Today, Tuesday, December 4, 2012, U.S. District Judge Kimberly J. Mueller denied plaintiffs' request that California be enjoined from enforcing California law SB 1172 making Reparative Therapy for minors illegal in California when practiced by licensed mental-health practitioners there.
Under Mueller's ruling, there is nothing to prevent a therapist from verbalizing the entire therapy to the minor client, which is then engaging in that therapy, as the therapy is that very talk, which CA SB 1172 though disallows.
Mueller though writes, "Here, plaintiffs have not demonstrated a likelihood of success on the merits of their claim that SB 1172 will subject mental health professionals to discipline if they merely recommend SOCE to minor patients, or discuss it with them, ...."
Obviously, she doesn't think it through. When does the protected speech stop being protected just because the practitioner continues speaking the treatment, which treatment is explanation afterall? Where is the magic line where the child treats it as protected information versus unprotected treatment?
Mueller further writes that "...the state's insistence that the statute bars treatment only, and not the mention of SOCE or a referral to a religious counselor or out-of-state practitioner, is consistent with a fair reading of the statute itself."
However, the speech of the practitioners protected under the First Amendment of the US Constitution is the very treatment that the statute infringes upon.
She also writes:
Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct. Given the weight of the authority on the question and the nature of the record before the court, plaintiff therapists have not shown they are likely to succeed in bearing their burden of showing that the First Amendment applies to SOCE treatment; they have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection.
However, she fails to apply this in even the most fundamental sense. She turns it on its head. Expressive conduct is not at issue but speech itself. Expressive conduct is protected when the conduct rises to the level of protected speech, not the other way around.
Since speech is clearly protected, and Mueller more than says that she knows that, it is then quite clear that strict scrutiny should be applied rather than mere rational basis.
Mueller also bases her ruling upon the following flawed reasoning:
The findings, recommended practices, and opinions of ten professional associations of mental health experts is no small quantum of information. Even if all of the studies and reports upon which the California Legislature relied were inconclusive or flawed, SB 1172 still would be a valid legislative enactment....
Again, she completely misses the mark by building upon her flawed idea that SB 1172 doesn't block protected rights. The whole issue is whether or not the state has a strong enough compelling reason to infringe upon the civil liberties and freedom of speech rights of the Plaintiffs. If the studies and reports are flawed, then upon what compelling ground does the state stand?
After one gets through with freedom of speech, commercial or otherwise, there's still the huge issue of freedom of religion, the freedom of the children to receive religiously consistent Reparative Therapy for unwanted same-sex attraction, which attraction is a sin to many religious persons, especially when behavior follows attraction. The children have a right to receive professional help consistent with their religious beliefs for their unwanted same-sex attraction. Homosexual affirmation is still not condone or allowed in many religions. California SB 1172 is a direct assault on freedom of religion.
The state does not have evidence of harm in Reparative Therapy over and above what is considered harm in other therapies that homosexuals themselves willingly undergo even as those homosexuals do not undergo Reparative Therapy. Is depression, etc., then laid at the doorstep of all such other therapies? It is not.
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And when they were come to Capernaum, they that received tribute money came to Peter, and said, Doth not your master pay tribute? He saith, Yes. And when he was come into the house, Jesus prevented him, saying, What thinkest thou, Simon? of whom do the kings of the earth take custom or tribute? of their own children, or of strangers? Peter saith unto him, Of strangers. Jesus saith unto him, Then are the children free. (Matthew 17:24-26)