Panel delays enforcement of ban on gay 'cure' therapy in California

12/22/2012 12:00 AM

12/21/2012 11:13 PM

A federal appellate panel has barred enforcement of California's groundbreaking ban on therapy to "cure" homosexuality, pending an appeals court ruling on whether its implementation should wait for a final decision on its constitutionality.

The first-of-its-kind law was scheduled to take effect Jan. 1, but was challenged by therapists, patients and parents of patients in two Sacramento lawsuits.

Earlier this month, U.S. District Judge Kimberly J. Mueller rejected the request of one set of challengers for a preliminary injunction halting enforcement until the issues are decided on their merits. The plaintiffs immediately took her decision to the 9th U.S. Circuit Court of Appeals in San Francisco.

On Friday, a three-judge circuit panel granted the plaintiffs' emergency motion for an injunction pending a circuit decision on whether enforcement of the law should await resolution of the constitutional question.

The law, SB1172, by Sen. Ted Lieu, D-Torrance, prohibits licensed therapists and counselors from engaging in "sexual orientation change efforts" with anyone under 18. Violators would be subject to discipline by state licensing boards.

Supporters of the measure, including gay-rights advocates and statewide associations of psychologists and family therapists, insist the "reparative therapy" is ineffective and dangerous, possibly leading to patient depression and self-destructive behavior.

Spearheading the opposition to the ban are conservative religious organizations and a nonprofit legal organization that champions conservative causes. They argue that the law would violate the free-speech rights of the therapists and patients, and they claim the treatment has been shown to be effective at times.

Mueller ruled there is no First Amendment violation. She found that the ban does not implicate a fundamental right, that the therapy is licensed professional conduct subject to state regulation and is not speech, and that the heightened "strict scrutiny" standard of review used when constitutional rights are at stake does not apply. The judge noted the law would not prohibit a therapist from telling a minor that he or she might benefit from "gay conversion" therapy, and referring the minor to a nonlicensed religious counselor or an out-of-state practitioner, but would only outlaw actual treatment by a California license holder.

Minors who joined the challenge "are seeking treatment in the face of the Legislature's reasonable determination that there is no illness to treat," Mueller said in her written order.

Less than 24 hours before her order was issued, U.S. District Judge William B. Shubb of Sacramento, applying the "strict scrutiny" test, ruled in the other suit that the new law would impinge on the free speech rights of therapists.

He enjoined the state from enforcing the measure against the three plaintiffs before him.

The state has not appealed that ruling.

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