On February 13, U.S. District Judge Robin L. Rosenberg denied a motion by two Palm Beach County psychologists to block enforcement of the county’s ordinance forbidding licensed health care practitioners from providing “sexual orientation change efforts” (SOCE, alsocommonly referred to as “conversion therapy”) to minors. The refusal of a preliminary injunction extends as well to a similar ordinance enacted by the city of Boca Raton, which is in Palm Beach County. Judge Rosenberg concluded that the plaintiffs failed to show that they were likely to prevail on their argument that the measures violate their First Amendment free speech rights. Otto v. City of Boca Raton, 2019 WL 588645, 2019 U.S. Dist. LEXIS 23363 (S.D. Fla.).
Judge Rosenberg appears to be the first district judge to take on recent Supreme Court rulings that might make it more difficult for governments to defend these laws against constitutional attacks. Just weeks ago, a federal magistrate judge in Tampa recommended to the district court there to grant a preliminary injunction against enforcement of Tampa’s ordinance against conversion therapy practitioners in that city while the litigation proceeds. The district court has not yet ruled on that recommendation, and Judge Rosenberg’s extensive and detailed opinion may influence the other district judge to reject the magistrate’s recommendation.
Magistrate Judge Amanda Arnold Sansone’s recommendation in the Tampa case was based heavily on the U.S. Supreme Court’s June 26 ruling, in National Instituyte of Family and Life Advocates (NIFLA) v. Becerra, 138 S.Ct. 2361 (2018), that a California statute requiring clinics in that state to advise clients about the availability of state-financed abortion services violated the clinics’ First Amendment rights. In the course of that opinion, Justice Clarence Thomas, writing for the Court, specifically rejected assertions by two federal appeals courts that “professional speech” is entitled to less constitutional protection than other speech, in cases involving challenges to laws against conversion therapy.
Judge Sansone construed the Supreme Court’s ruling to require using the “strict scrutiny” test to evaluate the Tampa ordinance, and concluded that the plaintiffs were likely to prevail on their claim that the ordinance would not survive strict scrutiny, at least regarding the consensual “talk therapy” that the plaintiffs claimed to be providing to their patients.
Without explicitly mentioning Magistrate Sansone’s analysis, Judge Rosenberg rejected it, concluding that the question of the level of judicial review to be provided to these ordinances is “unsettled” at best, and that the cases that Sansone cited and relied upon do not necessarily lead to the conclusion she reached.
Instead, finding that the appropriate level of review of a ban on talk therapy to attempt to change a person’s sexual orientation (or gender identity, for that matter) is “unsettled,” Judge Rosenberg decided to analyze the issue using the three different levels of judicial review of a statute, always keeping in mind that in requesting a preliminary injunction to block a duly-enacted statute while its constitutionality is being litigated, the plaintiffs have a heavy burden to show a substantial likelihood of prevailing on the merits of their claim.
Using the least demanding level of review, “rational basis,” Judge Rosenberg easily rejected the contention that the city or county were acting irrationally or without any justification in passing the ordinances. She devoted a substantial part of her opinion to summarizing the evidence that was presented to persuade the county and city legislators that they should pass these laws, concluding that a substantial body of professional opinion unanimously rejects the use of conversion therapy, especially on minors, both because of the lack of evidence that talk therapy can change a person’s sexual orientation, and the mounting evidence of its harmful effects. Furthermore, she noted, minors are not really capable of giving informed consent and are particularly vulnerable to the psychological harm associated with conversion therapy.
Turning to the next level of scrutiny, which has been applied by other courts in evaluating free speech claims against such laws, “heightened scrutiny,” she found that the legislative record here would back up the defendant’s claims of important governmental interests in protecting minors that are advanced by passing these laws.
Turning to the most demanding level of review, “strict scrutiny,” Judge Rosenberg noted that generally content-based governmental actions to restrict speech are subject to this standard, putting the burden on the government to show that it has a compelling interest at stake and that the measure is narrowly tailored to achieve that interest without unnecessarily abridging free speech. Narrow tailoring means that the governmental body has to have considered whether a narrower prohibition (the “least restrictive alternative”) would suffice to achieve its compelling goal.
Key to her analysis here is that the defendants met the compelling interest test, because protecting minors is an important role for government, especially when it is necessary to protect them from what may be well-meaning but ultimately harmful decisions by their parents. The issue which she deemed less conclusive was the narrow tailoring part. The plaintiffs suggested, as plaintiffs had successfully argued to the Tampa magistrate judge, that a ban on aversion therapy or non-consensual therapy would suffice. Rosenberg cited reasons for doubting this, including the evidence that talk therapy itself may have harmful effects, as well as her reservations, noted above, about whether such therapy practiced on minors is really consensual.
The bottom line for Rosenberg, however, was that the plaintiffs did not meet the bar of showing that strict scrutiny was definitely the appropriate test to apply, or that they had a substantial likelihood of proving at trial that the measures were insufficiently narrowly-tailored. As a result, they were not entitled to the preliminary injunction. She reached a similar conclusion analyzing plaintiffs’ claim that the ordinances are an unconstitutional prior restraint on speech or unduly vague.
Most importantly, she took great pains to explain why the Supreme Court’s ruling in the California clinics case does not necessarily mandate that strict scrutiny should be the standard in this case. For one thing, she pointed out, that case did not involve regulating speech that was part of treatment, while in this case, the speech is a tool in the process of providing treatment, and state and local governments have traditionally regulated treatments offered by licensed professionals. The California case involved requiring clinics to provide information that they did not want to be compelled to provide, which is a different story entirely. “There,” she wrote, “the doctors were compelled to speak, despite the fact that the required notice ‘is not an informed-consent requirement or tied to a procedure at all.’”
She also noted that Justice Thomas’s opinion did not even specify what the level of judicial review should be in that case. She pointed to the Supreme Court’s earlier case, Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the Court considered a state law requiring that doctors make certain “factual disclosures” to patients seeking abortions in an attempt to dissuade them. In that case, the Court’s opinion said that “the physician’s First Amendment rights” were only “implicated as part of the practice of medicine, subject to reasonable licensing and regulation by the state.” This suggests that the rational basis test might apply, or at most heightened scrutiny.
Because she concluded that at this preliminary stage it was possible to conclude that plaintiffs had not shown a substantial likelihood of winning under any of the potentially applicable standards of review, Judge Rosenberg denied the preliminary injunction, leaving to a later stage in the litigation a more definite ruling on the appropriate level of review and the ultimate merits of the case. This means that the performance of conversion therapy on minors in Palm Beach County and the city of Boca Raton will continue to be illegal for licensed health care practitioners while the litigation proceeds.
Plaintiffs are represented by Liberty Counsel, the anti-LGBT legal organization that also represents the psychologists attacking the Tampa ordinance, as well as psychologists in New Jersey who have petitioned the Supreme Court to revive their 1st Amendment challenge to that state’s ban on conversion therapy for minors.