For the third time, the U.S. Supreme Court has declined to hear a lawsuit challenging the constitutionality of a state ban on widely discredited “ex-gay” conversion therapy for minors.
In its order list on Monday, the Supreme Court included the lawsuit, Doe v. Christie, among the list of cases for which it has denied certiorari, or declined to hear. The lawsuit, filed by the social conservative Liberty Counsel, challenged the New Jersey ban on conversion therapy, which Gov. Chris Christie signed into law in 2013.
Neither the vote, nor the reason for denial is provided on the order lists. It takes at least four justices to agree to consider a case for the Supreme Court to consider it. The denial of certiorari leaves in place the decision of the U.S. Third Circuit Court of Appeals upholding the New Jersey law.
The denial of certiorari marks the third time the Supreme Court has refused to consider the constitutionality of a ban on “ex-gay” therapy for minors. The court declined in 2014 to hear a lawsuit challenging the California ban signed by Gov. Jerry Brown and an earlier challenge to the New Jersey ban last year.
The lawsuit was an LGBT-related petition pending before the Supreme Court during a term that’s largely devoid of any explicitly LGBT cases in the year after the court’s historic ruling on same-sex marriage. However, another such LGBT-related petition before the court was filed by a lesbian mother in Alabama seeking a ruling from the court upholding her visitation rights with the adopted children she had with her former partner. In December, the court granted temporary relief to the lesbian mother, requiring she have access to her children as her petition remains pending before justices.
Liberty Counsel had petitioned the court to hear the challenge to New Jersey’s ban on “ex-gay” therapy on the basis the U.S. Third and Ninth Circuit court of appeals had conflicting interpretations of whether conversion therapy is considered speech. Although both courts ended up upholding bans on “ex-gay” therapy, the Ninth Circuit determined conversion therapy is speech, but the Third Circuit didn’t.
According to Liberty Counsel, the unnamed plaintiff in the case, John Doe, had daily thoughts of suicide and depression, but as a result of conversion therapy these thoughts went away and the plaintiff started thriving.
The practice of “ex-gay” conversion therapy is rejected by major medical and psychological institutions, including American Psychological Association, the World Health Organization, the American Medical Association and the American Academy of Pediatrics. The Liberty Counsel has a history of making dubious claims, such as when it stated 100,000 people in Peru attended a rally in support of Rowan County Clerk Kim Davis. (The photo the organization provided of the rally ended up being from an unrelated event.)
Mat Staver, chair of the Liberty Counsel, said the Supreme Court’s decision to refuse to hear the organization’s challenge to New Jersey’s ban on “ex-gay” therapy marks a “sad day.”
“As a result of today’s decision, our client – whose life was literally saved by this counseling – has been told by his government that it does not care about that or about his values,” Staver said. “We pray for our client and countless other minors like him in New Jersey who have now been denied their basic freedom of self-determination.”
Chris Stoll, senior staff attorney for the National Center for Lesbian Rights, in contrast said the denial of certiorari makes sense because federal appeals courts are unanimous in upholding bans on “ex-gay” therapy.
“Every federal appellate court has upheld laws protecting minors from these dangerous practices, so it makes sense that the court would decline review,” Stoll said. “These laws are based on a strong scientific consensus, and states have a right to ensure that licensed therapists are not engaging in these discredited and unethical treatments.”
Hayley Gorenberg, deputy legal director for Lambda Legal, said the Supreme Court’s refusal to undo the New Jersey ban on “ex-gay” therapy is no surprise because “every major medical and therapeutic organization condemns it.”
“Given the facts about how futile and dangerous it is to attempt to change someone’s sexual orientation or gender identity, plus our resounding success in every court, it’s unsurprising that the Supreme Court would decline to spend its time on the subject,” Gorenberg said.
It’s unknown whether the absence of the late U.S. Associate Justice Antonin Scalia on the court resulted in the decision to decline to hear the lawsuit. According to Liberty Counsel’s statement, observers speculated the court may take up the case despite its earlier denials because the case was initially set for a conference in January, but was then moved to Feb. 19.
Staver took the opportunity of the denial of certiorari to call on lawmakers to appoint to the Supreme Court a replacement for Scalia who shares his views.
“One can only speculate whether the absence of Justice Scalia is already being felt by this unexpected turn of events,” Staver said. “Replacing Justice Scalia with someone who shares his view that the original meaning of the Constitution should be respected is critical to maintaining the rule of law.”
California, Illinois, New Jersey, Oregon and D.C. have passed laws prohibiting “ex-gay” therapy for minors. In New York, Gov. Andrew Cuomo this month took executive action to protect youth from the practice and bar insurers from covering it. President Obama last year came out against the practice of conversion therapy. Although the Obama administration has advocated a state-by-state approach to end the practice, the White House has said it welcomes congressional action on the issue.
National LGBT groups last month filed before the U.S. Federal Trade Commission a complaint against the Virginia-based “ex-gay” group People Can Change, urging the agency to shut down the group as fraud. Depending on the ruling from the commission, the effort could eliminate conversion therapy throughout the country.