The Supreme Court of the United States

In Re: H.R. 064 (Conversion Therapy Prohibition Act)

Case №19–03, 101 M.S.Ct. 111

RestrepoMU, J., delivered the opinion of the Court, in which Notevenalongname, WaywardWit, JJEagleHawk, and CuriositySMBC, JJ., joined.*

There has been a sustained push recently in this country to regulate, and ultimately ban, the practice known as Conversion Therapy. It is usually defined as the attempt to alter a person’s sexual orientation or gender identity, through a variety of psychological methods. Many practitioners operate as a quasi-medical or religious practice, and many are condemned as homophobic or transphobic. One such law was written and signed into law in 2018; H.R. 064 (the Conversion Therapy Prohibition Act). The case before us requires us to consider not whether the practice is immoral or offensive, but whether Congress’s regulation of the practice is Constitutional. As we have previously held, it is not within the powers delegated to Congress.

I. Morality vs. Constitutionality

It is not the role of this Court to legislate morality, or to pass a moral judgement on practices. While it is impossible to exclude morality from our analysis of an action, we are clearly directed to pass judgement on an action’s constitutionality. The Constitution exists to hold together the complex fabric of our Government, so as to allow objective and reasonable limits on how the Government may interact with the people of this country. It is not an inherently moral or immoral document (one need only consider the many references to Slavery that it was originally conceived with for proof of that). It was drafted by mortals, who were subject to mortal sins and failures. Indeed, understanding that boundaries must be placed on human beings entrusted with power, because of the inherently human ability to be immoral from time to time, is the greatest strength of the Constitution. It was not written to be a moral document, but rather to provide countermeasures against immoral tyranny. “[The] government of the United States has been emphatically termed a government of laws, and not of men” (Marbury v. Madison 5 U.S 137 (1803)).

That is all to say that an action can be both moral, and unconstitutional. The best of intentions can still lead us down the wrong path, and it is our duty to remind the legislators of this country that particularly moral acts are not afforded opt-outs from the limits outlined in the Constitution.

II. Congress and Medical Licensing Boards

Congress wrote and passed H.R. 064 (the Conversion Therapy Prohibition Act) with the clear aim to ban the practice of Conversion Therapy, defined as the attempt to “change the sexual orientation of an individual through psychological methods, including but not limited to applying an electric shock to an individual” (§ 2). The act then expands on this by alternatively defining it as “any effort by a medical professional that seeks to alter an individual’s sexual orientation and gender identity” (§ 4(a)), and then goes even further by prohibiting “members of religious institutions, such as a Church group” (§ 4(b)) from engaging in the practice as well. The act then outlines the penalties for violation:

Mental health providers found in breach “will have their license permitting such mental health or medical work revoked” (§ 4(d)(i)). As a first time offender, the criminal penalties will be subject to a “Class A misdemeanor” (§ 4(d)(ii)), and subsequent offenses will be subject to a “Class E felony” (§ 4(d)(ii)(.1)). Furthermore, a fine of $25000 “per breach” is imposed (§ 4(d)(iii)), and lastly any cases leading to the suicide of the subject allows for prosecution for involuntary manslaughter (under 18 U.S.C. § 1112) (§ 4(d)(iv)).

Of particular note is § 4(d)(i), which amounts to a complete conscription of the local authority of medical licensing boards, groups that generally fall under the oversight of individual states. As it should go without saying, any “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (U.S. Const. amend. X). Congress has no more power to mandate actions by individual state licensing boards, than it does to mandate protocol and practices for individual state Police Forces. Indeed, in In re: Public Law B.074 (The Police Reform Act of 2015,) 100 M.S.Ct. 112 (2016), the majority explained that “the Federal Government sought to conscript the state’s officers directly into a national regulatory scheme […] That regulation was found to be outside the bounds of the Federal Government’s power”. National regulation by way of powers enumerated to the States is a practice beyond Congress.

The principles of Federalism should not extend the powers of Congress at the expense of protections delegated to the States. “The states have an inherent and dual sovereignty which cannot be extinguished nor erased” (id). Central to this protection is the protection of the work of State officials and employees from Federal co-option. It can be said that State Officials have a duty to “nothing more (or less) than the duty owed to the National Government […] to enact, enforce, and interpret state law in such fashion as not to obstruct the operation of federal law” (Printz v. United States, 521 U.S. 898, at 913).

In that same vein, the general regulation of permissible medical practices is a domain left to the states and their established medical licensing boards. Prohibiting a specific medical practice is not an enumerated power of the Congress, and therefore not a valid constitutional exercise.

Therefore, § 4(a) and § 4(d)(i) are found to be in violation of the 10th Amendment.

III. Generally Applicable

“Subsection (a) includes a prohibition by attempts outlined in subsection (a) by members of religious institutions, such as a Church group” (§ 4(b)).

Here, the Court finds another troubling approach by Congress. The Act singles out two groups for regulation: medical professionals and religious institutions. As § 4(a) specifically refers to the actions of a “medical professional”, the law is clearly targeting regulation at those two groups. As such, it can be said that the law is not generally applicable to the population at large. In fact it seems that it would remain legal for a non-medical or religious professional to carry out conversion therapy.

While it may not be unusual for medical professionals, who are subject to a host of specific regulations, to be singled out, this Court has already held that when considering laws applying to religious institutions, they must be generally applicable, and “where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny” (Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), at 521).

The first problem we encounter here is that the law stipulates a regulation “members of religious institutions”, a hopelessly vague statement. Does this refer to Priests and Rabbis? Or Church administrative staff? Or just very regular attendees? Or just any person who has attended a religious service in their life? Would one be able to get around this provision by no longer attending services, or would the Government conclude that merely their religious beliefs would constitute ‘membership’.

In this case, the Government declined to provide their compelling interest to regulate conversion therapy. However, there is no question that there could possibly exist a compelling interest in regulating the actions of religious institutions, but not non-religious laypersons. In this case, the fact that the Act specifically regulates religious institutions, instead of all institutions, is a glaring piece of evidence that the law cannot possibly be neutral. While the Act also regulates medical professionals, the majority of the nation is not a medical professional, and therefore is not targeted by that provision. This Act would end up regulating far more members of a religious institution (whether or not they intended to practice conversion therapy), than medical professionals. We must conclude that the Government does not pass strict scrutiny in this factor. Therefore, § 4(b), but by extension much of the Act, is in violation of the First Amendment.

IV. Conclusion

This is not this Court’s first time visiting this issue. In a strikingly similar case, this Court held that the “Act accomplishes its purpose by overstepping the bounds of federal authority as outlined in the Tenth Amendment to the United States Constitution” (In re: Public Law B.113 (Conversion Therapy Prevention Act of 2015),100 M.S.Ct. 118 (2016)). While our specific rationale may differ somewhat, we should be clear that the Court’s position has not changed. Congress may not exceed its Constitutional authority to legislate on a potentially morally applaudable position. By striking § 4(a), § 4(b) and § 4(d)(i), we void the very heart and substance of the Act, resulting in the Act being struck totally.

It is so ordered.

*Chief Justice Raskolnik and Justice Wildorca took no part in the decision.