After Tuesday morning’s oral argument in Chiles v. Salazar, it is clear that a majority — if not all nine justices — agree that an exacting review known as “strict scrutiny” should apply to Colorado’s ban on so-called “conversion therapy,” given its profound impact on the First Amendment’s free speech guarantee.

The case involves whether a state may forbid a licensed counselor from engaging in certain kinds of voluntary “talk therapy” with minors struggling with confusion related to sexual orientation and gender identity.

The case challenges Colorado’s 2019 Minor Conversion Therapy Law, which broadly forbids counseling that seeks to change or reduce same-sex attraction or gender incongruence. Kaley Chiles, a licensed counselor and devout Christian, brought a pre-enforcement challenge, arguing that the law violates her First Amendment rights. Represented by James Campbell of Alliance Defending Freedom, Chiles contends that the state cannot dictate what may be said in private, voluntary counseling conversations.

Early on, Justice Sonia Sotomayor suggested there might be no imminent threat since Colorado had “disavowed” enforcement, but Campbell countered that Chiles remains under active investigation, making the disavowal hollow. Interestingly, by the end of the state’s argument, its “late-breaking” challenge to legal standing — whether Chiles could even bring a case to court — was abandoned.

At the center of the dispute is whether Colorado’s law regulates speech or merely professional conduct that incidentally involves speech. The Tenth Circuit concluded it regulates conduct, applying rational-basis review. But that sits uneasily alongside NIFLA v. Becerra, where the Supreme Court struck down California’s attempt to force pro-life pregnancy centers to promote abortion services, emphasizing that the government may not compel speech using its regulatory authority. As Justice Clarence Thomas wrote, “Speech is not unprotected merely because it is uttered by ‘professionals.’”

During oral argument, the Trump administration’s principal Deputy Solicitor General Hashim Mooppan outlined why the law should be subject to strict scrutiny: It restricts speech based on content and viewpoint, does not qualify as incidental regulation of conduct, and falls outside historical exceptions for prior restraints. He emphasized that there is no evidence justifying the restriction.

In response to Thomas, he said the state would need strong evidence of direct harm with no countervailing benefit. Mooppan rejected comparisons to the Supreme Court’s opinion last term in U.S. v. Skrmetti, where the court upheld Tennessee’s ban on “sex transition” medical interventions on minors, explaining that banning speech is fundamentally different from regulating medical procedures.

Also discussed was the distinction between Colorado’s ban and ordinary malpractice laws. Justices Amy Coney Barrett and Neil Gorsuch noted that malpractice addresses after-the-fact harms, not prior restraints on speech. Barrett further highlighted the medical uncertainty in this area, pressing why courts should allow minimal review when the “standard of care” is contested. In ongoing medical debates, the First Amendment protects professionals from being forced to speak only what the state deems acceptable.

Thomas questioned the historical basis for regulating mental health professionals’ speech separately from medicine, while Justice Samuel Alito noted the long history of ideology influencing medicine, citing sterilization of people with developmental disabilities and institutionalization of those with Down syndrome. Alito emphasized the First Amendment’s role in protecting dissenting voices from political influence, a point the state attorney did not acknowledge.

When Barrett pressed for the state’s “best evidence” of harm to justify the law, the state pointed to studies that focused on coercive or involuntary practices, not voluntary counseling. In rebuttal, Chiles’ attorney highlighted the law’s asymmetry: It permits counseling affirming gender dysphoria without parental consent while barring counseling sought to align identity with biological sex. He cited the U.K.’s Cass Review, which noted that gender medicine operates on “shaky foundations.”

Colorado’s attorney general also tried to distinguish the law from NIFLA, asserting that the counseling context makes it different, arguing that the First Amendment is not triggered “just because” words are used. Mooppan and Campbell, by contrast, emphasized that talk therapy is speech, protected by the Constitution.

While not raising the argument that the Colorado law interferes with religious exercise, it’s important to note that Chiles’ objection is rooted in her sincere Christian convictions about sexuality and identity, which make it impossible for her to promote what the state prefers she say. Many clients come to her seeking guidance consistent with their beliefs. Compelling her to endorse state-preferred views would be untenable professionally and constitutionally.

Chiles v. Salazar implicates the freedom to speak, counsel, and guide according to conscience and faith. A ruling in Kaley Chiles’ favor would remind states that the Constitution bars compelled speech or punishing families and counselors who seek guidance consistent with conscience and truth.