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Fate of conversion therapy ban unclear after 2nd judge weighs in

December 5, 2012 |  6:45 am

State Atty. Gen. Kamala D. Harris said she would continue to "vigorously'' defend the law as courts weigh its merits. Credit: Luis Sinco / Los Angeles Times

The fate of the state's new law banning gay-conversion therapy for underage Californians is uncertain after a federal judge said it may infringe on free-speech rights — and a second jurist disagreed.

U.S. District Judge William Shubb said Monday that the law, set to take effect Jan. 1, may inhibit the 1st Amendment rights of therapists who oppose homosexuality. He issued an injunction barring the state from enforcing the measure against three plaintiffs who sued to block it, until he can make a broader ruling on its merits.

Within 24 hours, a second federal judge declined to interfere with the law in a separate case brought by other therapists and parents, who asserted that it violated free-speech, parental and religious rights. That action was immediately appealed.

Unless the appeal is granted, the law will take effect as scheduled, exempting the two therapists and aspiring therapist who won the injunction, according to the state attorney general's office.

California's conversion-therapy ban, approved amid an intense lobbying campaign by gay-rights advocates, was one of the signature bills passed by the Legislature this year. The law prohibits minors from being subject to therapies aimed at changing their sexual orientation from gay to straight. Under the law, therapists who practice conversion therapy on minors risk loss of their licenses or other discipline by the state.

State Atty. Gen. Kamala D. Harris said she would continue to "vigorously'' defend the law as courts weigh its merits.

It is rare that two federal judges on the same district bench reach opposite conclusions on the same issues, legal analysts said.

"If two district court judges come out in opposite ways, ultimately the 9th Circuit is going to have to resolve it," said UC Irvine Law School Dean Erwin Chemerinsky.

He said the outcome would depend on how the U.S. 9th Circuit Court of Appeals views the conversion therapy law. Doctors can't be prohibited from expressing their views to patients, but government may ban a medical procedure or treatment it believes is ineffective or dangerous, Chemerinsky said.

The plaintiffs before Shubb's Sacramento court are a licensed marriage therapist and ordained minister, a psychiatrist and a former conversion therapy client who is studying to practice the technique on others. They are represented by the conservative Pacific Justice Institute.

"This victory sends a clear signal to all those who feel they can stifle religious freedom, free speech and the rights of parents without being contested," said institute President Brad Dacus.

Shubb wrote in his 38-page ruling that the law, by state Sen. Ted Lieu (D-Torrance), "likely… bans a mental health provider from expressing his or her viewpoints about homosexuality as part of … treatment."

The judge also found fault with evidence cited by proponents of the law that conversion therapy puts clients at risk of suicide and depression. He wrote that it is "based on questionable and scientifically incomplete studies that may not have included minors."

On Tuesday, U.S. District Judge Kimberly J. Mueller in Sacramento rejected a petition from three other therapists and some of their clients to block enforcement of the law.

Citing the opinions of 10 groups that conversion therapy doesn't work, Mueller ruled that the Legislature and governor had sufficient grounds to enact the ban. A study by a task force of the American Psychological Assn., she noted, found that conversion therapy can "pose critical health risks'' to those who undergo it.

"The findings, recommended practices and opinions of 10 professional associations of mental health experts is no small quantum of information,'' she wrote.

Mueller also said there is no fundamental right to choose a specific mental health treatment the state has reasonably deemed harmful to minors. Besides, she said, parents are free to seek such counseling through religious institutions as long as licensed therapists are not involved.

"The court need not engage in an exercise of legislative mind-reading to find the California Legislature and the state's governor could have had a legitimate reason for enacting SB 1172,'' Mueller wrote.

That decision was immediately appealed by the plaintiffs, including Encino psychologist Joseph Nicolosi, represented by the Florida-based Liberty Counsel, which represents conservative causes.

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Photo: State Atty. Gen. Kamala D. Harris said she would continue to "vigorously'' defend the law as courts weigh its merits. Credit: Luis Sinco / Los Angeles Times

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