'Gay conversion' ban put on hold
12/04/2012 12:00 AM
12/05/2012 7:44 AM
A Sacramento federal judge late Monday barred the state from enforcing its new law prohibiting "gay conversion therapy" against two mental health providers and a student who are suing to derail the measure.
U.S. District Judge William B. Shubb, who practiced First Amendment law before his appointment to the bench, found the three "are likely to succeed on the merits of their claims based on violations of their rights to freedom of speech under the First Amendment."
They "have also shown that they are likely to suffer irreparable harm in the absence of an injunction, that the balance of equities tips in their favor, and that an injunction is in the public interest," Shubb declared in a 38-page order.
The injunction will be in place until the lawsuit is resolved on the merits or the parties reach a settlement.
The ruling came less than three hours after a hearing before Shubb on the plaintiffs' motion for an injunction.
The new law, SB 1172, prohibits a mental health provider from engaging in "sexual orientation change efforts" with a patient under 18. Any such efforts "shall be considered unprofessional conduct and shall subject a mental health provider to discipline" by the California Board of Behavioral Sciences or the California Medical Board.
The plaintiffs are Donald Welch of Coronado, a licensed marriage and family therapist and operator of a Christian counseling center; Anthony Duk, a Riverside psychiatrist, and Aaron Bitzer of Culver City, "who has had same-sex attractions beginning in his childhood and was involved in sexual orientation change efforts as an adult in 2011 and 2012," Shubb's order says.
Bitzer had planned to become a therapist to help "men like himself," the order says. Because of SB 1172, he has changed course and is "trying to pursue a doctorate so as to also contribute research to this field," according to the order.
The measure cannot meet the high content-neutral standard that must be applied because a constitutional right is implicated, Shubb wrote.
"SB 1172 draws a line in the sand governing a therapy session and the moment that the mental health provider's speech seeks to change an individual's sexual orientation, including a patient's behavior, gender expression, or sexual or romantic attractions or feelings toward individuals of the same sex, the mental health provider can no longer speak," the judge wrote.
He said he would be "hard-pressed to conclude that SB 1172 is content- and viewpoint-neutral."
Thus, he said, the strict scrutiny that he must bring to the issue is a demanding standard, and it is rare that a law restricting speech because of its content will ever be permissible.
Evidence that the therapy "may" cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the need to show the new law is grounded in a "compelling interest" of the state to take action, he said.
"California has arguably survived 150 years without this law and it would be a stretch of reason to conclude that it would suffer significant harm having to wait a few more months to know whether the law is enforceable as against the three plaintiffs in this case."
Incorporating language from a 2000 U.S. Supreme Court opinion, the judge wrote: "That public perception in favor of this law may be heightened because 'it appears that homosexuality has gained greater societal acceptance is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not.' "
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