The Supreme Court has been a house of horrors for Colorado over the past decade, with the state facing a trio of major losses over laws it claims it has enacted to protect LGBT people but that the justices found violated constitutional rights.
Colorado suffered its latest loss at the Supreme Court on Tuesday when the justices found the state’s law restricting the content of therapists’ speech under the guise of banning what the state misleadingly described as “conversion therapy” was clear viewpoint discrimination under the First Amendment. The 8-1 decision in Chiles v. Salazar was the latest adverse ruling for the Centennial State at the high court, after losses in 2023’s 303 Creative v. Elenis and 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission over the state anti-discrimination law.
The state’s poor track record defending laws it claims are meant to protect LGBT people at the Supreme Court can be tied to how the state has chosen sides in free speech debates.
“The court has said this time and time again, but apparently the [Colorado] government continues to need to hear it, is that the First Amendment does not just protect speech that the government likes or approves of,” Caleb Trotter, senior attorney at the Pacific Legal Foundation, told the Washington Examiner. “The entire point of the First Amendment is to protect speech that is unpopular, maybe even wrong or divisive, but if the Constitution only protects popular speech, then there’s really little point to it.”
Colorado’s laws unlawfully pick sides over allowing free speech
With the Chiles case, the state’s “conversion therapy” ban meant Kaley Chiles, a licensed therapist in the state, would not be allowed to tell her patients, some of whom are children suffering from gender dysphoria, that they should embrace their actual gender. The state law only allowed counselors such as Chiles to encourage gender dysphoria, even though studies show most children eventually outgrow their feelings of gender confusion before adulthood.
The high court rejected Colorado’s argument that the “conversion therapy” ban was a professional regulation, which would not be subject to First Amendment protections, instead affirming that the law was viewpoint discrimination.
In the 303 Creative and Masterpiece Cakeshop cases, the Supreme Court found the state’s anti-discrimination statutes violated the First Amendment rights of business owners who had declined to create wedding websites and wedding cakes, respectively, for the marriages of same-sex couples, citing their religious beliefs. The justices in both cases found that websites and cakes are creative expressions that the state could not compel business owners to create due to the First Amendment.
In all three cases, the conservative law firm Alliance Defending Freedom backed Chiles, Lorie Smith, the wedding website designer, and Jack Phillips, the baker, in their respective legal battles against Colorado. Jim Campbell, chief legal counsel at ADF, said that with the latest case, the Supreme Court recognized the state’s “egregious viewpoint discrimination,” which was “inconsistent with First Amendment principles.”
“Colorado keeps passing these laws and applying them in ways that violate First Amendment freedoms,” Campbell told the Washington Examiner. “Not only that, but in Masterpiece Cakeshop, the state of Colorado was acting with open hostility towards Jack Phillips’s faith.”
The 7-2 Supreme Court ruling in favor of Phillips noted the “elements of a clear and impermissible hostility” by the Colorado Civil Rights Commission “toward the sincere religious beliefs that motivated his objection” to baking a cake for a same-sex wedding. An example cited by then-Justice Anthony Kennedy in his majority opinion was how, during a public meeting, one of the commissioners stated that if “a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.”
The First Amendment violations are the through line connecting the trio of cases, with the state trying to suppress speech it views as harmful or discriminatory toward LGBT people.
LGBT protections and constitutional rights are not incompatible
While Colorado has seen several of its LGBT laws struck down, the Supreme Court has not foreclosed other types of protections.
“What the Supreme Court has said repeatedly in the case and in other cases, is that there’s room for dissent on issues of nationwide importance,” Nick Reaves, senior counsel at the Becket Fund for Religious Liberty, told the Washington Examiner. “The government can’t enforce its own orthodoxy.
“No one’s stopping Colorado from doing things to support and help groups and minorities and other individuals who it thinks needs help, but that shouldn’t come at the cost of silencing other minorities or engaging in religious discrimination,” he said, noting there can be a “win win solution.”
The Chiles case was framed around banning “conversion therapy,” but the case only dealt with voluntary talk therapy, something not typically included in the definition of gay or LGBT “conversion therapy.” The Supreme Court’s decision leaves the door open for states to ban practices that fall under the typical definition of “conversion therapy,” such as shock therapy or other outdated physical treatments intended to change someone’s sexual orientation.
“The court made clear that certainly, Colorado could prohibit actual problematic treatments like electro shock therapy and other physical aversion techniques that would be completely different from how it chose to restrict licensed counselors’ speech, only with willing clients,” Trotter said.
“And so certainly, there are tools that states have to directly regulate truly problematic conduct or discrimination,” he said. “But when we’re talking about speech that is being limited, that’s where the Supreme Court is continually telling Colorado, and by necessity, other state governments with similar laws, that that’s going too far.”
Colorado offers defiant response to latest Supreme Court loss
Colorado, no stranger to losing at the Supreme Court, slammed the Supreme Court’s Tuesday ruling, with state Attorney General Phil Weiser calling it a “setback for Colorado’s efforts to protect children and families from harmful and discredited mental health practices.
“For generations, states have set and enforced standards to ensure that licensed professionals provide safe and appropriate care,” Weiser said in a statement after the ruling, framing the case as being about healthcare rather than free speech, despite the justices rejecting that notion. “We strongly disagree with the court’s reasoning and are carefully reviewing the decision to assess its full impact on Colorado law and on our responsibility to protect patients and consumers.
“To LGBTQ youth in this state and beyond: you are valued, you are worthy, and your health and dignity matter,” he said. “We will continue to stand up for care grounded in science and for the rights of all children to grow up safe, supported, and respected.”
The Centennial State has been unsuccessful in defending LGBT laws against legal challenges three times, and if they attempt to try a fourth time, Campbell said ADF is prepared to take Colorado back to the Supreme Court.
SUPREME COURT RULES AGAINST COLORADO IN FIRST AMENDMENT DISPUTE OVER ‘CONVERSION THERAPY’ BAN
“We’ve been dealing with these cases against the state of Colorado for more than a decade — well, more than a decade — and what we’ve learned is that the state of Colorado is no respecter of the First Amendment,” Campbell told the Washington Examiner.
“Colorado insists on continuing to violate the First Amendment freedoms of its citizens, and so long as it continues to do that, we at Alliance Defending Freedom will continue to file these lawsuits and hopefully continue to beat Colorado at the Supreme Court,” he said.