With One Damning Question, Ketanji Brown Jackson Defined the Supreme Court's New Term

[mahatmakanejeeves]

SCREAMING IN SILENCE
JURISPRUDENCE

With One Damning Question, Ketanji Brown Jackson Defined the Supreme Court’s New Term

BY MARK JOSEPH STERN
OCT 07, 20254:51 PM


Justice Ketanji Brown Jackson wasted no time. Photo illustration by Slate. Photos by Kevin Dietsch/Getty Images, Chip Somodevilla/Getty Images, and https://www.supremecourt.gov.

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Midway through Tuesday’s arguments in Chiles v. Salazar, Justice Ketanji Brown Jackson asked a question that stripped away the veneer of constitutional principle from the Supreme Court’s latest blatant culture war. Last term, she noted, the court upheld Tennessee’s ban on gender-affirming care for minors. Now, in Chiles, the same court seemed poised to strike down Colorado’s ban on “conversion therapy” for minors. Both regulations “work in basically the same way,” she noted, prohibiting treatments designed to change a child’s gender expression. The difference is that Tennessee aims to erase transgender identity, while Colorado seeks to affirm it. “I’m just, from a very broad perspective, concerned,” Jackson said, “about making sure that we have equivalence with respect to these things.” Does the Constitution really take sides in this battle, blessing states that discriminate against transgender youth while condemning those that protect them?

As interpreted by this Supreme Court, the short answer is yes: The Constitution does little to protect LGBTQ+ rights and much to subvert them. There is little doubt that the Republican-appointed justices will use Chiles to weaken or destroy protections against conversion therapy for minors. In the process, they may insist that they are simply following neutral principles wherever they lead and will safeguard pro-LGBTQ+ speech in the future too. Don’t believe it. As this case lays bare, the court’s feints at evenhanded justice merely obscure its weaponization of constitutional liberties in service of the religious right’s agenda.

Chiles is a test case engineered to invalidate laws that ban licensed counselors from attempting to change a minor patient’s sexual orientation or gender identity. About half the states have enacted these laws, often on a bipartisan basis with strong public support. Extensive evidence shows that it is impossible to forcibly alter a young person’s gender or sexuality, and dangerous to try. For that reason, every major medical group in the United States endorses prohibitions against conversion therapy. Conservative Christian counselors, however, have long opposed these laws, arguing that they impermissibly censor protected speech. (Critically, they do not apply to family members, religious figures, “life coaches,” or anyone besides licensed therapists.) The Alliance Defending Freedom, a far-right law firm, manufactured Chiles so the Supreme Court would have an opportunity to rule that therapists have a First Amendment right to attempt to “convert” LGBTQ+ children. After Donald Trump returned to the White House, his Justice Department joined the case on the side of the plaintiff, a Christian therapist named Kaley Chiles.

{snip}

If the Supreme Court delivers a victory for Kaley Chiles, does anyone seriously believe that it will then rush to strike down these restrictions on trans-affirming speech too? The Republican-appointed justices’ invocations of “neutrality” tend to run in only one direction, imposing conservative policies in the guise of balance and restraint. When the majority hands down its opinion in this case, don’t just take it on its own terms; look at the pattern of decisions that it extends and entrenches. If there is any principle at play here, it is the rule that we may govern ourselves only when we do in obedience to this court’s reactionary convictions.

[FBaggins]

1. The problem for Stern here...

… is that KBJ is likely to vote in seeming contradiction to her earlier vote as well.

[Chemical Bill]

2. My impression is...

that her vote will be based on supporting the wishes of the person most affected by the therapy. I don't see any contradiction in this. Perhaps the other Supremes will vote to take away individual choices which they don't want people to exercise. That might not be a contradiction for them either.

[LymphocyteLover]

3. what earlier vote?

[FBaggins]

6. The same one (Tennessee ban) the author mentions for the RW justices

The author wants to claim hypocrisy for some justices voting seemingly in one direction last year and then in the opposite direction on this new case.

The problem is that KBJ is likely to do the same thing (in the other direction).

[muriel_volestrangler]

7. However, the medical evidence supports allowing gender-affirming therapy, but not (sexuality) conversion therapy

This is a question of whether states can require healthcare professionals to follow best practice and the evidence, or whether they have the right to be quacks.

[FBaggins]

8. I think that's true (though I'm no expert), but it isn't really a constitutional argument

There isn’t a requirement that states conform to the current consensus when setting policy. Ruling on that basis comes to close to “legislating from the bench”.

The issue in this case appears to come down to whether you think of the issue as primarily a medical procedure or in some way “speech”.

They might kill this one by saying that there’s enough speech involved that strict scrutiny should be applied - and then punt the case back to the lower courts to take a first whack at that.

[muriel_volestrangler]

9. I think there's a good case that this is about medical practice

since it's not whether eg parents can advocate "conversion", or affirm their children in their stated gender, but professionals. As Stern says

Conservative Christian counselors, however, have long opposed these laws, arguing that they impermissibly censor protected speech. (Critically, they do not apply to family members, religious figures, “life coaches,” or anyone besides licensed therapists.)

Thus, a state could have regulations that all biology teachers teach that animals evolve from common ancestors by natural selection, while protected speech allows creationists to write articles about God creating everything as it is.

Now, I don't expect the SC conservatives to be consistent (apart from "the right wing wins", that is). But I think KBJ can be consistent when saying "conversion therapy" could be banned by states, and gender-affirming therapy could be allowed.

[LymphocyteLover]

4. what is the exact question she asked? I don't see a question in quotes here.

[mahatmakanejeeves]

5. You are correct. It was not a question.

That was the article’s title.

Thanks, and good morning.