In Chiles v. Salazar, the court held that Colorado's law prohibiting licensed counselors from seeking to change the sexual orientation or gender identity of minors was subject to strict First Amendment scrutiny. The court held the statute regulated protected speech and discriminated based on viewpoint by permitting therapies that affirmed specific sexual orientations and gender identities while barring speech that sought to change them. The court did not itself apply strict scrutiny and strike down the law; it sent the case back to the lower court for that analysis.
The most striking feature of the decision was its lineup. Justices Sonia Sotomayor and Elena Kagan joined the majority opinion in full, leaving Justice Ketanji Brown Jackson as the lone dissenter. Kagan, joined by Sotomayor, also wrote separately to suggest that while certain regulations of conversion therapy might survive constitutional challenge, the viewpoint-based structure of the Colorado law went too far. Jackson, by contrast, concluded that the law did not trigger heightened scrutiny and would have allowed it to stand.
The liberal split is statistically rare in First Amendment cases. In the three cases with LGBT-rights implications decided between 2022 and 2025, the court's liberals dissented jointly. Until Chiles, Jackson had never written a solo opinion in a case involving LGBT rights.
Craig Konnoth, writing an outside opinion for SCOTUSblog — a piece that does not reflect the blog's official views — argues the majority's reasoning is flawed in a key respect. The majority distinguished talk therapy from other medical speech by noting that it is unconnected to any separate medical procedure, placing it outside an exception to strict scrutiny for speech that incidentally burdens conduct. But Konnoth contends that a large category of consequential medical speech — including watchful-waiting recommendations, diagnoses of untreatable conditions, and genetic-risk counseling — is similarly untethered to any procedure, yet has generated malpractice liability for over a century. The majority acknowledged that traditional malpractice claims do not trigger heightened scrutiny, distinguishing them from Colorado's licensing regime on the ground that malpractice suits carry exacting proof requirements. Konnoth disputes that distinction, noting that the evidentiary standard in Colorado malpractice cases is preponderance of the evidence — the same standard that applies to licensing proceedings for Colorado professional counselors.
Konnoth also flags a rhetorical oddity: the majority cited Buck v. Bell — the 8-1 decision upholding eugenic sterilization laws — to support skepticism of relying on medical consensus, even though those sterilization laws were regularly applied to gay people on the ground that homosexuality was an illness.
On the question of why Sotomayor and Kagan joined the majority, Konnoth raises the possibility of strategic compromise. He notes that Kagan's concurrence cites only opinions by herself, Sotomayor, Justice Stephen Breyer, and Justice Amy Coney Barrett. Among the potential concessions he identifies: the majority's statement that a law prohibiting counselors from affirming a client's homosexuality would also face strict scrutiny, the majority's refusal to adopt the Tenth Circuit dissent's skepticism of evidence regarding conversion therapy's harms, and the majority's explicit neutrality on the practice's efficacy, describing it only as the subject of fierce public debate.
Konnoth reads Jackson's solo dissent not purely as ideological rigidity but as a counterweight — one that, among other things, emphasizes that LGBT identity is simply a part of the normal spectrum of human diversity rather than something to be cured, articulating a vision the compromise majority opinion declined to embrace.