CONSTITUTIONAL INTERPRETATIONS

In an eight-to-one vote, the United States Supreme Court has ruled that state prohibitions of “conversion therapy” addressed to teenage or younger clients by state-licensed mental health professionals are probably unconstitutional. For the purpose of this ruling, “conversion therapy” is counseling intended to discourage homosexuals or transgender individuals from embracing their sexual proclivities. The Court ruled that the Freedom of Speech Clause of the federal Constitution’s First Amendment, as incorporated into the 14^th Amendment (applicable to the states), generally prohibits the states from forbidding “conversion therapy” to minors by professional, state-licensed, mental health counselors. Therefore, those counselors are generally free to render such therapy to minors if they want to. See Chiles v. Salazar, US Sup. Ct. Slip Op. of March 31, 2026.

Despite the lopsided vote, this ruling misreads and misapplies the First Amendment. The Freedom of Speech Clause reads as follows:

Congress [and the states] shall make no law . . . abridging the freedom of speech . . . .

U.S. Const., Amendment I (explanatory bracket added to show effect of 14^th Amendment).

In context, the Clause accompanies the Speech and Debate Clause of Article I, Section 6 of the Constitution. That Clause prohibits prosecutions and civil lawsuits against members of Congress “for any Speech or Debate in either House.” The Speech and Debate Clause itself, enacted in 1788, traces its origin to the English Bill of Rights of 1689, granting the same freedom to members of the English Parliament.[1] All of this context plainly reveals that the purpose of the First Amendment’s Freedom of Speech Clause, as enacted in 1791 was to guarantee “the people of the United States”, as the principals of the members of Congress,[2] the same rights of speech and debate that those members enjoyed on the floors of that institution. That “freedom” is absolutely necessary in a government designed to function under republican principles of self-government. The Freedom of Speech Clause of the United States Constitution therefore protects political speech, like that heard in Congress. The Clause does not extend to mental health counseling by state-licensed professionals.

This point is further shown by the specific wording of the Freedom of Speech Clause. To “abridge” a “freedom” means “to curtail, lessen, or diminish” that “freedom” as it already exists.[3] State-issued licenses to practice a learned profession do not do that. A “license” consists of “a right or permission granted in accordance with law by a competent authority to engage in some business or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful.”[4] Here, Ms. Kaley Chiles, the plaintiff in the Court’s case, wants presumably wants to charge fees for rendering professional mental health counseling to clients, including minor children. The people of the State of Colorado have formally licensed her to do that, but subject to restrictions on what she is allowed to say to certain minor children. If Ms. Chiles wants to discourage any minor children other than her own the law of Colorado requires her to do to exercise that “freedom” is to surrender her professional license, and then accept any legal consequences that may flow from any harm her unlicensed activity might cause. Beyond that, she is always free, under the Freedom of Speech Clause of the United States Constitution, to voice her opinions in a political forum, by advocating changes in Colorado licensing laws. That is what the First Amendment really stands for.

Nevertheless, the Court’s ruling in the Chiles Case is now the law, at least until the Case is overruled. Eight-to-one decisions of the Supreme Court are particularly difficult to overrule.[5] The Court has unfortunately deregulated the health care field of professional, mental health counseling, except to the extent state licensing rules impose formal educational requirements on the participants in that profession. The United States Constitution does not require this result.

/s/ Dan D. Rhea

[1] In pertinent part, the English Bill of Rights reads “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament . . . .”

[2] See U.S. Const., Preamble.

[3] See “Abridge, V., Sense 4.” Oxford English Dictionary, Oxford UP, March 2026, https://doi.org/10.1093/OED/9563543074.

[4] Definition 3a(1) of “License.” Merriam-Webster’s Unabridged Dictionary, Merriam-Webster, https://unabridged.merriam-webster.com/unabridged/license. Accessed 10 Apr. 2026.

[5] The only dissent from the Court’s ruling came from Associate Justice Ketanji Jackson, who was appointed by President Biden. Chief Justice Roberts, and Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett, Kagan, and Sotomayor each voted for the Court’s decision and ruling here.