The Supreme Court ruled 8-1 that Colorado's ban on conversion therapy for minors violates the First Amendment when applied to a licensed counselor's talk therapy practice, reversing a lower court decision and leaving only Justice Ketanji Brown Jackson in dissent.
The decision, released Tuesday, didn't just unite the Court's conservative wing. It pulled Justices Elena Kagan and Sonia Sotomayor across the aisle, producing a supermajority that found Colorado's 2019 law "regulates speech based on viewpoint." In an era when the left insists the Supreme Court is a captured institution, two of its most prominent liberal justices looked at the facts and landed exactly where the Constitution demanded.
According to Newsweek, in 2019, Colorado adopted a law prohibiting licensed counselors from engaging in "conversion therapy" with minors, defining it as "any practice or treatment...that attempts...to change an individual's sexual orientation or gender identity." The law further targeted efforts "to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex."
Enter Kaley Chiles, a licensed Colorado counselor who provides talk therapy. She does not prescribe medicines, perform physical treatments, or engage in coercive or aversive practices. She helps clients work toward their own stated goals, including those who wish to "reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony."
Chiles filed a lawsuit against the state and sought a preliminary injunction, arguing the law violated her First Amendment right to speak with clients in ways she believed might help them. Both the district court and the Tenth Circuit Court of Appeals applied rational basis review, the most permissive standard of constitutional scrutiny, and found Colorado's law passed muster.
The Supreme Court disagreed. Forcefully.
Justice Neil Gorsuch, writing for the majority, held that the lower courts failed to apply "sufficiently rigorous" First Amendment scrutiny. The law, he wrote, doesn't merely regulate conduct or set professional licensing standards. It "goes further to prescribe what views she may and may not express, discriminating on the basis of viewpoint."
Gorsuch's opinion cut straight to the core principle at stake:
"Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country."
He went further, framing the constitutional stakes in terms that left no room for ambiguity:
"It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an 'egregious' assault on both of those commitments."
The Court reversed the Tenth Circuit's judgment and remanded the case for further proceedings consistent with its opinion.
The headline belongs to Gorsuch's majority opinion, but the concurrence authored by Justice Kagan and joined by Justice Sotomayor may prove more revealing about where the legal landscape actually stands.
Kagan acknowledged the ruling's boundaries carefully, writing that "if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question." But she made clear that Colorado's law wasn't that:
"Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers' expression because, as the Court holds, Colorado's is not one."
Read that closely. Two liberal justices didn't merely sign onto the majority. Kagan wrote separately to emphasize why this case was straightforward. Colorado wasn't regulating a dangerous medical procedure. It was picking winners and losers in a conversation between a counselor and a willing client based on which direction the conversation traveled. A therapist could talk a minor into embracing a new gender identity. She could not talk a minor out of one.
That is viewpoint discrimination. And even the left side of the bench could see it.
Justice Ketanji Brown Jackson filed a lone dissent, arguing that states have traditionally regulated the provision of medical care without constitutional incident:
"The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel. Accordingly, I cannot agree with the majority's analysis or its conclusions in this case."
The framing is telling. Jackson's dissent rests on classifying talk therapy as a "harmful medical treatment" equivalent to surgery, precisely the kind of categorical assertion that collapses under scrutiny. Chiles wasn't performing procedures. She was having conversations. The state decided certain conversations were impermissible based on their content and direction. Eight justices recognized the difference. One did not.
Colorado's conversion therapy ban was always less about protecting minors and more about enforcing ideological conformity within the therapeutic profession. The law didn't target coercion, aversive conditioning, or anything that would resemble what most people imagine when they hear the phrase "conversion therapy." It targeted words. Specifically, words spoken by a licensed counselor to a client who voluntarily sought them out.
Consider what the law permitted and what it prohibited:
This is not a neutral health regulation. It is a state telling professionals which conclusions they are allowed to help their clients reach. The Supreme Court, by an overwhelming margin, said the First Amendment forbids it.
Laws like Colorado's exist across multiple states, and this ruling will reverberate. The Court did not hold that all conversion therapy bans are unconstitutional. Kagan's concurrence was deliberate in leaving that door ajar. But any law that draws its line based on the viewpoint expressed, rather than the method employed, now sits on constitutionally unstable ground.
For years, the progressive legal project has attempted to reclassify speech as conduct whenever the speech conflicts with prevailing orthodoxy. Call a conversation "treatment," and suddenly the First Amendment no longer applies. Eight justices refused to play that game.
The marketplace of ideas remains open. Colorado doesn't get to shut the doors.