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In Chiles v. Salazar, the Supreme Court held that Colorado’s law prohibiting licensed counselors from seeking to change the sexual orientation or gender identity of minors was subject to strict First Amendment scrutiny – a victory for opponents of the law. The statute, the court held, was protected speech, and discriminated based on viewpoint by allowing the counselors to engage in therapies that affirmed specific sexual orientations and gender identities, but not speech that sought to change them.
Perhaps most surprisingly, despite its politically contentious nature, Chiles was an 8-1 decision, with the senior justices on the liberal wing of the court – Justices Sonia Sotomayor and Elena Kagan – joining the majority opinion in full. Kagan (joined by Sotomayor) also wrote separately to suggest that while certain regulations of conversion therapy might pass muster, the viewpoint-based approach of the Colorado law went too far. Justice Ketanji Brown Jackson alone claimed that the law did not trigger heightened scrutiny and would have allowed it to stand instead of sending the case back to the lower court.
The rift between Jackson and the more moderate end of the liberal bloc has received some airtime – it is not unheard of for Sotomayor and Kagan to join the court’s conservative wing, leaving Jackson on her own. But, a split is statistically rare among the liberal justices in First Amendment cases. Further, liberal unanimity was a feature of the three cases between 2022 (when Jackson joined the bench) and 2025 with LGBT-rights implications. While LGBT advocates lost the cases, the court’s liberals dissented jointly. Indeed, up until Chiles, Jackson had never written a solo opinion in a case involving LGBT rights – she simply joined the senior justices’ dissents.
It could always be the case that the justices simply see the law on this issue differently. But given the history of overlap, there is at least some possibility that there was a view of the law the three justices would have coalesced around, but for strategic or ideological considerations did not. So are Sotomayor and Kagan trying to soothe and placate a conservative majority? And is Jackson simply an ideologue, as some have contended, blindly hewing to LGBT orthodoxy?
Why the majority opinion got it wrong
The majority opinion’s analysis began with a paean to the First Amendment: “The First Amendment ‘envisions” that all individuals will have “the ‘freedom to think as you will and to speak as you think,’” even when speech “can be misguided, offensive, or cause ‘incalculable grief.’”
The principle is, of course, fine, but it is somewhat divorced from reality: in practice we do not want, or expect, doctors to have full “freedom to think as [they] will and to speak as [they] think.” We certainly do not want medical advice that is “misguided, offensive, or caus[ing] ‘incalculable grief.’” Rather, we expect doctors to apply the knowledge they obtained through their medical education. That knowledge is usually developed, debated, and refined in research settings, not in clinical practice. Indeed, it would be unethical for practitioners to try out new, untested ideas they have on their patients – indeed, that is what American doctors did with certain Black patients.
The court suggests that many of these harms can be averted because of an explicit exception to strict scrutiny from previous cases: “incidental[] burdens [on] speech” connected to conduct (rather than speech itself), escape heightened scrutiny. Medical advice, the majority claims, is usually connected to some kind of conduct or procedure the physician seeks to carry out and therefore falls into that exception. Along those lines, the court’s conservative majority has upheld state laws forcing doctors to provide (often misleading) information to patients seeking abortion because that speech was connected to a medical procedure. The Colorado law, however, targets talk therapy, which, the court’s majority points out, is unconnected to any separate conduct.
But this procedure-based distinction is incoherent. Not only is the court unclear with what constitutes a procedure (as best as I can tell, prescribing medication counts as a procedure), but also, as an amicus brief I filed in the case explains, a huge amount of the most important medical speech is not connected to a procedure. For example, pediatricians often recommend “watchful waiting” for children with ear infections, minor viral illnesses, foreign bodies in their digestive system, and slower-than-usual development. Internists often advise rest and hydration for mild gastrointestinal or respiratory symptoms; oncologists might have to inform patients that there is nothing to be done for their condition; and geriatricians might counsel families about dementia.
Such speech has created malpractice liability for over a century. Before antibiotics were discovered in the 1950s, physicians’ most effective assistance was providing information that did not involve procedures. Rather, they would provide advice on how infection spread and how to avoid it – and when they made mistakes, patients filed (and won) malpractice suits. More recently, patients have continued to advance medical malpractice claims in cases where a doctor has offered incorrect information about the genetic risks of reproduction, foreign bodies passing through the digestive system, failed to make a diagnosis, and so on. In psychological contexts, courts have recognized liability for therapists using incorrect techniques, creating false memories or allegations of sexual abuse, and for using abusive speech.
These malpractice suits penalize speech when no procedure is involved, and thus do not fall within the “incidental burden” exception. So how are they permissible under the First Amendment? The court makes an offhanded, ad hoc acknowledgement that “traditional tort malpractice claims” do not trigger heightened scrutiny (without explaining why). But such malpractice suits, the court claims, are different from Colorado’s law on one key ground: malpractice suits require, they claim, “[e]xacting proof requirements,” that may “provide sufficient breathing room for protected speech.”
This makes little sense. Like most of the country – and as in the vast majority of civil suits – the proof requirement for such a plaintiff in Colorado is preponderance of evidence. Which is exactly the same evidentiary standard that apply to licensing proceedings for Colorado professional counselors (not to mention, the extra layers of judicial review that apply to all administrative proceedings). In other words, the court’s reasoning in this important constitutional case hangs entirely on an evidentiary standard distinction which does not exist.
Not only was the majority’s reasoning off, its rhetoric was puzzling. In particular, the court defended its skepticism of relying on medical standards by citing to Buck v. Bell, where the court (also 8-1) backed a eugenic state law allowing for the sterilization of individuals with mental disabilities. But the eugenic sterilization laws at issue in Buck were regularly applied to gay people on the ground that homosexuality was an illness. That is the viewpoint that the court’s opinion defends, not one it rejects. Thus, Sotomayor and Kagan appear to have subscribed to both reasoning and rhetoric that are wanting.
Explaining the compromise
Of course, it is possible that Sotomayor and Kagan are in full accord with the majority opinion they signed on to. But given the court’s reasoning and rhetoric, it is also possible they did so as a strategic compromise – something certainly not unheard of on the current court (or those before it).
One indication of strategic compromise lies in the citations in Kagan’s concurrence. Apart from citing to opinions by herself and Sotomayor, she cites only two other justices –Justice Stephen Breyer (who was Jackson’s predecessor), and Justice Amy Coney Barrett. As the New York Times reported, Barrett has apparently long been the subject of overtures from Kagan, and often, Sotomayor, perhaps to good effect.
If Kagan and Sotomayor acted strategically, to what end? First, as is not unusual on the court, they might have joined the majority to cabin its opinion. The majority’s opinion, for example, contains language that promises that “a law … prohibiting counselors from … affirming their clients’ homosexuality,” would also be subject to strict scrutiny. This concession that anti-gay speech would be treated on equal terms as pro-gay speech is significant. In the abortion wars, for example, the court’s conservative majority upheld a Pennsylvania law mandating doctors to engage in anti-abortion speech but then invalidated a California statute that required pro-reproductive rights speech.
There are also a few other possible concessions the liberal justices may have obtained. For example, the court stops short of adopting the reasoning of the U.S. Court of Appeals of the 10th Circuit’s dissent, which discounted the evidence regarding the inefficacy and problematic nature of conversion therapy. Instead, the majority opinion in Chiles takes no stance on conversion therapy’s efficacy, noting only that it is the “subject of ‘fierce public debate.’” And though the opinion states that heightened First Amendment scrutiny applies, it does not apply such scrutiny and strike down the law itself, leaving this analysis to the lower court.
In joining the majority, Kagan and Sotomayor might have also had their eye to the future. As Kagan’s concurrence explains, “[m]edical care typically involves speech, so the regulation of medical care …. may involve speech restrictions… [that] refer to the speech’s content.” Perhaps the justices foresee a case in which content-based regulations that are putatively viewpoint-neutral are challenged.
What might such content-based but viewpoint-neutral regulations look like? Here, Kagan gestures to Jackson’s opinion, which lists laws requiring speech that “ ‘promote[s] the welfare, autonomy and best interests of’ the client,” treats the client “humane[ly],” “‘assure[s] client welfare and protection’ during medical care,” and that prohibits speech that is “cruel” or contains unverifiable “claims of professional superiority.” Perhaps Kagan and Sotomayor see provisions like these as second-best alternatives to protect LGBT children that the conservative majority will uphold. (Given the conservatives’ past behavior, and the chimerical distinction between content- and viewpoint-based regulations, I believe that hope to be overoptimistic).
Even if Kagan and Sotomayor achieved significant concessions, this does not mean Jackson was wrong to dissent. While I believe her dissent misses some key points (such as the licensing and malpractice ones emphasized above), she presents a powerful corrective to the majority’s framework. And, unlike the majority opinion, Jackson emphasizes that LGBT identity is simply “a part of the normal spectrum of human diversity” – not something to be “cured.” In that way, while the split between the court’s liberal justices can be portrayed as a schism, it can also be portrayed as teamwork, with one set of justices engaging in compromise, and another justice providing a vision of what that compromise can one day achieve.
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