Episode Transcript
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Speaker 1 (00:00):
If all goes according to plan.
Speaker 2 (00:02):
Here we're now speaking with Mallory Slates and Mallory is
legal counsel on the parental rights team at the Alliance
Defending Freedom. Their website is adflegal dot org and they
do take on a lot of very interesting cases that
get to the Supreme Court which have implications for basic
(00:23):
constitutional rights.
Speaker 1 (00:25):
And Malory, can you hear me? Are we good? Yes?
All right? Excellent?
Speaker 2 (00:29):
So Malory joins us talk about the case that ADF
has that comes out of Colorado regarding conversion therapy. And
there were oral arguments at the Supreme Court yesterday, and
we only have about six minutes or so, so can you, please,
Mallory just kind of give us first the high level
what are the key questions at issue in this case?
Speaker 3 (00:49):
Absolutely. Kaylie Chiles is our client.
Speaker 4 (00:51):
She is a licensed counselor in the state of Colorado
and she works with clients, including children, about a variety
of issues that also include gender identity and sexual orientation.
The state of Colorado has passed a law in twenty
nineteen that have banned counselors like Kayley from speaking about
(01:11):
certain views regarding gender and sexuality to clients.
Speaker 3 (01:15):
Under the age of eighteen.
Speaker 4 (01:17):
The issue before the Supreme Court is whether clients can
voluntarily request that their counselors speak to them about certain
issues regarding gender and sexuality.
Speaker 2 (01:32):
So what I'm trying to get a handle on in
this case is how do we try to draw the
line between whether something that a therapist wants to say
to a patient is protected by free speech to the
extent that if the experts or the certifying bodies or
(01:57):
whoever believe that that is improper medical practic, this that
they can't regulate it as improper or substandard medical practice
because it's protected by the First Amendment. If that, and
I mean, is is that the heart of the question?
Speaker 3 (02:13):
I mean, not.
Speaker 4 (02:14):
Really really, what we're talking about this in this case
is speech. This is an instance where you have a client,
the client's family, and the counselor who all agree that
they want to talk about how to help the child
realign themselves.
Speaker 3 (02:34):
With their biological sex.
Speaker 4 (02:36):
This is a client and a child coming in who
will want to.
Speaker 3 (02:41):
Talk about these issues.
Speaker 4 (02:43):
Because they want to talk about these issues, they should
have the right to do that with a client like Kayley.
But unfortunately, the State of Colorado has said even these
voluntary conversations that everybody agrees on and that everybody wants
to have not allowed to have.
Speaker 2 (03:01):
Okay, And I'm playing Devil's advocate a little bit, which
I'd like to do when I when I when I
talk to attorneys, I like to I like to do this.
So let's say that the uh, the parents, and the
therapists all agree that they want to have a conversation
about about the therapists uh prescribing literal snake oil as
(03:24):
a as a cure for something, and the literal snake
oil has no basis in data and no basis in
scientific studies, but the parents are willing to try because
the therapist says this might work in a And and
at what point does it become okay for the state's
medical regulators to say that this crosses a line and
(03:47):
it's not about free speech anymore, and it's not even
about whether it's voluntary anymore.
Speaker 4 (03:52):
Well, I mean, in that instance, you have a a
licensed counselor who has a license to do talk therapy
who is now prescribing something. So that's just a totally
separate issue that wouldn't be related to this law or
this case at all, because that's not speech. So in
that case, maybe there the outcome is different. But in
(04:15):
the case where it's it's simply speech that is voluntary
and that everybody wants to have, that's where we come
into a constitutional issue.
Speaker 1 (04:25):
Okay, so let me change my example a little bit.
Speaker 2 (04:27):
What if the therapist says, I think the thing that
would help you would be to make a small cut
on your arm every day.
Speaker 4 (04:37):
Well, I mean again, that's that's not counseling, that's not
talk therapy. Right, So now we're no, because now we're
getting into like physical medical advice, and that that is
is medical advice, which is not what we're talking about here.
Here we're talking about, you know, just pure talk therapy
(04:58):
and counseling where the client is asking to be counseled
in this way.
Speaker 2 (05:05):
Okay, and now i'll switch to your side for a minute.
One of the things that troubles me about the government's
argument here is who's going to draw this line that
they I mean, strangely enough, they're saying that they promised
your client they wouldn't prosecutor, which I think is a
very weird thing to do unless you know that if
you prosecutor, you're going to lose at the Supreme Court.
(05:25):
I don't understand how they are going to try to
draw the line between who they will prosecute and who.
Speaker 1 (05:31):
They won't prosecute.
Speaker 2 (05:32):
If the standard is this sort of cloudy thing about
what counts as conversion therapy and what doesn't.
Speaker 4 (05:39):
Yeah, that's a great point, and it isn't and it
really gives a lot of discrestion to the state to
decide what speech is acceptable and speech is not acceptable. Really,
what this law is is viewpoint discrimination. It is saying
that one viewpoint that the state agrees with is allowed,
(06:01):
but another viewpoint that the state disagrees with is not allowed.
But the problem is who is in government and in
power is constantly changing. So we should all agree as
citizens that we don't want the state and the government
deciding what viewpoints are allowed to be spoken in the
privacy of a counseling room versus the viewpoints that are
(06:23):
allowed to be spoken.
Speaker 2 (06:25):
I think it's a really interesting case, and I don't
think it's a legal slam dunk. If I had to bet,
I would bet you win the case. And I would
also bet that if the case were twenty years earlier,
with that Supreme Court you might not have won, but
I think with these justices, I think you have a
very good chance of winning.
Speaker 1 (06:46):
I'm just about out of time.
Speaker 2 (06:47):
Tell me the thing that most surprised you in oral
argument yesterday, Henie, I.
Speaker 4 (06:54):
Think we were really excited with the way it went.
Jim Campbell did an excellent job. But really I think
the court acknowledged that Colorado is trying to censor conversations
and that this is viewpoint discrimination, and so to us,
those those were really positive signs.
Speaker 3 (07:12):
And we're looking forwards to the opinion.
Speaker 1 (07:13):
Yeah, and like I say, I suspect that you will
that you will win.
Speaker 2 (07:16):
Were you in the room, were you in the Supreme
Court chamber watching Jim argue?
Speaker 3 (07:20):
I was not in the room, but listening, listening with
the team.
Speaker 2 (07:24):
Yeah, when do you think you'll get a chance to
argue in front of the Supreme Court?
Speaker 1 (07:27):
Not on this case, but just on something. Have you
done it before?
Speaker 3 (07:30):
I have not.
Speaker 4 (07:31):
I have not, but I hope, hope at one point
in my career I.
Speaker 3 (07:34):
Get that opportunity.
Speaker 4 (07:35):
But you know, ADF just has so many amazing brilliant
attorneys that they could they could could go for many
years before and before.
Speaker 3 (07:43):
They get to lead.
Speaker 1 (07:44):
You do have a very strong team. I have a
lot of them on my show.
Speaker 2 (07:47):
Mallory Slate is legal counsel at Alliance Defending Freedom ad
F legal dot org.
Speaker 1 (07:53):
Thanks so much for taking time to join us. I
appreciate it.
Speaker 3 (07:56):
Thank you all right,
If all goes according to plan.
Speaker 2 (00:02):
Here we're now speaking with Mallory Slates and Mallory is
legal counsel on the parental rights team at the Alliance
Defending Freedom. Their website is adflegal dot org and they
do take on a lot of very interesting cases that
get to the Supreme Court which have implications for basic
(00:23):
constitutional rights.
Speaker 1 (00:25):
And Malory, can you hear me? Are we good? Yes?
All right? Excellent?
Speaker 2 (00:29):
So Malory joins us talk about the case that ADF
has that comes out of Colorado regarding conversion therapy. And
there were oral arguments at the Supreme Court yesterday, and
we only have about six minutes or so, so can you, please,
Mallory just kind of give us first the high level
what are the key questions at issue in this case?
Speaker 3 (00:49):
Absolutely. Kaylie Chiles is our client.
Speaker 4 (00:51):
She is a licensed counselor in the state of Colorado
and she works with clients, including children, about a variety
of issues that also include gender identity and sexual orientation.
The state of Colorado has passed a law in twenty
nineteen that have banned counselors like Kayley from speaking about
(01:11):
certain views regarding gender and sexuality to clients.
Speaker 3 (01:15):
Under the age of eighteen.
Speaker 4 (01:17):
The issue before the Supreme Court is whether clients can
voluntarily request that their counselors speak to them about certain
issues regarding gender and sexuality.
Speaker 2 (01:32):
So what I'm trying to get a handle on in
this case is how do we try to draw the
line between whether something that a therapist wants to say
to a patient is protected by free speech to the
extent that if the experts or the certifying bodies or
(01:57):
whoever believe that that is improper medical practic, this that
they can't regulate it as improper or substandard medical practice
because it's protected by the First Amendment. If that, and
I mean, is is that the heart of the question?
Speaker 3 (02:13):
I mean, not.
Speaker 4 (02:14):
Really really, what we're talking about this in this case
is speech. This is an instance where you have a client,
the client's family, and the counselor who all agree that
they want to talk about how to help the child
realign themselves.
Speaker 3 (02:34):
With their biological sex.
Speaker 4 (02:36):
This is a client and a child coming in who
will want to.
Speaker 3 (02:41):
Talk about these issues.
Speaker 4 (02:43):
Because they want to talk about these issues, they should
have the right to do that with a client like Kayley.
But unfortunately, the State of Colorado has said even these
voluntary conversations that everybody agrees on and that everybody wants
to have not allowed to have.
Speaker 2 (03:01):
Okay, And I'm playing Devil's advocate a little bit, which
I'd like to do when I when I when I
talk to attorneys, I like to I like to do this.
So let's say that the uh, the parents, and the
therapists all agree that they want to have a conversation
about about the therapists uh prescribing literal snake oil as
(03:24):
a as a cure for something, and the literal snake
oil has no basis in data and no basis in
scientific studies, but the parents are willing to try because
the therapist says this might work in a And and
at what point does it become okay for the state's
medical regulators to say that this crosses a line and
(03:47):
it's not about free speech anymore, and it's not even
about whether it's voluntary anymore.
Speaker 4 (03:52):
Well, I mean, in that instance, you have a a
licensed counselor who has a license to do talk therapy
who is now prescribing something. So that's just a totally
separate issue that wouldn't be related to this law or
this case at all, because that's not speech. So in
that case, maybe there the outcome is different. But in
(04:15):
the case where it's it's simply speech that is voluntary
and that everybody wants to have, that's where we come
into a constitutional issue.
Speaker 1 (04:25):
Okay, so let me change my example a little bit.
Speaker 2 (04:27):
What if the therapist says, I think the thing that
would help you would be to make a small cut
on your arm every day.
Speaker 4 (04:37):
Well, I mean again, that's that's not counseling, that's not
talk therapy. Right, So now we're no, because now we're
getting into like physical medical advice, and that that is
is medical advice, which is not what we're talking about here.
Here we're talking about, you know, just pure talk therapy
(04:58):
and counseling where the client is asking to be counseled
in this way.
Speaker 2 (05:05):
Okay, and now i'll switch to your side for a minute.
One of the things that troubles me about the government's
argument here is who's going to draw this line that
they I mean, strangely enough, they're saying that they promised
your client they wouldn't prosecutor, which I think is a
very weird thing to do unless you know that if
you prosecutor, you're going to lose at the Supreme Court.
(05:25):
I don't understand how they are going to try to
draw the line between who they will prosecute and who.
Speaker 1 (05:31):
They won't prosecute.
Speaker 2 (05:32):
If the standard is this sort of cloudy thing about
what counts as conversion therapy and what doesn't.
Speaker 4 (05:39):
Yeah, that's a great point, and it isn't and it
really gives a lot of discrestion to the state to
decide what speech is acceptable and speech is not acceptable. Really,
what this law is is viewpoint discrimination. It is saying
that one viewpoint that the state agrees with is allowed,
(06:01):
but another viewpoint that the state disagrees with is not allowed.
But the problem is who is in government and in
power is constantly changing. So we should all agree as
citizens that we don't want the state and the government
deciding what viewpoints are allowed to be spoken in the
privacy of a counseling room versus the viewpoints that are
(06:23):
allowed to be spoken.
Speaker 2 (06:25):
I think it's a really interesting case, and I don't
think it's a legal slam dunk. If I had to bet,
I would bet you win the case. And I would
also bet that if the case were twenty years earlier,
with that Supreme Court you might not have won, but
I think with these justices, I think you have a
very good chance of winning.
Speaker 1 (06:46):
I'm just about out of time.
Speaker 2 (06:47):
Tell me the thing that most surprised you in oral
argument yesterday, Henie, I.
Speaker 4 (06:54):
Think we were really excited with the way it went.
Jim Campbell did an excellent job. But really I think
the court acknowledged that Colorado is trying to censor conversations
and that this is viewpoint discrimination, and so to us,
those those were really positive signs.
Speaker 3 (07:12):
And we're looking forwards to the opinion.
Speaker 1 (07:13):
Yeah, and like I say, I suspect that you will
that you will win.
Speaker 2 (07:16):
Were you in the room, were you in the Supreme
Court chamber watching Jim argue?
Speaker 3 (07:20):
I was not in the room, but listening, listening with
the team.
Speaker 2 (07:24):
Yeah, when do you think you'll get a chance to
argue in front of the Supreme Court?
Speaker 1 (07:27):
Not on this case, but just on something. Have you
done it before?
Speaker 3 (07:30):
I have not.
Speaker 4 (07:31):
I have not, but I hope, hope at one point
in my career I.
Speaker 3 (07:34):
Get that opportunity.
Speaker 4 (07:35):
But you know, ADF just has so many amazing brilliant
attorneys that they could they could could go for many
years before and before.
Speaker 3 (07:43):
They get to lead.
Speaker 1 (07:44):
You do have a very strong team. I have a
lot of them on my show.
Speaker 2 (07:47):
Mallory Slate is legal counsel at Alliance Defending Freedom ad
F legal dot org.
Speaker 1 (07:53):
Thanks so much for taking time to join us. I
appreciate it.
Speaker 3 (07:56):
Thank you all right,
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