Narrative Opinion Summary
The Ninth Circuit Court of Appeals denied a request for an en banc rehearing in a case challenging Washington's ban on conversion therapy for minors, highlighting significant First Amendment implications. The petitioner, a licensed therapist, argued the law infringed upon his right to free speech by prohibiting the provision of conversion therapy, which he conducted based on religious beliefs. The panel upheld the district court's dismissal of the challenge, relying on the precedent in Pickup v. Brown, which treated similar bans as regulations of professional conduct subject only to rational basis review. However, dissenting judges criticized this reliance, noting the Supreme Court's rejection of Pickup and arguing that therapeutic speech should be protected under the First Amendment, thus warranting heightened scrutiny. The majority's decision underscores a circuit split over the classification of therapeutic speech versus conduct, with implications for First Amendment jurisprudence. The court ultimately found insufficient support to revisit the case en banc, leaving the panel's ruling intact and maintaining the ban under the current legal framework. This case raises critical questions about the balance between state regulatory authority and constitutional speech protections within the medical profession.
Legal Issues Addressed
Application of Rational Basis Reviewsubscribe to see similar legal issues
Application: The majority applied rational basis review to Washington's conversion therapy ban, suggesting a historical justification and classifying the law as a regulation of professional conduct.
Reasoning: The panel majority cited a historical tradition of regulating healthcare practices as additional justification for upholding the ban, referencing early 20th-century cases on medical practice regulation without discussing the implications for medical practitioners' speech.
Circuit Split on Therapeutic Speechsubscribe to see similar legal issues
Application: Judges noted a circuit split regarding the treatment of therapeutic speech under the First Amendment, emphasizing the need for en banc reconsideration to address discrepancies and clarify protections.
Reasoning: Judge O’Scannlain, joined by Judges Ikuta, R. Nelson, and VanDyke, noted the Supreme Court's rejection of Pickup and highlighted a circuit split regarding the treatment of therapeutic speech under the First Amendment.
First Amendment Protections for Therapeutic Speechsubscribe to see similar legal issues
Application: The panel ruled that therapeutic speech, such as conversion therapy, is classified as professional conduct rather than speech, thereby subject to rational basis review, despite arguments that it should receive First Amendment protection.
Reasoning: The panel classified therapeutic speech as non-speech conduct, thus subjecting it only to rational basis review, relying on the precedent set in Pickup v. Brown, which treated a California ban on 'sexual orientation change efforts' as a regulation of professional conduct rather than speech.
Religious Speech and Conversion Therapysubscribe to see similar legal issues
Application: Dissenting views argued that conversion therapy, primarily religious in nature, should receive heightened scrutiny under First Amendment protections, contrary to the rational basis applied by the majority.
Reasoning: Dissenting Judge Bumatay contended that because the speech involved in conversion therapy is primarily religious, Tingley's Free Speech claim should be evaluated under a stricter standard.
Supreme Court and Circuit Court Precedentssubscribe to see similar legal issues
Application: The panel's decision was critiqued for relying on outdated precedents like Pickup, which the Supreme Court has explicitly rejected, suggesting a need for reevaluation of First Amendment considerations in professional contexts.
Reasoning: While the Supreme Court's decision in NIFLA rejected Pickup's approach, emphasizing that therapeutic speech should not be reclassified as conduct simply because it occurs in a professional setting.