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Gay-Conversion Therapy Advocates Lose Again

(CN) - A federal judge refused to issue an injunction to stop legislation banning California mental health providers from practicing gay conversion therapy techniques on children, which religious groups say amounts to an excessive government entanglement with religion.

California lawmakers passed SB 1172 in 2012, prohibiting state-licensed psychiatrists, psychologists and counselors from using sexual-orientation change efforts (SOCE) and other "reparative" methods on patients younger than 18.

The therapy described in the law includes "efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex."

A psychiatrist, a licensed Christian counselor and patient who said that the therapy worked for him sued the state before the law went into effect in 2013. They won a temporary injunction from U.S. District Judge William Shubb, who found that the law would violate First Amendment rights which he said superseded the alleged potential harm to minors.

But a panel of the 9th Circuit Court of Appeals reversed Shubb's decision, holding that the law did not violate free speech rights. The panel found that the law deals solely with the conduct of state-licensed therapists and psychiatrists, which the state has the right to regulate.

The appeals court also rejected the argument that the law interferes with parents' rights to seek such counseling for their children.

On remand, the plaintiffs - Donald Welch, Anthony Duk and Aaron Bitzer - argued SB 1172 violates the Free Exercise and Establishment Clauses of the Constitution, and that the law results in excessive government entanglement with religion.

But Shubb pointed out in a 25-page memorandum issued last week that the law does not prohibit sex orientation change efforts performed within a church setting, as long as the therapy is not performed by a mental health provider. He added that the legislative analyses leading to SB 1172 illustrated that the Legislature was concerned with the harm the therapy could cause minors, regardless of whether the motivation was due to secular or religious beliefs.

"Nothing in the legislative history gives rise to the inference that, in enacting the bill, the Legislature sought to suppress, target, or single out the practice of any religion," Shubb wrote.

No evidence exists to show that the California Legislature sought to eliminate gay-conversion therapy with minor patients that is motivated by religious beliefs, the ruling states.

"In fact, the only way SB 1172 could be viewed as under-inclusive is in its exclusion of SOCE performed by an individual who is not a 'mental health provider,' such as an unlicensed religious leader," Shubb wrote. "This accommodation for religion cuts against a finding that SB 1172 selectively imposes a burden on conduct motivated by religious belief."

It is also unlikely that the law will require continued state oversight of a church or its teachings.

"Even if a mental health provider's use of SOCE relies on church doctrines or teachings, the state need not evaluate or consider those religious teachings in order to determine whether the provider performed SOCE," Shubb wrote in denying the injunction. "A mental health provider cannot defend against a disciplinary action under SB 1172 on the ground that the SOCE was utilized because of the provider's or patient's religious beliefs."


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