Minister Tests Ban on Gay-Conversion Therapy

     SAN FRANCISCO (CN) — Defending California’s ban against gay-conversion therapy Wednesday in the Ninth Circuit, an attorney for the state emphasized that the law regulates licensed professionals, not religious beliefs.
     A family therapist and minister named Donald Welch brought the challenge at hand, taking aim at the law passed in June 2014 that prohibits state-licensed psychiatrists, psychologists and counselors from trying to counsel patients younger than 18 into heterosexuality.
     These so-called “reparative methods” are often referred to as “sexual orientation change efforts” or SOCE.
     At Wednesday’s hearing on the case, Deputy Attorney General Alexandra Gordon told a three-judge panel that no one is stopping Welch from practicing gay-conversion therapy methods in a ministerial capacity.
     When he holds himself out as a licensed therapist, however, it becomes problematic. “The state does not care why someone wants to receive SOCE or why someone wants to administer it,” Gordon said. “What we care about is that this is a harmful practice that is ineffective and based on a discredited anti-scientific notion that homosexuality is a disease and is leading to an increase suicide rates, depression substance abuse and a whole host of other problems amongst children, that’s what the state is regulating. The fact that an incidental burden may fall more on religiously motivated people, that is irrelevant under the law.”
     Welch’s case actually marks the second SOCE challenge the Ninth Circuit has considered.
     In the 2013 decision Pickup v. Brown, the same panel considering Welch’s challenge found that SB 1172 deals solely with the conduct of state-licensed therapists and psychiatrists, which the state has the right to regulate.
     Though Welch won a preliminary injunction from the trial court, Gordon told the Ninth Circuit that the state is not trampling the minister’s religious freedoms.
     “It’s a line that people who have two different professional hats have to walk,” she said.
     Kevin Snider, an attorney for Welch with the Pacific Justice Institute, argued that the Ninth Circuit’s ruling in Pickup focused on free-speech rights, without touching on religion or of a minor’s right to privacy in seeking sexual counseling.
     “The legislature made clear that persons who seek this type of treatment are primarily religious people,” said Snider.
     Judge Susan Graber did not appear to see a difference.
     “We have already held that the statute regulates only professional counselor treatment and nothing more,” Graber said. “If we already held that it only regulates the scope of professional conduct, isn’t that the end of the inquiry?”
     Judge Alex Kozinski posed a scenario in which the Legislature could pass a law that prohibits minors from drinking more than a tablespoon of alcohol, a practice that happens to be more prevalent with certain religious groups.
     Snider said the law would be unconstitutional if the state were targeting a particular religious group because of its views.
     Graber asked Deputy Attorney General Gordon about Kozinski’s example. Gordon said the law would not be valid if the Legislature intended to target a religion or religious practice, such as Jews celebrating Passover.
     But she said this is not the case with SB 1172. “The state can’t target religious belief, can’t target purely religious practice, but it hasn’t lost its power to regulate conduct that is harmful, even if that conduct may be performed more by people who are religiously motivated,” the deputy AG said.

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