The (non-)partisan puzzle in the conversion therapy case
In Chiles v. Salazar, the Supreme Court held that Colorado’s law prohibiting licensed counselors from seeking to change the sexual orientation or gender identity of minors was subject to strict First Amendment scrutiny – a victory for opponents of the law. The statute, the court held, was protected speech, and discriminated based on viewpoint by allowing the counselors to engage in therapies that affirmed specific sexual orientations and gender identities, but not speech that sought to change them.
Perhaps most surprisingly, despite its politically contentious nature, Chiles was an 8-1 decision, with the senior justices on the liberal wing of the court – Justices Sonia Sotomayor and Elena Kagan – joining the majority opinion in full. Kagan (joined by Sotomayor) also wrote separately to suggest that while certain regulations of conversion therapy might pass muster, the viewpoint-based approach of the Colorado law went too far. Justice Ketanji Brown Jackson alone claimed that the law did not trigger heightened scrutiny and would have allowed it to stand instead of sending the case back to the lower court.
The rift between Jackson and the more moderate end of the liberal bloc has received some airtime – it is not unheard of for Sotomayor and Kagan to join the court’s conservative wing, leaving Jackson on her own. But, a split is statistically rare among the liberal justices in First Amendment cases. Further, liberal unanimity was a feature of the three cases between 2022 (when Jackson joined the bench) and 2025 with LGBT-rights implications. While LGBT advocates lost the cases, the court’s liberals dissented jointly. Indeed, up until Chiles, Jackson had never written a solo opinion in a case involving LGBT rights – she simply joined the senior justices’ dissents.
It could always be the case that the justices simply see the law on this issue differently. But given the history of overlap, there is at least some possibility that there was a view of the law the three justices would have coalesced around, but for strategic or ideological considerations did not. So are Sotomayor and Kagan trying to soothe and placate a conservative majority? And is Jackson simply an ideologue, as some have contended, blindly hewing to LGBT orthodoxy?