Docket Report: Chiles v. Salazar

Update 11/1/25: Experience-3 continues to predict reversal (74 percent) with vote ordering roughly as earlier. I would expect 1-2 dissents, possibly by ideological opposites.

Update 10/22/25: The updated model (experience-2) continues to predict reversal with confidence (87 percent). But votes shift around a bit, and it now sees even the liberals voting to reverse, possibly for the reasons below. With this model, Roberts and Kavanaugh may be the closest votes.

Initial report: This is one of the term’s blockbuster cases. Colorado passed a law that banned “conversion therapy,” in which counselors try to change a person’s “sexual orientation or gender identity,” including efforts aimed at “eliminat[ing] or reduc[ing] sexual or romantic attraction or feelings toward individuals of the same sex.” Chiles, a licensed counselor who offers services grounded in her Christian faith, argued that this ban limited her freedom of speech and thereby violated the First Amendment. She practices “talk therapy,” so her treatment is limited in a meaningful sense to speech. Colorado, on the other hand, says that this is just the routine regulation of the medical profession—that this is the regulation primarily of conduct, not speech, and that they were following the medical consensus on helpful treatments. The Tenth Circuit sided with Colorado. This case draws a difficult line between the regulation of professions and the First Amendment. The ban colorably addresses speech, not conduct, and it is not content neutral, as it targets viewpoints regarding sexuality and gender. However, even if this is speech rather than conduct, it regulates speech in the service of regulating the medical profession. The state has an interest in regulating the speech of medical professionals to prevent quack and harmful medical advice—say, urging patients to use unsafe or untested treatments. The model predicts with near-certainty that the Court will reverse the Tenth Circuit. Interestingly, it predicts that even Jackson and Kagan will vote to reverse. And Kagan actually moved closer to reverse through argument. But even without them, the case is a near-lock for reversal. Argument did not move predictions for most justices—though it clarified that Sotomayor is likely to vote to affirm.

There are two reasons that even liberals might go along with a reversal. First, it is easy to imagine states passing laws that regulate speech on the other side of the ledger. For instance, states could pass a ban on counseling that affirms non-heterosexual sexuality or non-conforming gender. Should those just be given a free pass because they fit within medical regulation and can be understood to regulate conduct rather than speech? Relatedly, as the medical profession is (largely) aligned with liberal positions and values, it may be easier to overcome the government interest probes for liberal regulations than conservative ones. Second, procedurally, this case can be kicked back to the lower courts to let them sort out some of the difficult lines. That’s a little bit of a punt and no one needs to take a L on the case. My own view is that the Court is likely to take that path—say that speech is implicated and to send the case back to the lower courts to determine whether the ban survives heightened security. The lower courts would then consider the government interest and narrowness of tailoring, which is a fact-heavy inquiry I suspect the Court may want to avoid.