Amicus Curiae Brief — Kaley Chiles, Petitioner v. Patty Salazar, in Her Official Capacity as Executive Director of the Colorado Department of Regulatory Agencies, et al.

NO. 24-539

In The

Supreme Court of the United States

____________________

KALEY CHILES,

Petitioner,

v.

PATTY SALAZAR, in Her Official Capacity as Executive

Director of the Colorado Department of Regulatory

Agencies, et al.,

Respondents.

____________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

____________________

BRIEF OF AMICI CURIAE NC VALUES

INSTITUTE AND ADVOCATES FOR FAITH &

FREEDOM IN SUPPORT OF PETITIONER

____________________

Robert H. Tyler

Julianne Fleischer

Advocates for Faith &

Freedom

25026 Las Brisas Road

Murrieta, CA 92562

Deborah J. Dewart

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Tami Fitzgerald

NC Values Institute

9650 Strickland Rd. #103-226

Raleigh, NC 27615

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

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

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

INTRODUCTION AND SUMMARY ......................... 2

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

I.

II.

COLORADO REGULATES PURE SPEECH

BASED ON CONTENT AND VIEWPOINT—

CONTRARY

TO

THIS

COURT’S

PRECEDENT……………………………………..3

A.

The law regulates pure speech, not

conduct. .................................................. 5

B.

Colorado’s Censorship Law is not neutral

with respect to either content or

viewpoint................................................ 8

C.

NIFLA rules out diminished protection

for “professional” speech. .................... 12

COUNSELING IS NEITHER VALUE-FREE

NOR RELIGIOUSLY NEUTRAL ……………17

A.

The government may not condition

practice of the counseling profession on a

requirement that the counselor forego

the exercise of his or her constitutional

rights to free speech and religion. ...... 21

ii

B.

Colorado's thinly veiled hostility to

religion clashes with the “benevolent

neutrality” required of government…..

.............................................................. 23

CONCLUSION.......................................................... 26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Baird v. State Bar of Arizona,

401 U.S. 1 (1971) ................................................. 23

Boy Scouts of Am. v. Dale,

530 U.S. 640 (2000) ............................................. 11

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

564 U. S. 786 (2011) .............................................. 9

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ............................................. 17

Central Hudson Gas & Elec. Corp. v. Public Serv.

Comm. of New York,

447 U.S. 557 (1980) ............................................. 16

Chiles v. Salazar,

116 F.4th 1178 (10th Cir. 2024) .............. 3, 6, 9, 10

Chiles v. Salazar,

2022 U.S. Dist. LEXIS 227887

(D. Colo. 2022) ................................................ 18, 23

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

Hialeah,

508 U.S. 520 (1993) ............................................. 23

Cincinnati v. Discovery Network, Inc.,

507 U. S. 410 (1993) ............................................ 12

iv

Conant v. Walters,

309 F.3d 629 (9th Cir. 2002) ........4, 5, 9, 14, 15, 21

County of Allegheny v. ACLU,

492 U.S. 573 (1989) ............................................. 25

Emp't Div. v. Smith,

494 U.S. 872 (1990) ....................................... 21, 22

Epperson v. Arkansas,

393 U.S. 97 (1968) ............................................... 24

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ............................................. 10

Everson v. Bd. of Educ. of Ewing,

330 U.S. 1 (1947) ................................................. 24

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) ............................................. 15

Fulton v. City of Philadelphia, Pennsylvania,

141 S. Ct. 1868 (2021) ......................................... 18

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ................................................... 8

Hurley v. Irish-American Gay,

515 U.S. 557 (1995) ............................................. 11

In re Primus,

436 U. S. 412 (1978) ............................................ 15

v

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022) ..................................... 2, 23

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ............................................. 23

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

767 F.3d 216 (3rd Cir. 2014) ................ 6, 12-14, 16

Lee v. Weisman,

505 U.S. 577 (1992) ....................................... 24, 25

Lowe v. SEC,

472 U.S. 181 (1985) ............................................. 13

Lynch v. Donnelly,

465 U.S. 668 (1984) ....................................... 24, 25

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n,

138 S. Ct. 1719 (2018) ......................................... 23

McCreary County, KY v. ACLU,

545 U.S. 844 (2005) ............................................. 24

McCullen v. Coakley,

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

McDaniel v. Paty,

435 U.S. 618 (1978) ............................................. 22

Milavetz, Gallop & Milavetz, P. A. v. United States,

559 U. S. 229 (2010) ............................................ 16

vi

Moore-King v. County of Chesterfield,

708 F. 3d 560 (4th Cir. 2014) .............................. 15

NAACP v. Button,

371 U.S. 415 (1963) ............................................. 13

National Association for the Advancement of

Psychoanalysis v. Cal. Bd. of Psychology (“NAAP”),

228 F.3d 1043 (9th Cir. 2000) ..................... 5, 9, 12

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

(“NIFLA”),

585 U.S. 755 (2018) ....................... 4, 5, 8-10, 12-16

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

432 U.S. 43 (1977) ................................................. 7

Ohralik v. Ohio State Bar Assn.,

436 U. S. 447 (1978) ............................................ 16

Otto v. City of Boca Raton,

981 F.3d 854 (11th Cir. 2020)…2, 3, 5-10, 12-15,

17

Pac. Coast Horseshoeing Sch., Inc. v. Kirchmeyer,

961 F.3d 1062 (9th Cir. 2020) ............................... 8

Perry v. Sindermann,

408 U.S. 593 (1972) ............................................. 23

Pickup v. Brown,

740 F.3d 1208 (9th Cir. 2014) ................. 5-8, 13-15

vii

Planned Parenthood of Southeastern Pa. v. Casey,

505 U. S. 833 (1992) ............................................ 16

Police Dep't of Chicago v. Mosley,

408 U.S. 92 (1972) ................................................. 8

Prater v. City of Burnside,

289 F.3d 417 (6th Cir. 2002) ............................... 21

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ............................................... 9

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

515 U.S. 819 (1995) ............................................. 10

Snyder v. Phelps,

562 U.S. 443 (2011) ......................................... 4, 13

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ............................................. 14

Texas v. Johnson,

491 U.S. 397 (1989) ......................................... 3, 11

Thomas v. Collins,

323 U.S. 516 (1945) ......................................... 7, 21

Thompson v. Western States Medical Ctr.,

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

Tingley v. Ferguson,

144 S.Ct. 33 (2023) .............................. 2, 4, 8, 9, 36

Tingley v. Ferguson,

47 F.4th 1055 (9th Cir. 2022) ............................ 6, 7

viii

Tingley v. Ferguson,

57 F.4th 1072 (9th Cir. 2023) ............ 2, 4, 5, 17, 20

Tingley v. Ferguson,

557 F. Supp. 3d 1131 (W.D. Wash. 2021) ....... 5, 18

Torcaso v. Watkins,

367 U.S. 488 (1961) ............................................. 22

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

512 U.S. 622 (1994) ......................................... 9, 12

United States v. Alvarez,

567 U. S. 709 (2012) ...................................... 14, 15

United States v. Ballard,

322 U.S. 78 (1944) ............................................... 22

United States v. Schwimmer,

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

United States v. Stevens,

559 U.S. 460 (2010) ............................................. 14

Walz v. Tax Comm’n,

397 U.S. 664 (1970) ............................................. 11

Watson v. State of Maryland,

218 U.S. 173 (1910) ............................................. 12

Welch v. Brown,

834 F.3d 1041 (9th Cir. 2016) ............................. 18

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

319 U. S. 624 (1943) .............................................. 2

ix

Wollschlaeger v. Governor, Fla.,

848 F. 3d 1293 (11th Cir. 2017) ...................... 6, 14

Zauderer v. Office of Disciplinary Counsel of

Supreme Court of Ohio,

471 U. S. 626 (1985) ............................................ 16

Zorach v. Clauson,

343 U.S. 306 (1952) ............................................. 24

Statutes

C.R.S. § 12-245-202(3.5)(b)(1)................................... 10

C.R.S. § 12-245-217(1) .............................................. 18

C.R.S. §§ 12-245-202, 12-245-101 ............................... 2

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

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

Wash. Rev. Code § 18.130.020(4)(b) ......................... 12

Wash. Rev. Code § 18.225.030(4) ............................. 18

Other Authorities

Jay E. Adams, Competent to Counsel (1970) ........... 19

Berg, Toward a First Amendment Theory of DoctorPatient Discourse and the Right To Receive Unbiased

Medical Advice,

74 B. U. L. Rev. 201 (1994) ................................. 14

Allen E. Bergin and Sol L. Garfield,

Handbook of Psychotherapy and Behavior Change

(5th Edition) (2004) ............................................. 21

x

Sam Brinton, I Was Tortured in Gay Conversion

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

(Jan. 24, 2018) ....................................................... 6

Gary R. Collins, Can You Trust Psychology?

(1988) .................................................................... 19

Michael W. McConnell, "God is Dead and We have

Killed Him!"

Freedom of Religion in the Post-Modern Age,

1993 BYU L. Rev. 163 (1993) .............................. 22

Nora O’Callaghan, Lessons From Pharaoh and the

Hebrew Midwives: Conscientious Objection to State

Mandates as a Free Exercise Right,

39 Creighton L. Rev. 561 (2006) ......................... 22

Thomas Szasz, The Myth of Psychotherapy (1978) .. 19

Siang-Yan Tan, Counseling and Psychotherapy:

A Christian Perspective (2011) ............................ 19

Paul C. Vitz, Psychology as Religion (1994) ............ 19

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

standards-of-doctrine/ ............................................... 19

1

INTEREST OF AMICI CURIAE1

NC Values Institute and Advocates for Faith &

Freedom, as amici curiae, respectfully urge this Court

to grant the Petition for Certiorari and reverse the

decision of the Tenth Circuit.

NC Values Institute (“NCVI”), formerly known

as 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://ncvi.org. NCVI submitted amicus

briefs in several iterations of Tingley v. Ferguson in

the Ninth Circuit, and one in the Tenth Circuit in this

case. Co-amicus Advocates for Faith Freedom joined

NCVI in a brief supporting Tingley’s petition for

certiorari.

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

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

the right to care for and educate your child. See

https://faith-freedom.com.

INTRODUCTION AND SUMMARY

Many lower courts have fallen down the

proverbial “rabbit hole” where “the world is truly

upside down”—a counselor “speaking to clients” about

gender identity “is not speech” unless the message

echoes the government’s preferred viewpoint. Otto v.

City of Boca Raton, 981 F.3d 854, 866 (11th Cir. 2020).

This Court now has a second opportunity to address

this matter of “fierce public debate” that “strikes at

the heart of the First Amendment.” Tingley v.

Ferguson, 144 S. Ct. 33 (2023) (Thomas, J., dissenting

from the denial of certiorari).

“The [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); Tingley v. Ferguson, 57 F.4th

1072, 1084 (9th Cir. 2023) (Bumatay, J., dissenting

from the denial of reh’g en banc). Colorado’s Minor

Therapy Conversion Law, C.R.S. §§ 12-245-202, 12245-101 (hereafter “Censorship Law”) renders that

freedom virtually impossible for many state-licensed

counselors and codifies Colorado’s viewpoint on one of

today’s most contentious issues. The “fixed star in our

constitutional constellation”—barring any public

official from prescribing religious orthodoxy (West Va.

State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943))—shines across decades of precedent and

3

prohibits this draconian law that conditions Chiles’

counseling practice on the demise of her speech and

religious liberties.

Counseling is not religiously neutral. On the

contrary, counseling is a profession that uniquely

touches religion. Religion and counseling both involve

speech, thoughts, emotions, conduct, conscience,

morality, and values. Counselors are not robots, and

values cannot be extracted from counseling. Persons

who seek counseling are best served by a system that

incorporates respect for the values and conscience of

both

counselor

and

counselee.

Colorado’s

unconstitutional scheme fails to do so.

ARGUMENT

I.

COLORADO REGULATES PURE SPEECH

BASED

ON

CONTENT

AND

VIEWPOINT—CONTRARY

TO

THIS

COURT’S PRECEDENT

“[T]he ‘conduct’ being regulated here is speech

itself, and it is being regulated because of disapproval

of its expressive content.” Chiles v. Salazar, 116 F.4th

1178, *79 (10th Cir. 2024) (Hartz, J., dissenting).

American free speech jurisprudence has long

guarded free expression, even “the thought that we

hate.” United States v. Schwimmer, 279 U.S. 644, 655

(1929) (Holmes, J., dissenting). A “bedrock principle

underlying the First Amendment” is that government

may not suppress an idea merely because some (or

even a majority) might find it “offensive or

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

(1989); Otto, 981 F.3d at 872. Even speech that “risks

4

psychological harm does not thereby become nonspeech conduct entirely without First Amendment

protections.” Tingley, 57 F.4th at 1077 (O’Scannlain,

J., respecting the denial of reh’g en banc), citing

Snyder v. Phelps, 562 U.S. 443, 450 (2011) (protecting

speech a jury found “outrageous”).

Colorado’s

Censorship

Law,

allowing

counselors to “convey the state-approved message”

about gender identity while silencing opposing

messages, is “viewpoint-based and content-based

discrimination in its purest form.” Tingley, 144 S. Ct.

at 34 (Thomas, J., dissenting from the denial of

certiorari). Colorado bypassed this Court’s warning

that “[i]f the First Amendment means anything, it

means 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

“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 short-circuits

the search for truth and risks suppressing the free

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

Advocates v. Becerra, 585 U.S. 755, 772 (2018)

(“NIFLA”).

5

A.

The law regulates pure speech, not

conduct.

Professional conduct that incidentally involves

speech may be regulated. NIFLA, 585 U.S. at 768. But

Colorado

“sanction[s]

speech

directly,

not

incidentally.” Otto, 981 F.3d at 866. The First

Amendment recognizes the obvious difference

between “therapeutic speech” and “physical medical

procedures.” Tingley, 57 F.4th at 1075 (O’Scannlain,

J., respecting the denial of reh’g en banc).

Courts evade the First Amendment by

diverting attention to “treatment.” “[P]sychoanalysis

is the treatment of emotional suffering and depression,

not speech.” National Association for the Advancement

of Psychoanalysis v. Cal. Bd. of Psychology (“NAAP”),

228 F.3d 1043, 1054 (9th Cir. 2000) (emphasis added);

Pickup v. Brown, 740 F.3d 1208, 1226 (9th Cir. 2014).

In Pickup, California allegedly banned “a form of

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

counselors to discuss sexual orientation change efforts

(“SOCE”) with their minor clients. In Tingley, 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.” Tingley v. Ferguson, 557 F. Supp. 3d 1131,

1141 (W. D. Wash. 2021).

Although “talk therapy” “consists—entirely—of

words,” Colorado deceptively relabels it as conduct.

Otto, 981 F.3d at 865 (emphasis added). Such

“relabeling” is “unprincipled and susceptible to

6

manipulation.” Wollschlaeger v. Governor, Fla., 848

F.3d 1293, 1308 (11th Cir. 2017) (en banc). “[P]ast

aversive treatments” include “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.” Pickup, 740 F.3d at 1222. The Ninth

Circuit equated speech with these abusive techniques.

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). 2 These practices are

clearly conduct that could lawfully be prohibited on a

content-neutral basis—conduct any Christian

counselor would abhor—in contrast to the pure speech

Chiles seeks to engage in with her counseling clients.

The laws in Chiles, Tingley, Otto, and others restrict

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

“administered solely through verbal communication.”

King v. Gov. of the State of New Jersey, 767 F.3d 216,

221 (3rd Cir. 2014). The Third Circuit easily concluded

that SOCE implicates speech, not conduct, for First

Amendment purposes. Id. at 225, 229.

In a strange twist, SOCE bans in Washington,

California, and Colorado allow “discussing various

treatment options, including conversion therapy.”

Wash. Rev. Code 18.130.020(4); Cal. Bus. & Prof. Code

§ 865(b); Chiles, 116 F.4th at *40-41. The counselor

may even recommend SOCE if someone else provides

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

7

it. Tingley, 47 F.4th at 1072. In California, the law did

not prohibit counselors from “communicating with the

public about SOCE,” “expressing their views to

patients, whether children or adults,” or “referring

minors to unlicensed counselors, such as religious

leaders.” Pickup, 740 F.3d at 1223. Close scrutiny

would admittedly be required for “content- or

viewpoint-based regulation of communication about

treatment” but “treatment itself” could purportedly be

regulated. Id. at 1231.

This hair-splitting exercise assaults 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

“people were welcome to advocate for a pro-Nazi

demonstration” but “could not actually hold the

demonstration.” Otto, 981 F.3d at 863. Similarly, it

would be a strange counseling session if a counselor

recommended the benefits of SOCE but could not

provide it. Id. Indeed, since the therapy consists

entirely of speech, it could be impossible to distinguish

between talking about SOCE and actually providing

it.

Courts must also 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 “directed at conduct” implicates speech where “the

conduct triggering coverage . . . consists of

8

communicating a message.” Holder v. Humanitarian

Law Project, 561 U.S. 1, 28 (2010); Pac. Coast

Horseshoeing Sch., Inc. v. Kirchmeyer, 961 F.3d 1062,

1069 (9th Cir. 2020) (regulating what educational

programs may be offered “squarely implicates the

First Amendment”). It is indisputable that SOCE

itself, or even discussing it, communicates a message.

The government simply dislikes that message and

therefore seeks to censor it.

B.

Colorado’s Censorship Law is not

neutral with respect to either

content or viewpoint.

Like abortion, sexuality is “anything but an

‘uncontroversial’ topic.” NIFLA, 585 U.S. at 769. But

“the First Amendment has no carveout for

controversial speech.” Otto, 981 F.3d at 859. At the

heart of the First Amendment is the principle that

“government has no power to restrict expression

because of its message, its ideas, its subject matter, or

its content.” Police Dep't of Chicago v. Mosley, 408

U.S. 92, 95 (1972). But if the Tenth Circuit decision

stands, it will 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 the denial of reh’g en

banc). Using “the guise of a professional regulation,”

the circuit court “insulates from First Amendment

scrutiny” Colorado’s prohibition of “politically

unpopular expression” (id. at 1215) and continues to

follow Tingley’s “troubling precedent” (Tingley, 144 S.

Ct. at 35 (Thomas, J., dissenting from the denial of

certiorari)).

9

Colorado’s Censorship Law is unquestionably

content based 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, similarly, the government

penalized physicians precisely because of the content

of discussions with their patients about the medical

use of marijuana. Conant, 309 F.3d at 637. These

statutes contrast with the content-neutral law upheld

in NAAP, where California’s licensing requirements

did not “dictate the content of what is said in therapy”

or prohibit particular “psychoanalytical methods.”

NAAP, 228 F.3d at 1055-56.

Importantly, the “mere assertion of a contentneutral purpose” cannot salvage Colorado’s statute,

“which, on its face, discriminates based on content.”

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-643

(1994). Citing Turner (id. at 641), this Court warned

that “regulating the content of professionals’ speech

‘pose[s] the inherent risk that the Government seeks

not to advance a legitimate regulatory goal, but to

suppress unpopular ideas or information.’” NIFLA,

585 U.S. at 771. “That warning has proved prescient.”

Tingley, 144 S. Ct. at 35 (Thomas, J., dissenting from

the denial of certiorari). 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. Here, as in past SOCE cases,

the law purports to protect children. Chiles, 116 F.4th

at *34. But important as that interest is, it “does not

include a free-floating power to restrict the ideas to

which children may be exposed.” Brown v. Entm't

10

Merchs. Ass'n, 564 U.S. 786, 794-95 (2011); see also

Erznoznik v. City of Jacksonville, 422 U.S. 205, 21314 (1975) (speech “cannot be suppressed solely to

protect the young from ideas or images that a

legislative body thinks unsuitable for them”); Otto,

981 F.3d at 868 (citing both cases).

Colorado’s viewpoint discrimination is revealed

by the “significant carveout” (Otto, 981 F.3d at 860) for

counseling that provides “[a]cceptance, support, and

understanding for the facilitation” of a client’s

therapeutic needs but prohibits using “practices or

treatment” to “change sexual orientation or gender

identity.” C.R.S. § 12-245-202(3.5)(b)(I); Chiles, 116

F.4th at *21. This is comparable to Washington’s

carveout for counseling that provides “acceptance,

support, and understanding of clients or the

facilitation of clients' coping, social support, and

identity exploration and development that do not seek

to change sexual orientation or gender identity.”

Wash. Rev. Code § 18.130.020(4)(b). These viewpointbased regulations are “an egregious form of content

discrimination” (Rosenberger v. Rector & Visitors of

Univ. of Virginia, 515 U.S. 819, 829 (1995)) and

consequently “a matter of serious constitutional

concern” (NIFLA, 585 U.S. at 779 (Kennedy, J.,

concurring)). As in NIFLA, Colorado’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. Colorado attempts to “codify a

particular

viewpoint—sexual

orientation

is

immutable, but gender is not.” Otto, 981 F.3d at 864.

11

Even more, the law codifies the viewpoint that

homosexuality and transgenderism are normal,

morally right, and should be affirmed.

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, 515

U.S. 557, 579 (1995). Colorado unlawfully demands

that licensed counselors conform to the State’s view on

one side of a contentious debate. Chiles’ 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, her

views follow centuries of moral and religious teaching.

Colorado’s viewpoint discrimination is especially

disturbing in a changing social 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). “We could not

expect otherwise, for religious values pervade the

fabric of our national life.” Id. at 670.

The religious beliefs at issue here touch a

matter of intense public controversy. Courts and

legislatures across America continue to address a

wide spectrum of LGBT issues. The controversy has

only escalated following this Court’s redefinition of

12

marriage in a manner that conflicts with many

religious traditions. It is not the business of any

government official in any position to coerce any

citizen’s chosen perspective on this hot-button 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 State seeks to stifle disfavored

ideas rather than pursue a legitimate regulatory

purpose. NIFLA, 585 U.S. at 771; Turner, 512 U.S. at

641; Otto, 791 F.3d at 861.

Licensing. States may impose licensing

requirements for professions that require special

education and training. See NAAP, 228 F.3d 1043

(upholding licensing scheme for psychotherapy). This

power “extends . . . particularly to those [trades] which

closely concern the public health.” King, 767 F.3d at

229, quoting Watson v. State of Maryland, 218 U.S.

173, 176 (1910). But as this Court cautioned in

considering how to define “professional speech,” the

states do not have “unfettered power to reduce a

group’s First Amendment rights by simply imposing a

licensing requirement.” NIFLA, 585 U.S. at 773.

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, 423-24, n. 19 (1993).

Constitutional collision. “[A] State may not,

under the guise of prohibiting professional

13

misconduct, ignore constitutional rights.” NAACP v.

Button, 371 U.S. 415, 439 (1963); NIFLA, 585 U.S. at

769. SOCE cases—Pickup, King, Otto, Tingley, and

now Chiles—demonstrate the danger of subjecting

“professional speech” to a diminished First

Amendment standard. The state does not have carte

blanche

to

engage

in

blatant

viewpoint

discrimination, especially concerning a contentious

matter of public concern that implicates deeply held

religious convictions. See, e.g., Snyder, 562 U.S. 443.

On the contrary, the state may cross the line and

create 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). As some courts

acknowledge, “[a]t 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. Where medical

treatment is concerned, “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—just as any person is—even though the

state has the power to regulate medicine.” Pickup, 740

F.3d at 1227; see Lowe, 472 U.S. at 232 (White, J.,

concurring). One important concern is the confidential

nature of the doctor-patient relationship. “Doctors

help patients make deeply personal decisions, and

14

their candor is crucial.” Wollschlaeger, 848 F. 3d at

1328 (W. Pryor, J. concurring). Past governments

have “manipulated the content of doctor-patient

discourse to increase state power and suppress

minorities” (cleaned up). NIFLA, 585 U.S. at 771-72,

citing Paula Berg, Toward a First Amendment Theory

of Doctor-Patient Discourse and the Right To Receive

Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201202 (1994). Frank and open communication is

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

Court has “stressed the danger of content-based

regulations ‘in the fields of medicine and public

health, where information can save lives.’” NIFLA,

585 U.S. at 771, quoting Sorrell v. IMS Health Inc.,

564 U.S. 552, 566 (2011).

New speech categories. This Court has

strongly cautioned lower courts against exercising

“freewheeling authority to declare new categories of

speech outside the scope of the First Amendment.”

United States v. Alvarez, 132 S. Ct. 2537 (2012),

quoting United States v. Stevens, 559 U.S. 460, 472

(2010); see King, 767 F.3d at 229; Otto, 981 F.3d at 866

(acknowledging this limitation). “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 the denial of

reh’g en banc). Nevertheless, some courts have carved

out “professional speech” as “a separate category of

speech that is subject to different rules.” NIFLA, 585

U.S. at 767, citing King, 767 F.3d at 232 (“a licensed

professional does not enjoy the full protection of the

15

First Amendment when speaking as part of the

practice of her profession”); Pickup, 740 F.3d at 12271229; Moore-King v. County of Chesterfield, 708 F. 3d

560, 568-570 (4th Cir. 2014).

This Court has never recognized “professional

speech” as a separate category subject to diminished

First Amendment protection. “Speech is not

unprotected merely because it is uttered by

‘professionals.’” NIFLA, 585 U.S. at 767. Explaining

its reluctance to “exempt a category of speech from the

normal prohibition on content-based restrictions” (id.

at 2372, quoting United States v. Alvarez, 567 U.S. at

722 (plurality opinion)), this Court noted that such an

exemption would require “persuasive evidence” of a

“long tradition.” NIFLA, 585 U.S. at 767, quoting

Brown, 564 U.S. at 792. No such evidence or tradition

has emerged, as the Eleventh Circuit recognized: “In

fact, the NIFLA decision not only addressed similar

doctrinal issues to those we face here—it directly

criticized other circuit decisions [Pickup, King]

approving of SOCE bans.” Otto, 981 F.3d at 867.

Standard for “Professional” Speech. This

Court’s “precedents have long protected the First

Amendment rights of professionals.” NIFLA, 585 U.S.

at 771; In re Primus, 436 U.S. 412, 432 (1978)

(noncommercial speech of lawyers). 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). “Being a member of a

regulated profession does not . . . result in a surrender

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

The Third Circuit departed from NIFLA in concluding

16

that a regulation could survive a free speech challenge

if it “directly advance[d] the State’s substantial

interest in protecting its citizens from harmful or

ineffective professional practices” and was “not more

extensive than necessary to serve that interest.” King,

767 F.3d at 225, 233. This tracks the standard for

commercial speech announced in Central Hudson Gas

& Elec. Corp. v. Public Serv. Comm. of New York, 447

U.S. 557, 566 (1980) but does not conform to this

Court’s current precedent as articulated in NIFLA.

Professional speech may be limited in two

narrow circumstances. First, professionals may be

required to “disclose factual, noncontroversial

information.” NIFLA, 585 U.S. at 768; see Zauderer v.

Office of Disciplinary Counsel of Supreme Court of

Ohio, 471 U.S. 626, 651 (1985); Milavetz, Gallop &

Milavetz, P. A. v. United States, 559 U.S. 229, 250

(2010); Ohralik v. Ohio State Bar Assn., 436 U.S. 447,

455-456 (1978). Second, states may regulate

professional conduct (assuming it truly is conduct

rather than pure speech), even if it incidentally

implicates speech. NIFLA, 585 U.S. at 768; Planned

Parenthood of Southeastern Pa. v. Casey, 505 U.S.

833, 884 (1992) (opinion of O’Connor, Kennedy, and

Souter, JJ.). Neither exception applies here. This case

is not about a disclosure requirement for “factual,

noncontroversial information,” and unlike Casey, it is

unrelated to informed consent.

17

II.

COUNSELING IS NEITHER VALUE-FREE

NOR RELIGIOUSLY NEUTRAL

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.

“[T]he speech underpinning conversion therapy is

overwhelmingly—if

not

exclusively—religious.”

Tingley, 57 F.4th at 1084 (Bumatay, J., dissenting

from the denial of reh’g en banc). Colorado is

regulating 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). Like the panel majority in

Tingley, the Tenth Circuit “entirely ignored the First

Amendment’s special solicitude for religious speech,”

contrary to this Court’s “repeatedly emphasiz[ing]

that protections for religious speech are at the core of

the First Amendment.” Tingley, 57 F.4th at 1082

(O’Scannlain, J., respecting the denial of reh’g en

banc).

Chiles’ clients typically share her “sincerely

held 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). Colorado denies targeting

18

religion, asserting that its law does not “restrict

[therapeutic] practices because of their religious

nature.” Chiles v. Salazar, 2022 U.S. Dist. LEXIS

227887, *33-34 (D. Colo. 2022), quoting Fulton v. City

of Philadelphia, Pennsylvania, 141 S. Ct. 1868, 1877

(2021) (citation omitted) (emphasis added). Similarly,

Washington denied explicitly targeting religion—”the

object of the Conversion Law is not to infringe upon or

restrict practices because of their religious

motivation” . . . it “regulates conduct only within the

confines of the counselor-client relationship.” Tingley,

557 F. Supp. 3d at 1143, quoting Welch v. Brown, 834

F.3d 1041, 1044 (9th Cir. 2016) (emphasis in original).

But the very wording of the statutes tacitly admits

that Colorado and Washington have both wandered

into theological territory. The law is inapplicable to

religious ministries. Chiles, 2022 U.S. Dist. LEXIS

227887, *36; C.R.S. § 12-245-217(1) (“A person

engaged in the practice of religious ministry is not

required to comply with [the Minor Therapy

Conversion Law].”) Washington’s prohibition also

does not apply to therapy provided “under the

auspices of a religious denomination, church, or

religious organization.” Wash. Rev. Code §

18.225.030(4). These disclaimers do not salvage the

statutes but merely expose the inherently religious

nature of counseling and the statutes’ blatant

violation of religious liberty.

Many counseling centers exist to serve

Christian clients. So do entire professional

associations, e.g., American Association of Christian

Counselors (www.aacc.net); National Christian

19

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

Certified

Biblical

Counselors

(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, the Association of Certified Biblical

Counselors emphasizes the theological nature of its

mission: “We are an association of Christians who

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)3 Colorado’s rigid

stance will exclude many people of faith from entering

the profession as licensed counselors.

Among those who share Chiles’ 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

3https://biblicalcounseling.com/about/beliefs/positions/st

andards-of-doctrine/.

20

discussions is strong testimony that counseling is not

religiously neutral.

“Many licensed therapists take seriously the

origins of ‘psychotherapy’ in the religious ‘cure of

souls.’” Tingley, 57 F.4th at 1082 (O’Scannlain, J.,

respecting the denial of reh’g en banc), citing Institute

for Faith & Family Amicus Br. at 13-14. 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.

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-today practice. Garfield (1982) identified

60 forms of psychotherapy in use in the

1960s. In 1975, the Research Task Force

of the National Institute of Mental

Health estimated that there were 125

different forms. Herink (1980) listed

21

over 200 separate approaches, while

Kazdin (1986) noted 400 variants of

psychotherapy.

Allen E. Bergin and Sol L. Garfield, Handbook

of Psychotherapy and Behavior Change (5th Edition)

(2004), 6.

A.

The government may not condition

the practice of counseling on a

requirement that the counselor

forego the exercise of his or her

constitutional rights to free speech

and religion.

The First Amendment entitles Americans to

enter the counseling profession without sacrificing

their religious beliefs about marriage and sexuality.

“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 rights of free speech and a free press

are not confined to any field of human interest”). 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”).

The drafters of the Constitution “fashioned a

charter of government which envisaged the widest

possible toleration of conflicting views.” United States

22

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

no dissent, unilaterally imposing a secular orthodoxy

that represents only one side of a contentious issue

that intersects law, religion, philosophy, morality, and

politics. Colorado’s Censorship Law is a massive

violation of Chiles’ rights that implicates both speech

and religion. Believers who are forced to abandon

their moral principles in the workplace are squeezed

out of full participation in civic life. Nora O’Callaghan,

Lessons From Pharaoh and the Hebrew Midwives:

Conscientious Objection to State Mandates as a Free

Exercise Right, 39 Creighton L. Rev. 561, 561-3 (2006).

If religion is thrust to the private fringes of life,

constitutional guarantees ring hollow. Michael W.

McConnell, “God is Dead and We have Killed Him!”

Freedom of Religion in the Post-Modern Age, 1993

BYU L. Rev. 163, 176 (1993).

A citizen may not be excluded from public office

based on “state-imposed criteria forbidden by the

Constitution.” Torcaso v. Watkins, 367 U.S. 488, 495496 (1961) (striking down requirement that notary

public declare a belief in God). Torcaso's holding

encompasses both religious belief and conduct. “The

government may not...impose special disabilities on

the basis of religious views or religious status.” Smith,

494 U.S. at 877. This Court, striking down a

Tennessee statute that disqualified religious leaders

from public office, reasoned that “ministerial status is

defined in terms of conduct and activity rather than

in terms of belief.” McDaniel v. Paty, 435 U.S. 618, 627

(1978). Chiles is not compelled to become a counselor,

but she may not be excluded from the profession by

23

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.

Colorado's thinly veiled hostility to

religion

clashes

with

the

“benevolent neutrality” required of

government.

The district court summarily dismissed

Colorado’s blatant viewpoint discrimination in a oneword sentence that reeks of hostility to religion:

“Nonsense.” Chiles, 2022 U.S. Dist. LEXIS 227887,

*36. In cases where a law or policy burdening religion

is accompanied by such an “official expression of

hostility,” this Court does not hesitate to “set aside”

that law or policy “without further inquiry.”

Bremerton, 142 S. Ct. at 2422 n. 1 (2022), citing

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n, 138 S. Ct. 1719, 1732 (2018).

“[T]he Free Exercise Clause pertain[s] if the

law at issue discriminates against some or all

religious beliefs . . . .” Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993).

The Clause “protects against governmental hostility

24

which is masked as well as overt.” Id. at 534. Religious

teachings commonly include standards of conduct,

including sexual morality. The Colorado law, even

absent a facial attack on religion, is saturated with

hostility toward religious traditions that teach the

religious view of 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.

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”—

Colorado'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. The Constitution

demands a benevolent government neutrality so that

each religious creed may “flourish according to the

zeal of its adherents and the appeal of its dogma.”

Zorach v. Clauson, 343 U.S. 306, 313 (1952). The

Framers intentionally protected “the integrity of

individual conscience in religious matters.” McCreary

County, KY v. ACLU, 545 U.S. 844, 876 (2005).

Colorado runs roughshod over Chiles’ faith,

exhibiting the very hostility the Constitution forbids.

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. 668, 673 (1984). “No person can be punished

for entertaining or professing religious beliefs or

disbeliefs. . . .” Everson v. Bd. of Educ. of Ewing, 330

25

U.S. 1, 15-16 (1947). Colorado punishes Chiles, her

clients, and others like them for holding to 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. Colorado handicaps both counselors and

counselees who will not espouse the State’s view of

sexual morality. Colorado unlawfully suppresses

Chiles’ religious beliefs and excludes her from serving

others in the community as a counselor—even where

the minor client and his or her parents are in

agreement and fully informed about the nature of the

counseling.

Colorado “conveys a message” strongly

disapproving Chiles’ religious beliefs. Lynch, 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 Chiles’ ability to adhere to her religious

faith—it renders her religion relevant to her standing

in the community, potentially barring her from her

chosen profession unless she abandons her beliefs. Id.

at 594. Colorado’s frontal assault on Chiles’ religious

beliefs is a more personalized disapproval—with more

serious, permanent consequences—than many earlier

cases where government has limited religious

expression. See, e.g., Lynch, 465 U.S. at 678-679

(creche in city Christmas display); County of

Allegheny, 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” (id. at

26

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

When this Court declined to hear Tingley,

Justice Thomas predicted the issue would come before

the Court again. Now that it has, “the Court should do

what it should have done [there]: grant certiorari to

consider what the First Amendment requires.”

Tingley, 144 S. Ct. at 35 (Thomas, J., dissenting from

the denial of certiorari).

Respectfully Submitted,

Deborah J. Dewart

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Tami Fitzgerald

NC VALUES INSTITUTE

9650 Strickland Road,

Suite 103-226

Raleigh, NC 27615

Robert H. Tyler

Julianne Fleischer

ADVOCATES FOR FAITH &

FREEDOM

25026 Las Brisas Road

Murrieta, CA 92562