All right, Steve Palmer here, Lawyer Talk Podcast.

You can check us out@LawyerTalkPodcast.com doing a breakdown today.

It's been a while since I've done a breakdown, but this is a good cause.

There's a US Supreme Court case.

Seems like everybody's talking about it, involving conversion therapy, Colorado law, and all the political banter that surrounds all that.

The case I'm talking about is Chiles versus Sex Salazar.

US Supreme Court took the case, and it went up on sort of a challenge to Colorado's law that prohibited conversion therapy.

Before I dig into the facts, I want to sort of talk about how this worked or what the procedure was that got there and just to set the stage.

So what we have is a law in Colorado that prohibited conversion therapy.

You had a therapist who wanted to engage in talk therapy out in Colorado, and.

And she thought that that law, as applied to her, would violate her constitutional right to free speech under the First Amendment.

So procedurally speaking, what she did is she sues and she says, look, I want a declaration that this law is unconstitutional, would violate my rights.

And she does it in a civil case.

So she hasn't been charged yet.

And what she's asking the court to do, what she asked the first court to do is is issue something called a temporary injunction.

So while we're figuring out whether this law violates this woman's constitutional rights, she wants the court to say, don't apply the law, stop it, halt.

She wants a court order saying, you can't do this.

And this has been a big, you know, there's been lots of these with executive orders and such around the country lately, but that's exactly what she's doing.

Well, the district court said, no, we're not going to issue such an order.

And then it goes to the court of appeals, and the court of appeals agrees, says, we're not going to issue such an order, and then it goes to the U.S. supreme Court.

So I want to clarify this went up on what I'll call a procedural matter, the temporary.

The request for the temporary restraining order, the TRO.

But it really signals what this U.S. supreme Court would do on the merits of it.

So let me tell you why now, to get a restraining order in a declaratory judgment action or something like that, there's a series of factors that you have to meet.

And the first is that you have to have standing.

You have to have some reason why the law applied to you, gives you the ability to stand up and fight it.

It's called standing.

So just Somebody, a normal citizen who this law does not impact at all, in theory, couldn't go and challenge the law.

They couldn't do it.

There has to be some standing to challenge the law.

And that's the first hurdle that.

That the courts had to overcome or that this woman had to overcome in order to bring her case.

And I think not.

I think both courts agreed that she did, in fact, have standing.

The second factor she had to overcome was whether she would suffer some sort of harm, some irreparable harm that was imminent if the law remains intact while the litigation proceeds.

And then the third thing was, what is her likelihood of success on the merits of.

That's we're going to get to in a second.

But first, with respect to whether the law would impact her, the courts agreed.

They said, yes, we think the law will impact you because you're engaged in conduct that, on its plain face, violates the law, and that means you can be prosecuted for this if you continue to do what the law says you can't do.

So not only do you have standing, you've established that the law, if remains intact, would apply to you and cause you harm, that is prosecution, perhaps, or even a cease and desist, whatever Colorado would do to enforce it.

And now we get to the merits, and here's where the rubber meets the road.

So the 10th Circuit said, no, we don't think.

We think you don't succeed on the merits.

The district court said, you don't succeed on the merits.

So it goes up to the Ohio.

Up to the.

Up to the U.S. supreme Court.

Now, let's talk about what the.

What.

What was at stake.

So under Colorado law, they prohibited.

The law prohibited conversion therapy.

And here's what the court had to say about how Colorado defined it.

They said the term conversion therapy therapy may evoke physical techniques such as electric shock therapy, aimed at changing an individual's sexual orientation or gender identity.

But Colorado's ban on conversion therapy reaches even further from forbidding, quote, any practice or treatment that attempts to change an individual's sexual orientation or gender identity.

The law forbids as well any effort to change behaviors or gender expressions to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex.

And at the same time, the law explicitly allows counselors to engage in practices that provide acceptance, support, and.

And understanding for the facilitation of an individual's identity exploration and development.

All right, let's sort of break that down because.

And again, I've said this a hundred times on this show.

I'll Say it again.

I'm not getting political here.

I'm just looking at this from a lawyer's perspective.

But I think it's important to understand what the law is saying.

I think we all these traditional notions of quote, conversion therapy have their negative connotations over the last 20 or 30, maybe even longer years.

And there's horror stories of electric shock treatment for kids who think they're homosexual or whatever.

And there's some shade on that, we'll say, to say the least.

But what this law did, it threw into the definition of conversion therapy.

Talk therapy for kids who really anyone but for kids who were struggling with what their gender identity was.

So if you had a 10 year old kid who thinks, or 10 year old son who thinks he might be a woman or a female or vice versa, and the parents wanted to go to a therapist and say, look, let's sort this out before we go any steps further into surgery or whatever, Medicaid or whatever, we'd like to get some talk therapy on that.

And the Colorado law on its face would prohibit that.

Now at the same time we have this counselor who part of her practice was to engage in such therapy, talk therapy, and she did it from a Christian perspective, which again has its negative connotations.

I'm not going to comment on that either way, but I think that that threw up red flags for people who don't like what she's doing.

At any rate, she couldn't engage in the talk therapy and at the same time others under this law who were doing the opposite.

So the 10 year old, for instance would say, look, I think I might be a female.

Well, in that situation it would be perfectly permitted for a therapist to say, well that's good for you, let's encourage this, go explore that other identity.

So it wasn't.

There are some two sides to the same problem.

One was permitted, the other prohibited.

All right, with that backdrop, it goes up to the Supreme Court and it goes up to the Supreme Court on a First Amendment issue.

And I think at this point, before we dig into the First Amendment, I want to talk a little bit about how courts are supposed to judge and evaluate constitutional or laws, state laws and federal laws that impinge on people's constitutional rights.

And here's where the court sort of turned on this.

There are basically three standards of review.

The lowest standard review, the one that almost always, that laws almost always pass, is called rational basis.

And it basically means, well, if there's any basis at all, if some legislator or general assembly person or whoever in A state legislative branch of government says, yeah, we think this is right because we don't want to do or we don't want therapy for kids for whatever reason that's good enough.

I mean, rational basis mean reasonable minds could differ on it.

So we're just going to defer.

And if it's rational basis review, it's almost no review.

It's almost a clean pass on everything.

Now there's something called an intermediate scrutiny.

And when a law directly impacts a constitutional right, you're supposed to look at it with strict scrutiny, meaning the state has to have a really, really, really good reason.

And the statute that they're proposing has to be the least drastic means to address that reason, otherwise the law is unconstitutional.

So basically, think rational basis.

Almost everything passes intermediate.

I'm not going to get into it because it's a whole rabbit hole we don't need to go into.

And in strict scrutiny, almost nothing passes.

So here's what happens.

The lower courts, the district court and the court of appeals said, look, we're just going to look at this with rational basis because we don't think it's impacts somebody's constitutional right to free speech.

And so when they got to the merits, remember the first two, that she had standing and she was impacted, and then the question is on the merits, did this violate the First Amendment?

And the lower courts applied only rational basis review.

And almost everything passes rational basis review.

And that's why the court said, no, we're not going to issue an injunction.

Well, this gets up to the Supreme Court and 8 to 1, the Supreme Court reverses this.

And I, they have it right.

And I don't care what the issue is.

I don't care if it involves conversion therapy or widgets.

It doesn't make any difference to me.

We have a law that impacts speech and therefore it should get strict scrutiny based on the historic standards by the court.

And that's what the Supreme Court says.

And that's why we have a consensus sort of across what we'll call conservative and liberal lines.

You know, it's 8 to 1 with Jackson Ketanji Brown.

Jackson, I think is the, or not I think I know is the only dissent.

And I want to dig into this a little bit because what the, what the lower courts were saying is basically, look, this isn't really a regulation of speech.

This doesn't really involve somebody talking in expression.

Instead, what this is, is we're just going to call Ms. Child's speech as professional conduct.

Now, this is what.

Now there was one dissent in the 10th Circuit.

And he says to the contrary, the majority's effort to recast Ms. Child's speech as professional conduct amounted to little more than a labeling game.

In other words, they just said it's professional conduct, therefore it's not speech.

And this is where, you know, definitions matter, folks.

It matters, like in law more than anything.

If you don't have defined terms, it's really difficult to get any sort of consistent justice.

And that's what I think this 10th District Court was saying.

Look, this is a defined term.

You can't just call it something else and avoid a strict scrutiny standard.

You have to apply the standard that applies to any impingement on somebody's right to free speech.

So it gets up to the US Supreme Court and they agree.

They say, look, this is an impact, a direct impact, a direct violation of child's free speech.

Because what is she doing when she's providing talk therapy to her patients?

She's using speech, she's saying things, she's talking.

And the court says, look, we don't want laws that, that are going to prevent somebody from doing that.

And then they didn't.

I don't know if they.

I think some of the concurrence and other opinions got into it, but there's another underlying problem here, I think, and that is it didn't treat both sides of the viewpoint equally.

And this is not.

There's another constitutional provision that maybe could have come up called equal protection, but I think it's important that both sides of the debate.

So you're allowed to encourage a kid, but you're not allowed to give therapy to a kid to go the other direction.

I don't think the court liked that.

And I don't know that I like.

I certainly don't like that.

I mean, if you're gonna.

I mean, look, if you're gonna go regulate somebody's speech, if you're gonna say you can't, if you're gonna have a law that says you can't do that, then at least should prohibit both sides.

So it might have been different.

I'll have to think that through.

But it may have been a different outcome or at least a different analysis.

If the law would have said no therapy whatsoever on these situations, you can't talk therapy in favor of a transition, and you can't talk therapy against a transition trying to talk a kid out of it.

You can't do either.

I think they would have had a better shot.

But to say you can do one without the other is to Take what the court would call a content based approach at regulating speech.

And that is the worst of all.

When the government puts its thumb on the content of speech, it almost always violates the First Amendment.

So if the government says you're not allowed to go march against the KKK because we support the kk, basically what they're saying is we support the kkk.

And the opposite is also true, much to the chagrin of most people, of lots of people who, who look at that as an evil, to use Joe Biden's word at one point, a bile viewpoint.

But we have to protect that kind of speech because we have to protect both.

And that's what the court is doing here.

Now there's a couple great quotes.

I mean here, here's one when they're talking about I'll just read it and then we can go into it.

So the Court says, consistent with the First Amendment's jealous protections for the individual's right to think and speak freely, this court has long held that laws regulating speech based on its subject matter or quote communicative content are presumptively unconstitutional.

Leaving out some cites as a general rule, such content based restrictions trigger, quote, strict scrutiny demanding a standard that requires the government to prove its restrictions on speech is narrowly tailored to serve a compelling state interest.

And here's where the rubber meets the road.

Under that test, it is rare that a regulation will ever be permissible.

So what they're saying here is the courts below shifted the definition of what was going on to call it professional conduct.

And what they were really doing was regulating the content of child's speech.

And therefore the rational basis test that the court below gave isn't correct.

They should have used strict scrutiny and they even go on.

We have recognized as well that even greater dangers associated with regulations that discriminate based on the speakers.

We have recognized as well that even greater danger is associated with regulations that discriminate based on the speaker's point of view.

When the government seeks not just to restrict speech based on its subject matter, but also seeks to dictate what particular opinion or perspective individuals may express on that subject, the violation of the First Amendment is all the more blatant.

Viewpoint discrimination, as we have put it, represents an egregious form of conduct or content regulation.

And governments in this country must nearly always abstain from it.

And this is where it comes down.

This is why it was 8 to 1 Jackson's dissent.

Read it.

It doesn't make a whole lot of sense to me.

I think even those I Hate to divide the court because I think people do this more often than they should because there are lots of cases like this one where the court is on par.

They're all on the same footing.

They all agree.

They may agree in different ways.

So the dissent might say, look only on this narrow topic of talk therapy and at the same time sort of impugn the whole notion of conversion therapy.

So, you know, if you're on the other side of conversion therapy or you don't agree with conversion therapy, you could say, look, while we don't agree with conversion therapy, we do agree that this is a restriction on somebody's speech, and therefore we have no choice.

This is the hallmark of what our Constitution, particularly First Amendment is supposed to do.

You can't take sides.

We can't take sides.

We can't bend the rules when we agree with somebody's speech or bend the rules when we disagree with somebody's speech.

We have to apply the rules evenly.

As I always say when I evaluate government action, I always want to know what the lever of power is.

Because in this case, you may say, look, I hate conversion therapy and I agree with all the lower courts and that we should never have conversion therapy.

Therefore, throw this woman in prison.

Don't let her ever do it, and stop everybody else from doing it.

In fact, don't even teach it.

I mean, you may think that, but you have to still let them do it if the Constitution permits it.

Because if you use that lever of power against Childs in a situation that you don't agree with her, well, sooner or later somebody's going to use that same lever of power to go the other way.

And then you've upset the apple cart on the effectiveness of the Constitution.

It only works if we apply it evenly to all.

That's what it's for.

That's why we have the Constitution.

I've said it a hundred times.

Our system isn't perfect.

It's only the best.

When we start tinkering with these standards based on the content of somebody's speech or based on subject matter we agree with and don't apply that to subject matter we disagree with.

And then usually what happens is when that's going on, people tend to bend the rules and torture the analysis to make it look like they're not really doing that.

But they are.

And that's why this is the right decision.

You heard it here.

Maybe not first, but you at least heard it here on LawyerTalkPodcast.com if you've got questions about this or you want to kick it around, leave it in the comments.

I'll be happy to do more on it.

If you've got another case, and there's several more U.S. supreme Court cases coming down, all of which have some significance this way.

They've got a little political sex appeal one way or another.

I'd be happy to cover them here.

Just let me know.

Until then, Lawyer Talk podcast off the record, on the air.