Law Has Nothing to do With It: Jurisdiction and Religion in the Roberts Court

On Tuesday, the Supreme Court will hear oral argument in Chiles v. Salazar, a difficult case involving “conversion therapy.” Colorado, like many other other states, bans treatment that is intended to change a minor’s sexual orientation or gender identity. The law makes an exception for people “engaged in the practice of religious ministry.” 

The plaintiff is a Colorado Springs Christian therapist who argues that the law is an unconstitutional gag order on licensed counselors. Colorado argues that the ban simply regulates a dangerous and ineffective medical treatment. The lower courts ruled for Colorado mostly on the basis that the law primarily regulates professional conduct, not speech, and therefore the law does not violate the first amendment.

This case is difficult because it requires the balancing of the state’s permissible goal of regulating dangerous medical treatments with the free speech rights of therapists and others to say to their clients what they feel is important to be said. Were I the judge, I would probably agree with the lower courts, but that is not the point of this post. (Mike did a deep dive into the merits yesterday.)

Rather, the justices should dismiss this case for lack of jurisdiction. Unfortunately, the Roberts Court has engaged in a consistent pattern of ignoring jurisdictional defects when it wants to hear the merits of cases, especially those involving controversial social issues, and especially those with religious implications.

Colorado has not yet applied this law to the plaintiff (or to anyone). This lawsuit therefore is what lawyers call a “pre-enforcement” challenge. The Tenth Circuit said the following:

Ms. Chiles claims that, using talk therapy, she does not seek to “cure” clients of same-sex attractions or to “change” clients’ sexual orientation; she seeks only to assist clients with their stated desires and objectives in counseling, which sometimes includes clients seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one’s physical body. And she does not try to help minors change their attractions, behavior, or identity, when her minor clients tell her they are not seeking such change.

Colorado argues in its brief in the Supreme Court that, because the law at issue only forbids people from using conversion therapy, the plaintiff lacks standing. Colorado is probably right, but the better way to look at the case is that it simply isn’t ripe because there has been no direct and concrete threat of enforcement from the state. The Tenth Circuit ruled otherwise but, in my opinion, quite unpersuasively.

In Poe v. Ullman, the seminal case in this area of the law, several plaintiffs challenged a Connecticut law prohibiting the use of contraceptives or the giving of advice about contraceptives. The plaintiffs were a married couple who had experienced three pregnancies resulting in children with severe birth defects, a woman whose previous pregnancy had caused extreme medical complications, and a doctor who recommended that the second plaintiff use contraception. There was no dispute that the plaintiffs wanted to use contraception and that the doctor wanted to give advice about contraception and that such behavior violated Connecticut law.

Although the state would not concede that it would refrain from applying this law to the plaintiffs, the Court said the case was not ripe. The law had been on the books since 1879 with only one prosecution, and people in Connecticut bought contraceptives openly from drugstores. The Court concluded that the plaintiffs did not establish a real threat of prosecution and said that “best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity."

Eventually, the doctor in the case sought to open a family planning clinic, there was a real threat of prosecution, and those facts became the landmark case of Griswold v. Connecticut.

Poe has come to stand for the principle that plaintiffs seeking to challenge a statute before they have been subject to its terms must show a real or direct threat of prosecution or enforcement. Usually, the best way to show such a threat is to point to other similarly situated people who have been subjected to the law or to show that the government entity at issue threatened the plaintiff with enforcement. Different circuits have different rules regarding what constitutes such a direct threat, and perhaps the burden of showing such a threat should be relaxed in free speech cases because of the chilling effect of laws regulating speech, but the law requires that the threat be real.

The plaintiff in Chiles expressly stated that she does not and will not try to counsel minors to convert or change their sexual orientation. That admission should end this case, as that is the only behavior the Colorado law forbids. Her claim is that the statute does not allow her to “help clients seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one’s physical body.” Colorado says she is permitted to do all those things as long as she does not use conversion therapy to do so:

The law is narrowly tailored to regulate only the one specific discredited practice of conversion therapy. It does so without limiting any other communication that licensed professionals wish to have with their patients or others about sexual orientation, gender identity, or their views on conversion therapy. And it does so without imposing any limitation on other treatment for patients…. [The law] only prevents mental health professionals from treating a young patient for the purpose of changing sexual orientation or gender identity—a treatment that Petitioner says she does not pursue. Therapists are otherwise free to provide any treatment within the standard of care.

Again, the plaintiff has not alleged that she wants to employ conversion therapy in her treatment of her patients. She only says that the Colorado law chills her ability to treat her clients appropriately. But as Colorado argues, the plaintiffs’ misreading of the statute should not be enough to warrant the justices deciding a widely contested and difficult constitutional law question.

But even if there were uncertainty or gray areas raised by the law, the State has so far not applied it to anyone nor has it even hinted it would apply the law against the plaintiff. Moreover, as the State argues in its brief, the plaintiff “could under state law request a declaratory order from Respondents to clarify any uncertainty she may have about the law.” Her unwillingness to do so should alone render this case unsuitable for judicial resolution. In addition, it is wildly unclear what she wants to say to her patients that would be forbidden by a law that has yet to be applied to anyone. That is at the other end of the spectrum from Poe, where everyone knew exactly what the plaintiffs wanted to do which unequivocally violated the law at issue. And yet the plaintiffs' case in Poe was dismissed.

Alas, the Roberts Court will likely go out of its way to resolve this controversy, as it has in many other cases involving controversial issues relating to religion. One striking example is Trinity Lutheran v. Comer, where the Court decided whether a Missouri grant program excluding religious schools violated the free exercise clause even though by the time the case was argued, a different governor had been elected, he had changed the policy to allow religious schools to apply, and all the parties to the case agreed on every issue in the litigation. The case should have been dismissed for both mootness and a complete lack of adversariness, but instead the Court issued a major constitutional decision to further its desire to supercharge the free exercise clause.

In 303 Creative v. Elanis, a case David Post, a law professor who blogs for the Volokh Conspiracy, called a “ridiculous standing decision,” the Court allowed a pre-enforcement challenge to a Colorado law prohibiting discrimination in places of public accommodation on the basis of sexual orientation. The plaintiff web designer alleged that sometime in the future she might want to enter the business of designing wedding websites and her religion dictated that she not do so for same-sex weddings. This is how Post (accurately) described the case:

There's no website. Indeed, there may never be a 303 Creative wedding website. Because there is no website, there are no customers, same-sex couples, or anyone else, for the services the website might provide (if it existed).  Because she is offering no services (yet) to anyone, she has not "denied her services" (yet) to anyone based on their…sexual orientation. And because she has not denied her services to anyone based on their sexual orientation…she has not done anything that could be deemed a violation of the [state law].  And because she has not done anything that could be deemed a violation of [state law], [Colorado] has not taken any action against her…. In short, the case is entirely hypothetical.  "IF I do this, and IF they do that, my constitutional rights will have been violated."  Exactly the sort of case, one would think, that federal courts must, as a constitutional matter, decline to hear, for the simple reason that it does not yet exist (and may never exist).

Professor Post deemed the case one that lacked standing, which is an appropriate way of looking at it, but really the case should have been dismissed for lack of ripeness, as there could be no threat of prosecution (direct or otherwise), as the plaintiff’s website did not even exist.

It is not a coincidence that all three of the cases discussed above were brought by the non-profit law firm Alliance Defending Freedom, which describes itself as “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family.” No doubt the Court’s conservatives share that mission and are more than happy to forgo jurisdictional requirements to further that mission. 

And finally, speaking of the Alliance Defending Freedom, it was allowed to intervene in a case brought by taxpayers in Arizona challenging a state law allowing Arizona taxpayers to donate private funds to a “school tuition organization” (STO) of their choice. The taxpayers received credits on their state income tax obligations for the amount donated, up to certain limits. The Alliance represented an STO named the “Arizona Christian School Tuition Organization.”

The plaintiffs argued the law violated the establishment clause by using taxpayer dollars to support religious schools. Previous case law supported the plaintiffs’ standing to challenge governmental spending programs that allegedly violate that clause. In this case, however, the Court found the plaintiffs lacked standing because the law involved government credits rather than expenditures.

But as Justice Kagan argued strenuously in dissent, it makes no sense to distinguish tax credits from expenditures when it comes to potential establishment clause violations. The example she used was that taxpayers bringing an establishment clause claim under current law would be allowed to challenge their money being used to buy crucifixes for religious schools, and that shouldn’t change just because instead of the state paying for them directly it receives less money coming in because of an allegedly unconstitutional tax credit given to the people who buy crucifixes for the schools.

But the main lesson from these cases, of course, is that the Court will bend over backwards to find jurisdiction when doing so aids religion and will bend over backwards to decline jurisdiction if doing so … also aids religion. In other words, religion always wins. In the end, like with most constitutional law issues in the Roberts Court, the justices’ values reign supreme, and law has nothing to do with it.

Eric Segall