Testing the First Amendment Validity of Laws Banning Sexual Orientation Change Efforts on Minors: What Level of Scrutiny Applies after Becerra and Does a Proportionality Approach Provide a Solution?

Abstract

This Article examines the standard of scrutiny courts should apply when testing the validity of laws banning speech-based sexual orientation change efforts (SOCE) against First Amendment challenges. Justice Clarence Thomas’s 2018 opinion for a five-justice conservative majority of the United States Supreme Court in National Institute of Family and Life Advocates v. Becerra casts considerable doubt on whether a level of inquiry less stringent than strict scrutiny applies. The article analyzes how lower courts after Becerra that have reviewed anti-SOCE laws disagree on the issue. And yet, as the Article explains, the Supreme Court refuses to clarify the muddle. First, it declined in April 2019 to disturb a decision by the U.S. Court of Appeals for the Third Circuit that adopted the relatively deferential intermediate scrutiny test to uphold New Jersey’s anti-SOCE law. The Supreme Court then followed that up in May 2019 by dodging an opportunity to review a Ninth Circuit decision that applied mere rational basis review in upholding California’s anti-SOCE statute. Resolving the scrutiny conundrum is imperative, as new anti-SOCE laws are being adopted nationwide. They, in turn, spawn lawsuits necessitating clear guidance from the Supreme Court if lower bodies are to adopt a predictable and consistent methodology. The Article concludes that anti-SOCE statutes provide a propitious opportunity for embracing Justice Stephen Breyer’s proportionality approach rather than one of the three traditional standards of scrutiny.