Chiles v. Salazar.
Nos. 22-1445 & 23-1002. 9/12/2024. Judge Rossman. Preliminary Injunction—Colorado’s Minor Conversion Therapy Law—First Amendment—Standing—Likelihood of Success on the Merits—Rational Basis Review.
September 12, 2024
Chiles is a licensed professional counselor in Colorado who works at Deeper Stories Counseling. She is a practicing Christian who uses only talk therapy in counseling clients with same sex attractions or gender identity confusion. She brought a pre-enforcement challenge against the executive director of the Colorado Department of Regulatory Agencies and members of the Colorado Board of Licensed Professional Counselor Examiners and the Board of Addiction Counsel Examiners (collectively, defendants) under 42 USC § 1983, contending that Colorado’s Minor Conversion Therapy Law (MCTL), CRS § 12-245-224(1)(t)(V), violates the First Amendment’s Free Speech and Free Exercise clauses. Chiles alleged that before the MCTL, she could help clients discuss issues surrounding their gender roles, identity, and sexual attractions, but since the MCTL was enacted, she has been unable to fully explore these matters with certain clients in violation of her and her clients’ sincerely held religious beliefs. Chiles also sought a preliminary injunction to enjoin enforcement of the MCTL, and the district court denied the motion.
On appeal, defendants argued that Chiles lacked standing to bring her pre-enforcement First Amendment claims because she failed to allege an injury in fact. Under Initiative & Referendum Institute v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc), a plaintiff seeking pre-enforcement relief based on an alleged “chilling effect” must produce (1) evidence that they have engaged in the type of speech affected by the challenged government action in the past; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible threat that the statute will be enforced. Construing Chiles’s verified complaint in the light most favorable to her and drawing reasonable inferences in her favor, Chiles satisfied these factors and thus showed an injury in fact demonstrating Article III standing to assert her pre-enforcement First Amendment challenge.
On the merits, Chiles contended that the district court erred in finding that she had not shown a likelihood of success on the merits of her free speech claim and thus denied her motion for a preliminary injunction. Chiles maintained that the MCTL directly suppresses her speech. The First Amendment does not restrict incidental burdens on speech. The MCTL prohibits mental health professionals from providing “conversion therapy” to minor clients, so it involves speech because counseling necessarily involves speech. But by regulating treatments that a licensed professional counselor may provide, the MCTL is not restricting a counselor’s freedom of expression; the prohibited activity is the practice of conversion therapy, not the mental health provider’s discussion of the subject. Thus, the MCTL only incidentally involves speech and does not restrict Chiles’s freedom of expression. Therefore, the district court correctly found that Chiles failed to demonstrate a likelihood of success on the merits of her free speech claim in denying her motion for a preliminary injunction.
Chiles also challenged the district court’s ruling that she failed to demonstrate a likelihood of success on the merits of her free exercise claim and thus denied her motion for a preliminary injunction. The Free Exercise Clause protections apply to laws that regulate or prohibit conduct because it is undertaken for religious reasons. Here, the record does not suggest that the MCTL’s aim is to infringe or restrict practices because of their religious motivation. Accordingly, Chiles failed to show that the MCTL restricts religious practices because of their religious nature, and the district court thus properly ruled that she failed to show a likelihood of success on the merits of this claim in denying her motion for a preliminary injunction.
Chiles also argued that the MCTL is subject to strict scrutiny because it is neither neutral nor generally applicable. As the party seeking a preliminary injunction, Chiles had to show that the MCTL is not neutral or generally applicable, which she failed to do. And the MCTL is rationally related to Colorado’s interest in ensuring that its licensed mental health professionals comply with the prevailing standard of care in their field and thus withstands rational basis review. Accordingly, the district court did not abuse its discretion in finding the MCTL is subject to rational basis review.
The denial of Chiles’s motion for a preliminary injunction was affirmed.