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to Section One | to Arts & Entertainment
posted Friday, December 7, 2012 - Volume 40 Issue 49
'Ex-Gay' battle continues
Section One
ALL STORIES
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'Ex-Gay' battle continues

Dueling judges in California 'conversion therapy' cases

by Mike Andrew - SGN Staff Writer

Two federal judges have handed down contradictory rulings on the constitutionality of California's new law prohibiting licensed therapists from trying to change the sexual orientation of LGBT minors.

U.S. District Court Judge William Shubb ruled on December 3 that the law violates the First Amendment free speech rights of therapists who wish to practice so-called 'conversion' or 'reparative' therapy.

But in a separate case the next day, U.S. District Court Judge Kimberly Mueller ruled that the California legislature had reasonable cause to ban the controversial practice.

Shubb, appointed by President George H.W. Bush in 1990, said that the legislature's action prohibiting the therapy was based on 'questionable and scientifically incomplete studies,' and therefore it did not pass rational basis review.

FREE SPEECH INVOKED
The ban also interferes with therapists' rights of free speech, Shubb ruled.

'Even if SB 1172 is characterized as primarily aimed at regulating conduct, it also extends to forms of [conversion therapy] that utilize speech and, at a minimum, regulates conduct that has an incidental effect on speech,' he wrote in his decision.

Mueller, on the other hand, said California's legislature and governor had sufficient grounds to enact the law, given that a number of mental health groups, including the American Psychological Association, have discredited conversion therapy.

'The court need not engage in an exercise of legislative mind reading to find the California Legislature and the state's Governor could have had a legitimate reason for enacting SB 1172,' Mueller wrote.

Mueller was appointed to the federal bench by President Obama in 2010.

While Shubb found that the law violates the free speech rights of the three plaintiffs in the case before him, he issued an injunction preventing the law from being enforced only against those three individuals, pending a trial on the merits of their case.

THREE MAY PRACTICE
The legal result of the two federal court cases now seems to be that the three defendants in the case decided by Shubb may practice the therapy, but no one else in California may do so.

California State Sen. Ted Lieu, who sponsored the law, said on December 4 that it may be applied to therapists statewide - except for the three defendants in the case decided by Judge Shubb - at the beginning of 2013.

'On behalf of the untold number of children who can expect to be spared the psychological abuse imposed by reparative therapy, I'm thrilled that today's ruling by Judge Mueller will continue to protect our children from serious harm,' Lieu said in a statement.

Anthony Duk, Donald Welch, and Aaron Bitzer, the three defendants in Shubb's case, were represented by the Pacific Justice Institute, a traditionalist Christian legal group. PJI president Brad Dacus was a vocal supporter of California's Prop 8.

The defendants in the case decided by Mueller were represented by Liberty Counsel, another right-wing Christian legal group.

Liberty Counsel chair Mathew Staver said he planned to appeal Mueller's ruling and seek an emergency injunction to block implementation of the law until its constitutionality is determined.

'I'm really stunned by [Mueller's] decision,' Staver told Associated Press. 'I think Judge Shubb's decision was really on the money.'

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