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 Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF OF NC VALUES INSTITUTE AND

ADVOCATES FOR FAITH & FREEDOM AS

AMICI CURIAE IN SUPPORT OF PETITIONER

TAMI FITZGERALD

NC VALUES INSTITUTE

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

DEBORAH J. DEWART

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Robert H. Tyler

Julianne Fleischer

ADVOCATES FOR FAITH &

FREEDOM

25026 Las Brisas Road

Murrieta, CA 92562

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

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

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

INTRODUCTION AND SUMMARY OF THE

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

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

I. COLORADO REGULATES PURE SPEECH

BASED

ON

CONTENT

AND

VIEWPOINT…………………….…………………..3

A. The law regulates pure speech,

not conduct. ....................................................5

B. Colorado’s Censorship Law is not neutral

with respect to content. ..................................8

C. Colorado’s Censorship Law is not neutral

with respect to viewpoint. ............................10

D. NIFLA rules out diminished protection for

“professional” speech. ...................................17

II. COUNSELING IS NEITHER VALUE-FREE

NOR RELIGIOUSLY NEUTRAL …………….…22

A. The government may not condition practice of

the counseling profession on a requirement

that the counselor forego the exercise of his or

ii

her constitutional rights to free speech and/or

religion. .........................................................26

B. Colorado's thinly veiled hostility to religion

clashes with the “benevolent neutrality”

required of government….. ..........................28

CONCLUSION ..........................................................31

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abrams v. United States,

250 U.S. 616 (1919) ..............................................15

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002) ..............................................10

Baird v. State Bar of Arizona,

401 U.S. 1 (1971) ..................................................28

Benton v. Maryland,

395 U.S. 784 (1969) ..............................................11

Boy Scouts of Am. v. Dale,

530 U.S. 640 (2000) ..............................................14

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

564 U.S. 786 (2011) ..........................................9, 21

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ..............................................22

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

Comm. of New York,

447 U.S. 557 (1980) ..............................................21

Chiles v. Salazar,

2022 U.S. Dist. LEXIS 227887

(D. Colo. 2022) ................................................23, 28

iv

Chiles v. Salazar,

116 F.4th 1178 (10th Cir. 2024) .............. 3, 6, 9, 11

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

508 U.S. 520 (1993) ..............................................29

Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) ..............................................18

Conant v. Walters,

309 F.3d 629 (9th Cir. 2002)........ 4, 5, 9, 19, 21, 26

County of Allegheny v. ACLU,

492 U.S. 573 (1989) ........................................30, 31

Emp't Div. v. Smith,

494 U.S. 872 (1990) ........................................27, 28

Epperson v. Arkansas,

393 U.S. 97 (1968) ................................................30

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ................................................9

Everson v. Bd. of Educ. of Ewing,

330 U.S. 1 (1947) ..................................................30

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) ..............................................21

Fulton v. City of Philadelphia, Pennsylvania,

141 S. Ct. 1868 (2021) ..........................................23

v

Girouard v. United States,

328 U.S. 61 (1946) ................................................11

Holder v. Humanitarian Law Project,

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

Hurley v. Irish-American Gay,

515 U.S. 557 (1995) ........................................14, 17

Iancu v. Brunetti,

139 S. Ct. 2294 (2019) ....................................12, 17

In re Primus,

436 U.S. 412 (1978) ..............................................21

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022) ......................................2, 28

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ..............................................28

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

767 F.3d 216 (3rd Cir. 2014) .................................6

Lee v. Weisman,

505 U.S. 577 (1992) .................................. 11, 29, 31

Lowe v. SEC,

472 U.S. 181 (1985) ..............................................19

Lynch v. Donnelly,

465 U.S. 668 (1984) ..............................................30

vi

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n,

138 S. Ct. 1719 (2018) ..........................................28

McCreary County, KY v. ACLU,

545 U.S. 844 (2005) ..............................................29

McCullen v. Coakley,

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

McDaniel v. Paty,

435 U.S. 618 (1978) ..............................................28

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

559 U.S. 229 (2010) ..............................................22

Moore-King v. County of Chesterfield,

708 F. 3d 560 (4th Cir. 2014)...............................20

NAACP v. Button,

371 U.S. 415 (1963) ..............................................18

National Association for the Advancement of

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

228 F.3d 1043 (9th Cir. 2000)......................5, 9, 18

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

(“NIFLA”),

585 U.S. 755 (2018) .................5, 8, 9, 12, 14, 17-22

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

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

Obergefell v. Hodges,

576 U.S. 644 (2015) ..............................................15

vii

Ohralik v. Ohio State Bar Assn.,

436 U.S. 447 (1978) ..............................................22

Otto v. City of Boca Raton,

981 F.3d 854 (11th Cir. 2020)................. 2, 4, 5-12,

18, 20, 21, 23

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

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

Palko v. Connecticut,

302 U.S. 319 (1937) ..............................................11

Perry v. Sindermann,

408 U.S. 593 (1972) ..............................................28

Pickup v. Brown,

740 F.3d 1208 (9th Cir. 2014)................. 5-8, 18-21

Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833 (1992) ..............................................22

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)................................27

Reed v. Town of Gilbert,

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

viii

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

515 U.S. 819 (1995) ........................................12, 17

Schneiderman v. United States,

320 U.S. 118 (1943) ..............................................11

Shelton v. Tucker,

364 U.S. 479 (1960) ..............................................10

Snyder v. Phelps,

562 U.S. 443 (2011) ..........................................4, 18

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ..............................................20

Texas v. Johnson,

491 U.S. 397 (1989) ..........................................4, 14

Thomas v. Collins,

323 U.S. 516 (1945) .................................... 7, 13, 26

Thompson v. Western States Medical Ctr.,

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

Tingley v. Ferguson,

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

Tingley v. Ferguson,

57 F.4th 1072 (9th Cir. 2023) ...... 2, 4, 5, 22, 23, 25

Tingley v. Ferguson,

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

Tingley v. Ferguson,

557 F. Supp. 3d 1131 (W.D. Wash. 2021) .......5, 23

ix

Torcaso v. Watkins,

367 U.S. 488 (1961) ..............................................27

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

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

United States v. Alvarez,

567 U.S. 709 (2012) ..............................................20

United States v. Ballard,

322 U.S. 78 (1944) ................................................27

United States v. Schwimmer,

279 U.S. 644 (1929) ................................................4

United States v. Stevens,

559 U.S. 460 (2010) ..............................................20

Walz v. Tax Comm’n,

397 U.S. 664 (1970) ..............................................14

Watson v. State of Maryland,

218 U.S. 173 (1910) ..............................................18

Welch v. Brown,

834 F.3d 1041 (9th Cir. 2016)..............................23

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

319 U.S. 624 (1943) ........................ 3, 13, 14, 15, 17

Wollschlaeger v. Governor, Fla.,

848 F. 3d 1293 (11th Cir. 2017).......................6, 19

Wooley v. Maynard,

430 U.S. 705 (1977) .................................. 10, 12, 14

x

Zauderer v. Office of Disciplinary Counsel of Supreme

Court of Ohio,

471 U.S. 626 (1985) ..............................................22

Zorach v. Clauson,

343 U.S. 306 (1952) ..............................................29

Statutes

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

C.R.S. § 12-245-202(3.5)........................................2, 11

C.R.S. § 12-245-202(3.5)(b)(1) .....................................2

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

C.R.S. § 12-245-217(1)...............................................23

Wash. Rev. Code § 18.130.020(4)..........................6, 11

Wash. Rev. Code § 18.225.030(4)..............................24

Other Authorities

Jay E. Adams, Competent to Counsel (1970)............25

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

Medical Advice,

74 B. U. L. Rev. 201 (1994) ..................................19

xi

Allen E. Bergin and Sol L. Garfield,

Handbook of Psychotherapy and Behavior Change

(5th Edition) (2004)..............................................26

Lackland H. Bloom, Jr.,

The Rise of the Viewpoint-Discrimination

Principle, 72 SMU L. Rev. F. 20 (2019) .. 15, 16, 17

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) ....................................................................25

Richard F. Duncan, Article: Defense Against the

Dark Arts: Justice Jackson, Justice Kennedy,

and the No-Compelled Speech Doctrine,

32 Regent U. L. Rev. 265

(2019-2020) ....................................... 10, 13, 14, 17

Erica Goldberg, “Good Orthodoxy” and the

Legacy of Barnette,

313 FIU L. Rev. 639 (2019) ................................13

Paul Horwitz, A Close Reading of Barnette,

in Honor of Vincent Blasi,

13 FIU L. Rev. 689 (2019) ....................................13

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)...............................27

xii

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) ..........................27

George Orwell, “1984”

(Penguin Group 1977) (1949) ..............................12

Thomas Szasz,

The Myth of Psychotherapy (1978) ......................25

Siang-Yan Tan, Counseling and Psychotherapy:

A Christian Perspective (2011) ............................25

Paul C. Vitz, Psychology as Religion (1994) .............25

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

standards-of-doctrine/ ...............................................24

1

INTEREST OF AMICI CURIAE1

NC Values Institute and Advocates for Faith &

Freedom, as amici curiae, respectfully urge this Court

to 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 briefs supporting

petitions for certiorari in Tingley and Chiles.

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

speak openly and freely, and the right to free

exercise of religion. See https://faith-freedom.com.

1 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

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 an 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 speech at issue is religious in nature. “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, 12-245-101

(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 law forbids

counseling that encourages change in sexual

orientation or gender identity “including efforts to

change behaviors or gender expressions,” but permits

counselors to provide “[a]cceptance, support, and

understanding for … identity exploration . . . .” C.R.S.

§ 12-245-202(3.5). The "fixed star in our constitutional

3

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 prohibits this

draconian law that conditions Chiles’ counseling

practice on the demise of her speech and religious

liberties.

Counseling is a profession that uniquely touches

both speech and religion, and it is not religiously

neutral. 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.

Colorado defies this Court’s unequivocal

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, 1228 (10th Cir. 2024) (Hartz,

J., dissenting).

“[T]he proudest boast of our free speech

jurisprudence is that we protect the freedom to

express ‘the thought that we hate.’” Matal v. Tam, 582

U.S. 218, 246 (2017), citing United States v.

4

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 psychological harm does not

thereby become non-speech 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

private counseling by labeling it “professional” speech

short-circuits the search for truth and risks

suppressing the free “marketplace of ideas.” Nat'l

5

Inst. of Family & Life Advocates v. Becerra, 585 U.S.

755, 772 (2018) (“NIFLA”).

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.

6

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

“relabeling” is “unprincipled and susceptible to

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 erroneously equated pure speech with these

abusive techniques. Tingley, 47 F.4th at 1083 n. 3,

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 1209. The

counselor may even recommend SOCE if someone else

https://www.nytimes.com/2018/10/24/opinion/gay-conversiontherapy-torture.html.

2

7

provides it. Tingley v. Ferguson, 47 F.4th 1055, 1072

(9th Cir. 2022). 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 viewpointbased 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 is virtually 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

neutral with respect to content.

not

The content of Colorado’s law concerns sexuality,

a subject that 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 1055-1056.

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, 642643 (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 1206. 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 Merchs. Ass'n, 564 U.S. 786, 794-95 (2011); see

also Erznoznik v. City of Jacksonville, 422 U.S. 205,

10

213-14 (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).

C. Colorado’s Censorship Law is

neutral with respect to viewpoint.

not

Even a legitimate and substantial government

purpose “cannot be pursued by means that broadly

stifle fundamental personal liberties when the end

can be more narrowly achieved.” Wooley v. Maynard,

430

U.S.

705,

716-717

(1977),

citing

Shelton v. Tucker, 364 U.S. 479, 488 (1960). The

Colorado Censorship Law cannot jump this hurdle.

Its attempt to coerce uniformity of opinion is a

constitutionally illegitimate purpose. The statute

squelches freedom of thought, demands uniformity on

a contentious matter of public debate, and assaults

the viewpoint discrimination principles hammered

out in this Court over a century of litigation.

1.

Freedom

of

Thought.

Viewpoint

discrimination ushers in an orwellian system that

destroys liberty of thought. As Justice Kennedy

cautioned, “The right to think is the beginning of

freedom, and speech must be protected from the

government because speech is the beginning of

thought.” Ashcroft v. Free Speech Coal., 535 U.S. 234,

253 (2002); see Richard F. Duncan, Article: Defense

Against the Dark Arts: Justice Jackson, Justice

Kennedy, and the No-Compelled Speech Doctrine, 32

Regent U. L. Rev. 265, 265 (2019-2020).

11

The freedom of thought that undergirds the First

Amendment merits “unqualified attachment.”

Schneiderman v. United States, 320 U.S. 118, 144

(1943). It is the “indispensable condition” of “nearly

every other form of freedom.” Palko v. Connecticut,

302 U.S. 319, 326-27 (1937)), overruled on other

grounds by Benton v. Maryland, 395 U.S. 784 (1969).

The victory for freedom of thought recorded in the Bill

of Rights recognizes that in the domain of conscience

there is a moral power higher than the State.

Girouard v. United States, 328 U.S. 61, 68 (1946).

Courts have an affirmative “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).

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 1225; see also Wash. Rev. Code §

18.130.020(4)(b) (Washington’s comparable 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”).

2. Uniformity. The government may not

regulate speech “when the specific motivating

ideology or the opinion or perspective of the speaker

is the rationale for the restriction.” Rosenberger v.

12

Rector & Visitors of Univ. of Virginia, 515 U.S. 819,

829 (1995). Colorado’s viewpoint-based law is "an

egregious form of content discrimination" (ibid.) and

consequently “a matter of serious constitutional

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

concurring)). This is “poison to a free society” (Iancu

v. Brunetti, 139 S. Ct. 2294, 2302 (2019) (Alito, J.,

concurring)) that creates a “substantial risk of

excising certain ideas or viewpoints from the public

dialogue.” Turner, 512 U.S. at 642.

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

concurring). Colorado attempts to “codify a particular

viewpoint — sexual orientation is immutable, but

gender is not.” Otto, 781 F.3d at 864. Even more, the

law codifies the viewpoint that homosexuality and

transgenderism are normal, morally right, and should

be affirmed. Colorado demands that counselors either

become “instrument[s] for fostering . . . an ideological

point of view” that many find “morally objectionable”

(Wooley, 430 U.S. at 714-715) or completely avoid

discussing sexual orientation or gender identity in

counseling. “The possibility of enforcing not only

complete obedience to the will of the State, but

complete uniformity of opinion on [this] subject[], now

exist[s] . . . .” George Orwell, “1984” 206 (Penguin

Group 1977) (1949) (emphasis added).

“[T]he history of authoritarian government . . .

shows how relentless authoritarian regimes are in

their attempts to stifle free speech.” NIFLA, 138 S. Ct.

13

at 2379 (Kennedy, J., concurring). There is “no such

thing as good orthodoxy” under a Constitution that

safeguards thought, speech, conscience, and religion,

even when the government pursues seemingly benign

purposes like national allegiance (Barnette), equality,

or tolerance. Erica Goldberg, “Good Orthodoxy” and

the Legacy of Barnette, 13 FIU L. Rev. 639, 643 (2019).

“Even commendable public values can furnish the

spark for the dynamic that Jackson insists leads to

the ‘unanimity of the graveyard.’” Paul Horwitz, A

Close Reading of Barnette, in Honor of Vincent Blasi,

13 FIU L. Rev. 689, 723 (2019).

Citizens who hold competing views on public

issues may use the political process to enact

legislation consistent with their views, but under

Barnette, the government may not “insist that the

victory of one side, of one creed or value, be

memorialized by compelling the defeated side to

literally give voice to its submission.” Duncan,

Defense Against the Dark Arts, 32 Regent U. L. Rev.

at 278, quoting Horwitz, A Close Reading of Barnette,

13 FIU L. REV. at 723.

Colorado’s censorship contravenes “[t]he very

purpose of the First Amendment . . . to foreclose public

authority from assuming a guardianship of the public

mind through regulating the press, speech, and

religion.” Thomas v. Collins, 323 U.S. at 545 (Jackson,

J., concurring). This is dangerous to a free society

where the government must respect a wide range of

diverse viewpoints. The government itself may adopt

a viewpoint but may never “interfere with speech for

no better reason than promoting an approved

message or discouraging a disfavored one, however

14

enlightened either purpose may strike the

government.” Hurley v. Irish-American Gay, 515 U.S.

557, 579 (1995).

Colorado unlawfully demands that licensed

counselors conform to the State’s side of a contentious

debate. Chiles’ speech would be protected even if it

were an unpopular minority viewpoint. Boy Scouts of

Am. v. Dale, 530 U.S. 640, 660 (2000); Texas v.

Johnson (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.

Barnette, Wooley, NIFLA and other “eloquent and

powerful opinions” stand as “landmarks of liberty and

strong shields against an authoritarian government's

tyrannical attempts to coerce ideological orthodoxy.”

Duncan, Defense Against the Dark Arts, 32 Regent U.

L. Rev. at 266; Barnette, 319 U.S. 624; Wooley, 430

U.S. 705; NIFLA, 138 S. Ct. 2361.

The beliefs at issue here—religious and

otherwise—touch a matter of intense public

controversy. Courts and legislatures across America

continue to address a wide spectrum of LGBT issues.

15

The controversy has escalated exponentially following

this Court’s redefinition of marriage. “Today’s

decision usurps the constitutional right of the people”

to define marriage for legal purposes and “will also

have other important consequences,” including the

ability “to vilify Americans who are unwilling to

assent to the new orthodoxy.” Obergefell v. Hodges,

576 U.S. 644, 741 (2015) (Alito, J., dissenting). It is

not the business of any government official in any

position to coerce any citizen's chosen perspective on

this hot-button topic.

3. History. Viewpoint discrimination has become

a solid principle of this Court’s jurisprudence,

developed over decades of litigation. A century ago,

this Court affirmed a conviction under the Espionage

Act, which criminalized publication of “disloyal,

scurrilous and abusive language” about the United

States when the country was at war. Abrams v.

United States, 250 U.S. 616, 624 (1919). If that case

came before the Court today, no doubt “the statute

itself would be invalidated as patent viewpoint

discrimination.” Lackland H. Bloom, Jr., The Rise of

the Viewpoint-Discrimination Principle, 72 SMU L.

Rev. F. 20, 21 (2019). A few years later this Court

shifted gears in Barnette, “a forerunner of the more

recent viewpoint-discrimination principle.” Id.

Barnette’s often-quoted “fixed star” passage was

informed by “the fear of government manipulation of

the marketplace of ideas.” Id. Justice Kennedy echoed

the thought: “The danger of viewpoint discrimination

is that the government is attempting to remove

certain ideas or perspectives from a broader debate. .

. . To permit viewpoint discrimination . . . is to permit

Government censorship.” Matal, 137 S. Ct. at 1767-

16

1768 (Kennedy, J., concurring). Justice Kennedy’s

comments “explain why viewpoint discrimination is

particularly inconsistent with free speech values.”

Bloom, The Rise of the Viewpoint-Discrimination

Principle, 72 SMU L. Rev. F. at 36.

Justice Scalia authored a key decision in the early

1990’s striking down a Minnesota ordinance that

criminalized placing a symbol on private property

that “arouses anger, alarm or resentment in others on

the basis of race, color, creed, religion or gender.”

R.A.V. v. City of St. Paul, 505 U.S. 377, 380 (1992)

(burning cross). This Court considered “the antiviewpoint-discrimination principle . . . so important to

free speech jurisprudence that it applied even to

speech that was otherwise excluded from First

Amendment protection.” Bloom, The Rise of the

Viewpoint-Discrimination Principle, 72 SMU L. Rev.

F. at 25, citing R.A.V., 505 U.S. at 384-385. The ruling

defined viewpoint discrimination as “hostility—or

favoritism—towards

the

underlying

message

expressed” (R.A.V., 505 U.S. at 385, citing Carey v.

Brown, 447 U.S. 455 (1980)), effectively placing the

principle “at the very heart of serious free speech

protection.” Bloom, The Rise of the ViewpointDiscrimination Principle, 72 SMU L. Rev. F. at 25.

The government may not “license one side of a debate

to fight free style, while requiring the other to follow

Marquis of Queensberry rules.” R.A.V., 505 U.S. at

392.

During the same time frame, this Court held that

the government may not discriminate against speech

solely because of its religious perspective. See, e.g.,

Lamb's Chapel v. Center Moriches Union Free School

17

District, 508 U.S. 384, 394 (1993) (policy for use of

school premises could not exclude film series based on

its religious perspective); Rosenberger, 515 U.S. at

829 (invalidating university regulation that

prohibited reimbursement of expenses to student

newspaper that “primarily promotes or manifests a

particular belief in or about a deity or an ultimate

reality”); Good News Club v. Milford Central School,

533 U.S. 98, 112 (2001) (striking down regulation that

discriminated against religious speech).

After Hurley, “the constitutional ideal of

intellectual autonomy for speakers, artists, and

parade organizers, which originated in Barnette, now

had the support of a unanimous Supreme Court.”

Duncan, Defense Against the Dark Arts, 32 Regent U.

L. Rev. at 282; Hurley, 515 U.S. 557.

Shortly after Matal, this Court struck down a

provision forbidding “immoral or scandalous”

trademarks because the ban “disfavors certain ideas.”

Iancu v. Brunetti, 139 S. Ct. at 2297. This Court’s

approach “indicated that governmental viewpoint

discrimination is a per se violation of the First

Amendment.” Bloom, The Rise of the ViewpointDiscrimination Principle, 72 SMU L. Rev. F. at 33.

Similarly, the viewpoint-based statute in this case is

unmistakably a “per se violation of the First

Amendment.”

D. NIFLA rules out diminished protection

for “professional” speech.

Attempts to regulate “professional” speech raise

the specter of viewpoint discrimination—"the

18

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, 781 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, 423-424, n. 19 (1993).

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, 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

19

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). Colorado’s Censorship Law is truly a

“regulation of speech” prohibited by the Constitution.

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 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

771-772, 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. Furthermore,

this Court has “stressed the danger of content-based

regulations ‘in the fields of medicine and public

20

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, 567 U.S. 709, 722 (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

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

21

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. WentFor-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 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.”

22

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.

II. COUNSELING IS NEITHER VALUE-FREE

NOR RELIGIOUSLY NEUTRAL.

Counseling is not a hard science but rather a

highly subjective undertaking that involves values,

morality, thoughts, beliefs, emotions, morality, and

sexuality. It crosses over into religious territory.

“[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

23

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. Colorado denies targeting religion, asserting

that its law does not "restrict [therapeutic] practices

because of their religious nature." Chiles, 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. For one thing, 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

24

Conversion

Law].”)

Similarly,

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 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

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

-of-doctrine/.

25

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

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 Szasz 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:

26

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

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/or religion.

The First Amendment entitles Americans to enter

the counseling profession without sacrificing their

values or 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

27

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); see 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

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

28

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 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

29

Comm’n, 138 S. Ct. 1719, 1732 (2018). Colorado’s

Censorship Law is a flagrant intrusion on both free

speech and religion. Its anti-religious tone is a

particularly pernicious infringement on speech.

"[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

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. at

592.

"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).

30

Colorado runs roughshod over Chiles’ faith,

exhibiting the very hostility the Constitution forbids.

The Religion Clauses forbid government hostility or

callous indifference toward religiv. 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

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 counselors, counselees, and

parents 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 even

more serious, permanent consequences than cases

where the government restricted public religious

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

31

(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

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

This Court should reverse the Tenth Circuit

ruling.

Respectfully,

32

Deborah J. Dewart

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

lawyerdeborah@outlook.com

(910) 326-4554

Tami Fitzgerald

NC VALUES INSTITUTE

9650 Strickland Rd.

Ste. 103-226

Raleigh, NC 27615

Robert H. Tyler

Julianne Fleischer

ADVOCATES FOR FAITH & FREEDOM

25026 Las Brisas Road

Murrieta, CA 92562

Counsel for Amici Curiae

NC Values Institute and

Advocates for Faith & Freedom