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Wednesday, January 29, 2014

Ninth Circuit Refuses to Rehear Pickup v. Brown

From Dale Carpenter at The Volokh Conspiracy:

In Pickup v. Brown, the Ninth Circuit Court of Appeals today decisively reaffirmed its decision from last August rejecting First Amendment and other constitutional challenges to California’ ban on so-called “gay conversion therapy” for minors. The practice, which is not endorsed by the country’s major mental health organizations, involves trying to change minors from gay to heterosexual and is often sought by parents for their teenagers. I wrote about the Ninth Circuit decision at the time, and won’t repeat the arguments here. The ruling today means that neither the original panel nor the entireen banc appeals court will reconsider that decision. The next stop for the therapists, if there is one, would be the Supreme Court.
I blogged here and here about this case after it was decided. I believe the case was decided correctly, though there was some broad language in the opinion.

Would the Supreme Court take up this case? I doubt it. Generally, this is a pretty safe position to take, since the Supreme Court accepts a very small percentage of petitions for certiorari. But as for this case in particular, while the issue involved in these cases raises some very interesting First Amendment questions, there are not many cases on this particular issue of sexual orientation conversion therapy. Pickup is the only existing circuit opinion on this type of law, and the only decision to the contrary is one of the district court opinions that Pickup overturned. Moreover, the law involved in this case is not common -- California and New Jersey are the only two states I know of that have laws banning sexual orientation conversion therapy for minors. Since there are only two states with this type of law, and since there is no split in authority on this issue, I doubt that the Supreme Court would review Pickup v. Brown. But then again, these types of outcomes are impossible to predict.

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