Lincoln's LGBTQ 'Conversion Therapy' Ban in Legal Limbo Following SCOTUS Ruling

by John Gage

The city of Lincoln is weighing legal options regarding its LGBTQ “conversion therapy” ban following a ruling Tuesday by the U.S. Supreme Court striking down a similar ban in Colorado.

“The City Attorney’s Office is aware of the Supreme Court ruling overturning a conversion therapy ban in Colorado, at this time the City Attorney’s Office is reviewing what that ruling means for the City of Lincoln’s Ordinance banning conversion therapy,” a spokesperson for the city told The Plains Sentinel.

Multiple attorneys with conservative groups familiar with the Supreme Court ruling told The Plains Sentinel that the ordinance is now “clearly” unconstitutional. Matthew Heffron, senior legal counsel with the Thomas More Society — a national non-profit, public interest law firm that fought the initial passage of the measure, said that the ordinance, for all intents and purposes, was dead.

“It’s now dead in the water,” Heffron said. “To the extent that the Colorado law is unconstitutional, the Lincoln ordinance is unconstitutional as well.”

“When it’s unconstitutional, then there’s nothing they can do with that. If you try and enforce it against someone, then that person would challenge it based on this Chiles case,” he added.

Heffron said both the Colorado and Lincoln measures were “clearly” drafted off the same general template. “There’s very little difference between the two,” he said. “Just a few minor words.”

Heffron said he expects the city will likely repeal the ordinance sooner rather than later.

ACLU Nebraska, which supported the ordinance, said the Supreme Court decision “could” impact the ordinance. “Our legal team hasn’t yet had a chance to digest the full Chiles opinion, so we’re not positioned to make any definitive conclusions on its local impact,” a spokesperson for the organization told The Plains Sentinel. “The decision, of course, could prevent the enforcement of any city or state prohibitions that mirror Colorado’s.”

SCOTUS Overturns Ban

The U.S. Supreme Court ruled 8-1 in Chiles v. Salazar in favor of a Christian counselor, Kaley Chiles, who challenged a Colorado law banning “conversion therapy” for LGBTQ children. Justices ruled that the law violated the First Amendment and entailed viewpoint discrimination.

Under Colorado’s law, “conversion therapy” was defined as “any practice or treatment” that “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 towards individuals of the same sex.”

Heffron said that both the Colorado law and the Lincoln ordinance both discriminated against particular viewpoints. “These statutes prohibited adults from helping children,” he said, adding that it only allowed counselors and therapists to “talk one way” on LGBTQ issues. “It’s okay to encourage it, but you cannot even help the child if the child wants to move away from same sex attraction or transgender-type behaviors.”

Justice Elena Kagan, one of the court’s liberal-leaning justices, wrote that the law “suppressed” opposing viewpoints. “Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward,” Justice Kagan wrote in her opinion.

Heffron said that the court finds viewpoint discrimination particularly “egregious.” “There’s a long history of First Amendment constitutional opinions that say ‘when you are regulating the content of what can be said that is almost always, presumptively, going to be unconstitutional,’” he said. “And it’s even worse if you are regulating or favoring a particular viewpoint.”

City Touted Ban

The Lincoln City Council and Mayor Leiron Gaylor Baird made Lincoln the first city in Nebraska to impose such a ban with the city ordinance in 2021. The council voted 5-1 in favor of the measure.

While the Colorado law banned “conversion therapy” regardless of age, the Lincoln ordinance only targeted minors. The ordinance was enforced by the Lincoln Commission of Human Rights, which could levy fines against counselors, psychiatrists, and therapists who violated the ordinance.

Following its passage, the mayor praised the ordinance as progress for the city. “I am heartened by the council’s action this evening to protect the safety and health of youth in our community,” Baird said. “Conversion therapy is a discredited practice that can cause lasting harm.”

Lincoln City Council Member James Michael Bowers, who brought the ordinance, touted it as a measure that “saves lives.” Bowers did not return a comment at the time of this story.

John Gage is the executive editor of The Plains Sentinel.

(Picture credit City of Lincoln)