The central question of liberty is this: precisely which evils may the government prohibit, and which evils must we fight as private citizens instead?
This is a post about something I view as evil, the temptation to respond to it with government coercion, and the problems of succumbing to that temptation.
The evil in question is "conversion" or "reparative" therapy — dubious "treatment" purportedly designed to make gay people (often children) not gay any more. I view it as part of a pattern of sick and despicable abuse of vulnerable patients. I think that people who view homosexuality as a sickness to be cured by "therapy" are being increasingly marginalized and dying out, and to be perfectly blunt, I look forward to history shitting on their graves forever.
California recently became the first state to pass a law banning conversion therapy when inflicted upon minors. Multiple people have sued to enjoin it, arguing that it violates (among other things) the First Amendment rights of the "therapists" to provide information and the rights of patients to receive it. Yesterday, two federal judges came to opposite conclusions, one refusing to enjoin enforcement of the law and one issuing an injunction. Over at the indispensable Religion Clause blog, Howard Friedman has links to both decisions. The judges' opinions are lengthy, detailed, thoughtful — and contradictory.
My heart, confronted with the evil of "conversion therapy," calls out for the government to get involved to prohibit junk-science child abuse. But my head leads me in different directions. If you think this is an obvious call in favor of regulation, consider a case discussed extensively by both judges — Conant v. Walters, in which the Ninth Circuit upheld an injunction against a federal regulation that would have stripped doctors of their license to prescribe controlled substances if they recommended marijuana to their patients. One of the central differences between the two decisions this week was whether the California law was like that regulation or not: did it merely regulate professional conduct (a subject fraught with its own issues), or did it sweep too far in regulating the exchange of information between doctor and patient? Does the law represent the government making an impermissible content-based judgment about the message of therapy? Two judges have come to two different conclusions.
My raw disgust for reparative therapists aside, I have grave misgivings about the constitutionality of California's statute. Precisely because the subject provokes such a visceral reaction in me, I'm going to study both opinions more and read the underlying briefs and cases before reaching a conclusion. In the meantime, I commend both opinions to you, reachable through the Religion Clause link above.
Evil exists. Good people should fight evil. But government is often the wrong instrument to fight evil. The people doing sick and contemptible things to children in the name of "curing" homosexuality very likely feel as strongly as I do, and might — if they got their way — use government to achieve their ends. People who love liberty must fight with their heads, not just their hearts.
Last 5 posts by Ken White
- If LawBot Wants To Know About My Anus I'm Sure It Has A Reason - October 26th, 2016
- Popehat Signal: Help Defend A Seuss-Trek Parody Under Fair Use - October 26th, 2016
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016