Our ‘conservative’ court strikes again

In America today, a doctor has the right to castrate a minor, but a counselor cannot provide therapy to one struggling with homosexual inclinations or even gender dysphoria. According to the federal courts, banning drag shows for minors violates the First Amendment, but banning parents from seeking psychological help for a child’s homosexual desires does not undermine freedom of speech. Under this queer reading of the law and the Constitution, it is more natural in our society for a man to be a woman than for a man to be a man.

And so the “conservative” U.S. Supreme Court on Monday let stand a novel, destructive, and utterly unconstitutional lower court decision banning “gay conversion therapy” in Washington state. Justices Neil Gorsuch and Amy Coney Barrett, with Chief Justice John Roberts, joined the court’s three liberals in denying an appeal in Tingley v. Ferguson, which means Washington’s law and similar legislation in 19 other states and the District of Columbia will remain on the books.

Time and again, we see that none of Donald Trump’s appointments come close to the constitutional jurisprudence of Clarence Thomas and Samuel Alito.

Under Washington’s SB 5722, passed and signed into law in 2018, licensed health care providers are barred from “[p]erforming conversion therapy on a patient under age eighteen.” Violators face a $5,000 fine, “remedial education,” suspension from practice, and license revocation.

In a world contorted beyond belief, it is a crime in Washington to counsel a boy that he is indeed a boy if he is struggling with the latest fad, but it is not considered abuse to convince a boy he is really a girl.

Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh dissented from the denial of the appeal. “It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny,” Alito wrote.

For several years now, the appeals courts have split on the First Amendment question, with the U.S. Court of Appeals for the Ninth Circuit upholding Washington’s law as a legitimate health care regulation and the Eleventh Circuit holding that such laws violate the health care provider’s freedom of speech and viewpoint.

“There is little question that SB 5722 regulates speech and therefore implicates the First Amendment,” Thomas wrote in a separate dissenting opinion. “Under SB 5722, licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities.”

For Thomas, Washington’s law is “viewpoint-based and content-based discrimination in its purest form” and therefore “presumptively unconstitutional.” “Expressing any other message is forbidden — even if the counselor’s clients ask for help to accept their biological sex.” How is that not a direct shot at freedom of speech?

Thomas lambasted the Ninth Circuit for sidestepping the First Amendment by hiding behind a phantom precedent of health care regulations of speech. “This case is not the first instance of the Ninth Circuit restricting medical professionals’ First Amendment rights,” he wrote, “and without the Court’s review, I doubt it will be the last.”

In fact, California has already tried to use health care regulations to gag doctors from providing patients with informed consent about COVID vaccines. Governor Gavin Newsom (D) in 2022 signed Assembly Bill 2098, which targets doctors who promote “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” In other words, any doctor who would have advised what we now know — and some of us always knew — was the truth about masks and the COVID shots would have risked losing his license. Thankfully, a federal district judge ruled tossed out the law as unconstitutionally vague.

It isn’t shocking that the court’s liberal appointees would share such a warped view of the First Amendment. But it is appalling that Barrett and Gorsuch would allow this travesty to continue even after a circuit split. What is particularly jarring is that Barrett also voted against taking up the appeal of the case that struck down laws against minors attending drag shows. She seems unwilling to protect freedom of speech when it actually applies.

Time and again, we see that in most important cases, none of Donald Trump’s three Supreme Court appointments come close to the constitutional jurisprudence of Clarence Thomas and Samuel Alito. This leaves us with an imbalance. Blue states can use the boot of government to violate human rights in pursuit of Sodom and Gomorrah with impunity, while red states are stymied in protecting basic social norms, parental rights, and human decency.

We simply cannot share a country with people who have such a morally dyslexic view of the human body, mind, and soul, as well as the contours of basic rights and state powers. Joe Biden is right about the need for a two-state solution — but we need it right here, not in Israel.