Justice Elena Kagan, joined by Justice Sonia Sotomayor, wrote a concurring opinion that burdened their perception the courtroom’s ruling Tuesday is a slim one.
That possible explains why each of these justices, who’re members of the liberal wing, joined the courtroom’s majority.
The downside with Colorado’s regulation, Kagan wrote, was it was “content-based” in its specific concentrate on anti-trans remedy. A regulation that was impartial 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 stated.
“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 regulation must be topic to equally 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,” stated Steve Vladeck, NCS 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.”