Take Two for December 4, 2012

'Gay conversion' therapy rulings conflict in district courts

MILLENIUM MARCH FOR EQUALITY

Michael Smith/Getty Images

A converted U.S. flag displays rainbow colors as people relax on the grass after the fourth annual national march for gay, lesbian, bisexual, and transgender rights April 30, 2000 on the mall in Washington, DC.

Opponents of a new California law that bans gay conversion therapy for minors won a round in federal court Monday. But on Tuesday in a different district court, the plaintiffs of a similar case were denied their injunction.

U.S. District Court Judge William Shubb sided with plaintiffs Monday by issuing a preliminary injunction that temporarily exempts only the three plaintiffs from the ban. They argued that SB 1172, which restricts efforts by licensed health professionals to change people's sexual orientation, violated First Amendment and parental rights.

The preliminary injunction allows the three plaintiffs to continue their practice until after a full trial. 

Conversely, on Tuesday in a different district court, Judge Kimberly J. Mueller denied a preliminary injunction against the law in a ruling in the Pickup v. Brown case.

"[Shubb] found that there is a likelihood that there would be a First Amendment violation as applied to their forms of psychoanalysis," said David Cruz, law professor at USC. "He rejected the idea that this could be or should be analyzed as a professional regulation relying on what [Mueller] characterized as dictum in a 9th Circuit Court of Appeals."

Mueller looked at the law differently, ruling that it was open to professional regulation by the state as allowed by the Supreme Court.

"She read the statute in accordance with the way the defense read it, the state government read it, to say: You can mention it, you're not being forbidden from referring them to an unlicensed person to practice these conversion efforts…you can give them literature, but you cannot engage in efforts to change them," said Cruz.

Conflicting rulings in similar cases are not unheard of. Plaintiffs are free to file their own suits, they're not automatically consolidated, and they're also assigned judges at random.  

"Here we have 74-year-old Judge Shubb, granting the opinion, he had been appointed by President George Bush, and 55-year-old Mueller, appointed by President Obama, denying the injunction in the other case," said Cruz.

If either party was to file an appeal, the 9th Circuit Court would likely group them together and make one ruling, the professor said. Both judges left the law largely intact and it is still slated to take effect January 1st, with an exception for the three plaintiffs in the Shubb ruling. 

Pickup v. Brown Ruling

SB 1172 Ruling


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