SIDEBAR: The Supreme Court’s Conversion Therapy Case Isn’t About Religion
And that's exactly why it matters
SIDEBAR is my occasional op-ed series on unfolding constitutional controversies. These pieces step outside the usual analysis to weigh in on the news of the moment.
Colorado’s ban on conversion therapy might seem, at first glance, like a classic religious liberty case. For decades, challenges to similar laws were brought by counselors or parents who claimed a religious obligation to guide a child away from same sex attraction or toward a traditional understanding of gender. That religious framing shaped both the litigation strategy and the public imagination. But Chiles v. Salazar is different. The challenge now arrives at the Supreme Court not as a religious liberty claim, but as a free speech claim, and that shift is precisely what makes the case so significant.
Kaley Chiles is a licensed counselor who wants to talk with minors about what she calls unwanted same sex attraction or gender dysphoria. Colorado’s statute prohibits licensed therapists from engaging in any practice “that attempts or purports to change a client’s sexual orientation or gender identity,” including efforts to change “behavior, gender expression, or attraction.” For the state, the law protects minors from harmful, discredited practices. For Chiles, it “prophylactically bans voluntary conversations” and censors a viewpoint the government disfavors.
The core of Chiles’s argument is that therapy is, at bottom, talk. If the government cannot compel professionals to say certain things (as held in NIFLA v. Becerra (2018)) it also cannot forbid them from expressing certain ideas, even ideas the medical community overwhelmingly condemns. In this framing, conversion therapy is not a clinical intervention but a message the state has decided is unacceptable.
This argument reflects a broader trend in the Court’s recent cases. In 303 Creative v. Elenis, a dispute rooted in religious motivation was resolved entirely through compelled speech doctrine. Free Exercise receded from the analysis. Expression did all the work.
Chiles follows the same pattern. Under Employment Division v. Smith, Colorado’s neutral ban would almost certainly withstand a Free Exercise challenge. But a free speech claim triggers strict scrutiny, a standard far more skeptical of government motives and far less attentive to third party harms. When professional counseling is reframed as pure expression, the state’s ability to regulate practices affecting minors becomes constitutionally fragile.
This shift has consequences that extend well beyond conversion therapy. Suicidality counseling, eating disorder treatment, addiction treatment, gender affirming care, grief counseling, and end-of-life support are all delivered primarily through spoken conversation. If talk-based therapy is treated as protected speech rather than professional conduct, substantial areas of public health regulation become more legally vulnerable.
The oral argument underscored this tension, not as the center of the case, but as a lens into how the Court currently understands the uneasy boundary between professional regulation and expression.
Several justices pressed Colorado on whether it had ever enforced the law. The state pointed to six years of non-enforcement and told the Court it would not apply the statute to the kind of “consensual talk therapy” Chiles says she offers. Justice Sotomayor stated the issue directly:
“We have basically six years of no enforcement ... and we have the entity charged with administering the law saying we’re not going to apply it to your kind of therapy.”
Chiles’s attorney argued that Colorado had not truly disavowed enforcement. But the exchange revealed something deeper: Chiles insists the statute plainly covers what she does, while Colorado insists it does not. The result is an unusual dynamic in which the state aims to defeat the lawsuit by narrowing the very statute the legislature passed to protect minors.
That difficulty is not incidental. It reflects the precarious position states face when trying to regulate counseling practices under the Court’s current First Amendment approach. The more Colorado characterizes conversion therapy as professional conduct, the easier it is to defend the statute. But the more therapy is framed as speech, the harder it becomes to justify any limits on its content.
Meanwhile, the medical consensus remains unequivocal. Every major national health organization — the APA, AMA, AAP, and American Psychiatric Association — condemns conversion therapy for minors as ineffective and harmful. The APA’s 2009 task force found heightened risks of depression, suicidality, and internalized shame. Yet contemporary First Amendment doctrine gives diminishing weight to professional consensus. Courts increasingly view scientific disagreement not as grounds for regulation but as evidence that the state is policing ideas.
This is why the shift from religion to speech matters so profoundly. Free Exercise doctrine, despite its disputes, at least acknowledged the reality of third party harms. Free speech doctrine does not. Once a claim is recast as viewpoint discrimination, the effects on minors become secondary.
This is the larger story that Chiles v. Salazar brings into focus. The case is not simply about LGBTQ youth or parental authority. It is a bellwether for how the Court may redraw the line between professional regulation and expressive freedom.