Case Information
*3
GRABER, Circuit Judge:
Once again, we consider facial constitutional challenges to California’s law prohibiting state-licensed mental health providers from engaging in “sexual orientation change efforts’ (“SOCE”) with minor patients. The law is known as Senate Bill 1172, or SB 1172, and is codified in California’s Business and Professions Code sections 865, 865.1, and *4 865.2. Plaintiffs are two state-licensed mental health providers and one aspiring state-licensed mental health provider who seek to engage in SOCE with minor patients. Defendants are the Governor of California and other state officials, to whom we refer collectively as “the State.”
Our earlier opinion in
Pickup v. Brown
,
Plaintiffs’ claims under the Religion Clauses
[1]
fail. We
earlier held that SB 1172 survives rational basis review
because “SB 1172 is rationally related to the legitimate
government interest of protecting the well-being of minors.”
Pickup
,
[1]
“The First Amendment provides in pertinent part that ‘Congress shall
make no law respecting an establishment of religion, or prohibiting the
free exercise thereof.’ The Free Exercise and Establishment Clauses apply
to the States through the Due Process Clause of the Fourteenth
Amendment.”
California v. Grace Brethren Church
,
6 W ELCH V . B ROWN Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. This argument rests on a misconception of the scope of SB 1172. Plaintiffs interpret SB 1172 to prohibit, for example, certain prayers during religious services. Plaintiffs are mistaken about the scope of SB 1172, because that law regulates conduct only within the confines of the counselor-client relationship .
We held as much in our earlier opinion: “As we have
explained, SB 1172 regulates only (1) therapeutic treatment,
not expressive speech, by (2) licensed mental health
professionals acting
within the confines of the counselor-
client relationship
.”
Id.
at 1229–30 (emphasis added). That
conclusion flows primarily from the text of the law. For
example, SB 1172 prohibits SOCE “with a
patient
under 18
years of age.” Cal. Bus. & Prof. Code § 865.1 (emphasis
added). Legislative history, too, strongly suggests that the
law was aimed at practices that occur in the course of acting
as a licensed professional.
[2]
Finally, the doctrine of
constitutional avoidance requires us not to interpret SB 1172
as applying in the manner suggested by Plaintiffs.
See, e.g. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council
,
statute to avoid such problems unless such construction is plainly contrary to the intent of [the legislature].”).
Notably, Plaintiffs are in no practical danger of enforcement outside the confines of the counselor-client relationship. The State repeatedly and expressly has disavowed Plaintiffs’ expansive interpretation of the law. For example, in its brief to this court, the State asserts that “SB *6 1172 does not apply to members of the clergy who are acting in their roles as clergy or pastoral counselors and providing religious counseling to congregants.” At oral argument, the State’s lawyer reiterated that the law “does not actually apply to members of the clergy or religious counselors who are acting in their pastoral or religious capacity.” Oral Argument at 15:12–15:22, available at http://www.ca9.uscourts.gov/ media/view_video.php?pk_vid=0000009871. Similarly, the State’s lawyer emphasized that the law “exempts pastoral counselors, clergy, etc., as long as they don’t hold themselves out as operating pursuant to their license.” Id. at 15:32–15:41. In sum, because SB 1172 does not regulate conduct outside the scope of the counselor-client relationship, the law does not excessively entangle the State with religion.
Plaintiffs next argue that, under the Establishment Clause, SB 1172 “has the principal or primary effect of advancing or inhibiting religion.” Am. Family Ass’n, Inc. v. City of San Francisco , 277 F.3d 1114, 1122 (9th Cir. 2002). “We conduct this inquiry from the perspective of a ‘reasonable observer’ who is both informed and reasonable.” Id. (quoting Kreisner v. City of San Diego , 1 F.3d 775, 784 (9th Cir. 1993).
“The legislature’s stated purpose in enacting SB 1172 was
to ‘protect the physical and psychological well-being of
minors, including lesbian, gay, bisexual, and transgender
youth, and to protect its minors against exposure to serious
harms caused by sexual orientation change efforts.’ 2012
Cal. Legis. Serv. ch. 835, § 1(n).”
Pickup
,
The prohibition against SOCE applies without regard to the nature of the minor’s motivations for seeking treatment. That is, whether or not the minor has a religious motivation, SB 1172 prohibits SOCE by state-licensed mental health providers. And, of course, the law leaves open many alternative paths. Minors who seek to change their sexual *7 orientation—for religious or secular reasons—are free to do so on their own and with the help of friends, family, and religious leaders. If they prefer to obtain such assistance from a state-licensed mental health provider acting within the confines of a counselor-client relationship, they can do so when they turn 18.
Plaintiffs nevertheless argue that SB 1172 has the effect of inhibiting religion because some minors who seek SOCE have religious motivations. We acknowledge that a law aimed only at persons with religious motivations may raise constitutional concerns. See, e.g. , Church of Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520 (1993) (invalidating under the Free Exercise Clause the prohibition of ritual animal slaughter, tailored to reach only religiously motivated conduct); Cent. Rabbinical Congress of U.S. & Can. v. N.Y. City Dep’t of Health & Mental Hygiene 763 F.3d 183 (2d Cir. 2014) (holding that strict scrutiny applies under the Free Exercise Clause to health regulations targeting metzitzah b’peh, an Orthodox Jewish ritual during circumcision). But SB 1172 falls well outside that category.
The bill’s text and its legislative history make clear that the legislature understood the problem of SOCE to encompass not only those who seek SOCE for religious reasons, but also those who do so for secular reasons of social stigma, family rejection, and societal intolerance for sexual minorities. For example, in its express legislative findings, the legislature quoted a policy statement that found that “ [s]ocial stigmatization of lesbian, gay and bisexual people is widespread and is a primary motivating factor in leading some people to seek sexual orientation changes.” 2012 Cal. Legis. Serv. ch. 835, § 1(h) (emphasis added); see also id. § 1(m) (“Minors who experience family rejection based on their sexual orientation face especially serious health risks.” (emphasis added)). The documents in the legislative history recognized that religion is a motivating factor for some persons who seek to change their sexual orientation; but it also repeatedly listed “social stigmatization,” “unfavorable and intolerant attitudes of the society,” and “family rejection” as common causes of distress that might motivate people to seek counseling.
The legislative findings of SB 1172 cited a 2009 report from a Task Force convened by the American Psychological Association (“APA”). 2012 Cal. Legis. Serv. ch. 835, § 1(b). Plaintiffs note that the APA Task Force’s report concluded *8 10 W ELCH V . B ROWN that “the population that undergoes SOCE tends to have strongly conservative religious views that lead them to seek to change their sexual orientation.” Extrapolating from that statement, Plaintiffs characterize the report as focusing exclusively on persons who seek SOCE for religious reasons. Plaintiffs further conclude that the legislature, too, focused exclusively on persons who seek SOCE for religious reasons.
We disagree. The evidence falls far short of demonstrating that the primary intended effect of SB 1172 was to inhibit religion. The legislative findings cite—in addition to the APA Task Force report—many other sources, including a 2009 resolution by the APA; a 2000 position statement by the American Psychiatric Association; a position statement by the American School Counselor Association; a 1993 article by the American Academy of Pediatrics; a 1994 report by the American Medical Association Council on Scientific Affairs; a 1997 policy statement by the National Association of Social Workers; a 1999 position statement by the American Counseling Association Governing Council; a 2012 position statement by the American Psychoanalytic Association; a 2012 article by the American Academy of Child and Adolescent Psychiatry; and a 2012 statement by the Pan American Health Organization. 2012 Cal. Legis. Serv. ch. 835, § 1(c)–( l ). Those additional sources do not characterize the main motivation of persons seeking SOCE as being religious.
Even viewing the APA Task Force’s report in isolation does not support a conclusion that only those with religious views sought SOCE. Although the report concluded that those who seek SOCE “tend” to have strong religious views, the report is replete with references to non-religious motivations, such as social stigma and the desire to live in *9 accordance with “personal” values. The report noted that “sexual stigma, manifested as prejudice and discrimination directed at non-heterosexual sexual orientations and identities, is a major source of stress for sexual minorities,” which the report termed “minority stress.” “Homosexuality and bisexuality are stigmatized, and this stigma can have a variety of negative consequences (e.g., minority stress) throughout the life span.” “Some individuals choose to live their lives in accordance with personal or religious values . . . .” (Emphasis added.) The following illustrates the report’s general approach:
[E]xperiences of felt stigma—such as self- stigma, shame, isolation and rejection from relationships and valued communities, lack of emotional support and accurate information, and conflicts between multiple identities and between values and attractions—played a role in creating distress in individuals. Many religious individuals desired to live their lives in a manner consistent with their values . . . .
That passage first identifies many non-religious sources of distress that might cause a person to seek counseling and only then notes that, for many religious individuals, an additional source of distress may be present.
In sum, although the scientific evidence considered by the
legislature noted that some persons seek SOCE for religious
reasons, the documents also stressed that persons seek SOCE
for many secular reasons. Accordingly, an informed and
reasonable observer would conclude that the “primary effect”
of SB 1172 is not the inhibition (or endorsement) of religion.
Plaintiffs next argue that, under the Free Exercise Clause,
SB 1172 is not “neutral.”
Church of Lukumi
,
“[I]f the object of a law is to infringe upon or restrict
practices because of their religious motivation, the law is not
neutral . . . .”
Church of Lukumi
,
Free Exercise Clause is not violated even if a particular group, motivated by religion, may be more likely to engage in the proscribed conduct. See Reynolds v. United States ,98 U.S. 145 , 166–67 (1878) (upholding a ban on polygamy despite the fact that polygamy was practiced primarily by members of the Mormon Church); cf. United States v. O’Brien , 391 U.S. 367, 378–86 (1968) (rejecting a First Amendment challenge to a statutory prohibition of the destruction of draft cards even though most violators likely would be opponents of war).
Stormans, Inc. v. Wiesman
,
Finally, Plaintiffs’ privacy claim fails. Plaintiffs
characterize their claim as relying on the principles found in
cases such as
Lawrence v. Texas
, 539 U.S. 558 (2003).
Lawrence
rests on a substantive due process analysis.
Id.
at
564. Accordingly, we understand Plaintiffs to be asserting
that their clients have a substantive due process right to
receive a particular form of treatment—SOCE—from a
particular class of persons—mental health providers licensed
by the State of California.
See Washington v. Glucksberg
521 U.S. 702, 721 (1997) (“[W]e have required in
substantive-due-process cases a ‘careful description’ of the
asserted fundamental liberty interest.” (quoting
Reno v.
Flores
,
AFFIRMED.