Justice Elena Kagan, joined by Justice Sonia Sotomayor, wrote a concurring opinion that stressed their belief the court’s ruling Tuesday is a narrow one.
That likely explains why both of those justices, who are members of the liberal wing, joined the court’s majority.
The problem with Colorado’s law, Kagan wrote, was it was “content-based” in its explicit focus on anti-trans therapy. A law that was neutral in its viewpoint “would raise a different and more difficult question.”
“Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression because, as the Court holds, Colorado’s is not one,” Kagan said.
Explaining why she was siding with the majority, she said that, “Colorado’s law, as applied to talk therapy, regulates based on viewpoint.”
“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 law bars therapy affirming those things,” Kagan wrote, concluding that such a law should be subject to similarly harsh scrutiny.
“One of the real clues to both the significance and limits of today’s ruling comes from Justice Kagan’s short concurring opinion,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
“As Kagan explains, the problem with Colorado’s law isn’t that it is based on the content of therapists’ speech, but that it isn’t neutral as to the viewpoint they’re expressing. In other words, at least some of the justices aren’t averse to states regulating the speech of medical professionals; they just have to do it in a way that doesn’t prefer one viewpoint over another.”
