In mid-April we wrote that a three-judge appellate panel appeared to struggle during arguments with the potentially far-reaching implications of a constitutional challenge to California’s ban on gay conversion therapy. It appears they are still struggling.
The 9th U.S. Circuit Court of Appeals panel, in an order issued Tuesday, asked both sides to submit new briefs on whether the court should substitute its view of the law and application of the Constitution for that of the trial judge, or limit itself to the existing question of whether the trial judge overstepped his authority.
The three-judge panel was reviewing a free speech challenge to California’s ban on licensed health professionals’ use of therapies designed to make gay and lesbian teenagers straight.
Under the terms of California’s law, no one under the age of 18 may be submitted to gay conversion therapy, which relies on talking to a therapist.
Plaintiffs include parents who assert their parental rights are under attack, as well as licensed professional counselors and professional counseling associations, including the National Association for Research and Therapy of Homosexuality and the American Association of Christian Counselors.
The appeal also includes one 15-year-old, identified only as John Doe, who is receiving counseling and wants to continue.
The three judges said both sides should discuss whether the evidence relevant to assessing the constitutionalty of SB1172 is limited to the legislative record or includes evidence newly submitted to the court.
They gave both sides 14 days to respond.
Case: Pickup v. Brown, No. 12-1768, Welch v. Brown, No. 13-15023
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