Law and Disorder

Therapeutic damage: First, do no harm

 By A.J. Wagner

As I write this article, the Supreme Court of the United States has, thus far, sidestepped any decision on the constitutional propriety of gay rights. The justices met last week to consider whether to look at the U.S. Defense of Marriage Act (DOMA) or California’s gay marriage ban.

The high nine will be considering further this week if they should hear these cases and may make an announcement the day before this issue of the Dayton City Paper is published. It would be surprising if the Court dodged these cases altogether, but the delay indicates some hesitation about the subject matter. The justices may wish to discuss among themselves the scope of the issues presented by the cases and may seek to narrow their consideration to issues other than constitutionality. That would be unfortunate, so stay tuned.

So far, thirty-one states have banned gay marriage, while nine states and Washington, D.C. have legalized it. The federal law, DOMA, only recognizes marriages between a man and a woman and denies same sex couples the federal benefits given to heterosexual couples. The gay community and their allies wish to challenge the constitutionality of the restrictions applied to same sex relationships, putting into question the requirements of due process and equal rights under the United States Constitution.

The decision on the California marriage ban from the Ninth Circuit Court of Appeals ruled that California’s law is unconstitutional, but only in California where gay marriage had been legal before it was made illegal. If this becomes the Supreme Court’s narrow focus, or if they narrow the focus on DOMA to other federal issues, the justices may sidestep the real questions we long to be answered.

In the meantime, lower courts are taking on a new set of gay issues in California and some other states. The issue is whether gay conversion therapy can be outlawed and whether doctors who practice this therapy can be held liable for the psychological damage they do to their patients.

Conversion therapy is designed to convert a gay man or woman to heterosexuality. The American Psychiatric Association has condemned therapies that assume homosexuality to be a mental disorder and they have declared conversion therapy to be unethical. Because the therapy can involve extreme methods, including electric shock while getting the patient to deny natural inclinations, some patients have sued their doctors for serious psychological damage.

California legislators recently passed a law that bans the practice of conversion therapy with minors. Last Monday, a federal judge in Sacramento, Calif., William Schubb, ruled that the law, which is scheduled to take effect on Jan. 1, 2013, “likely … bans a mental health provider from expressing his or her viewpoints about homosexuality as part of … treatment.” Although the decision also questioned the strength of the science putting conversion therapy in doubt as a legitimate treatment, this analysis, which pits the law against the First Amendment’s free speech requirement, put the law in jeopardy.

The next day, however, one of Judge Schubb’s colleagues, in the same Sacramento court, ruled the opposite. Judge Kimberly J. Mueller rejected a suit from therapists and patients who sought to block enforcement of the law. Judge Mueller looked at the opinions of 10 professional psychological groups put together by the American Psychological Association that said conversion therapy doesn’t work. Mueller ruled that conversion therapy can “pose critical health risks” saying, “The court need not engage in an exercise of legislative mind-reading to find the California Legislature and the state’s governor could have had a legitimate reason for enacting SB 1172.”

Judge Mueller’s ruling was appealed immediately to the Ninth Circuit Court of Appeals in an effort to prevent the law from taking effect. This is the same Ninth Circuit Court of Appeals that ruled DOMA unconstitutional, so the likelihood of the law being stopped before the new year begins is improbable.

A lawsuit has also been filed in New Jersey by patients who believe they have suffered damages by the practice of conversion therapy. This suit, likewise, relies on the findings of major medical groups who say that sexual orientation cannot be changed. Again, the American Psychological Association weighs in that the therapy can cause “depression, anxiety and self-destructive behavior” and “reinforce[s] self-hatred already experienced by the patient.”

This is new territory for the law. It pits psychological expertise against religion. Not that there aren’t experts who will testify against the major health organizations. There are always deniers of global warming and evolution available to challenge mainstream science. But the courts should find, as they have in the past, that the government can prohibit health care practices that are harmful or ineffective and that the First Amendment cannot be used to inflict harm on another. (You can’t yell, “Fire!” in a crowded theater.)

Time will tell, but not soon enough.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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