In a rare turn of events, two federal judges in Sacramento have come to opposite conclusions on the constitutionality of a new California law that bars the use of "gay conversion therapy" on minors.
On Tuesday morning, U.S. District Judge Kimberly J. Mueller ruled that the one-of-a-kind law which prohibits licensed mental health providers from steering patients under 18 away from gay, lesbian and other alternative lifestyles does not infringe on the providers' constitutional guarantee of free speech.
Saying the providers' challenge to the law is unlikely to prevail, she refused to grant them a preliminary injunction that would preclude enforcement, which is scheduled to begin Jan. 1.
Just hours earlier on Monday evening, one of Mueller's fellow district judges, William B. Shubb, found in a separate case that the new law does infringe on the free speech rights of providers named as plaintiffs in a lawsuit before him.
He said the providers in his case are likely to succeed on the merits, and he issued a preliminary injunction barring enforcement of the law as it pertains to his three plaintiffs two providers and a student.
The injunction will remain in place until the lawsuit is decided on its merits by the courts or the parties reach a settlement.
Under the law, mental health professionals providing therapy aimed at changing a minor's sexual orientation may be disciplined by state licensing agencies.
Mueller, a judge much junior to Shubb, ruled in her 44-page order that the new law, SB 1172 by state Sen. Ted Lieu, D-Torrance, does not violate the minors' free speech rights to receive advice from a mental health professional, and refused to grant a preliminary injunction on that basis as well.
She said the youngsters and their parents have viable alternatives and California providers are able to refer patients to counselors not covered by the measure.
The U.S. Supreme Court has approved legislation aimed at protecting the physical and emotional well-being of young people, "even when the laws have operated in the sensitive area of constitutionally protected rights," Mueller noted, quoting from a 1982 opinion of the high court.
"The state's insistence that the statute bars treatment only, and not the mention of (the treatment) or a referral to a religious counselor or out-of-state practitioner, is consistent with a fair reading of the statute itself," she wrote.
Patients and parents are not included as plaintiffs in Shubb's case.
Plaintiffs in Mueller's case notified the court Tuesday they will appeal her denial of an injunction to the 9th U.S. Circuit Court of Appeals.
Lynda Gledhill, a spokeswoman for state Attorney General Kamala Harris, said, "Our office is still evaluating an appeal" of Shubb's ruling.
In oral arguments before Shubb and Mueller against the motions for a preliminary injunction, Deputy Attorney General Alexandra Gordon maintained the law is meant to stop the harm done to young people by the therapy, known as "sexual orientation change efforts."
"It's more a form of punishment than a bona fide therapy," Harris said Tuesday. "My office will continue to protect California minors by vigorously defending this law."
Michelle Friedland, a San Francisco lawyer who represents Equality California and who filed friend-of-the-court briefs in both cases opposing an injunction, labeled the treatment "ineffective and dangerous" in her argument before Shubb.
"There is no legitimate science that says sexual orientation change efforts work," she stated.
"Minors are being told there is something wrong with them, and when the treatment doesn't work, they withdraw and are depressed, suicidal," Friedland said.
Plaintiffs' lawyer Matthew McReynolds, an associate counsel at the Pacific Justice Institute in Sacramento, told Shubb he is skeptical of the state's claim that the law is based on a "compelling public interest" to minors.
"It is clear," he said, "the state is trying to pry the religious community apart from a unitary viewpoint" that homosexuality is a disorder which can successfully be treated.
The National Association for Research and Therapy of Homosexuality, a plaintiff in Mueller's case, says in its practice guidelines that deeply religious people account for the bulk of patients now seeking to reverse same-sex attraction through therapy.