Chiles v. Salazar – What Does It Really Mean?

The United States Supreme Court’s very recent decision in Chiles v. Salazar, 607 U.S. ___ (March 31,2026) has generated a lot of headlines. As is typical of headlines generally, these headlines do not completely reflect exactly what the Supreme Court said and did. In this post we are going to look at the decision in depth and hopefully provide you with a better understanding of the case.

         COLORADO LAW. Colorado regulates certain professional license holders including mental health therapists/counselors. The law contains an extensive list of actions that are deemed “unprofessional conduct”. Engaging in one or more of these activities can subject the license holder to discipline by the regulatory board up to and including revocation of one’s license. In 2019 Colorado passed the Minor Conversion Therapy law (MCTL). The law added the following to the list of unprofessional conduct:

                 “Engaging in conversion therapy with a patient who is under eighteen years of age”

         Colorado law defines conversion therapy as:

• “Conversion therapy” means any practice or treatment by a licensee, registrant, or certificate holder that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.

The law also provides that conversion therapy does not include therapy or counseling as long as the counseling does not seek to change sexual orientation or gender identity.

         Finally, Colorado law has a religious ministry exemption. Provided certain criteria are met, a therapist who is engaged in a religious ministry is exempt from the regulatory board’s jurisdiction. Therefore the therapist would be free to engage in conversion therapy with no consequences for his or her license.

         THE PLAINTIFF. Kaley Chiles filed suit against the state of Colorado challenging the MCTL. She is a licensed professional counselor in the state of Colorado. She first filed suit in the U.S. District Court in Colorado. She sought a preliminary injunction to stop enforcement of the law claiming among other things that the law infringed on her rights of free speech and free exercise of religion. The District Court denied her request for the injunction. She appealed that decision to the U.S Court of Appeals for the 10^th Circuit. That court upheld the lower court’s decision.

         Ms. Chiles then appealed to the U.S. Supreme Court.

         WHAT THE SUPREME COURT SAID. In an 8-1 decision the Court said that the law did in fact regulate speech based on viewpoint, not just conduct. In other words, her right to say things that were contrary to a viewpoint favored by the state cannot be infringed by calling it conduct. It is what she was saying, not what she was doing. The Court sent the case back to the trial court to apply a different test or standard to the law, as discussed below. As a side note, the Supreme Court did not issue her requested injunction, so as of now the law is still in effect technically.

         RATIONAL BASIS VS. STRICT SCRUTINY.  To fully explain the course of this case through the courts, we first need to discuss the levels of scrutiny used by the courts. When a person challenges a governmental action, e.g.. a law or regulation, there are three distinct tests used by the courts to decide the constitutionality of the action.

         The first is the rational basis test. This is the most lenient of the three tests. The question for the courts is whether or not the action has a rational basis. Is there a legitimate governmental interest involved? Is the action rationally related to that interest? The relationship between the action and the government’s reason for imposing it cannot be arbitrary. In these cases, the burden is on the challenger to prove that the action is irrational. This test was applied by both the District Court and the 10^th Circuit Court of Appeals in Ms. Chiles’ case.

         As its name implies, strict scrutiny is the highest level applied by the courts and the one the Supreme Court used in this case. It is usually reserved for laws that restrict the most fundamental rights, e.g. right to privacy, freedom of speech and religion. In strict scrutiny analysis, the government must prove the law is narrowly tailored to achieve a “compelling government interest” using the least restrictive means. What is a compelling state interest? While the courts have never set out a clear-cut definition of the term, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Sherbert v Verner, 374 U.S. 398 (1963)(state’s denial of unemployment benefits to one who refuses work on the Sabbath for religious purposes, is unconstitutional. State’s assertion of administrative convenience — that is, that it would be easier to deny benefits to all than to ascertain which workers’ actions were sincere — neither met a compelling governmental interest nor even the least restrictive means test.) Narrowly tailored means that if the government action encompasses too much (is overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored. Finally, least restrictive means exactly what it says, namely there must not be a less restrictive way to effectively achieve the compelling government interest.  Ashcroft v. ACLU, 542 U.S. 656 (2004) (Court held that the Communications Decency Act of 1996, Congress’ first attempt to make the Internet safe for minors by criminalizing certain Internet speech, was unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available),

         Another example of application of the strict scrutiny test is Brunson v. Freeman, 504 U.S. 191 (1992). Tennessee law prohibited campaign signs, posters, distribution of campaign materials and solicitation of votes for or against any candidate within one hundred feet of any polling place. The state was sued, claiming the law violated the right of free speech. The Court said it had to reconcile the right to engage in political discourse with the right to vote. The Court held that the state: had a compelling state interest in protecting voters from confusion and undue influence, it was narrowly tailored to address the interest to be protected, the one hundred foot requirement does not impose a significant impingement on the first amendment.

         THE LOWER COURT DECISIONS.

                 THE DISTRICT COURT DECISION

The case began in the United States District Court for the District of Colorado. As part of her lawsuit Ms. Chiles sought a preliminary injunction against the enforcement of the MCTL prior to having a trial. She alleged that the MTCL “prohibits her ability to assist minor clients seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with their physical bodies”, in essence to “cure” gays and dissuade those with transgender ideation. She argued that because she only performed “talk therapy” the law was infringing her freedom of speech. This distinction was relevant because some conversion therapists have used procedures such as brain surgery, chemical castration, and aversion therapy.

The District Court denied that request in a detailed twenty-page Order. The first issue addressed by the court was the question of what exactly the law regulated. Colorado argued that it regulated professional conduct, not speech. Ms. Chiles of course argued that the law regulated her speech, i.e. it regulated what she could say in the course of her talk therapy. Deciding this issue determines what test the court ultimately applies to the MCTL, rational basis or strict scrutiny.

The District Court held that the law regulated professional conduct. The Court’s opinion cited a number of cases holding that regulation of professional conduct are constitutionally permissible even though that conduct incidentally involves speech. First Amendment heightened scrutiny does not apply to incidental regulation of professional speech that is part of the professional practice. Therefore strict scrutiny was not applicable and the court applied the rational basis test

Applying the rational basis test to the case, the Court held that the MCTL had a legitimate interest, i.e. harm to minors and the law has a rational approach to preventing that harm.

THE COURT OF APPEALS DECISION

         The 10^th Circuit Court of Appeals agreed with the lower court that the rational basis test was the correct test to use. The decision holds that the MCTL passed the rational basis test and was therefore constitutional.

THE SUPREME COURT DECISION

         As referenced above, the Supreme Court disagreed and held that the strict scrutiny test must be used. 

         WHAT’S NEXT. The case will now be sent back down to the first court that heard the case, the federal District Court in Colorado. That court will then have to apply the strict scrutiny test to the matter. I would imagine the court will require further legal submissions and may need to conduct further hearings. Keep in mind that the case has not even proceeded to a trial. All of the proceedings so far have been based on the court’s refusal to grant a preliminary injunction.