In Tingley v. Ferguson, (9th Cir., Jan. 23, 2023), the U.S. 9th Circuit Court of Appeals denied an en banc rehearing of a 3-judge panel’s decision rejecting free speech, free exercise and vagueness challenges to Washington state’s ban on practicing conversion therapy on minors. Judge O’Scannlain, joined by Judges Ikuta, R. Nelson and VanDyke, filed an opinion dissenting from the denial of en banc review, saying in pat:
Our decision in Pickup [v. Brown] is, I suggest, no longer viable. While Pickup may have seen no distinction between “treatments … implemented through speech” and those implemented “through scalpel,” … the First Amendment recognizes the obvious difference, and protects therapeutic speech in a way it does not protect physical medical procedures….
[T]he panel majority here entirely ignored the First Amendment’s special solicitude for religious speech. Instead, it commended Washington for concluding “that health care providers should not be able to treat a child by such means as telling him that he is ‘the abomination we had heard about in Sunday school’.”…
Judge Bumatay also filed an opinion dissenting from the denial of review, saying in part:
[W]e also cannot ignore that conversion therapy is often grounded in religious faith. According to plaintiff Brian Tingley, a therapist licensed by the State of Washington, his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings….
Because the speech underpinning conversion therapy is overwhelmingly—if not exclusively—religious, we should have granted Tingley’s petition for en banc review to evaluate his Free Speech claim under a more exacting standard. It may well be the case that, even under heightened review, Washington’s interest in protecting minors would overcome Tingley’s Free Speech challenge. But our court plainly errs by subjecting the Washington law to mere rational-basis scrutiny.