Clinics, Courts, and Culture Wars: Free Exercise as a Tool of Conservative Legal Change

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Among the pertinent cases on the Supreme Court docket this season was the controversial Chiles v. Salazar case. Fusing the contested and often oppositional topics of religious freedoms and LGBTQ+ rights, this case examined the constitutionality of a Colorado law banning conversion therapy for minors. At the center of this case lie the legal standards of strict scrutiny as well as distinctions between professional conduct and personal expression. Though not yet decided, Chiles v. Salazar and cases of similar matters demonstrate how proponents can utilize free exercise jurisprudence as a vessel to advance more conservative interpretations of the law. Past cases have reaffirmed this as an effective strategy of approach, and Chiles has the potential to do so as well. However, this phenomenon poses an evident threat to the civil and human rights of marginalized communities.

This case arises in an era in which the Trump Administration has deployed several measures to enshrine restrictive definitions of gender. Executive orders instituted early in Trump’s presidency sought to define sex in accordance with “biological reality,” effectively hindering gender expressions for the transgender community. In this vein, the President has enshrined “male and female” as the only federally-recognized sexes and prohibited legal sex change. This policy purportedly seeks to protect the nation from “gender extremism” and preserve traditional ideals of gender and sexuality expression. Consequently, Chiles v. Salazar remains among the key cases shaping the current wave of legal discussion regarding how free expression of gender and sexuality clashes with tradition and religion-driven arguments for restriction. 

In 2022, Plaintiff Kaley Chiles, a licensed professional counselor in Colorado Springs, brought this suit to the U.S. District Court for the District of Colorado, primarily taking issue with Colorado’s 2019 Minor Conversion Therapy Law. This statute prohibits conversations encouraging minors to change their sexual orientation and/or gender identity, defining this type of care as “conversion therapy.” However, the law outlines that counseling discussions that include acceptance and support are permitted, along with the encouragement of exploration and assistance of those undergoing a gender transition. The legislation establishes a model of gender- and sexual orientation-neutral intervention into counseling. It permits discussions of gender and sexuality in the therapy space yet restricts the use of normative lenses, particularly when these conversations involve minors. 

Chiles’ central argument remains that the Minor Conversion Therapy Law unjustly impedes her First Amendment rights of freedom of speech and free exercise of religion. As a Christian who served clients seeking “religiously informed care,” Chiles claims that, as she now must adhere to the Colorado law’s parameters and refrain from care legally described as “conversion therapy,” the state has restricted her ability to provide full patient services in alignment with her and her clients’ religious beliefs. This, as Chiles’ plaintiff argument outlines, ostensibly infringes upon a counselor’s constitutionally-protected free speech and religious exercise. 

The central argument in this case revolves around the notions of professional conduct and protected free speech. The Colorado statute claims to regulate the “unprofessional conduct” of a counselor who is “engaging in conversion therapy with a patient who is under eighteen years of age.” This notion of conduct is legally understood to lie separate from other types of behavior. As this constitutes the conduct of individuals acting in their role as medical professionals, it lies thus within the realm of state regulation. Both the Colorado law and the lower Colorado District Court acknowledge this type of conduct as essentially distinct from free exercise. Freedoms of speech and religious practice, protected by the First Amendment, remain categorically separate from professional conduct.

The defendant, Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies, effectively argues that the liberties protected by the First Amendment may not be used to avoid the regulation of harmful practices in psychological treatment. Counseling, which involves dialogue and centers patient-client conversation, shall not be exempt from assurance of ethical and publicly-interested medical care. In the same vein as states’ entry into medical affairs to regulate malpractice, psychological counseling falls under this jurisdiction as professional conduct. Furthermore, twenty states and the District of Columbia, in agreement with Salazar, contend that removal of a statute such as the Minor Conversion Therapy Law “undermines a state’s ability to regulate the conduct of mental health professionals.” The regulations imposed by Colorado are informed by a medical consensus around the harms of conversion therapy. The law aligns with the abundance of scholarly research that finds this type of practice constitutive of more psychological harm than benefit, citing not only its ineffectiveness but also its creation of adverse life outcomes, especially when involving youth. Overwhelming indicators of conversion therapy’s disadvantageous track record have led more than twenty states to create legislation similar to that of Colorado, prohibiting conversion therapy. Though supportive of the scientific and legal legitimacy of the Minor Conversion Therapy law, the national scope of conversion therapy regulation reinforces that the Court’s ruling on this case would have major ramifications throughout the US. 

A holding that defines the Colorado law as unconstitutional would also mark an expanded use of the Free Exercise Clause to encroach on civil-rights protections for members of the LGBTQ+ community. This would echo the Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which religious-freedom claims were similarly invoked to limit the reach of LGBTQ+ anti-discrimination protections. In taking the patient-client space out of the purview of regulation by the state and under the protective wing of free speech, the Court’s ruling in Chiles could follow suit and expand the protections afforded by the Free Exercise Clause. Though the facts of the case differ from Masterpiece Cakeshop, and the firm legal definition of protected speech poses a significant barrier to this type of decision, the use of free exercise proves nevertheless an imposing tool in forwarding the adoption of more socially conservative legal interpretations. However, this often functions in tension with civil rights for marginalized groups, primarily the LGBTQ+ community. The proposition in Chiles v. Salazar illustrates that free-exercise arguments can imperil civil and human rights, especially before a considerably conservative Court and a resurgent traditionalist zeitgeist. Only the Court’s ruling will reveal whether the culture-war campaigns of the Trump era can prevail in the judiciary.

Sinclair Harris is a junior concentrating in History and International and Public Affairs. She is a staff writer for Brown Undergraduate Law Review and can be contacted at sinclair_harris@brown.edu. 

Michaela Hanson is a sophomore at Brown University studying English and Economics. She is an Associate Editor for the Brown University Law Review blog, and can be reached at michaela_hanson@brown.edu. 

Natalia Riley is a junior concentrating in Economics and International and Public Affairs. She is a staff editor for the Brown Undergraduate Law Review and can be contacted at natalia_riley@brown.edu