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.
Clay Calvert, 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?, 47 Pepp. L. Rev. 1 (2020)