kicked it down to the lower court to make the final determination. So it probably will get struck down.

“I think it's as good as dead at this point, but technically they did not strike it down.”

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Secure your online data today by visiting expressvpn.com/54, that's five four all spelled out. That's exprsvpn.com/54 to find out how you can get up to four extra months expressvpn.com/54. Moving on to the other opinions here, there's a concurrence, we'll talk about Jackson's really great descent. Peter mentioned at the top, this is an eight to one decision, meaning two liberals. Elena Cagan and Sonia Sotomayor joined the majority in the holding that this is unconstitutional viewpoint discrimination and Cagan writes a concurrence that Sotomayor joins this concurrence, it's very short.

Most of the time, Cagan is talking about why she agrees that this is viewpoint discrimination and the court's holding is correct, and then says right at the end that she's writing separately to just make this point to make a small point, which is, if this was a different law at issue in Colorado, then it would be a different case, and it would be a different question that the Supreme Court doesn't need to get into today.

That would be more complicated, she says, and quote, full consideration of that question can wait for another day, we need not here decide how to assess viewpoint neutral laws, amazing thanks Elena, thank you so much. I think that she's trying to do a thing that's like, you could write one of these laws in a neutral way, right, like as a sort of message to the states, right, like maybe there's a way around this, but how do you do, how do you for bid substandard care. New in a neutral way that the Supreme Court and you Elena Kagan are defining as a, as the expression of a viewpoint, right, the fundamental problem that the majority hates is that there's a lot of research and medical consensus that certain viewpoints are harmful to patients and certain viewpoints are helpful to patients and that that's it that's just that that's all there is to it.

Kagan wants to like wish that away and pretend like we can get around that, but if you want to provide helpful care that's in line with the medicine with the medical consensus and with the science, like that's going to be, that's going to necessarily require. Right, and if you want laws mandating that, those laws are going to discriminate based on viewpoint, that's just the way it is, there's no way around that right, and it's this really fucked up like again definition and confusion of what view point and the expression of ideas and what expressive conduct is, you know, Kagan says, for example, if the first amendment prohibits anything, it is the official suppression of ideas, this isn't the expression of an idea.

“The service, it is the delivery of medical care, right, like, she goes sort of like high in mighty and witty, you know, real elevated language about viewpoint discrimination and the importance of of protecting against, you know,”

the state doing viewpoint discrimination, she says a law drawing a line based on the ideology of the speaker, disadvantaging one view and advancing another, excuse the marketplace of ideas or society depends on to discover truth. Everything is the marketplace of ideas. Yes. Also, sometimes the marketplace of ideas is in the past and we made a purchase, we purchased the best one, you don't experiment on kids in a medical context in the marketplace of ideas.

“We saw somebody say this online and I think it's so on point, right, it's such a lawyer and judge brain thing to do, which is to just count all conduct as something that happens in the marketplace of ideas, right,”

civil discourse or society supposedly holds so dear, right, and this is just not the case, it's an appointment with a medical professional, right, some fucking therapists telling a 14 year old, they're not really gay, it's not the marketplace of ideas, that's a real thing that's actually happening. The whole point of licensing is that there's certain things we do not want to leave up to market mechanisms, there's certain things that are so dangerous or so high risk or require such, you know, baseline quality in order for like the social, social needs to be met.

We don't subject them to the market mechanism, we don't say let the market sort out what what helps in what hurts, and if a few kids commit suicide, then we just know don't send your kid to the suicide doctor like what the fuck like what the fuck you talking about. It's just like a disadvantage in one view and a bandaging another, okay, we're not allowed to make decisions about what types of medical care work better than others yet when a doctor tells you not to smoke cigarettes, what are you talking about this is like, I just don't understand this and you could just see this immediately falling apart in any other context when there's just some therapists who's like jump off the cliff.

Yeah, you're right, you're right, there's nothing to live for. Yeah, how do you prevent that without a law that's like, yeah, you can't encourage your patient to commit suicide, of course, telling your belief in patient like you're looking great whatever you're doing, keep doing it because.

“Right, right, right, like, right, it's just silly and yeah, I do think. You know, we'll talk about the Jackson descent in a minute, but I do think, you know, this is sort of part of our new segment.”

What's going on here, what exactly is happening, were you negotiating something here? The only thing I can think of and it Kagan does make this relatively express in her opinion is that she's like, look, this is bad for our side now, but.

And you know, she sort of saying, hey, under this precedent, maybe some of that stuff's unconstitutional, right, so maybe we can take advantage of this, which I think in like a very theoretical way, right, you could say is maybe true.

“Maybe you could go challenge SB one or whatever that Tennessee bill was and say, hey, we've got a free speech claim here.”

But a big hint that that wouldn't work is the fact that this exact court upheld that exact law last year, right.

And even if they were going to, he even handed, right, with their rulings about these laws, it still wouldn't make fucking sense. It still wouldn't make fucking sense that medical care is like a free speech issue. I think that's a good segue to Jackson's descent because I think she's very sharp on this issue. She really highlights like the question and so listener, you might be thinking that we've done a good job of explaining why the majority is so stupid here. I don't really understand the paradigm that should be in place, right. And I think Jackson does a good job of this, where she takes KC, which we talked about, which was like that sort of statement that doctors have to give to someone who wants to have an abortion.

The law, a California law that wanted every clinic in the state to put up a sign saying that California will like pay for abortions for indigent people, and that was struck down.

“And she says, well, what's the difference here? What's the difference between these two cases?”

And in KC, what you're looking at is the provision of medical care. You're talking about a doctor in a patient alone in a room talking about the patient's health. In the clinic case, Nifla is the name of the case. She says, you're talking about speech as speech, right. You're in a waiting room. You're not with a doctor. You might even be there for an abortion or abortion-related services. You might even be there for medical services. You might be there to help your friend, right. You're bringing your friend into something.

And yet, you're receiving speech, you're receiving statement at speech. So she says, that's a regulation of speech at speech. And that gets all the first amendment scrutiny that we give to any, you know, forced speech or owner's regulation of speech, viewpoint discrimination.

But on the other hand, when you are providing medical care, the state has broad police power. All has always had broad police power to regulate medical care.

But this goes back to before the country even fucking existed, like they were there, the police power of the state to regulate medical care predates the American constitution. And sometimes that incidentally touches speech. Sometimes that gets to speech-related activities because doctors talk to their fucking patients. Of course it gets to speech. But that gets a much lower standard of scrutiny because it's nestled within this well-established framework of regulating medicine and making sure physicians give adequate standard of care.

It's so simple. This is something like first-year law student should be able to grasp and like make this distinction very easily. I imagine all our lay listeners grasp it and are like, that makes sense. And of course it makes sense because it's right. And the majority is stupid. And the concurrence is fucking stupid. Like, Jackson's descent is very long. Probably much longer than it needs to be because it's very thorough.

But it's like, really, there's not much more to do with than that. There's not much more to then like, look, you can regulate medicine. You've always been able to regulate medicine.

Sometimes that incidentally touches speech and that's not a complete free zone for their first amendment, but it's a much lower level of scrutiny. Right. Right. The end. Like, what are we doing here? In Jackson hints at this, but I don't think she articulates it as well as it should be articulated, which is that there are ways to engage and strictly protected first amendment activity related to the provision of care here. Right. Like you could write an op-ed for Fox News, just for example.

“Right. If you want to change public opinion about this, you can write an op-ed. If you want to change lawmakers opinions, you can petition your representatives.”

You want to change the standards that the AMA, the APA, or your local regulatory bodies promulgate for care. You can petition them. You can run your own study. You can put out research saying, hey, look, this is actually harmful. Those are protected activities. They're expressive activities. That's engaging in the marketplace of ideas.

Yeah. And just to explain really quick, police power in this context refers to like the state's regulatory power, the state's power to promote and protect people's safety to promote the general welfare, right? So the general power of the state. That's right. Yeah. It doesn't mean it doesn't mean specifically in this context like law enforcement, right? I'll also add Kagan and so to my or didn't just concur. They signed on to the majority, exactly. For us, such as like, he's making like loose allegations that this is what Centaurious governments do. This is like, this is, you know, and that they are maintaining orthodoxy, right?

Which is, I feel like a word that every right-winger learned five years ago and has just never stopped using like orthodoxy.

Which is an orthodoxy here. It's like, right, the, once again, it seems like every time you say orthodoxy, you're just talking about what I would describe as the prevailing medical consensus.

“Right. Yeah. Right. That's what you made. Right.”

I think it's worth saying, like, since we, we did a more on alert for Kagan and so to my or like, when we alert went up. Yeah. Yeah. Like, what, what steps has Jackson taken here to avoid becoming a moron? Mm. And I think, you know, there's sort of two realities, right? There's the, the reality of like the legal fiction. There's the reality of that like you read in the briefs and, you know, you pretend prevails in court, like,

starry, decisive controls. We, we follow our precedence. We use logic to derive rules from past rulings and apply them to new facts. And then there's fucking reality.

Right. Then there's the real world where there is like a Christian fascist right wing movement seeking to impose a broad control over not just the government. But the culture over people's individual choices, their gender and Russians their lives, right? And at some point you just have to choose which reality you're going to live in. And so to my or in Kagan have chosen to live in this bullshit fake reality and Jackson clearly does not she lives in the real world. Right. Let's talk a bit about like the practical outcomes here. I think it's worth noting that this doesn't really apply to a ton of therapists.

But the reason being the most conversion therapy exists in a ministerial setting, not a licensed therapy setting, right? And that's already protected by freedom of religion, right? So, you know, 90 plus percent of parents who are trying to de-gayify their children or whatever are sending them to the minister and being like, hey, can you just engage in some classic pastoral bullying?

“Please abuse my child until he no longer likes Lady Gaga. That's what they're doing.”

He loves it. That's such a dated reference, I'm sorry. I know. That's right. Whatever, whatever the gay kid's listening to now, you know, the choice of on. But we think. Is that right? No, I don't think that's even a fuck. You know what, forget it. So the universe of therapists impacted by this relatively small, right? There's not a ton of demand for this necessarily, and then you need like licensed therapists who actually want to do conversion therapy, which is not all licensed therapists, right?

So it's a very left-dominated field in my experience. Yeah, well, it's like, as you're talking to people in order to help them. Yeah, exactly. Very, like a baseline requirement of empathy, which is incompatible with the conservative worldview. Right.

So there's a tangential outcome here, which is that it seems like therapists can claim the first amendment mantle, and that means that therapy will be subjected to strict scrutiny.

“And what that really means in practice is that courts will be analyzing medical treatments, right?”

Analyzing the efficacy of therapeutic treatments. So rather than, you know, sort of deferring to state laws, which themselves have avenues for input from different medical organizations, for example, from actual experts. We now have judges intervening to make the decisions about like what therapy survives strict scrutiny and what doesn't.

To me, that's just obscene, and that's not to defend, you know, I mean, differing to state laws has its own problem, right?

Red state laws about therapy are not good. But what happens here is that you now have judges being the arbiter of how good these state laws are and what therapists can and cannot say. What qualifies as substandard care and what doesn't just a miserable outcome. Any judges listening, I'm sure they're so many. Let me give you a little tip, strict scrutiny analysis.

The state has a compelling interest in seeing that medical care is consistent with the prevailing medical consensus. That's it. This law is narrowly tailored that by requiring the provision of care in accordance with the prevailing medical consensus on what is the minimum standard of care. Here's that you fucking nerds.

Colorado fought this case and a bunch of other states joined into the filed and amicus brief.

These are states that have similar laws on the books as Colorado be in in conversion therapy for minors.

“And in their amicus brief, they say like this is within our traditional and historical and long-respected regulatory power, right?”

They say in the brief quote, prohibiting licensed healthcare professionals from providing conversion therapy. A quote unquote treatment resoundingly found to not be an acceptable medical or professional practice because it is ineffective and harmful is consistent with this tradition and does not run a foul of the first amendment, right? They say the state we have this police power. We have the power to protect public health and welfare generally. This is just so squarely within what the state can regulate.

It's you don't. It's just a certain point there's like nowhere else to go with it. It's so stupid.

It's so obviously results driven.

It's so embarrassing that Kagan instead of my hour sent on to this one to center one to center. There's just no there's just nothing else to be said.

“Like I think it's worth talking a little bit about what the research says about conversion therapy.”

The Trevor project has a good rundown quoting them. Research shows that LGBTQ+ youth who experience conversion therapy are more than twice as likely to attempt suicide and more than 2.5 times as likely to report multiple suicide attempts in the past year. The practices are also associated with an extensive list of long-lasting social and emotional consequences including depression, anxiety, suicidality, substance abuse, a range of post-traumatic responses. I'm trailing off. There is more. Now, you know, I think most people listening know that or suspect that.

They continue every major medical and mental health association in the United States, including the American Psychiatric Association. The American Psychological Association and the American Medical Association has condemned these practices. I think most people would have suspected all of that. But the point is, if every prominent medical organization says that these practices do not work into our dangerous, right, if the data shows that, then you still can't call that substandard care. What the fuck are we doing?

Right. The last thing I want to say is I think that there's like, I think that this case is sort of weird because they already have a carve out. Right. Because churches can already do this, because ministers can already do this, right? Yes. There's a religious exemption in the law. Right.

So it's like, what are they doing here? And all Kaylee Childs has to do is say this is religious counseling in this session. Right. I will be doing religious counseling in the patient know that, right? And still opt in and she would be fine.

Right. I'm just thinking about this because what much of the conservative legal movement has been building toward is almost like a parallel state, right, where they are favored, right?

“But what I think they're going for here is really the replacement of the secular state, right?”

The existence of the secular state is offensive to them. Right. It's not enough that they have exemptions from the secular state. Yeah. The secular state needs to be hacked at over and over again because they don't believe in it. They don't believe in a secular society.

They believe in one where religion is dominant. And that's what we're looking for. That's what we're looking for. You've been jealous of Christian. Yeah.

Right. And I don't want to get out of my skis with this particular case. Because it is I think relatively small stakes in practice by the standards of these types of cases. Like, you know, compared to something like Scrimedi last year, for example. Right.

You can see that they are not settling, right?

“They're they're dedicating resources to just do cornering this tiny little slice of secular society.”

It's not enough to have an exemption from the prevailing medical consensus. They need to be able to directly challenge the prevailing public consensus and say, Well, that's not their fingers and say, it's not real. There is no prevailing consensus, right? Everything is up for debate, right?

And of course, it never cuts in the other direction.

Right. When it comes to what a woman who wants an abortion needs to hear, there's no, there's no debate anymore, right? They are looking to dominate civil society and ever go fast. Next week, Haryon episode, we're going to be talking about the birth rights citizenship case,

which looks like perhaps it'll be a win for the good guys.

There was a very bizarre and chaotic oral arguments that we're going to discuss in detail.

“There's media coverage, there's like a meta discussion, what this means?”

Is this important? Iranian sleeper cells mentioned. Iranian sleeper cells mentioned. Can't catch me, folks. Can't catch me.

I'm too sleepy. I'm Iran sleepy, a cell baby.

“And I got birth rights citizenship, baby.”

I'm going here. It's open for you, Hose. Watch me glide through customs, bro. You can't do anything about it. Follow us on social media at 5/4 pod.

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