Federal Appeals Court Rules Against Religious Liberty on Same-Sex Attraction

California can ban offering religious-viewpoint therapy to people who seek to deal with unwanted same-sex attractions, a federal appeals court ruled late last year in a matter that may now go to the Supreme Court.

Christianity and the orthodox religious faiths–such as Judaism and Islam–regard marriage as the union of a man and woman, an institution to create children and provide a stable structure into which those children are born, and to provide for those kids’ protection, care, education, and upbringing. These are also the public interests in marriage that have formed the basis of marriage laws and society’s recognition of marriage for thousands of years.

But human beings are sexual creatures, and sexual drive is one of the strong human passions. Christianity and many other faiths regard any sex outside of marriage as sinful, which would include not just homosexual actions but also adultery, pre-marital sex, addiction to pornography, and so on. Faithful Christians and followers of other faiths can find themselves struggling with unwanted sexual feelings and seek counseling to help control their sexual behavior.

One of the latest trends among homosexual activists in liberal states is to say that when counseling is being offered regarding same-sex attraction, it is harmful to the patient and must end. Therefore California passed a law making it illegal for counselors to engage in any speech counseling someone against homosexual behavior. The law does nothing to stop speech on any other type of extramarital sex, such as a young woman trying to save herself for marriage, or a married man in a struggling marriage seeking to stay faithful to his wife, or a young man trying to stop viewing pornography. It singles out this one type of extramarital sexual activity and forbids counseling.

Liberty Counsel is a Christian law firm that filed a federal lawsuit challenging the law, arguing that California’s statute violates the First Amendment right of these counselors to express their religious viewpoint to willing patients. It also violates the First Amendment right of those patients to seek out and discuss information that they believe will help them cope with their urges.

On Jan. 29, the Ninth Circuit rejected Liberty Counsel’s petition to rehear the case en banc–where the court’s chief judge chairs a panel of eleven judges to rehear the case and supersede the decision of the standard three-judge panel.

Judge Diarmuid O’Scannlain issued a vigorous dissent from the court’s decision not to rehear the case, saying:

The panel cites to no case holding that speech, uttered by professionals to their clients, does not actually constitute ‘speech’ for purposes of the First Amendment. And that should not surprise us–for the Supreme Court has not yet recognized such a category… The Supreme Court has chastened us lower courts for creating, out of whole cloth, new categories of speech to which the First Amendment does not apply. But that is exactly what the panel’s opinion accomplishes in this case.

Liberty Counsel will now petition the Supreme Court to take this case, Pickup v. Brown. Liberty Counsel also has cases against New Jersey’s anti-therapy law, King v. Christie and Doe v. Christie.

Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.