A Consequential Supreme Court Term Begins With a Conversion Therapy Case

Summary

Podcast Summary: The Daily – “A Consequential Supreme Court Term Begins With a Conversion Therapy Case”

Date: October 9, 2025
Host: Natalie Kitroeff (New York Times)
Guest: Ann Marimow (Supreme Court Correspondent)

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Overview

This episode explores the beginning of a pivotal Supreme Court term, focusing on a major case regarding the constitutionality of state bans on conversion therapy for minors. The discussion centers on the legal, cultural, and political ramifications of the Colorado case, featuring in-depth analysis of the oral arguments, judicial questioning, and broader implications for American society.

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Key Themes and Discussion Points

1. Significance of the Supreme Court’s Docket This Term

• The term is dominated by cases with far-reaching impacts on presidential powers, culture war issues, and individual rights.
• Notable upcoming cases: Trump-era tariffs, the president's authority over federal agencies, transgender athletes’ participation in sports, prisoners’ religious rights, and—front and center—conversion therapy bans.
• Ann Marimow (01:57):
  “It’s a huge term. The Trump administration’s agenda is really going to dominate a lot of the docket.”

2. Background: Conversion Therapy and State Bans

• Conversion therapy aims to change sexual orientation or gender identity, widely discredited and condemned by major medical associations since the 1990s; over 20 states have banned it for minors.
• Ann Marimow (03:19):
  “Counseling that aimed to change the sexual orientation of gay teenagers or gender identity of transgender teens was really viewed as harmful and widely rejected... A lot of state legislators started to pass laws … to place restrictions on this type of therapy for minors.”

3. Colorado’s Law and the Challenge

• The law bans therapists from attempting to change a minor’s gender expression or same-sex attraction.
• The plaintiff, Kaylee Chiles, represented by the Alliance Defending Freedom, argues that the law violates her free speech because it restricts voluntary conversations with youth consistent with their faith.
• The law has never been enforced or used to punish any therapist.
• Ann Marimow (04:20):
  "[Chiles] wants to have voluntary conversations with young people who want to try to live a life consistent with their faith... Colorado’s law is interfer[ing] with those conversations in violation of her free speech rights.”

4. Oral Arguments: Speech vs. Conduct

Therapist’s Side (Alliance Defending Freedom):

• The law censors speech, not medical conduct—making voluntary talk therapy protected under the First Amendment.
• Distinction: Talk therapy (speech) vs. prescriptions/surgeries (conduct).
• ADF Lawyer (07:06):
  “Because the First Amendment depends on the difference between speech and conduct.”
• Concerns about a slippery slope—if states can regulate this speech, they could regulate all manner of counseling topics, e.g., divorce or abortion.
• ADF Lawyer (11:37):
  “That would allow states to silence all kinds of speech in the counseling room …”

Pushback from Liberal Justices:

• Justice Ketanji Brown Jackson (09:12-09:44) challenges the sharp distinction:
  “Why isn’t this regulation … the functional equivalent of ‘Scremetti’ [referring to laws on medical care for trans youth]? … Are you really arguing that therapists aren’t healthcare professionals? … Just because words are being used?”
• Justice Jackson invokes a Tennessee case (banning medical treatments for trans youth) to question consistency.
• Ann Marimow (10:19):
  "She really pressed the question of how is it possible for us to say those types of laws are okay, but in this case, Colorado can’t ban conversion therapy that it thinks is harmful?”

5. Harm Evidence and Medical Consensus

• Plaintiffs claim no specific evidence that voluntary verbal therapy uniquely causes harm.
• Medical associations (AMA, APA) argue all forms of conversion therapy are harmful and increase risk of depression, suicide.
• Colorado Solicitor General (17:13):
  “The harms from conversion therapy come from when you tell a young person, you can change this innate thing about yourself. And they try and they fail, and then they have shame and they're miserable, and then it ruins [their lives]."
• Justice Amy Coney Barrett (23:08) asks for concrete evidence; Colorado cites a major study associating conversion therapy with higher suicide rates.

6. Viewpoint Discrimination and the Law’s Scope

• Several justices, including conservative and liberal members, press on whether the law discriminates based on viewpoint.

• Justice Alito’s hypothetical: A therapist can affirm but not challenge a gay identity—potential viewpoint discrimination.

• Justice Elena Kagan (22:00):
  “If a doctor says, I know you identify as gay, and I’m going to help you accept that. And another doctor says, I know you identify as gay, and I’m going to help you to change that. And one of those is permissible and the other is not. That seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination.”

• Solicitor General admits the law does take a side but frames it as a necessary medical regulation to protect youth from harm.

7. Debate over Scientific Consensus

• Conservative justices, particularly Alito and Gorsuch, express skepticism about relying solely on scientific or medical consensus, reminding the court of past medical errors and politicization (e.g., eugenics, homosexuality as mental illness).
• Justice Alito (24:36):
  “But have there been times when the medical consensus has been politicized, has been taken over by ideology?”

8. Potential Outcomes and Broader Implications

• Two possible paths:
  • Return to lower court for heightened scrutiny of the law’s justification
  • A Supreme Court ruling declaring the law unconstitutional
• Case could be seen as another culture-war decision reinforcing a conservative legal agenda, especially if split along ideological lines.
• Ongoing pattern: The Court hears and decides major, contentious cases involving LGBTQ rights and religious freedoms.
• Ann Marimow (26:11):
  “I do think it’s interesting that we’re in this moment again where the Court is dealing with this intersection of the law and science. … It’s something that they need to wrestle with.”

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Notable Quotes & Memorable Moments

• Ann Marimow (03:19):
  "Conversion therapy ... was really viewed as harmful and widely rejected."
• Justice Ketanji Brown Jackson (09:12):
  "I’m wondering why this regulation ... isn’t really just the functional equivalent of [the Tennessee law]."
• ADF Lawyer (11:37):
  “That would allow states to silence all kinds of speech in the counseling room.”
• Justice Elena Kagan (22:00):
  “That seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination.”
• Justice Alito (24:36):
  "But have there been times when the medical consensus has been politicized, has been taken over by ideology?"
• Ann Marimow (26:11):
  “I do think it’s interesting that we’re in this moment again where the Court is dealing with this intersection of the law and science.”

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Key Timestamps

| Timestamp | Segment | |---------------|---------------------------------------------------------------| | 01:27 | Introduction to the term’s significance (Marimow interview) | | 03:19 | Background of conversion therapy bans | | 04:20 | Origin and key facts of the Colorado case | | 06:11 | Start of Supreme Court oral arguments | | 09:12 | Justice Jackson presses on distinguishing speech from conduct | | 11:37 | Slippery slope argument—scope of state power | | 14:16 | Court’s general receptivity to therapist’s argument | | 16:27 | Colorado’s argument: regulation as medical care | | 18:52 | Law’s narrowness—religious and “life coach” exemptions | | 20:03 | Justice Alito’s viewpoint discrimination hypothetical | | 22:00 | Justice Kagan on viewpoint discrimination | | 23:08 | Justice Barrett on evidence of harm | | 24:36 | Conservatives question medical consensus | | 26:51 | Possible outcomes and next steps | | 28:20 | Discussion of broader political implications |

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Conclusion

The episode offers a nuanced look into the Supreme Court’s consideration of conversion therapy bans, foregrounding the complex intersections of free speech, medical regulation, viewpoint discrimination, and judicial skepticism of scientific consensus. As with many recent high-profile cases, the decision could have sweeping effects not just for LGBTQ youth, but for the boundaries of professional speech, religious freedom, and the cultural direction of U.S. law.

Transcript

[Walmart Connect Host]

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[Natalie Kitchoev]

From the New York Times, I'm Natalie Kitchoev. This is the Daily. The Supreme Court began a new term this week, one where the justices will weigh in on issues of presidential power and on the most consequential culture war battles in America. In one of the first cases, the court considered whether to strike down a ban on conversion therapy, the controversial practice aimed at changing someone's sexual orientation. Today, my colleague Ann Marimo walks us through that case. It's Thursday, October 9th. Anne, welcome to THE Daily, first time on the show as our new Supreme Court correspondent.

[Ann Marimow]

Thank you. Really happy to be here.

[Natalie Kitchoev]

I'm really excited to talk to you because we are at the start of a new Supreme Court term, and it's one I think a lot of us have been anticipating and waiting for because the court is gonna be ruling on a number of big questions. We know that there are big questions related to the Trump administration among all these other cases on the docket. So I want to ask how you weigh the importance of the cases that are before the court right now.

[Ann Marimow]

Yeah. So as you said, it's a huge term. The Trump administration's agenda is really going to dominate a lot of the docket.

[Natalie Kitchoev]

Right.

[Ann Marimow]

Already we have in November the case about Trump sweeping tariffs. They're going to look at whether the president has the power to fire independent government regulators who are supposed to be protected by Congress. And then in January, they're going to look at does the president have the authority to fire a governor of the independent Federal Reserve Board?

[Natalie Kitchoev]

Right. So some pretty big questions about what Trump can and can't do.

[Ann Marimow]

Exactly. But there are also all of these other cases that will have critical impact on the lives of Americans that are as important and that we're also watching this term. The court's going to look at the rights of transgender athletes to participate in girls and women's sports, the religious rights of prisoners. And the court wasted no time in its first week back on the bench turning to one of these big culture war issues and taking up the issue of whether or not states can ban conversion therapy for minors.

[Natalie Kitchoev]

Okay, so tell me about this case that we saw this week, because I think for a lot of us that are on the sidelines here, it seemed as though this case had kind of revived an issue that had been discredited a long time ago. Conversion therapy, it's something that feels a little like it's from another era. And now it's before the court.

[Ann Marimow]

That's right. So starting in about the 1990s, major medical associations had come to this consensus that counseling that aimed to change the sexual orientation of gay teenagers or gender identity of transgender teens was really viewed as harmful and widely rejected. A lot of state legislators started to pass laws between 2012 and 2024 to place restrictions on this type of therapy for minors. So this case arose out of Colorado, which is one more than 20 states with these similar laws.

[Natalie Kitchoev]

And what exactly did these laws say? Broadly speaking, yes.

[Ann Marimow]

So Colorado's law, and the laws like it, basically say that any practice or treatment that tries to change a minor's gender expression or eliminate their attractions to people of the same sex are ineffective and harmful and cannot be practiced in those states.

[Natalie Kitchoev]

And so tell me about the challenge to that law in Colorado. What's the case there?

[Ann Marimow]

So Colorado's law was passed back in 2019. This lawsuit was not filed until 2022 by Kaylee Chiles. She practices in a small bungalow office in Colorado Springs downtown, right near Colorado College. She said that she wants to have voluntary conversations with young people who want to try to live a life consistent with their faith. She gets some referrals through churches, and she says that Colorado's law is interfer with those conversations in violation of her free speech rights.

[Natalie Kitchoev]

And just to be clear, has she actually gotten in trouble for doing this?

[Ann Marimow]

No. Colorado's law has never been enforced against anyone. It includes fines of up to $5,000. Therapists can lose their licenses. But she has never been prosecuted for this or charged. But she says that her speech is being chilled because she's concerned about crossing that line. And so she's being represented by a real powerhouse at the Suprem Court. This is the Alliance Defending Freedom, an Arizona based Christian conservative law firm and advocacy group that's been behind a lot of cases at the court in recent years. In 2018, the court ruled in favor of one of their clients, Jack Phillips, who is a baker in Colorado, who had refused to make a wedding cake for a gay couple. And then in 2023, the justices also sided with ADF in another case from Colorado, this was a web designer who had refused to make wedding websites for same sex couples.

[Natalie Kitchoev]

And in each of these cases, these are individuals saying that their First Amendment rights are being violated.

[Ann Marimow]

Yes, just like Chiles in the conversion therapy case.

[Natalie Kitchoev]

Okay, so walk us through the oral arguments in this case involving Chiles. I also listened to them. But what stood out to you about how the arguments unfolded?

[Justice Alito]

We will hear argument first this morning in case 24539, Childs versus Salazar. Mr. Campbell.

[Alliance Defending Freedom Lawyer]

Thank you, Mr. Chief justice, and may it please the court.

[Ann Marimow]

So the argument began with the lawyer from Alliance Defending Freedom representing the therapist.

[Alliance Defending Freedom Lawyer]

Colorado forbids counselors like Kaylee Chiles from helping minors pursue state disfavored goals on issues of gender and sexuality.

[Ann Marimow]

He said Colorado can't turn this therapist into what he said is a mouthpiece for the government by forcing her to have the types of conversations the state thinks are appropriate.

[Alliance Defending Freedom Lawyer]

States should not manipulate private conversations between licensed professionals and clients.

[Ann Marimow]

He said over and over again that the state is censoring her speech, violating her ability to work with patients who come to her voluntarily to get the type of treatment they need.

[Alliance Defending Freedom Lawyer]

Because the First Amendment depends on the difference between speech and conduct.

[Ann Marimow]

So the therapist's lawyer tried to make a really clear distinction between the voluntary talk therapy that she wants to practice and traditional conduct. Doctors administering pills or delivering some sort of specific medical treatment.

[Alliance Defending Freedom Lawyer]

And so if we were in the medical context and there was something like administering drugs, performing procedures, conducting examinations, that would take it outside of the arguments we're making.

[Natalie Kitchoev]

Got it. So in this lawyer's view, what he's saying is there's a difference between being a doctor and handing someone pills and being a therapist and just talking to a patient.

[Ann Marimow]

Exactly. And that's a key distinction because the First Amendment protects speech, and the government can't infringe on the speech of individuals. And the Court has said that professionals don't lose that right to free speech just because they're operating in the professional context.

[Natalie Kitchoev]

Hmm.

[Ann Marimow]

So if the Court determines that this is just aimed at speech, then the state can't regulate that in a way that discriminates based on viewpoint. In contrast to states having the power to regulate medical practice to ensure patients are protected from substandard care.

[Natalie Kitchoev]

So let's talk about how the justices respond to that argument. What did you hear there?

[Ann Marimow]

I thought the most pushback on the therapist lawyer came from two of the liberal justices, Justice Sonia Sotomayor and Justice Ketanji Brown Jackson.

[Justice Ketanji Brown Jackson]

I guess it seems very OD that you could have two scenarios where you have two licensed professionals both attempting to provide treatment to an individual, say, for the same issue that, you know, the person says, I'd like to live consistently with my biological sex. I feel that I'm not doing that. I'd like your help. Medical professional A treats that quote, unquote condition with medication. Medical professional B treats that condition with talk therapy.

[Ann Marimow]

Justice Jackson, in particular, said she was having trouble distinguishing speech as a tool here to deliver the therapy and said, what's the difference between that kind of tool and other tools doctors use?

[Justice Ketanji Brown Jackson]

And I guess under your theory, those two scenarios are sufficiently different from a constitutional perspective that one could be allowed and the other not.

[Alliance Defending Freedom Lawyer]

I think that's potentially correct. Because the First Amendment would apply to the speech.

[Justice Ketanji Brown Jackson]

Just because words are being used to accomplish the therapy in one scenario and not the other?

[Alliance Defending Freedom Lawyer]

No, because only words are being used in the one scenario. Again, if there is a combination of words and conduct, I think that takes us into a different. Into a different realm.

[Natalie Kitchoev]

What she's saying here is kind of like, are you really arguing that therapists aren't healthcare professionals? Is that the claim you're trying to make? That the therapy itself isn't, you know, in and of itself, a medical intervention perspective?

[Justice Ketanji Brown Jackson]

I'm wondering why this regulation at issue here isn't really just the functional equivalent of Scremetti.

[Ann Marimow]

And she brought up that just a few months ago, the court's conservative majority upheld a Tennessee law barring certain medical treatments for transgender young people that the state had deemed unsafe. And she really pressed the question of how is it possible for us to say those types of laws are okay, but in this case, Colorado can't ban conversion therapy that it thinks is harmful?

[Alliance Defending Freedom Lawyer]

Well, from a very broad perspective, there shouldn't be equivalence, because obviously we have a First Amendment. So when you.

[Ann Marimow]

The key difference, he says, is that Tennessee's law was dealing with medication, with drugs. Colorado's law is dealing with the First Amendment and those speech concerns. So two different constitutional principles at play.

[Natalie Kitchoev]

You know, it seems plausible to me that legally these two things might be treated distinctly. I mean, counseling, obviously, can be a hugely important intervention that has a big impact on someone's mental health. But it seems plausible that it would be seen differently than taking medication or doing an operation. And you can see a slippery slope kind of concern here where if you start, you know, regulating the things that therapists say to their patient, there could be a lot of problems down the line.

[Ann Marimow]

Right. And the lawyer for the therapist said.

[Alliance Defending Freedom Lawyer]

Yet that would Allow states to silence all kinds of speech in the counseling.

[Ann Marimow]

Room, such as allowing Colorado to bar this type of treatment would open the door to laws barring discussion of other things like divorce or abortion.

[Alliance Defending Freedom Lawyer]

Here, Colorado can't stand satisfy any level of heightened scrutiny.

[Ann Marimow]

So the free speech aspect of the debate was a big part of the argument on Tuesday. And if the court decides that this type of law is infringing on free speech, it could send it back to the lower courts. And then the key test will be for the state to justify its law and say the harm that comes from conversion therapy justifies this infringement on speech and that the law is designed narrowly enough to make it worthwhile.

[Alliance Defending Freedom Lawyer]

And Colorado can't prove harm because it hasn't cited a study focusing on what's at issue here, voluntary speech between a licensed professional and a minor.

[Ann Marimow]

So with this in mind, the petitioner's lawyer then turns to the question of harm.

[Alliance Defending Freedom Lawyer]

Colorado certainly cites studies, but those studies suffer from significant flaws.

[Ann Marimow]

The therapist's lawyer said the studies are weak and biased.

[Alliance Defending Freedom Lawyer]

They treat voluntary conversations the same as shock therapy.

[Ann Marimow]

He said that the studies that Colorado is relying on don't address the type of voluntary talk therapy that she wants to provide. He said there's no evidence specifically about this type of therapy that it's harmful. She should be able to practice it with her clients.

[Natalie Kitchoev]

And just to ask, is that true, there are certainly people, right, who have said this kind of therapy ruined their lives or caused severe trauma.

[Ann Marimow]

Well, major medical associations like the American Medical association, the American Psychological association, still say that this is harmful, that conversations that try to change what they say is somebody's innate identity or sexual orientation are harmful to young people. But there is an emerging debate, especially around gender identity, where therapists are reconsidering the possible benefits of this type of therapy.

[Walmart Connect Host]

Thank you, counsel.

[Natalie Kitchoev]

Justice Thomas, Just to summarize, the lawyers for the therapist have basically said, look, this case turns on this key issue of whether this kind of therapy is speech or medical care, and we say it's speech. But even if you don't buy our argument that it's speech, even if you think it's medical care, while there's not enough evidence to say that the medical care is. Is harmful, that this is causing harm.

[Ann Marimow]

Right. And despite some tough questions from Justice Sotomayor and Justice Jackson, most of the court seemed pretty receptive to the therapist's lawyer's claims. Some of them didn't even ask questions, like Justice Brett Kavanaugh. But then it was time for Colorado's lawyer to stand up and try to make her case and to try to convince them otherwise.

[Natalie Kitchoev]

We'll be right back.

[Walmart Connect Host]

This podcast is supported by Walmart Connect. Hello marketers. At Walmart Connect, you'll find things no other retail media has. Not only do they have the most shoppers buying all kinds of things like TVs, groceries and toys, they get how shoppers tick and why they click, then help you connect with them everywhere. Because your bottom line isn't just about views or engagement. It's about the most valuable truth in advertising that your ads work. So let's spark innovation, let's spark growth, let's spark sales. Walmart Connect I'm Susan Lee.

[Daily Researcher and Fact Checker]

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[Natalie Kitchoev]

So the Colorado lawyer steps up, as you said, to make her case to these justices who had overall been quite receptive to the therapist's argument. Walk us through what that lawyer said.

[Solicitor General of Colorado]

Mr. Chief justice, and may it please the court.

[Ann Marimow]

Yes, it's two pronged. This is the Solicitor General of Colorado.

[Solicitor General of Colorado]

Throughout its history, this court has recognized that state power is at its apex when it regulates to ensure safety in the healthcare professions. Colorado's law lies at the bullseye center of this protection.

[Ann Marimow]

She says fundamentally, this is not speech.

[Solicitor General of Colorado]

The state cannot lose its power to regulate the very professionals that it licenses just because they are using words.

[Ann Marimow]

These are licensed providers. It's conduct. It's treatment. It's a clinical conversation.

[Solicitor General of Colorado]

And a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words.

[Ann Marimow]

And then she says, there is real harm. There's lots of evidence from these major medical associations.

[Solicitor General of Colorado]

The harms from conversion therapy come from when you tell a young person, you can change this innate thing about yourself. And they try and they try and they fail, and then they have shame and they're miserable, and then it ruins.

[Natalie Kitchoev]

She's basically disagreeing with the two main things that the therapist's lawyer says. She says this isn't speech, it's medical care. And by the way, it does cause harm.

[Walmart Connect Host]

Right.

[Ann Marimow]

And she says that's why so many other states have also passed laws barring conversion therapy.

[Natalie Kitchoev]

And walk us through how the justices respond to that, because it sounds like she's just saying the inverse of what they heard.

[Ann Marimow]

Right.

[Justice Alito]

If petitioner were a non therapist, would this be protected speech?

[Solicitor General of Colorado]

Well, so I wanted to mention.

[Ann Marimow]

So Justice Thomas said, well, what about other people who aren't licensed therapists? Are they allowed to practice conversion therapy?

[Solicitor General of Colorado]

But the law exempts religious ministers and ministries from this. And there is also a group of people called life coaches who could perform this therapy.

[Ann Marimow]

And in response, the lawyer from Colorado says this law is narrow. She says that there's an exemption for religious ministries. They're not trying to violate anybody's free speech rights, that this is specifically about somebody who has a license from the state and that they get to set the standard for what that practice looks like.

[Justice Alito]

So what if someone who was happened to be devoutly religious and actually relied more on the minister than the therapist? It seemed that that person would be equally dangerous.

[Ann Marimow]

He asked, what about religious ministries and life coaches? If this is such a dangerous practice, why is it not banned for those types of individuals?

[Solicitor General of Colorado]

Well, I think that that would be a personal choice that they were making to rely on their religious minister. It wouldn't be a representation from the state. If you go to a life coach or you go to someone else, they're not licensed by the state. You're not expecting them to be complying with standards of care. You have a different expectation.

[Natalie Kitchoev]

You know, I found this exchange really interesting because on the one hand, the lawyer for Colorado makes the law seem narrow in the sense that the harm of this to people who want to seek out this kind of conversion therapy is actually limited because they can get it if they want it, just not from a therapist. But on the other hand, the justices still have to deal with that fundamental question of whether it infringes on the speech of the people it does apply to.

[Ann Marimow]

Right. And that's what we heard from some of the other justices who questioned Colorado's lawyer.

[Justice Alito]

I don't really see a difference between the argument that you're making now and the argument that I thought we rejected in nifla.

[Ann Marimow]

So Justice Alito had very pointed questions for the Colorado attorney.

[Justice Alito]

Let me put that aside and ask about your interpretation of the statute.

[Ann Marimow]

And he did that by using a hypothetical.

[Justice Alito]

Suppose an adolescent male comes to a licensed therapist and says he's attracted to other males, but feels uneasy and guilty about those feelings, and he wants the therapist's help so he will feel comfortable.

[Ann Marimow]

He said, if a young person comes to a doctor and says that I identify as gay, the law allows the therapist to. To help that person affirm their sexual orientation.

[Justice Alito]

But this situation is similar. Adolescent male comes to a licensed therapist, says he's attracted to other males and he wants to end or lessen them, and asks for the therapist's help in doing so.

[Ann Marimow]

If a different teenager comes to a doctor and says, I identify as gay, the doctor is not allowed to help that teenager try to become straight.

[Justice Alito]

It seems to me your statute dictates opposite results in those two situations based on the view, based on the viewpoint expressed. One viewpoint.

[Ann Marimow]

So the law allows you to counsel in one direction, but not the other. And Justice Alito seemed to be making the point that this is sort of a classic type of law that the First Amendment prohibits.

[Natalie Kitchoev]

Basically, Alito's point here is the therapist in this case can tell a patient to lean into their gay identity, but can't tell them to change it. And that's discriminating based on the point of view of the speech in question, which the government can't do.

[Alliance Defending Freedom Lawyer]

Right.

[Ann Marimow]

When the government does that, it's very suspect and may be in violation of the First Amendment. And that led to one of the most surprising and really telling moments of the argument.

[Justice Elena Kagan]

I guess I had the same kind of question that Justice Alito had. I mean, if we assume, for example.

[Ann Marimow]

Liberal Justice Elena Kagan kind of leaned into Justice Alito's question and said, you know, I have the same question.

[Justice Elena Kagan]

If a doctor says, I know you identify as gay, and I'm going to help you accept that. And another doctor says, I know you identify as gay, and I'm going to help you to change that. And one of those is permissible and the other is not. That seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination.

[Ann Marimow]

And it does seem like a classic example of discrimination by government officials based on the viewpoint being expressed that would normally be subject to a high level of judicial review. And in response to Justice Kagan, Colorado's lawyer says, I don't disagree with that.

[Solicitor General of Colorado]

Justice, and that's why medical treatment has to be treated differently. You're Right.

[Ann Marimow]

We are picking sides in this debate because one type of treatment is harmful and that's why speech is different from treatment. The state is trying to protect young people from a harmful practice. And so we are saying that you're not allowed to practice conversion therapy. That's by design.

[Natalie Kitchoev]

And what about the Colorado lawyers argument that this care does cause harm? How do the justices deal with that?

[Ann Marimow]

Right. So there was another pointed question from Justice Amy Coney Barrett, who is often the swing vote and in the majority. Justice Barrett, what is your best evidence on this record that this kind of talk therapy by a licensed professional, licensed therapists to minors causes harm?

[Solicitor General of Colorado]

Sure, I would direct.

[Ann Marimow]

And she said, you know, what is your best answer to how this actually causes harm?

[Solicitor General of Colorado]

The Green study looked at 34,000 13 to 25 year olds who had gone through conversion therapy and after controlling for other factors, found there was a two times rate of attempted suicides among that group.

[Ann Marimow]

And the Colorado lawyer again pointed to major medical associations and studies over many years.

[Solicitor General of Colorado]

He looked specifically at childhood exposure and found association with adverse mental health outcomes.

[Ann Marimow]

In adulthood, saying that this can lead to increased risk for depression and suicide and said there's real harm here for young people.

[Justice Alito]

Justice Alito, your argument depends very heavily on the standard of care, which I take it is defined by the medical, by a medical consensus, Is that correct?

[Ann Marimow]

And even as she's talking about all of these studies, there is skepticism from conservative justices like Samuel Alito.

[Justice Alito]

But have there been times when the medical consensus has been politicized, has been taken over by ideology?

[Ann Marimow]

Who asked pointedly, can medical consensus be wrong?

[Justice Alito]

Was there a time when many medical professionals thought that certain people should not be permitted to procreate because they had low IQs?

[Ann Marimow]

So he brings up a time in the 1920s when medical professionals thought that certain people should not be permitted to procreate.

[Solicitor General of Colorado]

We have no facts about that in this case, but I wouldn't disagree that that's possible. And I think it's a really, isn't.

[Justice Alito]

That a fact that it's happened in the past?

[Ann Marimow]

And he quotes from the Court's majority opinion back in 1927 which upheld that sterilization program written by Justice Oliver Wendell.

[Justice Alito]

Holmes, who said three generations of idiots are enough.

[Ann Marimow]

Wasn't it better for all the world because three generations of imbeciles are enough or not?

[Walmart Connect Host]

There were.

[Natalie Kitchoev]

He's saying, look, scientific consensus has been wrong before. That suggests it could be wrong again and we shouldn't rest our law on that.

[Justice Ketanji Brown Jackson]

Right.

[Ann Marimow]

And Justice Gorsuch makes the same point that medical consensus in the 1970s said that homosexuality was a mental illness.

[Alliance Defending Freedom Lawyer]

What if a state back then passed a law prohibiting talk therapy that affirmed homosexuality? Would that be subject to.

[Natalie Kitchoev]

It's interesting because the things that they're pointing to are really horrifying moments in our legal and scientific history. I mean, do you think that this line of questioning from the conservatives suggests that the justices that the Court doesn't trust scientific consensus anymore?

[Ann Marimow]

Well, I think Justice Alito was pretty clear that medical consensus can be very important. He says it's usually very reasonable. But he did point out there have been times when. When medical consensus has been politicized or colored by ideology. I do think it's interesting that we're in this moment again where the Court is dealing with this intersection of the law and science. We saw this last term when they took on the case involving gender affirming care for minors in Tennessee. And I think that it is going to keep coming back to the Court, and it's something that they need to wrestle with gender dysphoria.

[Justice Alito]

Thank you, counsel. The case is submitted.

[Natalie Kitchoev]

Okay, so given how these oral arguments played out this week, what do you think is going to happen in this case?

[Ann Marimow]

I saw two paths emerging from the argument. One, the Court could decide to send this back to the lower court and say, you got it wrong the first time. This is infringing on free speech, and you have to apply a higher level of scrutiny to the law and see if it's really justified. The other would be the Court just saying that it's unconstitutional and striking it down on its own. I mean, I think part of the equation will be, does Justice Kagan or even one of the other liberals join with the majority? And in that case, I could see them sending it back to the lower court.

[Natalie Kitchoev]

And from the way that you've described these arguments, it does seem clear that this case is actually very nuanced. And there were plenty of issues with the law that could be debated on their legal merits. And yet, because of the nature of the case, the politicized moment that were in, and the Court's recent history of ruling in favor of a bunch of conservative causes, it doesn't seem like a stretch to say that this will be perceived as the Court again pushing forward the conservative culture war agenda, both sides, I could see interpreting it that way. And I wonder if you see a world in which conservative legal activists jump on this to push the shift in the legal landscape even further in the direction they want.

[Ann Marimow]

I think it depends on how the court ends up ruling. I mean, if it's a 6 to 3 decision divided along ideological lines, that's certainly a real signal there. If one of the liberal justices does join and we get a narrower decision, that would show that the court is not as ideologically divided, but certainly it fits into the pattern of what we've seen from this court in recent years. It was just five years ago that the court actually expanded rights for gay and transgender workers. But ever since then, they've been slowly moving in this other direction, as we've talked about, of a case involving trans care for minors. There's another case last term where the justices said religious families could pull their children from story time in public schools that used books with LGBTQ themed characters. And there's questions about whether it could go even further. Will there be a reopening of the gay marriage case?

[Natalie Kitchoev]

Wow.

[Ann Marimow]

So we're seeing the justices continuously not shy away from these big cultural war issues. And I'm going to be looking to see how they respond to these cases from conservative activists that have the potential to reshape the country.

[Natalie Kitchoev]

Ann, thanks so much.

[Ann Marimow]

Thank you.

[Natalie Kitchoev]

We'll be right back.

[Walmart Connect Host]

This podcast is supported by Walmart Connect. Hello marketers. At Walmart Connect, you'll find things no other retail media has. Not only do they have the most shoppers buying all kinds of things like tv, groceries and toys, they get how shoppers tick and why they click, then help you connect with them everywhere. Because your bottom line isn't just about views or engagement. It's about the most valuable truth in advertising that your ads work. So let's spark innovation. Let's spark growth. Let's spark sales. Walmart Connect.

[Alliance Defending Freedom Lawyer]

It's your headline to unpack.

[Solicitor General of Colorado]

It's your one story to follow week by week.

[Walmart Connect Host]

It's your wordle to work through.

[Natalie Kitchoev]

It's your team to track.

[Alliance Defending Freedom Lawyer]

It's your 36 hours to explore.

[Natalie Kitchoev]

It's your marinade to master.

[Justice Alito]

It's your opinion to figure out.

[Justice Ketanji Brown Jackson]

It's your mattress to upgrade.

[Natalie Kitchoev]

It's your day to know what else.

[Walmart Connect Host]

You need to know today.

[Justice Alito]

The New York Times. It's your world to understand. Find out [e-mail] yourworld.

[Natalie Kitchoev]

Here'S what else you need to know today. Israel and Hamas have reached an agreement for the release of Israeli hostages in exchange for Palestinian prisoners, a breakthrough that could be a crucial step toward an end to the two year war in Gaza. President Trump, who helped broker the deal, said on social media on Wednesday that both sides had agreed to the first phase of the White House's peace plan. He said all Israeli hostages would be released and that Israel would pull back its troops to an agreed upon line.

[Alliance Defending Freedom Lawyer]

The world has come together around this deal, and that's something I would say that without that wouldn't happen.

[Natalie Kitchoev]

In an interview on Fox News Wednesday night, Trump said the hostages would probably be returned on Monday and said the deal would bring peace to the whole region.

[Alliance Defending Freedom Lawyer]

You know, many years they talked about peace in the Middle East. This is more than Gaza, this is peace in the Middle east, and it's an incredible thing.

[Natalie Kitchoev]

But many of the specifics of the agreement remained unclear. Trump's announcement came at 7pm Eastern on Wednesday night, 2am Thursday in Israel, Prime Minister Benjamin Netanyahu said that he had spoken with Trump and would convene his government on Thursday to sign off on the agreement. But Israel's initial statements didn't mention a troop withdrawal. Hamas said in a statement that the agreement would lead to the end of the war in Gaza and Israel's withdrawal from the territory. And earlier on Wednesday, President Trump said that Gov. J.B. pritzker of Illinois and Mayor Brandon Johnson of Chicago should be jailed, writing on social media that they hadn't done enough to protect ICE officers. Both Democrats have opposed Trump's deployment of National Guard troops in the Chicago area and criticized the administration's aggressive immigration raids. Today's episode was produced by Olivia Natt, Diana Wynne and Rachelle Bonga. It was edited by Rob Zipko, Devin Taylor and MJ Davis Lynn, with help from Paige Cowett, contains music by Marion Lozano and was engineered by Chris Wood. That's it for the Daily I'm Natalie Kitroef. See you tomorrow.

[Ann Marimow]

Foreign.

[Walmart Connect Host]

This podcast is supported by Walmart Connect. Hello marketers At Walmart Connect, you'll find things no other retail media has not only do they have the most shoppers buying all kinds of things like TVs, groceries and toys, they get how shoppers tick and why they click, then help you connect with them everywhere. Because your bottom line isn't just about views or engagement. It's about the most valuable truth in advertising that your ads work. So let's spark innovation, let's spark growth, let's spark sales. Walmart Connect.