Amicus Curiae Brief — Brian Tingley, Petitioner v. Robert W. Ferguson, Attorney General of Washington, et al.

No. 22-942

In the Supreme Court of the United States

__________________

BRIAN TINGLEY,

Petitioner,

v.

ROBERT W. FERGUSON, ATTORNEY GENERAL OF

WASHINGTON, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

__________________

BRIEF OF AMICI CURIAE INSTITUTE FOR FAITH

AND FAMILY AND ADVOCATES FOR FAITH &

FREEDOM IN SUPPORT OF PETITIONER

__________________

TAMI FITZGERALD

THE INSTITUTE FOR FAITH

AND FAMILY

9650 Strickland Road

Suite 103-222

Raleigh, NC 27615

(980) 404-2880

tfitzgerald@ncvalues.org

DEBORAH J. DEWART

Counsel of Record

ATTORNEY AT LAW

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

ROBERT H. TYLER

MARIAH GONDEIRO

TYLER LAW, LLP

25026 Las Brisas Road

Murrieta, CA 92562

(951) 600-2733

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................ 2

ARGUMENT ................................................................ 3

I.

WASHINGTON

REGULATES

PURE

SPEECH ................................................................ 3

A. The law regulates pure speech, not

conduct ............................................................ 4

B. The law is not neutral with respect to

either content or viewpoint ............................ 7

C. NIFLA rules out diminished protection for

“professional” speech .................................... 10

II. COUNSELING IS NOT RELIGIOUSLY

NEUTRAL ........................................................... 13

A. The government may not condition the

practice of counseling on the counselor’s

forfeiture of constitutional rights to free

speech and religion ....................................... 16

ii

B. The State’s thinly veiled hostility to

religion clashes with the “benevolent

neutrality” required of government ............. 17

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Cases

Baird v. State Bar of Arizona,

401 U.S. 1 (1971) .................................................. 17

Boy Scouts of Am. v. Dale,

530 U.S. 640 (2000) .......................................... 9, 10

Brown v. Entm't Merchs. Ass'n,

564 U.S. 786 (2011) ................................................ 8

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) .............................................. 13

Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah,

508 U.S. 520 (1993) .............................................. 18

Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) .............................................. 10

Cohen v. California,

403 U.S. 15 (1971) .................................................. 4

Conant v. Walters,

309 F.3d 629 (9th Cir. 2002) .............. 4, 5, 8, 12, 16

County of Allegheny v. ACLU,

492 U.S. 573 (1989) .............................................. 19

Emp't Div. v. Smith,

494 U.S. 872 (1990) .............................................. 16

iv

Epperson v. Arkansas,

393 U.S. 97 (1968) ................................................ 18

Everson v. Bd. of Educ. of Ewing,

330 U.S. 1 (1947) .................................................. 18

FCC v. League of Women Voters of Cal.,

468 U.S. 364 (1984) ................................................ 4

Florida Bar v. Went-For-It, Inc.,

515 U.S. 618 (1995) .............................................. 12

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) .................................................... 7

Hurley v. Irish-American Gay, Lesbian & Bisexual

Grp. of Boston,

515 U.S. 557 (1995) ................................................ 9

In re Primus,

436 U.S. 412 (1978) .............................................. 12

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022) ............................................ 2

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) .............................................. 17

King v. Gov. of the State of New Jersey,

767 F.3d 216 (3rd Cir. 2014) .................. 5, 6, 11, 12

Lee v. Weisman,

505 U.S. 577 (1992) ........................................ 18, 19

v

Lowe v. SEC,

472 U.S. 181 (1985) .............................................. 11

Lynch v. Donnelly,

465 U.S. 688 (1984) .................................... 3, 18, 19

McCreary County, KY v. ACLU,

545 U.S. 844 (2005) .............................................. 18

McCullen v. Coakley,

573 U.S. 464 (2014) ................................................ 4

NAACP v. Button,

371 U.S. 415 (1963) .............................................. 11

National Association for the Advancement of

Psychoanalysis v. Cal. Bd. of Psychology ("NAAP"),

228 F.3d 1043 (9th Cir. 2000) ................................ 5

Nat'l Inst. of Family & Life Advocates v. Becerra

(“NIFLA”),

138 S. Ct. 2361 (2018) ............................... 4, 7, 9-13

Nat'l Socialist Party of Am. v. Village of Skokie,

432 U.S. 43 (1977) .................................................. 6

Otto v. City of Boca Raton,

981 F.3d 854 (11th Cir. 2020) ...........................4-13

Perry v. Sindermann,

408 U.S. 593 (1972) .............................................. 17

vi

Pickup v. Brown,

740 F.3d 1208 (9th Cir. 2014) ................. 5-7, 11-13

Prater v. City of Burnside,

289 F.3d 417 (6th Cir. 2002) ................................ 16

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ................................................ 8

Rosenberger v. Rector & Visitors of Univ. of Virginia,

515 U.S. 819 (1995) ................................................ 9

Snyder v. Phelps,

562 U.S. 443 (2011) .............................................. 11

Texas v. Johnson,

491 U.S. 397 (1989) ............................................ 4, 9

Thomas v. Collins,

323 U.S. 516 (1945) .......................................... 7, 16

Thompson v. Western States Medical Ctr.,

535 U.S. 357 (2002) ................................................ 4

Tingley v. Ferguson,

557 F.Supp. 3d 1131 (W.D. Wash. 2021) ..... 5, 6, 14

Tingley v. Ferguson,

47 F.4th 1055 (9th Cir. 2022) .................. 2, 6, 9, 14

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) .......................................... 8, 10

vii

United States v. Ballard,

322 U.S. 78 (1944) ................................................ 17

United States v. Schwimmer,

279 U.S. 644 (1929) ................................................ 3

Walz v. Tax Comm’n,

397 U.S. 664 (1970) .............................................. 10

Welch v. Brown,

834 F.3d 1041 (9th Cir. 2016) .............................. 14

West Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................................................ 3

Wollschlaeger v. Governor of Florida,

848 F.3d 1293 (11th Cir. 2017) ........................ 5, 12

Statutes

Cal. Bus. & Prof. Code § 865(b)................................... 6

Wash. Rev. Code § 18.130.020(4) ................................ 6

Wash. Rev. Code § 18.130.020(4)(b) ............................ 9

Wash. Rev. Code § 18.130.180(27) (the “Censorship

Law”) ............................................................................ 2

Wash. Rev. Code § 18.225.030(4) .............................. 14

Other Authorities

Jay E. Adams, Competent to Counsel (1970) ............ 15

viii

Berg, Toward a First Amendment Theory of

Doctor-Patient Discourse and the Right To

Receive Unbiased Medical Advice, 74 B. U. L.

Rev. 201 (1994)....................................................... 12

Allen E. Bergin and Sol L. Garfield, Handbook of

Psychotherapy and Behavior Change (5th

Edition) (2004) ................................................. 15, 16

Sam Brinton, I Was Tortured in Gay Conversion

Therapy. And It's Still Legal in 41 States,

N.Y. Times (Jan. 24, 2018) ...................................... 2

Gary R. Collins, Can You Trust Psychology? (1988)

.............................................................................. 15

Thomas Szasz, The Myth of Psychotherapy (1978) .. 16

Siang-Yan Tan, Counseling and Psychotherapy: A

Christian Perspective (2011) .................................. 15

Paul C. Vitz, Psychology as Religion (1994) ............. 15

https://biblicalcounseling.com/about/beliefs/positi

ons/standards-of-doctrine/ ..................................... 15

https://www.nytimes.com/2018/01/24/opinion/gayconversion-therapy-torture.html ............................. 2

1

INTEREST OF AMICI CURIAE 1

The Institute for Faith and Family, and

Advocates for Faith & Freedom, as amici curiae,

respectfully urge this Court to grant the Petition for

Certiorari and reverse the decision of the Ninth

Circuit.

The Institute for Faith and Family is a North

Carolina nonprofit corporation established to preserve

and promote faith, family, and freedom through public

policies that protect constitutional liberties, including

the right to live and work according to conscience and

faith. See https://iffnc.com.

Advocates for Faith & Freedom is dedicated to

protecting and preserving the fundamental liberties

that define the United States as a beacon of freedom

and prosperity. These rights include the right to

freely exercise your religion, the right to speak

openly and freely, and the right to care for and

educate your child.

1 Counsel of record for all parties received notice at least 10 days

prior to the due date of amici's intention to file this brief. Amici

curiae certify that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amici, their

members, or their counsel, has made a monetary contribution to

its preparation or submission.

2

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

As this Court recently affirmed, “[t]he [Free

Exercise] Clause protects not only the right to harbor

religious beliefs inwardly and secretly,” but also “the

ability of those who hold religious beliefs of all kinds

to live out their faiths in daily life . . . .” Kennedy v.

Bremerton Sch. Dist., 142 S. Ct. 2407, 2421 (2022).

Washington’s Censorship Law (Wash. Rev. Code

§ 18.130.180(27)) renders that freedom virtually

impossible for many state-licensed counselors.

The Ninth Circuit erred in characterizing the

law as a regulation of conduct, compounding its error

by citing a young man’s account of his experience with

“conversion therapy.” Tingley v. Ferguson, 47 F.4th

1055, 1083 n. 3 (9th Cir. 2022), citing Sam Brinton, I

Was Tortured in Gay Conversion Therapy. And It's

Still Legal in 41 States, N.Y. Times (Jan. 24, 2018).

Here is how Brinton describes his experience: “The

therapist ordered me bound to a table to have ice, heat,

and electricity applied to my body. I was forced to

watch clips on a television of gay men holding hands,

hugging and having sex.” 2 These practices are clearly

conduct that could lawfully be prohibited—conduct

that a Christian counselor would abhor—in contrast to

the pure speech that Tingley seeks to engage in with his

counseling clients.

https://www.nytimes.com/2018/01/24/opinion/gay-conversiontherapy-torture.html.

2

3

Washington’s law is a direct attack on pure

speech that codifies the State’s viewpoint on one of the

most contentious social issues of our time. The "fixed

star in our constitutional constellation"—barring any

public official from prescribing orthodoxy in religion

(West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,

642 (1943))—shines across decades of precedent and

prohibits this draconian law that conditions Tingley’s

counseling practice on the demise of his speech and

religious liberties. The statute flouts the Constitution,

which "affirmatively mandates accommodation, not

merely tolerance, of all religions, and forbids hostility

towards any." Lynch v. Donnelly, 465 U.S. 668, 672

(1974).

Counseling is not religiously neutral. On the

contrary, counseling is a profession that uniquely

touches religion. Religion and counseling both involve

thoughts, emotions, speech, conduct, conscience,

morality, and personal values. Counselors are not

robots, and values cannot be extracted from

counseling.

ARGUMENT

I.

WASHINGTON

SPEECH.

REGULATES

PURE

Free speech jurisprudence has long guarded

even “the thought that we hate.” United States v.

Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J.,

dissenting). Washington crushes the “bedrock

principle” that government may not suppress an idea

merely because some find it “offensive or

4

disagreeable.” Texas v. Johnson, 491 U.S. 397, 414

(1989); Otto v. City of Boca Raton, 981 F.3d 854, 872

(11th Cir. 2020).

Washington bypassed the warning that

"regulating speech must be a last—not first—resort.

Yet here it seems to have been the first strategy the

Government thought to try." Thompson v. Western

States Medical Ctr., 535 U.S. 357, 383 (2002); Conant

v. Walters, 309 F.3d 629, 637 (9th Cir. 2002). No

matter how politically popular it is to promote LGBT

ideology, the government must nevertheless “preserve

an uninhibited marketplace of ideas in which truth

will ultimately prevail.” McCullen v. Coakley, 573 U.S.

464, 476 (2014), quoting FCC v. League of Women

Voters of Cal., 468 U.S. 364, 377 (1984). Policing

“professional” speech risks suppressing that free

“marketplace.” Nat'l Inst. of Family & Life Advocates

v. Becerra (“NIFLA”), 138 S. Ct. 2361, 2374 (2018).

A.

The law regulates pure speech, not

conduct.

“If speaking to clients is not speech, the world is

truly upside down.” Otto, 981 F.3d at 866 (emphasis

added). Professional conduct may be regulated even if

it incidentally involves speech. NIFLA, 138 S. Ct. at

2372. The law requires "separately identifiable"

conduct to which the speech is incidental. Cohen v.

California, 403 U.S. 15, 18 (1971). No such conduct is

present here. Washington’s statute “sanction[s]

speech directly, not incidentally.” Otto, 981 F.3d at

866.

5

The district court evaded the obvious First

Amendment concerns by diverting its attention to

“treatment,” contending that “psychoanalysis is the

treatment of emotional suffering and depression, not

speech.” Tingley v. Ferguson, 557 F.Supp. 3d 1131,

1139 (W.D. Wash. 2021), quoting National Association

for the Advancement of Psychoanalysis v. Cal. Bd. of

Psychology ("NAAP"), 228 F.3d 1043, 1054 (9th Cir.

2000); Pickup v. Brown, 740 F.3d 1208, 1226 (9th Cir.

2014). In Pickup, California had “ban[ned] a form of

treatment for minors” (id. at 1229) while allowing

counselors to discuss sexual orientation change efforts

with minor clients. Tingley, 557 F.Supp. 3d at 1140.

The district court found Washington’s prohibition

“analogous to [a] doctor giving a prescription for

marijuana,” as in Conant, because it “involves

engaging in a specific act designed to provide

treatment.” Id., 1141.

The government plays word games, regulating

speech by improperly “relabeling it as conduct.” Otto,

981 F.3d at 865. Such “relabeling” is “unprincipled and

susceptible to manipulation." Wollschlaeger v.

Governor, Fla., 848 F.3d 1293, 1308 (11th Cir. 2017)

(en banc). The “past aversive treatments” described in

Pickup, 740 F.3d at 1222—“inducing nausea,

vomiting, or paralysis; providing electric shocks; or

having an individual snap an elastic band around the

wrist when aroused by same-sex erotic images or

thoughts”—are conduct that could be proscribed on a

content-neutral basis. But this case restricts “purely

speech-based therapy” (Otto, 981 F.3d at 859), “talk

therapy . . . administered solely through verbal

communication.” King v. Gov. of the State of New

6

Jersey, 767 F.3d 216, 221 (3rd Cir. 2014). The Third

Circuit had no trouble concluding that SOCE3

implicated speech, rather than conduct, for First

Amendment purposes. Id. at 225, 229.

In a strange twist, like falling down Alice-inWonderland’s rabbit-hole, the California and

Washington SOCE bans expressly allow “discussing

various treatment options, including conversion

therapy.” Tingley, 557 F.Supp. 3d at 1141; Tingley, 47

F.4th at 1073; see Wash. Rev. Code 18.130.020(4), Cal.

Bus. & Prof. Code § 865(b). The therapist may even

recommend SOCE, provided the client seeks it “from

unlicensed counselors, from religious leaders, or from

out-of-state providers, or after they turn 18.” Tingley,

47 F.4th at 1073. California counselors may

“communicat[e] with the public about SOCE,”

“express[] their views to patients,” or “refer[] minors

to unlicensed counselors, such as religious leaders.”

Pickup, 740 F.3d at 1223. Close scrutiny would

admittedly apply to “content- or viewpoint-based

regulation of communication about treatment” but

“treatment itself” could be regulated. Id. at 1231.

This hair-splitting exercise collides with the

Constitution. “The First Amendment does not

[merely] protect the right to speak about banned

speech; it protects speech itself, no matter how

disagreeable that speech might be to the government.”

Otto, 981 F.3d at 863 (emphasis added). In Nat'l

Socialist Party of Am. v. Village of Skokie, 432 U.S. 43

(1977), it would have been bizarre to suggest that

3 Sexual Orientation Change Efforts (“SOCE”).

7

“people were welcome to advocate for a pro-Nazi

demonstration” but “could not actually hold the

demonstration.” Otto, 981 F.3d at 863. And it would be

a strange counseling session if a therapist

recommended the benefits of SOCE but could not

provide it. Id. Indeed, since the therapy itself is

speech, it may be impossible to distinguish between

talking about SOCE and actually providing it.

Courts must consider the practical effect of a

law to determine whether it implicates speech.

Thomas v. Collins, 323 U.S. 516, 536 (1945). Even a

law that “may be described as directed at conduct”

implicates speech where "the conduct triggering

coverage under the statute consists of communicating

a message." Holder v. Humanitarian Law Project, 561

U.S. 1, 28 (2010). There is no question that discussions

about discussions about SOCE and SOCE

communicate a message.

B.

The law is not neutral with respect to

either content or viewpoint.

Sexuality is “anything but an ‘uncontroversial’

topic.” NIFLA, 138 S. Ct. at 2372. The speech here is

“highly controversial” but “the First Amendment has

no carveout for controversial speech.” Otto, 981 F.3d

at 859. The Ninth Circuit decision threatens to hand

the government “a new and powerful tool to silence

expression based on a political or moral judgment.”

Pickup, 740 F.3d at 1216 (O’Scannlain, J., dissenting

from denial of rehearing en banc). Under “the guise of

a professional regulation,” the Ninth Circuit

“insulates from First Amendment scrutiny”

8

Washington’s prohibition of “politically unpopular

expression.” Id. at 1215.

Washington’s Law is unquestionably contentbased because it “applies to particular speech because

of the topic discussed or the idea or message

expressed.” Reed v. Town of Gilbert, 576 U.S. 155, 163

(2015). In Conant, the government penalized

physicians precisely because of the content—doctorpatient discussions about the medical use of

marijuana. Conant, 309 F.3d at 637. These cases

contrast with NAAP, where California did not "dictate

the content of what is said in therapy" or prohibit

particular "psychoanalytical methods." 228 F.3d at

1055-1056.

Washington’s "mere assertion of a contentneutral purpose" cannot salvage the statute, “which,

on its face, discriminates based on content.” Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-643 (1994).

Regardless of the law’s purpose, the first question is

“whether it restricts or penalizes speech on the basis

of that speech's content.” Otto, 981 F.3d at 862. Like

past SOCE cases, Washington purports to protect

children. But that important interest "does not include

a free-floating power to restrict the ideas to which

children may be exposed." Brown v. Entm't Merchs.

Ass'n, 564 U.S. 786, 794-95 (2011); Otto, 981 F.3d at

868.

Washington’s viewpoint discrimination is

revealed by the “significant carveout” (Otto, 981 F.3d

at 860) for counseling that provides “acceptance,

support, and understanding of clients or the

9

facilitation of clients' coping, social support, and

identity exploration and development” but does “not

seek to change sexual orientation or gender identity.”

Wash. Rev. Code § 18.130.020(4)(b); Tingley, 47 F.4th

at 1065, 1073, 1091. Viewpoint-based regulations are

"an egregious form of content discrimination"

(Rosenberger v. Rector & Visitors of Univ. of Virginia,

515 U.S. 819, 829 (1995)) and “a matter of serious

constitutional concern” (NIFLA, 138 S. Ct. at 2378

(Kennedy, J., concurring)). Washington’s statute “is a

paradigmatic example of the serious threat presented

when government seeks to impose its own message in

the place of individual speech, thought, and

expression.” Id. Washington codifies the viewpoint

that “sexual orientation is immutable, but gender is

not” (Otto, 781 F.3d at 864), and that homosexuality

and transgenderism are normal and morally right.

The government “is not free to interfere with

speech for no better reason than promoting an

approved message or discouraging a disfavored one,

however enlightened either purpose may strike the

government.” Boy Scouts of Am. v. Dale, 530 U.S. 640,

661 (2000), quoting Hurley v. Irish-American Gay,

Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 579

(1995). Washington silences one side of a contentious

debate and unlawfully demands that licensed

counselors conform to the State’s view. Tingley's

speech would be protected even if it were an unpopular

minority viewpoint. Dale, 530 U.S. at 660; Texas v.

Johnson, 491 U.S. 397 (burning American flag).

Instead, his views follow centuries of moral and

religious teaching. Washington’s censorship is

especially disturbing in a changing social

10

environment—"the fact that an idea may be embraced

and advocated by increasing numbers of people is all

the more reason to protect the First Amendment

rights of those who wish to voice a different view."

Dale, 530 U.S. at 660. People of faith are entitled to a

voice and “frequently take strong positions on public

issues.” Walz v. Tax Comm’n, 397 U.S. 664, 670 (1970).

Tingley’s religious beliefs touch a matter of

intense public controversy that has escalated

exponentially following the Supreme Court’s

redefinition of marriage. It is not the business of any

government official to coerce any citizen's convictions

on this sensitive topic.

C.

NIFLA rules out diminished protection

for “professional” speech.

Attempts to regulate “professional” speech raise

the specter of viewpoint discrimination—"the inherent

risk that the Government seeks not to advance a

legitimate regulatory goal, but to suppress unpopular

ideas or information." NIFLA, 138 S. Ct. at 2374,

quoting Turner, 512 U.S. at 641; Otto, 781 F.3d at 861.

Licensing. States may impose professional

licensing requirements (see NAAP, 228 F.3d 1043

(psychotherapy)) but do not have “unfettered power to

reduce a group’s First Amendment rights by simply

imposing a licensing requirement.” NIFLA, 138 S. Ct.

at 2375. Otherwise, they would have a “powerful tool”

to impose “invidious discrimination of disfavored

subjects.” Id., quoting Cincinnati v. Discovery

Network, Inc., 507 U.S. 410, 423-424, n. 19 (1993).

11

Constitutional collision. “[A] State may not,

under the guise of prohibiting professional

misconduct, ignore constitutional rights.” NAACP v.

Button, 371 U. S. 415, 439 (1963); NIFLA, 138 S. Ct.

at 2373; Tingley v. Ferguson, 2023 U.S. App. LEXIS

1632, *10 (O’Scannlain, J., dissenting from denial of

rehearing en banc). The SOCE cases—Pickup, King,

Otto, and now Tingley—demonstrate the danger of a

diminished standard for “professional speech.” The

state does not have carte blanche to engage in blatant

viewpoint discrimination, especially concerning a

contentious matter that implicates deeply held

religious convictions. See, e.g., Snyder v. Phelps, 562

U.S. 443 (2011). Washington creates a “collision

between the power of government to license and

regulate” and the free speech rights “guaranteed by

the First Amendment.” King, 767 F.3d at 229, quoting

Lowe v. SEC, 472 U.S. 181, 228 (1985) (White, J.,

concurring in the result). "At some point, a measure is

no longer a regulation of a profession but a regulation

of speech or of the press." King, 767 F.3d at 230,

quoting Lowe, 472 U.S. at 228, 230 (White, J.,

concurring in the result).

Medical/Health Context. The state may

regulate medicine, but “a doctor who publicly

advocates a treatment that the medical establishment

considers outside the mainstream, or even dangerous,

is entitled to robust protection under the First

Amendment.” Pickup, 740 F.3d at 1227; see Lowe, 472

U.S. at 232 (White, J., concurring). One important

concern is confidentiality in the doctor-patient

relationship. “Doctors help patients make deeply

personal decisions, and their candor is crucial.”

12

Wollschlaeger, 848 F.3d at 1328 (W. Pryor, J.

concurring). But governments have “manipulat[ed]

the content of doctor-patient discourse” to increase

state power and suppress minorities.” NIFLA, 138 S.

Ct. at 2374, citing Berg, Toward a First Amendment

Theory of Doctor-Patient Discourse and the Right To

Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201,

201-202 (1994). Frank and open communication is

essential. Conant, 309 F.3d at 636.

New speech categories. “The Supreme Court

has chastened us lower courts for creating, out of

whole cloth, new categories of speech to which the

First Amendment does not apply.” Pickup, 740 F.3d at

1221 (O’Scannlain, J., dissenting from denial of

rehearing en banc). “Speech is not unprotected merely

because it is uttered by ‘professionals.’” NIFLA, 138 S.

Ct. at 2371-2372. To the contrary, NIFLA “addressed

similar doctrinal issues” and “directly criticized other

circuit decisions [Pickup, King] approving of SOCE

bans.” Otto, 981 F.3d at 867.

Professional speech may be entitled to "the

strongest protection our Constitution has to offer."

Florida Bar v. Went-For-It, Inc., 515 U.S. 618, 634

(1995); In re Primus, 436 U.S. 412, 432 (1978)

(noncommercial speech of lawyers). As this circuit

acknowledged, “[b]eing a member of a regulated

profession does not . . . result in a surrender of First

Amendment rights.” Conant, 309 F.3d at 637.

Professionals may be required to “disclose

factual, noncontroversial information.” NIFLA, 138 S.

Ct. at 2372. States may regulate professional conduct

13

that incidentally implicates speech, such as the “past

aversive treatments” described in Pickup, 740 F.3d at

1222 (Sect. I-A, supra). NIFLA, 138 S. Ct. at 2372.

Here, the Ninth Circuit glided over the critical

distinction between such conduct and the pure speech

between Tingley and his clients.

II.

COUNSELING

NEUTRAL.

IS

NOT

RELIGIOUSLY

Counseling and religion both involve values,

morality, thoughts, beliefs, emotions, and conduct—

including sexual conduct and morality. Counseling is

a highly subjective undertaking, not a hard science.

Washington regulates religious speech, which is not

only “as fully protected . . . as secular private

expression,”

but

historically,

“government

suppression of speech has so commonly been directed

precisely at religious speech that a free-speech clause

without religion would be Hamlet without the prince.”

Capitol Square Review & Advisory Bd. v. Pinette, 515

U.S. 753, 760 (1995) (internal citations omitted). “No

matter our feelings on the matter, the sweep of

Washington's law limits speech motivated by the

teachings of several of the world's major religions” and

that “necessarily trigger[s] heightened levels of

judicial review.” Tingley, *29 (Bumatay, J., dissenting

from denial of rehearing en banc). Tingley’s clients

typically share his "religious beliefs conflicting with

homosexuality, and voluntarily seek SOCE counseling

in order to live in congruence with their faith and to

conform their identity, concept of self, attractions, and

behaviors to their sincerely held religious beliefs."

Otto, 981 F.3d at 860 (emphasis added). Washington

14

claims that the object of the law is “not to infringe

upon or restrict practices because of their religious

motivation” (Tingley, 557 F.Supp.3d at 1143; Tingley,

47 F.4th at 1085) and that it "regulates conduct only

within the confines of the counselor-client

relationship" (id., quoting Welch v. Brown, 834 F.3d

1041, 1044 (9th Cir. 2016)). But the statute tacitly

admits that Washington has wandered into

theological territory: The law is inapplicable to

therapy provided "under the auspices of a religious

denomination, church, or religious organization."

Wash. Rev. Code § 18.225.030(4); Tingley, 557

F.Supp.3d at 1136; Tingley, 47 F.4th at 1064-1065.

The

carve-out

“implicitly

acknowledges

the

constitutional issue, 2018 Wash. Sess. Laws, ch. 300,

§ 2, but it cannot save the law from constitutional

challenge.” Tingley v. Ferguson, *25 (O’Scannlain, J.,

dissenting from denial of rehearing en banc). Indeed,

the statutory language highlights the inherently

religious nature of counseling and the statute’s

squashing religious liberty.

Many counseling centers and professional

associations exist to serve Christians. See, e.g.,

American Association of Christian Counselors

(www.aacc.net); National Christian Counselors

Association (www.ncca.org); Association of Certified

Biblical

Counselors

(“ACBC”)

(www.biblicalcounseling.com); Christian Counseling

and Educational Foundation (www.ccef.org); Institute

for

Biblical

Counseling

and

Discipleship

(https://ibcd.org). In the Preamble to its doctrinal

standards, ACBC emphasizes the theological nature of

its mission: “We are an association of Christians who

15

have been called together by God to help the Church

of Jesus Christ excel in the ministry of biblical

counseling. We do this with the firm resolve that

counseling is a fundamentally theological task. The

work of understanding the problems which require

counseling and of helping people with those problems

is theological work requiring theological faithfulness

in order to accomplish that effectiveness which honors

the triune God.” (emphasis added) 4 Washington’s rigid

stance will exclude many people of faith from entering

the counseling profession.

Among those who share Tingley's Christian

worldview, there is vigorous debate concerning

whether (or to what extent) theories of modern

psychotherapy should be integrated with religious

doctrine. See, e.g., Paul C. Vitz, Psychology as Religion

(1994); Jay E. Adams, Competent to Counsel (1970);

Gary R. Collins, Can You Trust Psychology? (1988);

Siang-Yan Tan, Counseling and Psychotherapy: A

Christian Perspective (2011). The existence of these

discussions is strong testimony that counseling is not

religiously neutral.

The counseling profession is not uniform. There

are a multitude of competing approaches: “A clear

trend in psychotherapeutic interventions since the

mid-1960s has been the proliferation not only of the

types of practitioners, but also of the types and

numbers of psychotherapies used alone and in

combination in day-to-day practice.” Allen E. Bergin

4 https://biblicalcounseling.com/about/beliefs/positions/standards

-of-doctrine/.

16

and Sol L. Garfield, Handbook of Psychotherapy and

Behavior Change (5th Edition) (2004), 6. Outside the

faith community, psychiatrist Thomas Szasz observed

that "psychotherapy is a modern, scientific-sounding

name for what used to be called the 'cure of souls.'"

Thomas Szasz, The Myth of Psychotherapy (1978), 26.

One reason he wrote The Myth of Psychotherapy was

“to show how, with the decline of religion and the

growth of science in the eighteenth century, the cure

of (sinful) souls, which had been an integral part of the

Christian religions, was recast as the cure of (sick)

minds, and became an integral part of medicine.” Id.

at xxiv.

A.

The government may not condition the

practice

of

counseling

on

the

counselor’s forfeiture of constitutional

rights to free speech and religion.

The Constitution entitles Americans to enter

the counseling profession without sacrificing core

religious beliefs. “Being a member of a regulated

profession does not . . . result in a surrender of First

Amendment rights.” Conant, 309 F.3d at 637, citing

Thomas v. Collins, 323 U.S. at 531. The Constitution

"protects not only the right to hold a particular

religious belief, but also the right to engage in conduct

motivated by that belief." Prater v. City of Burnside,

289 F.3d 417, 427 (6th Cir. 2002); Emp't Div. v. Smith,

494 U.S. 872, 877 (1990) ("the exercise of religion often

involves not only belief and profession but the

performance of (or abstention from) physical acts").

17

The drafters of the Constitution "fashioned a

charter of government which envisaged the widest

possible toleration of conflicting views." United States

v. Ballard, 322 U.S. 78, 87 (1944). Washington

unilaterally imposes a secular orthodoxy that

tolerates no dissenting voices and represents only one

side of a contentious issue that intersects law, religion,

philosophy, morality, and politics. If people of faith are

forced to abandon their moral principles in the

workplace and squeezed out of full participation in

civic life, constitutional guarantees ring hollow.

Washington unlawfully suppresses Tingley's

religious beliefs and excludes him from serving as a

counselor. Tingley is not compelled to become a

counselor, but he may not be excluded from the

profession by unconstitutional criteria. Baird v. State

Bar of Arizona, 401 U.S. 1, 6-7 (1971); Keyishian v. Bd.

of Regents, 385 U.S. 589, 607 (1967). Counseling, like

the practice of law, "is not a matter of grace, but of

right for one who is qualified by his learning and his

moral character." Baird, 401 U.S. at 8. More generally,

the state “may not deny a benefit to a person on a basis

that infringes his constitutionally protected

interests—especially, his interest in freedom of

speech.” Perry v. Sindermann, 408 U.S. 593, 597

(1972).

B.

The State’s thinly veiled hostility to

religion clashes with the “benevolent

neutrality” required of government.

The Free Exercise Clause "protects against

governmental hostility which is masked as well as

18

overt." Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 534 (1993). Religious

teachings commonly include standards of conduct,

including sexual morality. Washington’s law reeks of

hostility toward religious traditions that define

marriage as a relationship between one man and one

woman and do not affirm same-sex relationships or

the ability to transition to the opposite sex.

The Framers intentionally protected "the

integrity of individual conscience in religious

matters." McCreary County, KY v. ACLU, 545 U.S.

844, 876 (2005). This Court has a "duty to guard and

respect that sphere of inviolable conscience and belief

which is the mark of a free people." Lee v. Weisman,

505 U.S. 577, 592 (1992). "A state-created

orthodoxy"—Washington's preferred views about

sexual morality—"puts at grave risk that freedom of

belief and conscience which are the sole assurance

that religious faith is real, not imposed." Id. at 592.

Washington runs roughshod over Tingley's

conscience, exhibiting the very hostility the

Constitution prohibits. The Religion Clauses forbid

government hostility or callous indifference toward

religion. Epperson v. Arkansas, 393 U.S. 97, 104

(1968); Lynch v. Donnelly, 465 U.S. at 673. "No person

can be punished for entertaining or professing

religious beliefs or disbeliefs . . . ." Everson v. Bd. of

Educ. of Ewing, 330 U.S. 1, 15-16 (1947). Washington

punishes Tingley, his clients, and others like them for

their religious beliefs. "State power is no more to be

used so as to handicap religions than it is to favor

them." Id. at 18. Washington handicaps counselors

19

and clients who will not espouse the State’s view of

sexual morality.

Washington "conveys a message" strongly

disapproving Tingley's religious beliefs. Lynch v.

Donnelly, 465 U.S. at 690 (O'Connor, J., concurring);

County of Allegheny v. ACLU, 492 U.S. 573, 597

(1989). The State not only inhibits Tingley's ability to

adhere to his religious faith—it renders his religion

relevant to his standing in the community, potentially

barring him from his chosen profession unless he

abandons his beliefs. Id. at 594. Washington’s frontal

assault on Tingley's religious beliefs is a more

personalized

disapproval—with

more

serious,

permanent consequences—than many earlier cases

involving religious expression. See, e.g., Lynch v.

Donnelly, 465 U.S. at 678-679 (Christmas display);

County of Allegheny v. ACLU, 492 U.S. 573 (creche

and menorah display); Lee v. Weisman, 505 U.S. at 592

(high school graduation invocation).

If "[t]he Constitution forbids the State to exact

religious conformity from a student as the price of

attending her own high school graduation" (Lee v.

Weisman, 505 U.S. at 596)—then it surely precludes

exacting such conformity and "employ[ing] the

machinery of the State to enforce religious

orthodoxy"—as the price of entering or remaining in

the counseling profession. Id. at 592.

CONCLUSION

Counseling necessarily implicates values,

beliefs, morality, and religion. Clients are best served

20

by a system that respects the values and conscience of

both counselor and client. Washington’s statutory

scheme fails to preserve the counselor's liberties of

speech and religion.

This Court should grant the Petition for

Certiorari and reverse the Ninth Circuit ruling.

Respectfully submitted,

DEBORAH J. DEWART

Counsel of Record

ATTORNEY AT LAW

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

TAMI FITZGERALD

THE INSTITUTE FOR FAITH AND FAMILY

9650 Strickland Road

Suite 103-222

Raleigh, NC 27615

(980) 404-2880

tfitzgerald@ncvalues.org

ROBERT H. TYLER

MARIAH GONDEIRO

TYLER LAW, LLP

25026 Las Brisas Road

Murrieta, CA 92562

(951) 600-2733