Bloomberg LawFirst Amendment law expert Caroline Mala Corbin, a professor at the University of Miami Law School, discusses the Supreme Court deciding to review a challenge to Colorado’s ban on conversion therapy. Environmental law expert Michael Gerrard a professor at Columbia Law School and founder and faculty director of the Sabin Center for Climate Change Law, discusses the Trump administration weakening one of the country’s oldest environmental laws. June Grasso hosts.
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The movie boy Erased is about the gay son of ultra religious parents who sent to conversion therapy to change his sexual identity, which conflicts with his parents Christian beliefs. It's based on the memoir by Garret Conley that exposes the abuses of conversion therapy. Twenty eight states fully or partially banned conversion therapy, which the major medical and mental health organizations in the US have condemned for decades as unscientific and potentially dangerous for teenagers, increasing the risk of depression, substance abuse, and suicide. And now the Supreme Court has decided to take up a First Amendment challenge to Colorado's ban on conversion therapy. A licensed counselor who views her work as an outgrowth of her Christian faith, says the band violates her First Amendment free speech rights. My guest is First Amendment law expert Caroline Malick Corbin, a professor at the University of Miami Law School. Caroline tell us about this case.
So, the Supreme Court has granted thirt meaning it will hear a case involving a law that bans what is known as conversion therapy. Its more official designation is sexual orientation change efforts, and this is basically an attempt to make gay kids straight. That's their historical origins. More specifically, the law says that licensed counselors, so it's limited to licensed counselors, cannot practice conversion therapy on minors. So if you want to undergo this so called counseling as an adult, you are allowed to, but practitioners of mental health cannot practice conversion therapy on minors. I also note that there is an exemption for therapists engaged in the practice of religious ministry. So the reason why the law has banned conversion therapy is that it is unscientific, harmful, and futile. So all the reputable medical associations have come out against it for two reasons. One, you can't change someone's sexual orientation, and second, studies show that it actually hurts kids. So, for example, one study found that even holding constant other valuables, the children who have been subjected to this therapy or twice as likely to think about suicide and at least twice as likely to try suicide. So, states who have a long history of regulating the medical profession and ensuring that practices conform with standards of care decided this is not a practice we should allow in our states, and Colorado is one of about twenty states that therefore have forbidden this practice four licensed medical professions as applied kids minors, children under eighteen. So that's the law that's being challenged. Now.
This licensed professional counselor, Kaylie Chiles is challenging it, saying it violates her rights to free speech. I mean, she did a free exercise of religion. Lame I think below, But this at the Supreme Court is just about violating her free speech rights.
Correct. She brought two claims below. But the only question that is going before the Supreme Court is whether a law banning a particular counseling practice violates the free speech.
Clause, how does the counselor say it violates her free speech rights.
The legal question turns on whether you think of counseling as a conduct, the practice of medicine, or you think of counseling as pure speech. And this matters because the government has a lot more leeway to regulate the practice of medicine even if it incidentally affects speech, then it does regulating speech. Generally, the presumption is that if the government is regulating speech because of its content or viewpoint, if it's trying to tell people what they are allowed or not allowed to say, that kind of content regulation is presumptively unconstitutional. Generally, we don't want the government deciding what we're allowed to say or what we're allowed to hear. So if this is considered a regulation of speech, then it is problematic under the free speech clause. It's not automatically unconstitutional, it's presumptively unconstitutional. On the other hand, if it is viewed as in regulation of medical practice the regulation of conduct, then the state is going to have a much easier time of showing this is just ensuring that people who are licensed by the state are meeting standards of care. In the medical practice. And this is something the states have always done right regulate what doctors can and can't do, and including folding into that what they can and can't say as part of their practice of medicine.
The tense Circuit Court of Appeals, in a divided opinion sided with Colorado, explain what their reasoning was.
Okay, here's the thing. This is not the first time court has ever encountered the question of how should we think about regulation of medicine even if it involves speech. And the backdrop to this case is the Supreme Court's ruling about abortion counseling. So this case is about mental health counseling. There is precedence on abortion counseling. By abortion counseling, I mean the laws in many states that require doctors before they provide an abortion to a woman requires the doctors to read, often a state dictated script about the dangers and perils of abortion and about the alternatives to abortion. So just about every state requires that abortion providers say this script or provide this information to women before they are allowed to have an abortion, and doctors challenge those regulations as violating their free speech. They said, you are compelling us to say things that aren't necessarily accurate and certainly not what we would normally say on under our normal practice of medicine. And the Supreme Court upheld the abortion counseling on the grounds that it was not a direct regulation of speech, but a regulation of the medical profession that happened to affect speech. So basically, the precedent that the Tenth Circuit relied on was precedent the Supreme Court had created when ruling about abortion counseling. And so the Tenth Circuit to just said, listen, if the state telling the doctors what they must say to women before they have an abortion, if abortion counseling is merely the regulation of the medical profession, then surely the regulation of a kind of therapy in mental health counseling is also the regulation of medicine that incidentally affects speech. That was the argument that the Tenth Circuit and probably the District Court below made to support their claims that this is not a direct attack on speech, it's a regulation of medicine.
In twenty twenty three, the Court refused to take a challenge to a similar ban in Washington State that was over the dessense of three justices Conservatives Clarence Thomas, Samuel Alito, and Brett Cavanaugh. So that means that they've gotten at least one other justice on their side, because they need four votes to take a case.
Exactly right. So generally one of the major reasons that the Supreme Court will decide to hear a case is if there's a circuit split. And there is a circuit split on this issue. So the Eleventh Circuit has held that these bans violate free speech claw us, and the ninth and tenth have held no, they are perfectly constitutional, And there was a split even a couple of years ago. But as you explain, the Supreme Court doesn't hear every appeal that goes before it. They only hear an appeal that at least four justices want to hear, and in twenty twenty three there were not four, but this year there are four, so that's enough to hear the case. We don't know who the fourth is because they don't announce who they are. I mean, we can guess that the dissenters are three of them, but we don't know who the fourth is.
Now I can't give one hundred percent guarantee on this, but it's most likely that the fourth vote is one of the other Conservative justices. Does the fact that it's the Conservatives that want to take this case up tell you that they're looking to reverse the Tenth Circuit, in other words, strike down the ban on conversion therapy.
Personally, I am always nervous when the Supreme Court grants cert in a case involving a Conservative Christian who wants to inflict some kind of harm on a vulnerable community like the LGBT community, because I think the Supreme Court is exceptionally receptive to the claims of conservative Christians, and I think they are especially willing or they really don't show much care about the consequences of the religious practices of conservative Christians and how they harm those in the LGBT community. So I'm worried. On the other hand, at this point, we know there are four votes, but we don't yet know if there are five votes. Though that is not all of that reassuring, but at least it's not a completely foregone conclusion.
Coming up the culture war classes at the Supreme Court. This is bloomberg. The Supreme Court has agreed to consider whether scores of state and local governments are violating the Constitution by banning conversion therapy. The Justices we'll hear a challenge to Colorado's ban from a licensed to Christian counselor who says the twenty nineteen law violates her free speech rights. I've been talking to Professor Caroline mal Corbin at the University of Miami Law School. Caroline, the licensed counselor who's challenging the ban is being represented by the Alliance Defending Freedom, which is a conservative Christian law firm and advocacy group that has one case is at the Supreme Court before in Colorado involving the baker who didn't want to bake cakes for gay weddings and the web designer who didn't want to design websites for gay weddings, even though no one had asked her to design a website for gay weddings.
Yes, the group that's bringing this is a group that regularly brings challenges to anti discrimination laws on behalf of conservative Christians, and this is yet another one, and they've had incredible success before the Supreme Court. I think they were also the group that challenged California's attempts to require crisis pregnancy centers, which often pretend to be comprehensive medical centers when they're not. They're just anti abortion places that try in lure women into their doors and then they lie to women about the availability of abortion to try and prevent them from having an abortion. Anyhow, California tried to deal with this practice by requiring crisis pregnancy centers to let people know that they were not, in fact a licensed medical provider, even though they often pretended to be one. And the Supreme Court, howd that violated the crisis pregnancy center's pre speech rights as well. And again I think that Alliance Defending Freedom Miner brought that case as well. So there is definitely a pattern of cases brought claiming free speech violations of regulations that are designed to protect from harm and to protect from discrimination, and these are getting struck down in the name of pre speech.
The Supreme Court seems to be, you know, with zest picking up these cases involving transgender youth or LGBTQ friendly books. I mean, we already heard the oral arguments over Tennessee's ban on gender affirming treatments for minors, and those arguments suggested that the conservative justices are likely to uphold that ban. And in April we're going to hear apparent challenging LGBTQ friendly books in the classroom. I mean, why is a court that's near the lowest levels of public approval in its history diving into all these culture war issues.
I cannot speak for the justices, but it may be that they have the power to remake the law to further their own views, and they're grabbing that power and using it.
And how did a case about LGBTQ friendly books in the Maryland school system where a federal appeals court said it wasn't even clear yet how the books would be used in the classroom, how does that get Supreme Court review? By the way, the books include one about a puppy that gets lost at an LGBTQ pride parade and a young child whose gender identity doesn't match his birth assigned sex.
So in that case, they're is a parent who objects to their child reading books with lgbt characters, and they make a claim based on parental rights that they have the right to opt their children out of reading books on the set curriculum in the name of religion. So they argument is our religion does not approve of this. It violates our religion if our apparently, if our child knows gay people exist, and therefore our child in public schools doesn't have to read this book, and we have a religious right to take our child who exempt our child from the curriculum. So that is another case before the Supreme Court. Again, when you have a conflict between conservative religion and LGBT rights, generally, with this particular Supreme Court, conservative religion wins. It almost doesn't matter what the doctrine is.
I'm still stunned by their ruling in twenty twenty two where they allowed a Christian football coach to pray at the fifty yard line right after games, surrounded by his high school players. And it seems like behind all these cases involving LGBTQ rights, it's really about religion.
I do think a lot of this is driven by religion, but often it's easier to make a speech claim rather than a religion claim, although not all of them or speech claims. One we're talking about now is the challenge to the conversion therapy ban is before the court a free speech claim, which again it's sort of speech is being used to attack regulations that people used to never think twice about, and so there is definitely a strand of people exploiting speech. At the same time, speech is crucial in a democracy, but we've always understood there were limits to.
It, Caroline. Also coming up in April is the effort to create the country's first religious public charter school. And they're heading in that direction too, aren't they.
Yeah, So in that case, the Supreme Court has decided a series of cases where it has held that if a state decides to provide some state funding for private non religious schools, it also has to provide funding to private religious schools. That to refuse to fund religious schools when it's funding secular schools is discrimination against religion. Of course, the problem with these rulings is to completely ignores that they're actually two religion clauses in the First Amendment, one of which is the Establishment Clause, which was long understood to prohibit direct government funding of religion. So that's the backdrop, and the case you're talking about is now there is an argument that not only does it discriminate against religion not to fund private religious schools, but it might discriminate against religion not to fund charter schools which are not entirely private, and so we may yet see a ruling where the Supreme Court says the free exercise clause requires the government to fund a public Christian school, which is again really turning the religion clauses on their head and completely ignoring the establishment clause.
What has happened to the principle of separation of church and state. It seems to have vanished.
Conservative Christians, particularly the Christian nationalists. They love that the United States is when it comes to in these days, I think what matters more than your particular denomination is whether you're conservative or not conservative. Some people might even argue that the real distinction are those who support Christian nationalism and those who don't. Probably people have heard of this term Christian nationalism. That's the idea. It's sort of the opposite of separation of church and state. It believes that the church and state should be one and that one should be espousing conservative Christian views and values. And I think we're seeing a lot of Supreme Court decisions that really facilitate the growth of Christian nationalism in the United States.
The arguments over whether states with public charter schools are constitutionally required to approve and fund religious institutions. Will be heard on the final day of oral Arguments this term the last day of April, and it may be illuminating about the conservative justice is take on the separation between church and state, or maybe not. We shall see. Thanks so much, Caroline. That's Professor Caroline Malacorbin of the University of Miami Law School. Coming up next on the Bloomberg Law Show. The Trump administration clips the wings of the Migratory Bird Treaty Act, one of the nation's oldest environmental laws. I'm June Grosso when you're listening to Bloomberg. The Interior Department has suspended all Biden administration Interior Solicitor's memorandum opinions related to the environment to allow for the Trump administration to review them because they may conflict with Trump's political agenda. The suspensions include interiors interpretation of the Migratory Bird Treaty Act of nineteen eighteen, one of the country's oldest environmental laws, limits on offshore oil and gas leasing, the revocation of mineral leases for proposed coppermine, and Native American rights questions, among other issues. Joining me is Michael Gerard, a professor at Columbia Law School and the founder and faculty director of the Saban Center for Climate Change Law. Can you explain the significance of these memo opinions?
Well, they're not legally binding, but they are the directions to the lawyers and personnel of the Interior Department how they should interpret various laws and regulations, So they're very significant.
So the Interior Department's acting chief lawyer has suspended every legal opinion issued by his Biden administration predecessor, some twenty legal opinions. He said that this is a routine process. Are blanket suspensions like this a routine process.
No, that won't usually revoke them or suspend them all at once. They usually take a more careful, deliberative process to do that. This was sort of a blanket suspension of all of memosk And are they doing.
It because the Biden administration policy on environment is so different from the Trump administration's policy.
Yes, I think that's a lot of it. That Trump administration has made it clear, as the President has said, drill baby, drill is their objective and they're trying to clear away anything that gets in the way of that.
Yeah.
I want to talk about some of the suspended opinions. One is the Biden administration's interpretation of the Migratory Bird Treaty Act, which is one of the nation's oldest environmental laws.
This was a law that was passed by Congress around nineteen oh eight and it prohibits the killing of migratory birds basically. So traditionally, I mean, for a long time, it was a strict liability law that if you killed a migratory bird, whether you intended to or not, you were liable, potentially criminally liable. But the first Trump administration changed that to intentionally killing. That was struck down in court, that was reversed by Biden, and now the Trump administration is to move it back to say again that you're only liable if you intentionally kill a migratory bird.
How much of an impact could that have on the migratory bird population.
Well, the oil industry hates the rule because major oil spills kill a lot of birds and lead to a lot of liability. So after the Exxon Valdis disaster in Alaska and after the Deeporter Horizon spill in the Gulf of Mexico, those companies Exxon and BP were assessed fines of millions of dollars, and that industry has been trying to cut this out for a long time, and once again they're succeeding, at least for a while under the Trump administration.
What are some of the other legal opinions that were suspended that you think are important.
They're trying to revoke some of the limits on offshore oil gas trilling. They're modifying water rights at a Colorado National Park. They're changing various Native American rights questions. So it's a whole host of things. Some of them are fairly technical and innocuous, but others are really designed to make it easier to engage in fossil fuel extraction.
With the development of alternative energy sources wind, solar, et cetera. How much can the oil and gas industry increase its output?
Well, there are a couple of factors. One is what is the price of oil and gas. Most of the oil and gas extraction we have in the United States today is through fracking, and tracking is only economical if the price is high enough. The President has pledged to slash energy prices. It's not clear how he could do that, but if he did, it would render most fracking uneconomical. But what Trump is doing is to try to discourage renewable energy, especially wind. There's a real irony here because one of the major reas since Trump says that he wants to discourage wind turbance is because they can kill birds. But at the same time they're taking action to make it easier to kill birds through this modification to interpretation of the Migratory Bird Treaty Act.
Are the birds killed mostly when there are environmental disasters or is it a daily thing.
The worst incidents are when you have environmental disasters, but sometimes you have just an uncovered oil pond or oil tank and they land in it thinking its water and it's not and they die in the oil. So it happens on an ongoing basis, but just a whole lot worse when there's a huge oil spill.
What's the goal of the Trump EPA.
Well, they're talking about slashing the staff of the EPA, which would make it impossible to implement many of the programs that Congress has told it to implement, and make it impossible to enforce many of the laws that Congress has enacted. Their general view is that regulations are all cost and no benefit. That regulations get in the way of economic growth, and they want to do away with as many of them as possible. That's their view of EPA, and it seems to be their view in lots of different agencies Along those lines.
The Trump administration has ended twenty billion dollars in funding for greenhouse gas reduction projects. Advocacy groups are suing because they said that those funds have to be used in the way that Congress set out.
Well, just about everything that the Trump administration is doing these days is being challenged in court, and so far many of the federal judges have ruled what they're doing is illegal. I'm sure that the litigation campaign is going to continue during Trump one point zero. The Trump administration one only about thirty one percent of the laws, is challenging its major deregulatory actions. We'll see what happens this time.
By the time this suit winds its way through the courts, it could be years.
Right, it could be. And the question then is, while the case is winding its way through the courts, is the court directing the money be released or will it continue to be stuck during the litigation? And I think some cases will go one direction, one cases will go the other direction. But one thing that is certain is it's leading to enormous uncertainty. It's impossible to plan, it's impossible to hire people, very difficult to keep people on staff. It's leading all kinds of disruptions, and not just the twenty billion dollars, but lots of programs all throughout the economy.
Some courts have said that they have to unfreeze funds, etc. But I don't know if they're really unfreezing the funds that they're supposed to.
Well, that's one of the big fights. Even when a court says unfreeze it now, the government is sometimes taking its time, so a lot of action before the court's happening out all of this.
As far as environmental justice initiatives, are those all dead under the Trump administration.
Yeah. They are systematically closing down anything that has anything to do with environmental justice or with diversity, equity and inclusion. They are striking many of those words from documents. They've made it very clear that they don't want to do anything on either of those subjects. Some of the states still have important environmental justice programs and diversity equity and inclusion programs. Some of the states also have environmental programs that are very important that are continuing, But at a federal level, they're really trying to shut down a broad swath of what has been done under Biden administration, the Obama administration, even then earlier.
Are you surprised at how fast they seem to be doing these things?
Yes, they're proceeding even more aggressively than people have thought. It's clear that the Project twenty twenty five report, which during the campaign Trump disowned, is really the guidepost, and if you look at what they're do, it's almost entirely consistent with Project twenty twenty five. So when I'm teaching my environmental law classes, I say, Okay, we're going to talk about such and such statute. The first thing to do is look at Project twenty twenty five to see what it says about that. Really, yeah, you know, it's a massive document. The head of the Office of Management and Budget, which really has its finger on every agency, the new head of it, was one of the co authors of Project twenty twenty five. It was designed to be the guidebook, and that's how it's turning out.
Going back to the first Trump administration, it seemed like Biden was able to sort of undo what Trump had done in his.
Four years, many of the things. Yes now, of course, he was not able to undo the massive amount of greenhouse gases that went into the atmosphere as a result of Trump's actions, and that will stay there for a century or more. But Biden did undo most of the deregulatory actions. So on the day that Trump was first inaugurated in twenty seventeen, the Saving Center which I launched the Climate Deregulation Tracker. On the day that Biden was inaugurated, we rebranded the Climate Reregulation Tracker, And on the day of the second Trump inauguration, we launched the Climate Backtracker. And it's a lot of work to keep it updated.
I'll bet it's hard just keeping up with the cases across the country over his executive orders. Let's say that after four more years of Trump, a president is elected who cares about the environment. Can what Trump is doing now be undone easily?
Not easily. There's a tremendous brain drain from the federal government, and bright young people graduating from college to graduate school are reluctant to go to work. For the federal government now, so it will be possible to undo the changes to the regulations. Staffing up and resuming the momentum is going to be very tough, So a lot of damage is being done. It's not damage forever, they'll go back to it, but meanwhile we'll be even further away from meeting our climate goals and many other things.
I wonder if one advantage to the cutback in federal workers and attorneys leaving the departments is that when the government goes to court now, the lawyers that are representing the government are not as experienced.
Yes, there is something to that. And another factor is that if you want to repeal a regulation under the administrative procedure, actually need to write a new regulation, and writing regulations requires staff. An administration can't just reverse itself on lots of things by saying we reverse it. They have to come up with a detailed explanation of why they're changing their policy, and that requires staff. And so if you've lost most of your staff, and if the people who are remaining are demoralized, it's going to be difficult to come up with the explanations for the reversal and policy that will convince federal judges that this was a lawful thing to do.
Before you go, tell us what's happening with electric vehicles.
So, electric vehicles are the principal threat to the demand for oil, and so the oil industry hates them, and therefore the Trump administration is trying to discourage them as much as possible. So they are cutting back on the programs to build electric vehicle charging stations. They're trying to amend the Inflation Reduction Act to take away the subsidies. They're doing whatever they can to discourage electric vehicles and keep internal combustion engines running as long as possible.
Musk is one of Trump's top advisors. Wouldn't that hurt Tesla?
Well, Tesla managed to build up a dominant market share without these federal subsidies. What the subsidies are doing are also allowing its the competitors like Ford Generals to build up their market share. So there's a sense that Tesla actually will do fine without the subsidies, and their competitors will do worse.
As I said, a lot to keep up with. Thanks so much for being on the show. That's Professor Michael Gerard of Columbia Law School. He's the founder and faculty director of the Sabans Center for Climate Change Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg
