Another attack on LGBTQ+ communities in Colorado made its way to the U.S. Supreme Court last week. The outcome will tell us whether SCOTUS cares at all about consistency. The answer could unmoor the legal community.
In Chiles v. Salazar, Kaley Chiles, a licensed counselor, sued the state because she wants to engage in conversion therapy — attempting to diminish same-sex attraction or align individuals with cis gender heterosexuality — on children. Couched in terms of religious freedom, the practice effectively forces children to conform to not just religious beliefs, but bend their biological makeup to fit into a pre-conceived outcome.
Study after study have determined that conversion therapy is not just controversial, but actually dangerous. For example, last year Stanford Medicine published findings from a survey of 4,426 people who underwent conversion therapy. The results? Those people show much higher degrees of depression, post-traumatic stress disorder and suicide.
That is why Colorado banned the practice in 2019.
The Colorado legislature debated the merits, went through the proper public process, amended where necessary, and voted to pass the bill. By doing so, Colorado engaged in a perfect example of states rights legislation. It sought to protect a vulnerable population, children, from being forced to do something that could literally destroy their lives. At the same time, they carved out exceptions for adults and religious leaders.
That is exactly what responsible governments should do. Under a federalist system that nurtures the ability for states to make their own decisions, this is how states should act.
For decades conservatives have pleaded for courts to respect states rights. It is a central feature of conservative legal jurisprudence. For example, one of the first search results for “laboratories of democracy” — a term coined by Justice Louis D. Brandeis in 1932 to describe the federalist system where the laws of each state could be viewed as a different experiment — comes from the American Enterprise Institute, a conservative think tank.
The Federalist Society, the country’s leading conservative legal organization, has touted the same since its inception. Responsible for vetting judicial nominations at every level for conservative elected officials, opposition to states rights would have been an apostasy that would have torpedoed any potential endorsement from the Federalist Society.
Despite the evils done to minorities in Southern states applying the same theory, these organizations never shied away from the principle. They believed that the overall benefit outweighed even such a high cost.
But now that SCOTUS has a 6-3 conservative majority, it appears to have been a principle of convenience rather than conscience.
The hypocrisy of striking down Colorado’s ban was laid bare by Justice Ketanji Brown Jackson during oral arguments for Chiles v. Salazar. While the conservative majority seemed poised to side with Chiles, Brown Jackson exposed their lack of principle by noting that last year the court upheld Tennessee’s ban on gender-affirming care for minors. In her words, both laws “work in basically the same way” just toward opposite ends.
If the conservative justices truly exercised a principled, outcome neutral approach based on federalism, Colorado would have the same right to institute a ban as Tennessee.
I doubt the conservative justices had much more than an eyeroll for Brown Jackson’s pointed question. The majority court has been marching down the path toward abrogating blind justice in favor of political clout for several years. Their decision in Trump v. United States, the presidential immunity case, demonstrated a clear disregard for constitutional checks and balances in order to benefit a once and future leader of the executive branch. If American democracy breaks, that will be remembered as the initial crack.
It would seem that seeing Trump win back the White House and begin a campaign of retribution and military invasion of American cities would have made the SCOTUS majority realize its error and at least make a show of returning to principle. Instead, they have aided in the assault, using their shadow docket to issue important orders without formal briefing, oral argument or written reasoning.
It is the legal version of a rubber stamp for the Trump Administration.
Given that capitulation, there can be little hope for the court majority to suddenly find a principled backbone. Instead, we can expect it to invent some tiny hole through which it can squeeze its invertebrate body through in order to pick the outcome those justices personally want to see prevail. That is an embarrassment and a democratic travesty.
As arch-conservative Justice Antonin Scalia once said, “The judge who always likes the results he reaches is a bad judge.”
Maybe the justices seated at the dais Scalia once lorded over should take those words to heart. It would make them better justices and protect democracy. But this court does not seem interested in such quaint notions. Principle means little next to power in their eyes, including the power to traumatize Colorado’s children.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on BlueSky: @MarioNicolais.bsky.social.
The Colorado Sun is a nonpartisan news organization, and the opinions of columnists and editorial writers do not reflect the opinions of the newsroom. Read our ethics policy for more on The Sun’s opinion policy. Learn how to submit a column. Reach the opinion editor at opinion@coloradosun.com.
Follow Colorado Sun Opinion on Facebook.