Colorado's Conversion Therapy Ban Faces First Amendment Challenge Under Strict Scrutiny

The Facts:

Colorado’s law banning conversion therapy for minors is being challenged on First Amendment grounds, with the legal standard of strict scrutiny applied to determine its constitutionality. Under strict scrutiny, the government must demonstrate that the law serves a compelling government interest and uses the least restrictive means to achieve that interest—a standard that is notoriously difficult to meet and has only seen three Supreme Court decisions upholding laws against First Amendment challenges when applied. Lawyers for Ms. Chiles argue that Colorado cannot satisfy either requirement, asserting that the therapy she offers is helpful rather than harmful and that the law regulates too much speech (including what they describe as ‘caring, consensual and skilled counseling’) while simultaneously regulating too little by allowing unlicensed individuals to provide similar therapy and permitting licensed professionals to offer it to adults. In response, Colorado’s lawyers contend that a more relaxed form of judicial scrutiny should apply, warning that applying strict scrutiny to states’ regulation of harmful treatments involving speech would strip them of their power to protect patients from substandard care. However, they also argue that the law could survive strict scrutiny, emphasizing the state’s ‘highest possible order’ interest in protecting minors from what they deem ineffective and harmful healthcare practices, claiming the law is narrowly tailored to regulate only the specific discredited practice of conversion therapy.

Opinion:

This legal battle is a chilling example of how well-intentioned laws can dangerously encroach on fundamental freedoms protected by the First Amendment. While protecting minors from genuinely harmful practices is a noble goal, the government’s assertion that it can regulate speech—even speech wrapped in therapy—under the guise of protection sets a perilous precedent. Strict scrutiny exists for a reason: to protect our most cherished liberties from government overreach. The fact that Colorado’s lawyers initially argued for a lower standard of scrutiny reveals their understanding of how tenuous their position is under constitutional principles. Once we allow the state to decide which speech is ‘harmful’ or ‘substandard,’ we open the door to censorship that could extend far beyond this specific case. The government’s power to protect should never come at the cost of eroding the constitutional rights that form the bedrock of our free society. This case represents a critical juncture where we must ask: do we trust the government to be the arbiter of truth and acceptable speech? History shows us that such power inevitably expands and corrupts. We must vigilantly defend both vulnerable individuals from harm AND the constitutional framework that protects liberty for all.