As we analyze Supreme Court cases, we consider not only whether our side won or lost, but also what precedents were set by the decision.
So let’s look at Chiles v. Salazar, in which the Supreme Court recently ruled that a Colorado law prohibiting “conversion therapy” (counseling to help a client overcome homosexual tendencies) for minors violated the right of a therapist to practice her profession in accordance with her convictions.
Kaley Chiles, a Christian counselor who practiced conversion therapy to help her clients leave homosexual lifestyles that they did not want, sued the State of Colorado, arguing that the law violated her First Amendment rights. In my 2025 column “Chiles v. Salazer: A Tolkienesque Cosmic Struggle?” I noted that the Foundation for Moral Law had filed an amicus brief supporting Chiles and arguing that the Colorado law violated her rights to free speech, free exercise of religion, and the right to practice her profession in accordance with her convictions.
I am pleased to report a victory – of sorts. In an 8-1 ruling issued March 31, Justice Gorsuch held that the Colorado law was not merely a regulation of professional conduct; it prohibited speech protected by the First Amendment. He noted that the law constituted “viewpoint discrimination” because it prohibits converting young people from gay to straight but does not prohibit converting them from straight to gay. Gorsuch also rejected Colorado’s argument that courts should uphold the law because the mental health profession generally considers conversion therapy ineffective and harmful. Gorsuch noted that the First Amendment is a “shield against any effort to enforce orthodoxy in thought or speech,” and “reflexive deference” to prevailing professional opinion often ends badly because such prevailing professional opinion is often later considered unsound. (Remember the so-called “consensus” that everybody should get a Covid shot?)
Even liberal Justices Kagan and Sotomayor agreed with Gorsuch’s opinion. Only Justice Ketanji Brown Jackson dissented, arguing that Gorsuch’s ruling violates the right of Colorado and other states to regulate the medical profession. (It is interesting how leftists can suddenly become states' rights advocates when it suits their purposes.)
This decision is a victory, and I am pleased with it. I agree that viewpoint discrimination is almost always an egregious First Amendment violation. I also agree that speech is protected by the First Amendment no less in a professional context than in any other – counseling is fraught with ideas that are protected by the First Amendment. And I strongly agree that courts should not enforce orthodoxy by denying First Amendment protection to ideas solely because they are not the majority opinion. Indeed, many in the medical profession faced harassment and discrimination for disagreeing with the majority on Covid vaccination.
But I’m calling this a limited victory because it could be circumvented. Kagan and Sotomayor, in a concurring opinion, underscored Gorsuch’s point about viewpoint discrimination. But, they added, if the law were viewpoint-neutral – such as a law prohibiting conversion therapy for straight-to-gay as well as gay-to-straight – that would present a different issue and could produce a different result. And Colorado legislators are working on bills that would do exactly that.
As the Foundation argued in its amicus brief, the Court should have struck down the Colorado conversion therapy law, not just because it is a speech violation (although it certainly is that), but primarily because it violates the most fundamental and sacred of all God-given rights, the right to free exercise of religion. Chiles practiced conversion therapy because, as a Christian, she believes the Bible prohibits homosexuality (Leviticus 18:22; Romans 1:24-27). Prohibiting her from practicing conversion therapy forces her to either leave her chosen profession or violate her religious beliefs. The Court has repeatedly held that this kind of “Hobson’s choice” is a First Amendment violation.
Winning a favorable verdict does not necessarily establish a solid, long-lasting constitutional precedent. That’s why the Foundation for Moral Law, when writing amicus briefs, is skeptical about seeking quick wins that might compromise principles. In our briefs, we try to make a unique contribution to the case by stressing the Bible, solid history, and the plain meaning of the Constitution as understood by its framers.
So the Foundation is thankful for this decision, as far as it goes, but we will continue to fight for stronger protection for religious liberty.
Colonel Eidsmoe serves as Professor of Constitutional for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He lives in rural Pike Road, Ala., and may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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