Mad Mat Staver, leader of the hate group Liberty Counsel suffered a major defeat on Monday when the Supreme Court declined to hear King v. Murphy. This is a case where Liberty Counsel, on behalf of two conversion “therapists,” challenged New Jersey’s ban on juvenile conversion therapy. Liberty Counsel failed at the district court and then the Third Circuit to invalidate the ban.
It has seemed for a number of years that this issue was settled. Republican and Democratic governors have signed laws into effect that ban the procedure. Both the Third Circuit and the Ninth Circuit United States Courts of Appeal ruled that these bans were not an infringement on First Amendment protected speech. In 2014, the Supreme Court refused to hear the consolidation of Pickup v. Brown and Welch v. Brown.
Then along came NIFLA v. Becerra, a case challenging California’s requirement that those phony “crisis pregnancy centers” post notices about the availability of abortions elsewhere. Predictably, the Court ruled that the California law was impermissible compelled speech.
Writing for the majority, Justice Clarence Thomas included a gratuitous passage that looked like a deliberate effort to cast doubt on the constitutionality of conversion therapy bans. In referencing Pickup v. Brown Thomas said: “But this Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’”
Thomas’ comment caused a magistrate judge (not the final arbiter) to side with conversion therapists in Tampa, Florida. It was also at the center of Liberty Counsel’s petition to the Supreme Court:
In NIFLA v. Becerra, … this Court reversed the Ninth Circuit’s
validation of California’s Reproductive FACT
Act and rejected as contrary to precedent the
Ninth Circuit’s reliance on a free speech
“continuum” analysis adopted by the Ninth
Circuit in Pickup v. Brown … and used by the Third
Circuit panel in this case, King v. Governor of
New Jersey …
Both lower courts created a new category of
“professional” speech providing less speech
protection, which NIFLA expressly rejected.
It doesn’t mean that we are safe:
Four justices have to agree to hear a case. The refusal to hear this case does not mean that they might not choose to hear a similar case in the future, particularly if there is a difference of opinion between circuits. Staver has a similar case before the 11th Circuit, Otto v. Boca Raton. In that case, the district court has not ruled but has refused to issue an injunction against Boca Raton and Palm Beach County. The 11th Circuit is pretty liberal. Even the three Trump appointees are reasonably sane (conservative Federalist Society members but rational).
Staver has announced Liberty Counsel’s intent to refile this case in the lower court claiming that he will get this back to the Supreme Court. On what basis I have no clue. It also means that he knows that he will lose — again — at the district court and at the Third Circuit. Taxpayers are picking up the tab for this bullshit. Without a paying client to control legal fees, Liberty Counsel is free to abuse the system.
The Supreme Court has now rejected two LGBT cases. This one and another one where a Hawaiian bed and breakfast wanted to discriminate against gay couples. I am not even cautiously optimistic but anytime Mad Mad goes down in flames is a good time.