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Mark Hillman’s Capitol Review - Even in Colorado, freedom of speech is for ‘everyone’

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PICT Politician - Mark Hillman
Mark Hillman

For the third time in eight years, the United States Supreme Court has needed to remind Colorado lawmakers that when they take an oath to uphold the U.S. Constitution, they are expected to mean it.

By an 8-to-1 vote the court struck down a Colorado law on “conversion therapy” on the rather obvious grounds that it unlawfully discriminates against the First Amendment rights of therapists to counsel clients who want help to overcome unwanted sexual attraction or confusion.

Proponents of the Colorado law focused on discredited physical interventions like shock therapy, but their law goes much farther, prohibiting treatment which is purely spoken and provided at the explicit request of clients.

As explained in the court’s majority opinion, plaintiff Kaley Chiles, a mental health counselor, “does not begin counseling . . . with any predetermined goals.” That is, she doesn’t claim to change a client’s sexuality. Instead, respecting her “clients’ fundamental right of self-determination,” she “talks to them about their goals.”

Chiles’ practice includes helping people who are content with their sexual orientation and gender identity and who only want help with social issues and family relationships, as well as those who wish to “reduce or eliminate unwanted sexual attractions (or) change sexual behaviors.”

It’s bad enough that Colorado lawmakers would silence voices with whom they disagree but even worse that they would deny to their fellow citizens the right to obtain counseling of their choice.

The court’s opinion, written by Colorado’s own Justice Neil Gorsuch, included even a majority of justices who were appointed by Democrat presidents. In fact, Justice Elena Kagan, an Obama appointee, wrote a concurring opinion that deserves credit for upholding the plain letter of the law while resulting in a policy outcome that she might not personally prefer.

Striving for an even-handed protection of freedom of speech, Kagan wrote: “Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this (hypothetical) law bars therapy affirming those things.”

Such a law isn’t hard to imagine in some red states, but the First Amendment would ban this law, too, she affirms, “because the state has suppressed one side of a debate, while aiding the other.”

If Colorado’s progressive lawmakers truly believe in constitutional freedoms that protect “everyone,” as Governor Polis likes to claim, they should “respect diversity” and extend constitutional protections to all viewpoints.

“The people lose whenever the government transforms prevailing opinion into enforced conformity,” the Supreme Court opined. “The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering the truth.”

Yet, when Colorado lawmakers consider any legislation promoted by the LGBT lobby, even-handed application of our constitutional freedom routinely takes a backseat to self-confident superiority. The right to dissent is a predictable casualty.

Think Colorado’s progressive Democrat majority cares even one little bit about First Amendment protections for political dissent?

Consider that just two days after the Supreme Court ruling, the Colorado House passed – on a near-party-line vote – a bill that allows lawsuits against people engaging in conversion therapy efforts. Although House Bill 26-1322 was amended to acknowledge the Supreme Court ruling, that doesn’t mean someone just like Kaley Chiles won’t be dragged into court again. (Just ask Jack Phillips.)

If Democrat lawmakers had any reservations about the wisdom of upping the ante in their cultural crusade, all but one of them were more bothered by incurring the wrath of LGBT activists than concerned about protecting everyone’s First Amendment rights. They’ve convinced themselves they can act with impunity to silence political and cultural minorities and that they will never again need constitutional protections against legislative excess because, they assume, they will always be in charge.

They should remember that never is a long time.


Mark Hillman served as Senate Majority Leader and Colorado Treasurer. To read more or comment, go to www.MarkHillman.com.