The Supreme Court on Tuesday sided with a Christian counselor over Colorado in her challenge to the state’s ban on so-called conversion therapy for minors. 

In an 8-1 ruling by Justice Neil Gorsuch, the court said that the state’s law, as applied to talk therapy provided by the counselor, Kaley Chiles, conflicts with First Amendment principles because it regulates speech based on viewpoint. Gorsuch wrote that the amendment “stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”

About half the states in the country have banned or restricted the practice that aims to change a child’s sexual orientation or gender identity.

Represented by conservative Christian legal group Alliance Defending Freedom, Chiles argued that Colorado’s ban violates free speech protections. 

Focusing in on Chiles’ claim, Gorsuch called the question before the court a narrow one. “Ms. Chiles does not question that Colorado’s law banning conversion therapy has some constitutionally sound applications,” the Trump appointee wrote. He noted that she doesn’t take issue with the state’s effort to prohibit physical interventions, but rather, she only provides talk therapy.

The problem, she argued, is that because the state’s law strikes at the heart of First Amendment speech protections, the lower courts didn’t provide rigorous enough scrutiny against the state in her legal challenge. 

“We agree,” Gorsuch wrote, concluding that “the courts below failed to apply sufficiently rigorous First Amendment scrutiny in this case.” The justices sent the case back to an appeals court for further consideration in light of Tuesday’s ruling. 

Justice Ketanji Brown Jackson dissented. “The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel,” she wrote. 

Medical associations told the justices that efforts to change sexual orientation and gender identity are illegitimate, ineffective and can be especially harmful to minors.

Still, backed by the Trump administration, Chiles’ lawyer argued to the high court that the First Amendment “doesn’t permit Colorado’s censorship,” and that the state can’t prove the therapy practice is harmful or “deny that many people have experienced life-changing benefits from the kind of counseling that Ms. Chiles wants to provide.” 

Colorado countered that the court has long recognized the states’ power to regulate health care safety, and that its law “lies at the bull’s-eye center of this protection because it prohibits licensed professionals from performing one specific treatment because that treatment does not work and carries great risk of harm.” 

Religious ministers are exempt from complying with the state law. 

Upholding the district court’s ruling against Chiles, a divided appellate panel said the law only “incidentally” involves speech because counseling necessarily involves speech, but that the state isn’t restricting her constitutional expression.

“In other words, Ms. Chiles’s First Amendment right to freedom of speech is implicated under the MCTL [Minor Conversion Therapy Law], but it is not abridged,” the panel majority said, over dissent from a judge who said the majority’s “wordplay” in distinguishing speech from conduct posed “a serious threat to free speech.”

The panel majority noted that Chiles remained free to share her views on conversion therapy, sexual orientation and gender identity; that she can criticize Colorado for restricting her administration of conversion therapy; that she can refer clients to other service providers, like religious ministers; and that she can provide conversion therapy to adult clients.   

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