Judge: 'Gay conversion' ban may violate First Amendment

Wednesday , December 05, 2012 - 9:20 AM

Denny Walsh

SACRAMENTO -- A Sacramento federal judge has barred California from enforcing its new law prohibiting “gay conversion therapy” against two mental health providers and a student who are suing to derail the measure.

U.S. District Judge William B. Shubb, who practiced First Amendment law before his appointment to the bench, found the three “are likely to succeed on the merits of their ... claims based on violations of their rights to freedom of speech under the First Amendment.”

They “have also shown that they are likely to suffer irreparable harm in the absence of an injunction, that the balance of equities tips in their favor, and that an injunction is in the public interest,” Shubb declared in a 38-page order.

The injunction will be in place until the lawsuit is resolved on the merits or the parties reach a settlement.

The new law, SB 1172, prohibits a mental health provider from engaging in “sexual orientation change efforts” with a patient under 18. Any such efforts “shall be considered unprofessional conduct and shall subject a mental health provider to discipline” by the California Board of Behavioral Sciences or the California Medical Board.

The plaintiffs are Donald Welch of Coronado, a licensed marriage and family therapist and operator of a Christian counseling center; Anthony Duk, a Riverside psychiatrist, and Aaron Bitzer of Culver City, “who has had same-sex attractions beginning in his childhood and was involved in sexual orientation change efforts ... as an adult in 2011 and 2012,” Shubb’s order says.

Bitzer had planned to become a therapist to help “men like himself,” the order says. Because of SB 1172, he has changed course and is “trying to pursue a doctorate so as to also contribute research to this field,” according to the order.

Evidence that the therapy “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the need to show the new law is grounded in a “compelling interest” of the state to take action, the judge said.

Incorporating language from a 2000 U.S. Supreme Court opinion, the judge wrote: “That public perception in favor of this law may be heightened because ’it appears that homosexuality has gained greater societal acceptance ... is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not.’ “

(Contact reporter Denny Walsh at dwalshsacbee.com.)(Distributed by Scripps Howard News Service, shns.com.)

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