Back in June, the Supreme Court rejected Liberty Counsel’s appeal of the Ninth Circuit Court ruling that upheld California’s ban on the “ex-gay” torture of LGBT youth. Yesterday the Third Circuit Court upheld New Jersey’s ban. But Liberty Counsel today claims to have a way to get back in front of SCOTUS.
While the Third Circuit upheld the ban on change counseling, the decision conflicts with the Ninth Circuit Court of Appeals in the Pickup case involving a virtually identical law. In Pickup, the federal Court of Appeals found that professional counseling was not speech worthy of First Amendment protection, but in King the federal Court of Appeals found that such counsel is speech protected by the First Amendment. In fact, the King case found that the restriction on speech was content and possibly even viewpoint-based, but then instead of using what is called “strict scrutiny” for review, the court applied an “intermediate” level of review similar to commercial speech. This significant conflict as to whether counsel by licensed counselors is speech or not and what level, if any, of First Amendment protection such counsel should receive is significant and will need resolution by the U.S. Supreme Court.
“The laws banning counseling in this area are simply unconstitutional violations of free speech,” said Mat Staver, Founder and Chairman of Liberty Counsel. “While we are disappointed in the overall decision to uphold the law, we are glad that the Third Circuit finally recognized that the counseling that takes place with these minors is entitled to First Amendment protection. The Ninth Circuit flatly ignored that obvious truth and called this conduct not entitled to any protection,” Staver continued. “Liberty Counsel will ask the Supreme Court to review this decision, and we will not stop fighting until these laws are relegated to the dustbins of history,” Staver said. “Any decision upholding restrictions on what a counselor may say or a client may hear weakens the First Amendment and ultimately hurts counselors and clients,” concluded Staver.