834 F.3d 1041
9th Cir.2016Background
- California enacted SB 1172, prohibiting state-licensed mental health providers from performing sexual orientation change efforts (SOCE) on minors; plaintiffs are two licensed providers and one aspiring provider who wish to offer SOCE to minors.
- This appeal follows Pickup v. Brown, 740 F.3d 1208, where the Ninth Circuit held SB 1172 regulates professional conduct, survives rational-basis review, and remanded other claims; plaintiffs then asserted Free Exercise, Establishment, and privacy (substantive due process) challenges on remand.
- The district court entered judgment for the State on those religious and privacy claims; the panel reviews de novo and affirms.
- Plaintiffs argued SB 1172 (1) excessively entangles or has the primary effect of inhibiting religion (Establishment Clause), (2) is not neutral or targets religion (Free Exercise), and (3) violates minors’ substantive due process right to receive SOCE from licensed providers.
- The court concluded SB 1172 regulates only licensed professionals within the counselor–client relationship, targets prevention of harm to minors regardless of motivation, and does not create a substantive due process right to a particular treatment or provider.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Establishment Clause — excessive entanglement / primary effect | SB 1172 effectively regulates religious conduct and advances/inhibits religion (e.g., prayers or pastoral counseling) | SB 1172 regulates only licensed mental-health conduct within counselor–client relationship and disavows application to clergy acting in religious roles | Law does not excessively entangle or have primary religious effect; survives Establishment challenge |
| Free Exercise — neutrality / targeting religion | SB 1172 is not neutral because it disproportionately burdens those with religious motivations to seek SOCE | Law’s object is preventing harm to minors regardless of motivation; many seek SOCE for secular reasons (stigma, family pressure) | Law is neutral; Free Exercise challenge fails |
| Substantive due process — privacy/right to treatment | Minors (and providers) have a liberty/privacy right to receive/provide SOCE from licensed providers | No recognized fundamental right to a particular treatment or provider; prior precedent forecloses | No substantive due process right; privacy claim fails |
| Scope and interpretation of SB 1172 | Plaintiffs: statute should be read broadly to reach religious counseling | State: statute applies only to licensed professionals acting in counseling relationships; constitutional avoidance supports narrow reading | Court construes statute as limited to professional counselor–client conduct; avoids broad reading that would raise constitutional problems |
Key Cases Cited
- Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) (prior Ninth Circuit decision holding SB 1172 regulates professional conduct and survives rational-basis review)
- California v. Grace Brethren Church, 457 U.S. 393 (1982) (First Amendment Establishment/Free Exercise apply to states via Fourteenth Amendment)
- Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (laws targeting religiously motivated conduct are not neutral)
- Reynolds v. United States, 98 U.S. 145 (1878) (Free Exercise does not immunize religiously motivated conduct from neutral laws)
- United States v. O’Brien, 391 U.S. 367 (1968) (neutral law of general applicability upheld despite incidental burden on expression)
- Washington v. Glucksberg, 521 U.S. 702 (1997) (standard for identifying fundamental substantive-due-process liberty interests)
- Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) (no substantive due process right to specific treatment or provider)
- King v. Governor of N.J., 767 F.3d 216 (3d Cir. 2014) (rejecting Free Exercise challenge to New Jersey law banning SOCE by state-licensed counselors)
- Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015) (discussing Free Exercise neutrality and burdens on religiously motivated groups)
- Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988) (constitutional avoidance canon in statutory interpretation)