Show script:
Well, as you know, in a fit of LGBT activism by our politicians, a couple of years ago, they ran through the so-called conversion therapy and law which basically means that while you can counsel kids towards LGBT, so conversion therapy is still legal when it’s done by Rainbow Youth or InsideOut. If you were to help kids to deal with unwanted sexuality or gender confusion issues, then you are criminalized parents, counselors, pastors, medical professionals in the United States. This kind of law is being challenged. It’s the Colorado based law and it’s gone all the way to the US Supreme Court. And so today we speak to Senior Council Jake Warner from Alliance Defending Freedom, who is acting on behalf of the counselor and arguing that this kind of law is viewpoint discrimination.
Bob: Well, joining me is Jake Warner, who is Senior Counsel for Alliance Defending Freedom, a DFA wonderful, uh, legal organization in the United States. It’s done amazing work in the area of religious freedom. Uh, and Jake, welcome to mc blog. Um, firstly, where are you based?
Jake: Thanks for having me today. Uh, I’m based in Scottsdale, Arizona, in the United States.
Bob: And, uh, you’ve been with a DF for what? About eight years? I think I figured out,
Jake: yeah, a little bit more than eight years.
Bob: Okay. Well, you’ve certainly done some interesting cases and I, I wanna touch on one of the cases you’ve done, uh, previously because that interested me also about a baker, but let’s deal with the one front and center.
Um, and that is the one that has just been in the Supreme Court and it’s around, uh, conversion therapy laws and Haley, uh, Colorado counselor. So could you just give us sort of a Reader’s Digest version of this case and how it’s got all the way to the Supreme Court?
Jake: Absolutely. Alliance Defending freedom represents Kaylee Child. She’s a licensed professional counselor in the state of Colorado and she helps clients, uh, talk through issues of gender and sexuality. Uh, but in 2019, Colorado passed a counseling ban.
It says that counselors can push minor clients. Toward a gender transition. Uh, but they can’t have conversations that help clients change to, to regain comfort with their biological sex. Of course, that’s viewpoint discrimination. It censors speech and it violates the first Amendment to the United States Constitution.
So we challenged, uh, this law in federal court. Uh, sadly, uh, we lost in the two courts below, uh, which ruled that the state could. Censor counselor speech that, that Kaylee would like to engage in. Uh, so we had to appeal up to the US Supreme Court, uh, and thankfully the US Supreme Court heard Kaylee’s case earlier this month and we’re very hopeful that the court will uphold free speech for counselors like Kaylee and allow kids across the United States, uh, to get the conversations they want and need to help them regain comfort with their God-given sex.
Bob: So you may be interested to know that in New Zealand we have a similar law. Uh, you can have anywhere from three to five years in prison if you are, um, accused and convicted of so-called conversion therapy. Our, our law covers both sexuality and gender. Was your case dealing with the ability to get counseling for unwanted sexuality issues as well as unwanted gender confusion? Or is it just one or the other?
Jake: No. Colorado’s law addresses both. It forbids conversations to help, uh, minor clients regain comfort with their God-given sex, but it also forbids conversations to help them reduce unwanted attractions and, and other things. So, uh, Colorado’s law covers the, the whole spectrum there.
Bob: Okay. It probably doesn’t surprise me that col, you didn’t get much success in Colorado, judging by the cases that I’ve seen coming out of Colorado, and I will come back to that other case that we referred to earlier. But once you got to the Supreme Court, I mean, it’s, it’s quite difficult even to get the judges to take on a case like this, isn’t it?
Jake: Yeah, that’s exactly right. You know, the US Supreme Court gets thousands of, uh, petitions each year. They can only, uh, accept approximately one to 2% of cases. Uh, and that usually results in approximately 60 or 70 arguments per term at the us. Supreme Court. So it’s, uh, uh, very rare for cases to get granted.
But by God’s grace, this is one that the court decided to grant because it raises very important issues, not only for the free speech of counselors, but for kids around the United States to ensure that they can get the help, uh, that they want and need.
Bob: So, so your law would be similar to New Zealand’s, I guess, in that you can push young people and people in general towards LGBT, towards transgender, uh, towards any of the sexualities that they talk about. But if you help someone who wants to revert to their biological sex or heterosexuality, that’s deemed to be a crime. That’s, that’s the same rule in the states.
Jake: Yeah, that’s the same kind of rule that we’re challenging here in Colorado. The state is imposing its own view of gender ideology and, and pushing kids into state preferred outcomes, and just to show the harm of this kind of law. You know, studies show that 90% of kids will regain comfort with their God-given sex if they’re not pushed down the path of transition. However, once kids start down that path of transition, uh, over 97% will continue.
And of course, that leads them straight to dangerous and unproven drugs and surgeries that can have life altering effects on these children. Uh, the the states are getting it exactly backward. This is the real. Pushing kids towards harmful drugs and procedures, we, we need to allow them to have more conversations, to allow time for them to, to regain the comfort, uh, that’s likely to come if they’re not pushed down that dangerous path.
Bob: So, I’m just interested to know whether you think the case would’ve been considered, if it was purely on the basis of someone who didn’t wanna be gay, they wanted to be heterosexual, versus the whole gender confusion area. Which, you know, you could argue maybe has, uh, more public opinion against. Do you think there’s a, there was a difference there.
Jake: Uh, not legally, of course, uh, none. It is viewpoint discrimination no matter however you cut it. Um, so regardless of whether you, uh, see the law through the terms of, uh, gender or sexuality, the law is. Prefer certain outcomes than censoring speech that the state disagrees with here in the United States, that viewpoint discrimination is forbidden by the First Amendment to our Constitution.
So I don’t think the legal, uh, chances would’ve been any different. I think the US Supreme Court, uh, would’ve been likely to have heard it, uh, because of the, the blatant viewpoint discrimination. And, and indeed that’s exactly how we saw this law described in court. If you were listening to oral argument.
Uh, you would’ve heard, uh, justice Alito, for example, say that Colorado’s law is blatant viewpoint discrimination and that that problem is there no matter which issue that the law addresses.
Bob: So it’s not just a Colorado law, is it though? Because I mean, how many states actually have a sort of a conversion therapy law ban?
Jake: Yeah, over 20 states in the United States have a, a similar law and over a hundred local jurisdictions, a, a around the, the country. So this law is, um, uh, this kind of law is rampant throughout the united. States and, and nearly all of them have the same kind of viewpoint discrimination problem. So a big win for Kaylee at the US Supreme Court would have widespread impact across the United States and potentially help roll back some of the unconstitutional applications of these laws, even in states other than Colorado.
Bob: I always sort of think that, Jake, that when people do put themselves up for these cases, that um, they really are. Exposing themselves to a lot of vitriol and hate. How have you been able to protect Kaylee from this?
Jake: Yeah. In cases like these, you’re, you’re exactly right. Clients often experience, uh, uh, hateful emails and phone calls and, and even death threats. It’s, it’s horrific. And, uh, Kaylee is no exception from that rule. Uh, she’s followed. The pattern, uh, set by other clients that we faced, including Jack Phillips, the Colorado cake artist, that that went up to the US Supreme Court a number of years ago and was continually harassed in the, in the years, uh, thereafter.
Now it takes real courage to step up and challenge unjust laws like, uh, Kaylee Chiles did here in Colorado. Uh, that, uh, just accentuates the need for brave people, not only in the United States, but around the world to stand up The censorship, uh, free speech is for everyone. And, uh, you know, when governments start targeting speech that it disagrees with, um, that calls for us to, uh, really stand up and be courageous in, in the side of trouble.
Bob: Yeah, probably one of the worst parts of New Zealand’s law is that, uh, consent is irrelevant. There’s a section that says that even if a client gives consent for counseling for unwanted sexuality and gender issues, that that isn’t taken into account when determining whether a counselor or a pastor or a parent is criminally liable. So I mean, that’s a, you know, incredible intrusion on self-determination, etc. Um, I was interested to note, I mean, not many cases go before the US Supreme Court. What’s it like to stand up in front of those nine judges in that amazing building, uh, knowing that the nation is watching?
Jake: Well, it is a true privilege here at Alliance defending freedom to represent clients before the US Supreme Court. Uh, since 2011, ADF has cored 16 wins before the high court. So we have, uh, experienced counsel, uh, that appears before it, uh, it, it really is a, a truly unique experience and my colleague Jim Campbell argued, uh, on behalf of, uh, Kaylee Chiles at the court and, and I was sitting there right beside him.
It’s, uh, amazing because you’re mere. Feet away from the justices and you can, uh, obviously hear the questions, but also, uh, kind of see their responses to different things. Uh, but it’s always a, a privilege for Alliance defending freedom attorneys to stand up before the US Supreme Court and advocate for courageous clients like Kaylee Childs.
We truly believe that free speech is for everyone, and that it’s critical, uh, across all of our subject matters to stand up for freedom. Of course, a DF represents, uh, clients in advancing. Religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family. So it’s our joy to, to, to advocate for these truths whenever we have the, the privilege of appearing before the high court.
Bob: Yeah. And I know ADF do a fantastic job, Jake, what would you say, uh, would’ve been the, um, opposition’s key argument or justification for restricting the ability to get. Counseling they want and to criminalize counselors. What was their, what was their justification?
Jake: Yeah, well, in courts below, for example, uh, the state made arguments saying that, um, that this kind of speech counseling is, is, is not really speech at all. It’s conduct that can be regulated. Uh, and the lower courts bought into that idea and said, no, uh, uh, these counseling words aren’t really speech. They’re, they’re conduct. And so the state can regulate those words. Uh, no different from. From conduct. Um, so, uh, when the case got up to the US Supreme Court, uh, that changed a bit.
The state recognized that, no, these are are words, but, uh, still defended its, uh, law, uh, saying, uh, that because the, the nation has a history and tradition of regulating the medical profession, for example, then it can also regulate these words. But of course. Uh, a tradition of regulating, uh, heart surgeries or broken arms is not the same thing as a tradition of censoring speech.
So, um, based on how the, the argument went in court, I, I don’t believe, uh, that most of the justices, a large majority of the ma justices agreed with the state’s position on that. Hmm.
Bob: And what do you think was your strongest argument? Was it around the viewpoint discrimination? Do you think that was the argument that hit home?
Jake: Yeah, absolutely. I mean, once you accept that, uh, counseling speech is in fact speech, that that words are in fact speech, then the viewpoint discrimination problem becomes apparent. Uh, so we think that, uh, justices across the ideological spectrum, uh. Recognize the danger of censoring speech, but especially on the basis of viewpoint.
Um, you saw multiple justices in court express concerns about the viewpoint based nature of Colorado’s law. So for that reason, we’re hopeful that, uh, in a few months that we will get a, a good decision upholding the free speech of counselors like Kaylee, and allow kids around the, the country to once again have the conversations they need to help them regain comfort, uh, with their God given facts.
Bob: Yeah. Well, I was gonna ask, um, when do you expect a decision? So you think, I mean, sometimes these decisions can take up to a year, can’t they?
Jake: They can take a long time. Certainly, uh, when you have a case addressing a significant cultural issue, it’s probably a right to think. We’re not gonna see a decision before the end of June, which is the end of the US Supreme Court term here in the United States. Uh, but given, uh, how argument went and, uh, the seemingly the majority of justices having some apparent concern for the viewpoint discrimination, it’s possible we might. See a, a decision earlier than we think maybe sometime, uh, earlier in the spring than we would, uh, typically expect.
Bob: And Jake, would this have a flow on effect? I mean, if, if, if Kaylee wins her case, does that mean that the, um, applicability of the law in other states will also, all those laws will be overturned as well?
Jake: Not automatically, but certainly a big win for Kaylee here would set the precedent that would lead to rolling back unconstitutional applications of those other laws. Uh, of course, you know, we represent Kaylee Child here, and she’s only a counselor in Colorado. But here in the United States, like other places around the world, the US Supreme Court sets, uh, the standard and other courts have to follow the rules that the US Supreme Court, uh, uh, puts out. So if another counselor is pursued under a different law or challenges a different law, lower courts are supposed to apply the rule that the US Supreme Court establishes. So a big win for Kaylee could very well help roll back applications of other similar laws in states around the country.
Bob: Right. Okay. So the opposition must be a little nervous, do you think?
Jake: Well, we certainly, uh, we’re very hopeful walking out of the courtroom earlier this month. Uh, we believe that’s gonna be a good thing, uh, for kids across the, the country. So we are certainly very hopeful that the court’s gonna get it right and uphold free speech for, for counselors and let kids get the help that they want and need again.
Bob: I mean, I know that of the nine judges, I think what six of them are appointed, um, by Trump or by Republican presidents. Have I got that right? It would be six of them.
Jake: Yeah. Six justices are appointed by Republican presidents. That’s correct.
Bob: Yeah. So did you find, of the three Democrat appointed ones, was there any, did you feel that they were on side with some of your argument?
Jake: Yeah, I think, uh, listening to the argument that, uh, certainly judges across the spectrum, uh, understood the, uh, the danger of the viewpoint discrimination inherent in Colorado’s law.
So it didn’t really matter, you know, uh, who the judge was. It seemed, uh, you know, there was broad support for the idea that. States, uh, shouldn’t be, uh, engaged in viewpoint discrimination, uh, particularly with these kinds of laws. You never know how, uh, a case is going to be decided based on oral argument, uh, even though there are hints. But we were very encouraged by the fact that that many justices, a majority of the justices, seem very concerned with the viewpoint discrimination, uh, at stake here. Yeah.
Bob: All right. Well we will be watching this one with interest ’cause it will have a domino effect. I, I dunno if it’ll domino down to New Zealand unfortunately, but, um, we, we will have to wait and see.
Um, Jake, just before I let you go, I was fascinated just when I was reading, um, some of your background and your cases that you were involved with the case that we referred to also out of Colorado, uh, which was, um, Jack the Baker. Who first was targeted by LGBT groups to make a same-sex wedding cake. And, uh, that eventually got, uh, he eventually won that and then they targeted him to make a transgender cake.
And, you know, in both situations he stuck to his convictions. You acted, is it correct, you acted for Jack in the most recent case?
Jake: Yes, I represented Jack in his most recent case when, um, a, a local Colorado attorney, uh, tried to force him to create a, a custom cake celebrating a transition from male to female.
Um, your listeners are likely familiar with Jack’s story. Uh, over 10 years ago now, uh, two men tried to get him to create a custom cake to celebrate a same-sex wedding. Of course, Jack serves everyone. Uh, but he can’t express every message and for that common sense policy, he was sued and, and, uh, targeted and, and pursued all the way up to the US Supreme Court where he obtained a, a big victory in 2018.
Uh, but that case was decided on, on free exercise grounds. Uh, you know, along the way Colorado was. Officials had compared Jack and his faith to that of Nazis and slaveholders. And the US Supreme Court said that wasn’t okay, uh, that the state was discriminating against Jack and his faith and that they were hostile toward him.
So they, so they threw the case out. Well, after that, uh, is when his newest round of litigation started when, uh, he was, uh, being punished for declining to create a, a custom cake, celebrating a gender transition. Uh, he went to trial, uh, on that particular case, and it went up to the Colorado Supreme Court where he ultimately scored a victory, but critical to that victory was a case that Alliance defending Freedom brought in the meantime, on behalf of a website designer also out of Colorado, she saw how the state was prosecuting Jack Phillips all the way up to the Supreme Court and said, could this happen to me?
And, uh, and we told her, well, well, well, yes, that’s certainly, uh, on the table. So she decided to challenge this unjust law before it was applied to her in the same way that officials applied it to Jack Phillips. And, uh, unfortunately she lost in the lower courts. Like, uh, many of our other clients, but thankfully the US Supreme Court decided to hear her case back in 2023, just a couple of years ago.
And in that case, the US Supreme Court said, free speech is for everyone. The state cannot misuse public accommodation laws to force artists to express messages that they disagree with, and that was a big win for, for everyone. No matter whether you agree with, with Jack Phillips Smith. On marriage or, or gender, the state has no business forcing anyone to say something that they don’t believe, and that’s what the US Supreme Court ruled a couple of years ago. So we’ve had a number of cases arise out of Colorado in, in recent years, but that’s where, uh, the problematic laws have have been found. So, uh, we’re very thankful here in the states that the, our US Supreme Court as a firm freedom of speech for all people, not just those who, who agree with us.
Bob: Yeah, and I remember I was in Colorado a few years ago actually researching the, um, cannabis marijuana issue in, in Colorado. And we were gonna go and visit Jack’s shop just so we could support him. Uh, we didn’t actually get the chance to do it, but I mean, you know, he just went through. Literally hell, uh, those number of years. But just obviously very grateful to have an organization like ADF to, to be able to, uh, stand with them. Um, so, so important, just, just finely joke, I mean, you’ve highlighted, uh, you know, a number of, um, religious freedom cases where a DF has had success, like Jacks, like this current case that’s, uh, in, in front of the Supreme Court.
Do you feel like there’s actually, it felt like that religious freedom was being suppressed hugely – do you feel like it’s reached a tipping point in the us?
Jake: Yeah, I think so. You know, in recent years we’ve seen growing momentum to pre protect the fundamental freedoms of, uh, people around the country, including people of faith. Uh, so especially in the past seven or eight years, we’ve. Seen some very big wins on behalf of religious individuals and, and, uh, religious organizations. And of course, um, you know, we know the stories of Jack Phillips and Lori Smith of 3 0 3 Creative, but I think one of the, uh, important things that we need to remember here is that these wins are not just for people who agree with Jack and Lori on marriage and gender.
They are wins for all people. The wind in their cases, protect, uh, not just those who, uh, believe in marriage between a man and a woman, for example, but for those who have other views, uh, because the government has no business compelling the speech that it disagrees with, regardless of the viewpoint that the individual is trying to express.
So, so just as the US Supreme Court upheld the freedom of a Christian website designer not to, uh, create, uh, a website celebrating same sex marriage, that’s. Same decision, uh, protects an LGBT website owner from creating a custom website criticizing a view of marriage that they agree with. Yeah. You know, free speech is for everyone and that that’s something I think that, uh, the people in America and certainly our US Supreme Court has said over and over in the past few years, and that has been a breath of fresh air for freedom here in the United States.
Bob: Well, Jake, we’re really grateful for the work of ADF. Uh, we have a organization in New Zealand that recently started up, and I know there’s one in Australia as well and ADF is throughout Europe. So, uh, we’re just grateful for these legal minds that are challenging, uh, and speaking up for religious freedom. So thanks for your time, Jake. And, um, we’ll be watching that conversion therapy case with a lot of interest, as I’m sure you will be as well. So, so all the best and thank you.
Jake: Thanks for your support and thanks for having me on today.
