Religion and Psychiatry in the Sexual Orientation Change Therapy Cases and the Establishment Clause Defense

LAW, RELIGION, AND HEALTH IN THE UNITED STATES (Glenn Cohen et al, eds., Cambridge Univ. Press, 2017).

Posted: 2 Jun 2016 Last revised: 27 Jun 2021

See all articles by Craig Konnoth

Craig Konnoth

University of Virginia School of Law

Date Written: May 31, 2016

Abstract

In Pickup v. Brown, Welch v. Brown, and King v. Christie, plaintiffs challenged laws prohibiting mental health professionals from engaging in sexual orientation change efforts (SOCE) within the scope of their licenses. They argued (inter alia) that the laws violated their speech rights by prohibiting them from engaging in certain talk therapies, and interfered with their free exercise of religion. The Ninth and Third Circuits held that the behavior involved in these cases was either (a) not protected speech, or (b) speech subject to a lesser degree of protection, which the state had a sufficient interest in preventing.

In future cases, however, these arguments may not prove enough. The limits of protected speech under the First Amendment have expanded in recent years. In several cases, courts have held that various kinds of speech in medical contexts receive constitutional protection. It is therefore possible that future courts may hold that talk therapy constitutes fully protected constitutional speech.

To address that eventuality, I explore the pedigree of the therapies that undergird SOCE. I show that SOCE is best understood as a form of religious ministry. States can therefore argue that permitting SOCE within the scope of state issued medical licenses would endorse those practices and undermine the states’ compelling interest in preventing religious establishment. While this argument is not unassailable, I believe it would ultimately withstand scrutiny.

Keywords: LGBT, medicine, psychiatry, religion, Sexual orientation change efforts, biblical counseling

Suggested Citation

Konnoth, Craig, Religion and Psychiatry in the Sexual Orientation Change Therapy Cases and the Establishment Clause Defense (May 31, 2016). LAW, RELIGION, AND HEALTH IN THE UNITED STATES (Glenn Cohen et al, eds., Cambridge Univ. Press, 2017)., Available at SSRN: https://ssrn.com/abstract=2787332

Craig Konnoth (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
5,182
PlumX Metrics