Tuesday the Supreme Court was convening to debate the merits of a case challenging the ban on Conversion Therapy in Colorado. There are about 20 other states with this same ban, therefore, precedent set by this case will affect almost half the country despite how the court rules. The case is a free speech challenge with the party suing representing a faith-informed counselor who claims that the ban restricts what she can say to youth who want to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] physical body.” The counselor is scared that through their talk therapy sessions they could say something which could violate the ban, thus putting them in a position to break the law. 

Colorado is arguing that as long as counselors do not explicitly urge their patients to change their sexual identity from how they were born, then the counselors are not breaking the law. Therefore, as long as the counselor challenging the ban is not explicitly telling their patients that it is wrong to be homosexual and trying to change them, then the ban is not being violated and the freedom of speech is not being violated. However, the counselor argues that the constant oversight which is being enforced to see if there is a violation is in itself infringing on their freedom of speech.

Now the stage is set. The court seems to be leaning towards going against the conversion therapy ban. In this article, I want to do three things. First, I want to give a conservative argument for a conversion therapy ban. Then, I want to give a constitutional argument for conversion therapy bans. Lastly, I want to talk about why I do not believe this is a freedom of speech issue, and why I think this should be dealt with in the legislature and not the courts.

Conservative Rationale for a Conversion Therapy Ban

Obviously, many conservatives are against gay marriage. They believe that marriage should be between a man and a woman, so it may seem that there is an inherent conflict between the conservative movement and agreeing with conversion therapy bans. However, the current political right is moving away from the idea of only heterosexual marriage. Trump, the figurehead of this current movement, was the only president to recognize same sex marriage coming into office. Obama and Biden both acknowledged it during their administration, yet they did not when they were sworn into office; their rhetoric changed as a product of their base while they were in office. Therefore, there is a future where the right finds itself at peace with the idea of same sex marriage.

The United States currently has a family nucleus problem. Divorce rates are at an all-time high, and more children are growing up in single parent households than ever before. Parents are outsourcing their parental job. They try to make their children’s lives as easy as possible and be their best friend, as opposed to disciplining them and teaching their children valuable lessons. Children are arriving completely unprepared for college, and this allowed the woke movement to catch fire from a single spark. Overcompensating parents created sheltered children that never dealt with struggle or experienced failure. So, when they got to college they created these same ecosystems. “Safe spaces”, “micro-aggressions”, and “cancel culture” were all formed so that when the truth made college students feel uncomfortable, they simply denied that truth. Villains were created out of anyone who had a different opinion, and students learned that they either had to fall in line or be canceled. This is not conducive to political discourse, trusting people with other opinions, or a thriving political society. This all stems from the fact that the family nucleus is broken.

Children that grow up in single parent households suffer more from mental illness. Additionally, Generation Z does not feel like they can talk openly with their family, leading to added mental hurdles. It is true that Generation Z is different from other generations: they grew up with social media. Youth today have had their lives online from the point they could speak. No generation can understand this, yet this along with the deterioration of the family nucleus is a worrying sign for youth. Conversion therapy is adding to this deterioration.

Children do not decide to go to conversion therapy. The fact is that people are born with their preferences. If they are born gay they do not know any other way. They do not think something is wrong with them unless the community around them pushes them to believe that. Therefore, they would not willingly put themselves through conversion therapy unless others had told them to go or forced them. If possible, a colorblind person would not undergo painful eye surgery to fix their condition because the world without specific colors is all they know and they are happy how they are. Additionally, children do not control their insurance and how it is used. Minors are under their families’ medical insurance, so even if they wanted to do this they could not without their parents knowing. Therefore, parents are the ones who are putting their children through this.

This is an outsource of parenting and eradicates the family nucleus. Children are forced to go through conversion therapy by their parents, therefore, there is trust that is lost between the two parties when the child is forced to undergo this. More importantly, there is a difficult conversation that is being missed between parent and child. People grow up in different generations and have different beliefs. Parents should be verbalizing these beliefs to their children and explaining why they believe what they do and giving their child the right to do the same thing. This would build trust between the two groups and even if they ended up disagreeing they would come out respecting each other more. Instead, the discussion is outsourced, the parents bring another party into the family nucleus and it is shattered. This damage may be irreversible and it creates a situation where there is no longer trust between parents and children. Children should respect their parents and the decisions they make, but parents should have an open dialogue with their children and explain why they are doing what they are doing as opposed to simply going behind their back and ruining the dynamic.

As a nation, the family nucleus is the bedrock for how we treat each other and we grow as a society. When there is conversion therapy, this nucleus gets destroyed. People are punished for how they are born and thousands of families are destroyed, cracking the bedrock and sending the nation spiraling.

Constitutional Argument against Conversion Therapy

Originally, I was thinking that there could be a quartering act argument that could justify the undoing of the ban on conversion therapy. The quartering act has been cited as a tool to justify privacy in many cases. It has been used to claim that what is done in someone’s house, or between a confidential worker (lawyer, doctor, etc) is the person’s private business. This was used to justify the constitutionality of contraceptives and was one of the sources cited to justify Roe V. Wade. I was thinking that using this same logic, conversion therapy could be constitutional. Since it was between a child and their counselor, it could be constitutional because banning it would infringe on the privacy of the child with their medical provider.

Yet, I started thinking about the Guantanamo Bay tortures. These are widely seen as unconstitutional punishments. The prisoners were tortured with everything from water boarding to sleep deprivation. This was justified since it was not in the United States, so the anti-torture laws did not apply, yet it was still a United States prison and overall it is seen as a blemish in the country’s history. This is the same logic that would make conversion therapy bans unconstitutional: they are cruel and unusual. 

The Constitution directly protects people from cruel and unusual punishments. There are debates on the ambiguity of the term. Some states have defined the death penalty as cruel and unusual, some have not. The United States has ruled that the death penalty for minors is cruel and unusual, and it has been banned. So, is conversion therapy cruel and unusual?

I would say yes. As stated before, people are not asking to go to conversion therapy. Minors are forced by their parents to go. During these sessions, they are taught that the way they were born is wrong and that they need to fundamentally change something about their person to “become normal”. In the 1930s through the 1950s, shock therapy was a popular way to try and make mentally ill people “better”. Oftentimes, these people had nothing wrong with them before being shocked and after a few sessions started showing signs of mental illness. They were never ill, the shocks caused all the damage. As this was reported on more, public backlash was immense and as a whole this “form of treatment” fell out of fashion. It is not physical, but being constantly told that you are not right for the way you were born can have the same mental effect. It is commonly shown that people who are forced into conversion therapy have much higher risks of depression. This is mental torture. For years, torture has been classified under cruel and unusual punishment whether it is mental or physical. Therefore, so should conversion therapy. It is unconstitutional because it is cruel and unusual, therefore the ban should not be revoked.

Freedom of Speech Problem

The person challenging this case is trying to make this a freedom of speech issue. I do not believe it is. I think the court’s decision boils down to this: is freedom of speech more important than cruel and unusual punishment? It can also pose the question: is a freedom of speech issue enough to allow the courts to legislate, and if so how far can this go?

If the Supreme Court decides this in favor of the challenger, I believe it can set a precedent for the courts legislating that at its worst hamstrings the whole legislative branch. The first amendment is a hot button issue right now. The Trump Administration is fighting it hard, and it is clear to see why after the censorship that Trump had to go through. However, the courts are not legislators. There is a whole branch that decides our laws and can pass new statutes when old ones no longer work. Recently, the Supreme Court has been legislating a lot and they are taking away powers from state and federal legislators. At the worst, if ruled against the ban, we can see a court that could allow for stealing because theft laws violate the freedom of expression of the thief. We could also see killing or torture as forms of freedom of expression. Setting this precedent allows the courts to do too much and is an overreach of their power.

There is a reason that we have state and federal legislators. This should be an issue that is taken up with them. If the people of Colorado or any other state do not agree with the ban, they need to take it up with their local representatives and the local representatives bring it to the legislature. If the party asking about it is in a super minority, then noise needs to be made, bring it to the national level and have the federal legislature create laws that can protect the people that are not being heard in their states. This precedent being set could remove the powers of legislating from the legislators. It could create a system where legislators make laws that are only the rule of the land until they are brought to the courts, and changed to fit the liking of nine unelected “representatives”.

Final Thoughts

Throughout these arguments, I have dealt with the topic of minor conversion therapy, as that is the one I see most commonly, and the people I believe will be the most affected by this decision. Yet, it would be ignorant to believe that adults do not go through conversion therapy. If an adult, on their own accord, wants to go through conversion therapy, then that is their will and they should be free to do it. Therefore, I would support a ban for minors, but be open to it being unconstitutional for people who can make their own decisions since they have the freedom to do it and are not being forced.

We should look at the ability that people have to make decisions. If they are forced into this situation it is undoubtedly unconstitutional, yet if they choose to do it, then they have the right to. This will be an interesting court decision to see the result of. This could be a decision that we could look back on and see many ripple effects throughout our country’s future.