Chiles v. Salazar: SCOTUS Voids Another Colorado Attack on the First Amendment

On March 31, the Supreme Court issued its decision in Chiles v. Salazar. The court voided a Colorado statute that permitted mental health counselors to help children transitioning toward homosexuality and away from their biological gender, but banned counselors from assisting those shifting back to their biological gender.

This is the third time since 2018 that the high court has slapped down Colorado officials for violating the First Amendment. Additionally, on the same day the Supreme Court decided the Chiles case, a federal district judge ruled that a Colorado law restricting political parties’ freedom of association also violated the First Amendment.

Colorado’s Transition

In 2009, the Mercatus Center at George Mason University ranked Colorado among the top three states for personal and economic freedom. “We find that the freest states in the country,” the authors wrote, “are New Hampshire, Colorado, and South Dakota, which together achieve a virtual tie for first place.”

During the decade from 2011 to 2020, however, Colorado’s politics changed drastically. In part, this was the result of careful planning and funding by four progressive billionaires—one of whom is now governor. In part, it was due to demographic changes, caused by a massive in-migration of left-leaning voters from other states. Ironically, Colorado’s libertarian policies—including the legalization of recreational marijuana and a low-regulation, low-tax business climate—helped fuel the progressive in-migration.

As a result, left-leaning Democrats now control every statewide office and hold a near supermajority in the state legislature. This new majority has enacted higher taxes and fees, new controls on firearms, and a mass of new burdens on business. In fact, the governor, who, unlike most of his political allies, has some business experience, has occasionally broken with his coalition as he tries to restrain lawmakers from pushing their ideology too far.

Cakes, Websites, and Parties

The new Colorado governing class won national notice when officials attempted to drive a Christian baker out of business because he declined to decorate cakes with messages celebrating same-sex weddings. In its 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court found that state officials’ overt hostility toward conservative Christian beliefs violated the First Amendment’s rule that states treat religions in a neutral manner.

The next case to reach the Supreme Court was 303 Creative v. Elenis (2023). The justices ruled that the First Amendment’s Free Speech Clause prevented Colorado officials from compelling a Christian web designer to create websites for same-sex weddings.

Colorado’s progressives attacked the First Amendment in other ways as well. In 2016, they successfully sponsored Proposition 108. This measure enabled the state’s mostly liberal independent voters to cast ballots in Republican primaries in order to prevent the nomination of conservative candidates. Proposition 108’s sponsors were not coy about their motivations: They promoted the measure as a way to favor middle-of-the-road nominees over others.

On March 31, however, a federal district judge decided Colorado Republican Party v. Griswold. He concluded that the measure was unconstitutional because it violated the party’s First Amendment right to free association, which includes the right to prevent non-party members from determining party nominees. The court observed that an opt-out provision in Proposition 108 was almost impossible to trigger.

I believe that if the case reaches the Supreme Court, the justices are likely to void Proposition 108 in its entirety, if only because they have already disapproved of states using the election process as a way to jigger election results.

Chiles v. Salazar

In Chiles v. Salazar, Kaley Chiles—a mental health therapist and practicing Christian—challenged the 2019 Colorado law restricting the advice and assistance she could give to children under her care. The Supreme Court, in an opinion by Justice Neil Gorsuch, ruled that the law violated the free speech guarantee of the First Amendment.

Both the state and Justice Jackson’s dissent defended the restrictions on speech as mere incidents of the regulation of medical practice. Yet as Justice Gorsuch pointed out, the specific therapy banned in this case utilized no more than the spoken word. He further pointed out that allowing a state to use its professional licensing statutes as a mechanism to suppress disfavored speech would be an invitation to massive censorship.

Conclusion

In the Chiles case, Colorado officials claimed their enactment was a health measure. Although the justices did not question the motivation behind the law, they likely recognized that its purported justification may have been a pretext. After all, mental health cases vary, and no legislature can know whether aligning a client with or against his biological sex is appropriate in every case. Only the client and the therapist can make that judgment. Moreover, progressives certainly should understand this, because in other contexts they favor the autonomy of patients and health care providers.