April 8, 2026 | Volume 33, Issue 10
This Report summarizes opinions issued on March 31, 2026 (Part I); and cases granted review on April 6, 2026 (Part II).
Opinions
Chiles v. Salazar, 24-539.
By an 8-1 vote, the Court held that, as applied to “talk” therapy, Colorado’s ban on conversion therapy for minors is subject to strict scrutiny under the First Amendment because it is a viewpoint-based restriction on speech that is not merely incidental to conduct. Kaley Chiles is a formally educated mental health clinician and licensed counselor in Colorado. As part of her practice, she assists those who “hope to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with their bodies,” exclusively through talk therapy. Colorado, though, enacted a law in 2019 that prohibits mental health counselors from engaging in “any practice or treatment . . . that attempts . . . to change an individual’s sexual orientation or gender identity,” as well as any “effor[t] to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions toward individuals of the same sex.” Following that law’s passage, Chiles brought a pre-enforcement as-applied challenge, seeking to enjoin to the law. Both the district court and the Tenth Circuit denied her request for a preliminary injunction. In so holding, these courts concluded that the law was subject to rational-basis scrutiny because its restrictions on speech were merely incidental to its broader regulation of professional conduct. In an opinion by Justice Gorsuch, the Court reversed and remanded.
The Court began with the established principles that laws regulating speech based on its subject matter are “presumptively unconstitutional,” and viewpoint discrimination in which the government “seeks to dictate what particular ‘opinion or perspective’ individuals may express on that subject” is a particularly “‘egregious form’ of content regulation” from which lawmakers “must nearly always abstain.” Such restrictions automatically trigger strict-scrutiny review, except with respect to a “few historic and traditional categories of expression,” including fraud, defamation, and “fighting words.” Applying these principles, the Court concluded that “the courts below failed to apply sufficiently rigorous First Amendment scrutiny.”
The Court ruled that, while Colorado’s ban has several constitutionally sound applications, including prohibition of “aversive physical interventions” that were historically employed in conversion therapy, its application to Chiles’s clinical practice amounts to a restriction purely on spoken word. Further, the law seeks to regulate not only the subject matter of Chiles’s speech, but also what views she is allowed to express on those topics. Under its law, she may not speak in any way that attempts to change a client’s “sexual orientation or gender identity”—including a client’s “behaviors or gender expressions”—or in any way that seeks to “eliminate or reduce” a client’s “sexual or romantic attraction or feelings toward individuals of the same sex.” Yet she is free to encourage the opposite view by expressing “[a]cceptance, support, and understanding for the facilitation of . . . identity exploration,” as well as offering words of “[a]ssistance” to clients “undergoing gender transition.” Thus, the restriction represents “an egregious form of content discrimination” where First Amendment concerns are at their most “blatant.”
In reaching its conclusion, the Court rejected several arguments offered by Colorado. First, the Court noted that under Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), and NIFLA v. Becerra, 585 U.S. 755 (2018), robust constitutional protections apply to the regulation of speech uttered by licensed healthcare professionals. The Court did not find persuasive historical evidence justifying creation of “a new rule exempting a broader ‘category called professional speech’ from demanding First Amendment review.” Specifically, Colorado’s discussion of the historical practice of regulating healthcare professionals analyzed the issue at “far too high a level of generality,” especially since the practice of formally licensing counselors was a relatively recent development. Further, such regulation traditionally concerned the qualifications of practitioners, rather than exerting control over the content of their professional opinions. And while the concept of medical malpractice historically created a cause of action against licensed professionals who deviated from the standard of care, this is not akin to a prior restraint on speech that is divested from patient consent or a showing of harm.
Second, the Court explained that this case did not involve the two previously identified circumstances in which speech by professionals may warrant “diminished” First Amendment protection, namely, “when a law seeks to compel disclosure of factual, noncontroversial information in commercial speech; and when a law regulates speech only incidentally to conduct.” Colorado’s law does not merely require disclosure of certain objective information, but instead “seeks to suppress views Ms. Chiles wishes to express” on the issue of how best to help a young person achieve their goals related to sexual orientation and gender identity. And it regulates her “speech as speech,” rather than merely enacting an incidental restriction on words bearing some close relationship to other unlawful medical treatments or physical interventions. The Court relied on Holder and Cohen v. California, 403 U.S. 15 (1971), for the proposition that the government cannot enact otherwise-impermissible restrictions on speech merely by categorizing such expression as a form of “conduct” or “treatment.” The Court further explained that (for this as-applied challenge) it does not matter that the law itself is predominantly aimed at combatting conduct-based conversion therapy techniques.
Justice Kagan wrote a concurring opinion that Justice Sotomayor joined. She agreed with the Court’s conclusion that Colorado’s law amounted to viewpoint discrimination and did not fall within any of the exceptions to the strict-scrutiny requirement. Justice Kagan noted that the same result would obtain if a state had passed a ban on gender-affirming care while endorsing the use of conversion therapy. But she wrote separately to emphasize the narrow scope of the decision, and opined that the outcome might be different if a similar healthcare law is content based but viewpoint neutral.
Justice Jackson authored a 35-page dissenting opinion. She first emphasized the medical field’s consensus regarding conversion therapy’s dubious efficacy and potential for adverse psychological effects on minors, including when such interventions are administered via talk therapy. She then noted the century-old recognition that “there is no right to practice medicine which is not subordinate to the police power of the States.” Applying this principle alongside the long history of states regulating licensed healthcare practitioners to protect citizens from substandard care, Justice Jackson found that Colorado’s law is a legitimate regulation on the manner in which medicine is practiced. In her view, it only incidentally limits speech that is associated with professional conduct. Justice Jackson criticized the majority for failing to understand the “crucial context” of the case: that while Chiles’s conduct involves only spoken words, it is a medical treatment that deviates from the accepted standard of care in a way that is harmful to those who entrust their wellbeing to her.
Justice Jackson maintained that the medical care Chiles provides does not trigger heightened scrutiny under NIFLA and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), precisely because the compulsion at issue occurs “only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Indeed, she opined that enforcement of a standard of care would always be viewpoint based, since it necessarily prioritizes competence over debate. Conversely, noted Justice Jackson, Colorado’s law does not restrict Chiles’s ability to criticize the ban or encourage and support the use of conversion therapy; it simply prohibits her from providing that talk therapy as part of her practice. Finally, Justice Jackson expressed her concern that this opinion would undermine “the long-recognized responsibility of States to regulate the medical profession for the protection of public health.”
Cases Granted Review
Johnson v. United States Congress, 25-735.
At issue is whether district courts have jurisdiction over constitutional challenges to statutes affecting veterans’ benefits or whether the Veterans’ Judicial Review Act (VJRA) grants jurisdiction over such claims only in the Court of Appeals for Veterans Claims and the Federal Circuit. In 1930, Congress established a review scheme for veterans benefits within the Department of Veterans Affairs (VA), which allowed the Board of Veterans’ Appeals to hear appeals within the VA. The law contained a “no-review clause,” stripping courts of jurisdiction to review “decisions of the Administrator.” In Johnson v. Robison, 415 U.S. 361 (1974), the Court held that, despite the “no-review clause,” district courts have subject matter jurisdiction over constitutional challenges to the laws governing veterans’ benefits. The Court reasoned that a constitutional challenge to a statute does not involve a “decision of the Administrator”; rather, it involves “a decision of Congress.” In 1988, Congress amended the review scheme in the VJRA. That statute created the Court of Appeals for Veterans Claims (Veterans Court), an “Article I” court vested with “exclusive jurisdiction to review decisions of the” Board of Veterans’ Appeals. Further review is available in the Federal Circuit, which also has “exclusive jurisdiction.” The VJTA also contains an amended “no-review clause,” which provides that, subject to the provisions authorizing review of VA decisions in the Veterans Court and the Federal Circuit, “the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.” 38 U.S.C. §511(a).
Petitioner Floyd Johnson is a veteran who served in the U.S. Army and was honorably discharged. Many years later, he was convicted of several felonies and sentenced to prison. While incarcerated, he was diagnosed with post-traumatic stress disorder. Johnson sought service-connected disability benefits, and the VA classified him as having an 80 percent disability rating. But by statute, certain incarcerated veterans are limited to a 10 percent disability rating. 38 U.S.C. §5313. Johnson raised facial constitutional challenges to the statute, but the district court summarily dismissed the case. The Eleventh Circuit vacated and remanded with instructions to dismiss for lack of jurisdiction under the VJRA. 151 F.4th 1287.
The Eleventh Circuit first noted that Congress is not a proper defendant, but an amendment to name the Secretary of Veterans Affairs would be futile because the law vests “exclusive jurisdiction to review challenges to the constitutionality of veterans’ benefits laws in the [Veterans Court] and in the Court of Appeals for the Federal Circuit.” The Eleventh Circuit explained that the VJRA “provides an exclusive scheme of judicial review” and that the text of the statute does not distinguish between facial and as-applied constitutional challenges. The court noted that Robison involved a statute that would have left veterans without the ability to obtain judicial review in any court, but the modern VJRA permissibly channels cases to a specific forum.
Johnson claims in his petition that the VJRA did not explicitly strip district courts of jurisdiction to hear constitutional challenges to VA statutes, pointing out that the new statute kept the same language interpreted by the Court in Johnson v. Robison, and thus should be read as incorporating that decision. Noting that Elgin v. Dep’t of the Treasury, 567 U.S. 1 (2012), held that Congress’s intent to preclude district court jurisdiction must be “fairly discernible in the statutory scheme,” Johnson argues that the VJRA addressed this issue by explicitly barring district court jurisdiction over some claims while preserving the language from Robison allowing district courts to hear constitutional challenges. Johnson further argues that the VJRA’s text preserves the distinction the Court made in Robison between a challenge to a statute passed by Congress and a challenge to the VA’s administrative decisions. Finally, Johnson asserts that six circuits have relied on Robison to find district court jurisdiction over cases raising constitutional challenges to VA statutes, while only the Eleventh and Eighth Circuits reject that rule.
In its response brief, the federal government acknowledges a narrower split and that “this case is a suitable vehicle for resolving the question,” and agrees the Court should grant certiorari. The government defends the merits of the Eleventh Circuit opinion, arguing that Robison applied only to the “preclusion of all judicial review rather than the channeling of judicial review to a specified forum.” In the government’s view, the current VJRA review provisions obviate the Court’s concerns in Robison with interpreting the statute to preclude all judicial review of a constitutional claim.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Kevin Morrow, Supreme Court Fellow
- Michael Butera, Supreme Court Fellow
The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services. Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.
