Gay Conversion Therapy Ban Upheld by 9th Circ.

SAN FRANCISCO (CN) — A Ninth Circuit panel upheld California's ban on so-called gay conversion therapy for a second time Tuesday, finding that legislation prohibiting licensed counselors from the controversial practice is not unconstitutional.

Passed by the California Legislature in 2012, SB 1172 prohibits state-licensed psychiatrists, psychologists and counselors from using sexual orientation change therapy and other "reparative methods" on patients younger than 18.

Lawyers for the conservative Pacific Justice Institute argued at a June hearing before Circuit Judges Susan Graber, Alex Kozinski and Morgan Christen that the law runs afoul of the Establishment Clause of the U.S. Constitution by targeting religious groups.

"This argument rests on a misconception of the scope of SB 1172," Graber wrote for the panel. "Plaintiffs interpret SB 1172 to prohibit, for example, certain prayers during religious services. Plaintiffs are mistaken about the scope of SB 1172, because that law regulates conduct only within the confines of the counselor-client relationship."

The panel made a similar ruling in Pickup v. Brown, another case challenging SB 1172 on constitutional grounds.

Graber reiterated in Tuesday's opinion that the law does not apply to members of the clergy acting in a ministerial capacity, but only to those who simultaneously hold themselves out as licensed therapists.

"The Legislature's stated purpose in enacting SB 1172 was to 'protect the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and to protect its minors against exposure to serious harms caused by sexual orientation change efforts.' The operative provisions of SB 1172 are fully consistent with that secular purpose," Graber wrote. "The law regulates the conduct of state-licensed mental health providers only; the conduct of all other persons, such as religious leaders not acting as state-licensed mental health providers, is unaffected."

Graber acknowledged that a law directed only at religiously motivated people would raise constitutional concerns but said this isn't the case here, writing, "The evidence falls far short of demonstrating that the primary intended effect of SB 1172 was to inhibit religion."

In a phone interview, Pacific Justice Institute president Brad Dacus said, "We of course are very disappointed with this decision. This law we challenged makes it impossible for a minor under 18 who is personally struggling with sexual orientation or gender identity from being able to get the counseling they want in accordance with their personal beliefs, convictions and goals."

He added, "The fact that the law has no exemption for licensed counselors who are in ministry is a major concern for those of us who don't believe the federal government should be delving into religious matters."

Dacus said the group plans to challenge the court's ruling, likely through a petition for a rehearing by the full Ninth Circuit.

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