Deborah J. Dewart
January 17, 2022
Dear Council Members:
I am an independent constitutional lawyer who writes and files briefs in the U.S. Supreme Court and the federal circuit courts on constitutional law issues, particularly First Amendment liberties such as free speech and religious liberty. I write to express deep concerns about your proposed Ordinance 31-21, which has insurmountable constitutional flaws and would undoubtedly be struck down on its face if challenged in a court of law. It would be wise for you to conduct a thorough review of the legal issues before voting on this ordinance. The following short analysis may assist you with that task. I understand that a couple of you oppose the proposed ordinance; thank you for taking that stand.
The Ordinance violates the Free Speech Clause of the First Amendment by regulating both content and viewpoint.
Content Discrimination. First, Ordinance 31-21 is unquestionably content-based because it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). A law that is content-based on its face (as this one is) is subject to strict scrutiny regardless of the government’s motive. Id. Importantly, the "mere assertion of a content-neutral purpose" cannot salvage the ordinance, “which, on its face, discriminates based on content.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-643 (1994). Regardless of the law’s purpose, the first question is “whether it restricts or penalizes speech on the basis of that speech's content.” Otto v. City of Boca Raton, 981 F.3d 854, 862 (11th Cir. 2020). Here, as in past cases about “sexual orientation change efforts” (SOCE), the ordinance purports to protect children. But important as that interest is, it "does not include a free-floating power to restrict the ideas to which children may be exposed." Brown v. Entm't Merchs. Ass'n, 564 U. S. 786, 794-95 (2011); see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 (1975) (speech "cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them”).
Viewpoint Discrimination. Viewpoint-based regulation is "an egregious form of content discrimination" (Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995)) and “a matter of serious constitutional concern.” (Nat'l Inst. of Family & Life Advocates v. Becerra (“NIFLA”), 138 S. Ct. 2361, 2378 (2018) (Kennedy, J., concurring)). Ordinance 31-21’s viewpoint discrimination is revealed by its “significant carveout” (Otto, 981 F.3d at 860) for counseling that provides “assistance to a person undergoing gender transition, or . . . acceptance, support, and understanding of a person or facilitates a person’s coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such counseling does not seek to change an individual’s sexual orientation or gender identity.” Ord. 31-21, §2(c).
Like the law examined in NIFLA, Ordinance 31-21 “is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” NIFLA, 138 S. Ct. at 2378 (Kennedy, J., concurring). The ordinance would “codify a particular viewpoint—[that] sexual orientation is immutable, but gender is not.” Otto, 781 F.3d at 864. At the heart of the First Amendment is the “bedrock principle” that the government may not suppress an idea merely because some (or even a majority) might find it “offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Sexual morality is a matter of intense public debate—and religious doctrine. It is not the business of government to silence one side of the discussion. The government “is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 661 (2000), quoting Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 579 (1995). The City Council’s viewpoint discrimination is especially disturbing in today’s changing social environment—"the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view." Boy Scouts of Am. v. Dale, 530 U.S. 640, 660 (2000). American courts have long guarded free expression, even “the thought that we hate.” United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).
Counseling is not religiously neutral. The City Council reaches into areas where government intrusion is verboten—the church and the family. Counseling and religion both involve values, morality, thoughts, beliefs, emotions, and conduct—including sexual conduct and morality. Counseling is not a hard science, but a highly subjective undertaking and often a religious ministry. Religious speech is not only “as fully protected . . . as secular private expression,” but historically, “government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.” Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995) (internal citations omitted).
Ordinance 31-21 would codify the viewpoint that homosexuality and transgenderism are normal, morally right, and should be affirmed—contrary to the sincere religious beliefs held by many. People of faith are entitled to a voice and “frequently take strong positions on public issues.” Walz v. Tax Comm’n, 397 U.S. 664, 670 (1970). Courts and legislatures across America continue to address a wide spectrum of LGBT issues. It is not the business of any government—federal, state, or local—to coerce any citizen's chosen perspective on this topic. Nor does any government official have the right to dictate what parents teach their own children or what churches may teach those who choose to participate in their ministry.
“Benevolent neutrality” toward religion is required of government. Religious teachings commonly encompass standards of conduct, including sexual morality. Ordinance 31-21, even without mentioning religion, is hostile toward faith traditions that do not affirm same-sex relationships or the ability to transition to the opposite sex. Ordinance 31-21 handicaps everyone who will not espouse the government’s view of sexual morality—not only licensed counselors but even pastors. The ordinance would unlawfully suppress religious beliefs and exclude many persons of faith from serving others in the community.
LICENSED v. UNLICENSED COUNSELORS
Even if this ordinance were limited to licensed counselors, it would be unconstitutional under the Supreme Court’s decision in Nat'l Inst. of Family & Life Advocates v. Becerra (“NIFLA”), 138 S. Ct. 2361 (2018). The Court declined to carve out a separate category for “professional speech” that would receive diminished First Amendment protection. “Speech is not unprotected merely because it is uttered by ‘professionals.’” NIFLA, 138 S. Ct. at 2371-2372. On the contrary, professional speech may be entitled to "the strongest protection our Constitution has to offer." Florida Bar v. Went-For-It, Inc., 515 U.S. 618, 634 (1995). The City Council attempts to evade this legal precedent by enacting an even broader restriction on protected speech—so broad, in fact, that no one is excluded.
Attempts to regulate “professional” speech raise the specter of viewpoint discrimination—"the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information." NIFLA, 138 S. Ct. at 2374, quoting Turner, 512 U.S. at 641; Otto, 781 F.3d at 861. Professionals may be required to “disclose factual, noncontroversial information” (NIFLA, 138 S. Ct. at 2372), but the government does not have carte blanche to engage in blatant viewpoint discrimination, especially concerning a contentious matter of public concern that touches deeply held religious convictions. See, e.g., Snyder v. Phelps, 562 U.S. 443 (2011). Even a regulation of licensed counselors would cross the line and create a “collision between the power of government to license and regulate” and the free speech rights “guaranteed by the First Amendment.” Lowe v. SEC, 472 U.S. 181, 228 (1985) (White, J., concurring in the result).
The "fixed star in our constitutional constellation"—barring any public official from prescribing orthodoxy in religion (West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943))—shines across decades of precedent. The drafters of the Constitution "fashioned a charter of government which envisaged the widest possible toleration of conflicting views." United States v. Ballard, 322 U.S. 78, 87 (1944). If Ordinance 31-21 passes, it will hand the government “a new and powerful tool to silence expression based on a political or moral judgment.” Pickup v. Brown, 740 F.3d 1208, 1216 (9th Cir. 2014) (O’Scannlain, J., dissenting from denial of rehearing en banc). The Constitution unquestionably prohibits an ordinance that censors all dissenting voices and unilaterally imposes the government’s viewpoint concerning a contentious issue that intersects law, religion, philosophy, morality, and politics.
Deborah J. Dewart, Esq.
Deborah J. Dewart
Attorney at Law