Updated Tuesday 4:40 p.m. PST
Following Monday's ruling, on Tuesday a second federal judge ruled against a similar injuntion requested by the Liberty Counsel and the National Assocation for Research and Therapy (NARTH). Unlike Judge William Shubb, Judge Kimberly J. Mueller found that California's ban on "ex-gay" therapy does not infringe upon the First Amendment rights of ex-gay therapists or the parents sending their children into reparative therapy.
More after the jump.
Judge Mueller 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, or even present them with literature about SOCE… [I]n contrast, 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. [...]
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.
As SOCE therapy is subject to the state’s legitimate control over the professions, SB 1172′s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test. SB 1172 passes the rational basis test."
Loosely translated this is a loss for the pro ex-gay therapy camp and Judge Mueller's decision directly opposes yesterday's decision by Judge Shubb.
It'll be interesting to see how this develops.
U.S. District Court Judge William Shubb has ruled in favor of three supporters of "ex gay" therapy to place a temporary block on California's unprecedented ban on the practice. More details after the jump.
From the A.P.:
U.S. District Court Judge William Shubb (right) made a decision just hours after a hearing on the issue, ruling that the First Amendment rights of psychiatrists, psychologists and other mental health professionals who engage in "reparative" or "conversion" therapy outweigh concern that the practice poses a danger to young people.
"Even if SB 1172 is characterized as primarily aimed at regulating conduct, it also extends to forms of (conversion therapy) that utilize speech and, at a minimum, regulates conduct that has an incidental effect on speech," Shubb wrote.
The judge also disputed the California Legislature's finding that trying to change young people's sexual orientation puts them at risk for suicide or depression, saying it was based on "questionable and scientifically incomplete studies."
Judge Shub's temporary ban only allows the three plaintiffs, "psychiatrist Anthony Duk, marriage and family therapist Donald Welch, and Aaron Bitzer, a former patient who is studying to become a counselor who specializes in clients who are unhappy being gay," to practice conversion therapy in this short window of time.