CONSTITUTIONAL INTERPRETATIONS

The State of Colorado has a statute that prohibits licensed mental health professionals, including psychiatrists and psychologists, from offering “conversion therapy” to minors, some of whom may be seeking it. Colo. Rev. Stat. §12-245-224(1)(t)(v). The broader statute defines “conversion therapy” as any “treatment,” including verbal counseling, which seeks to change the patient’s self-professed sexual identity or self-professed sexual orientation. Colo. Rev. Stat. §12-245-202(3.5)(a). The definition excludes helping a patient to transition from one sex to another. Colo. Rev. Stat. §12-245-202(3.5)(b). The United States Supreme Court is now considering whether that statute violates the “freedom of speech” of Colorado mental health professionals under the First and Fourteenth Amendments to the United States Constitution. See court filings in Chiles v. Salazar, U.S. Sup.Ct. docket number 24-539. The Court will likely rule on that issue around the first of June 2026.

I do not believe that the statute violates the federal Constitution. In the words of one of the Constitution’s drafters, the statute is not “contrary to the manifest tenor of the Constitution.”[1] In the words of one of the first Supreme Court Justices to interpret the Constitution, the statute is not “repugnant to the constitution.”[2] Therefore, in the eyes of those founding fathers, Colorado’s anti-conversion-therapy would be upheld, as opposed to being declared “void.”[3]

Semantically interpreted, the words “freedom of speech” at the founding of our nation meant nothing more than the ability to speak lawfully, without encouraging a violation of the law and without the speaker himself violating the law. Looking to the purpose of the First Amendment, as disclosed in the Constitution itself, the protection extended to the words “freedom of speech” granted a legal privilege to each person residing in the United States to speak his or her mind on political matters to those having political power, including fellow voters. The Constitution specifically granted the same privilege to members of Congress. That privilege is vital to the original Constitution’s overall purpose of establishing a self-governing nation. Colorado’s statutory limitation on the verbal practice of medicine by mental health professionals lives comfortably with both the semantics and the purpose of the First Amendment.

Sadly, the present-day Supreme Court will likely not resolve the Chiles v. Salazar Case along those lines. The Court’s precedents accrued over the course of 220 years point in a different direction. Under those precedents, the Court will likely try to differentiate between “speech” that is entitled to First Amendment protection, and “conduct” that is not entitled to such protection. The classic example of excluding conduct-related “speech” from First Amendment protection is the person who intentionally yells “fire” in a crowded theater.[4] The dichotomy between “speech” and “conduct” will be difficult to maintain here, because the “speech” of mental health professionals to their patients is also their professional “conduct” subject to regulation under their state-issued medical licenses.

As a believer in the rule of Constitutional Law, I hope the Court drops its unworkable “speech-conduct” dichotomy and returns to the founding fathers’ original standard of reviewing statutes only for “repugnancy” to the Constitution. If they do, the anti-conversion-therapy statute in Colorado will be sustained, because it is not “repugnant” to the text, or the purpose of the United States Constitution.

/s/ Dan D. Rhea

     Knoxville, Tennessee

[1] Alexander Hamilton, The Federalist Papers, No. 78.

[2] Marbury v. Madison, 5 U.S. 137, 180 (1803) (Chief Justice John Marshall writing for the unanimous Court).

[3] See notes 1 and 2, supra.

[4] See Schenck v. United States, 249 U.S. 47, 52 (1919) (quoting Justice Oliver Wendell Holmes, Jr.).