The Supreme Court Just Made Therapy a Free Speech Issue
Last November, I argued that Chiles v. Salazar was not really about religion. The more consequential development was quieter. Challenges to conversion therapy bans had migrated from Free Exercise to free speech. That shift, I suggested, would change the constitutional terrain on which these cases are decided.
The Court’s decision, handed down today, confirms that analysis.
The Case Colorado Lost Before It Argued It
Colorado’s law prohibited licensed therapists from using talk therapy to help minors change their sexual orientation or gender identity. The state defended it as a health measure, grounded in professional consensus that conversion therapy is ineffective and harmful. Justice Jackson’s dissent catalogs that evidence at length.
None of it moved the majority.
Not because the Court doubted the evidence, but because the evidence was beside the point. Once the Court accepted that Kaley Chiles’s counseling sessions were speech, Colorado’s law faced a different constitutional test.
And under that test, the law could not stand.
Colorado argued that it was regulating professional conduct, not expression. The lower courts agreed. The Supreme Court did not. Chiles does not prescribe medication or perform procedures. She talks. That was enough. If speech is what she does, then speech is what the state is regulating, whatever label it prefers.
From there, the rest followed quickly. The law did not simply restrict what Chiles could say. It dictated which viewpoint she could express. A therapist may affirm a minor’s identity. She may not encourage change. One message is permitted. The other is forbidden. That, the Court said, is viewpoint discrimination, the most disfavored form of speech regulation the First Amendment recognizes.
Once the case was framed that way, the outcome was effectively decided.
The Shift Has Reached Professional Regulation
The point I made in November was not about how this case would be labeled. It was about where these cases are going.
That shift was already visible. In 303 Creative v. Elenis, a dispute rooted in religious motivation was resolved entirely through speech doctrine. Free Exercise receded. Expression did the work.
Chiles extends that trajectory into a new domain. It applies core speech principles to the regulation of licensed professionals in a clinical setting.
That matters because the doctrinal consequences are substantial. Under Employment Division v. Smith, a neutral and generally applicable law like Colorado’s would likely survive a Free Exercise challenge. Reframed as a speech claim, the same law triggers strict scrutiny. The focus shifts from the law’s purpose and effects to the character of the restriction itself. Colorado could not meet that standard.
Justice Kagan’s concurrence gestures toward a narrow path forward. A content-based but viewpoint-neutral law, she suggests, might be treated differently. It is a careful caveat, not a roadmap. What counts as viewpoint neutral in this setting remains unclear.
Justice Jackson’s dissent identifies the argument the majority rejects. She reads NIFLA v. Becerra to allow states to regulate professional conduct even when that conduct is delivered through speech, so long as the regulation targets treatment rather than ideas. Colorado’s law, in her view, fits that model. Whether or not one agrees, her opinion underscores the tension the majority resolves more than it explains.
The Consequences Extend Far Beyond This Case
The Court is careful to describe its holding as narrow. It addresses only the as-applied challenge before it. But the reasoning is not so limited.
Much of modern healthcare is delivered through conversation. Addiction counseling, eating disorder treatment, suicidality intervention, end-of-life support, and grief therapy often consist entirely of speech. If those interactions are treated as fully protected expression, the state’s ability to regulate them becomes more uncertain.
The Court does not say how far its logic extends. It does not need to.
What Comes Next
The debate over conversion therapy is no longer being fought on the terrain of religion or public health. It is being fought on the terrain of speech. And on that terrain, the balance of power shifts.
States that seek to regulate therapeutic practices will have to draft with care. Laws that turn on the viewpoint a therapist expresses will face serious constitutional obstacles. Justice Kagan suggests that more carefully framed regulations might survive, but the contours of that possibility remain unclear.
The Court’s recent cases had already pointed in this direction. Chiles carries that logic into the regulation of professional practice, where the stakes are high and the answers are unsettled.
What remains is a narrower and more uncertain space for regulation. What comes next will depend on how legislatures attempt to occupy it.