Two federal judges in California have arrived at opposite conclusions on whether the state's first-of-its-kind law prohibiting licensed psychotherapists from trying to change the sexual orientations of gay minors violates the Constitution. The measure remains clear to take effect on Jan.1.
U.S. District Judge Kimberly Mueller on Tuesday refused to block the law after concluding that opponents who have sued in her Sacramento court to overturn it were unlikely to prove the ban on "conversion" therapy unfairly tramples on their civil rights.
The opponents argued the law would make them liable for discipline if they merely recommended the therapy to patients or discuss it with them. Mueller said they didn't demonstrate that they were likely to win, so she wouldn't block the law.
Mueller issued her decision in a lawsuit filed by four counselors, two families, a professional organization for practitioners and a Christian therapists group. It came half a day after her colleague, U.S. District Judge William Shubb, handed down a somewhat competing ruling in a similar, but separate lawsuit.
Saying he found the First Amendment issues presented by the ban to be compelling, Shubb late Monday ordered the state to temporarily exempt three people named in the case before him — two mental health providers and a former patient who is studying to practice sexual orientation change therapy.
The judge said during a hearing earlier Monday that he would have considered keeping the law from taking effect for all licensed therapists, but that the case before him had not been filed as a class action that could be applied to unnamed plaintiffs.
Sen. Ted Lieu, who sponsored the law, said Tuesday that because Shubb limited the scope of his decision, Mueller ruling means the law may be applied statewide at the beginning of the new year — except for the three individuals mentioned.
The future of the statute remains unclear, however. Mathew Staver, chairman of the Christian legal group Liberty Counsel, appealed Mueller's decision to the 9th U.S. Circuit Court of Appeals and said he would seek an emergency injunction to keep the law on hold until its constitutionality is determined.
"I'm really stunned by this decision," Staver said. "I think Judge Shubb's decision was really on the money."
The law, which was passed by the Legislature and signed by Gov. Jerry Brown in October, states that therapists and counselors who use "sexual orientation change efforts" on clients under 18 would be engaging in unprofessional conduct and subject to discipline by state licensing boards.