Consider a licensed massage therapist. They work on an undressed patient in a private setting. They encourage the patient to relax completely. They elicit physiological responses that include significant hormonal release, some of it biochemically adjacent to what occurs during sexual intimacy. The practice involves sustained physical contact and a meaningful degree of patient vulnerability.
Now consider a practitioner offering what is sometimes called a "happy ending" massage.
The physical inputs are not entirely dissimilar. Body, hands, private setting, relaxation, physiological response. If you abstract the activity to its component parts, you can construct an argument that the constitutional principles governing them are the same. But no serious legal argument would treat them as identical, because the professional ethics governing the licensed practice define what the practice is. The ethics are not a constraint layered on top of the activity. They constitute the activity. Strip them and you do not have a regulated version of massage therapy. You have something using a credential it has not earned.
This is, with the variable of touch replaced by speech, exactly what the Supreme Court did in Tuesday's 8-1 ruling in Chiles v. Salazar. The majority was not wrong about the components. It was wrong about the category. And the consequences of that error extend well beyond this case.
What the Court Decided
Justice Neil Gorsuch, writing for the majority, held that Colorado's Minor Conversion Therapy Law regulates the speech of licensed therapist Kaley Chiles based on viewpoint, and that viewpoint-based speech restrictions require strict scrutiny Colorado cannot meet. The case was remanded to the lower courts, where the law will almost certainly be struck down. Justice Ketanji Brown Jackson dissented alone, arguing that talk therapy is a medical treatment and that states have long held authority to regulate medical professionals even when that regulation incidentally touches speech.
Jackson was right about the outcome and right about the downstream consequence: we have opened the door to protecting substandard care by carving therapy out of medical regulation and placing it inside First Amendment protection. That is not a legal nuance. That is a structural failure with consequences for every patient who relies on a professional license to mean what it says.
But Jackson's dissent accepted the majority's foundational premise, that what Chiles does constitutes therapy-speech subject to First Amendment analysis, and fought on that terrain. The correct argument does not concede that premise. It does not fight on that terrain at all.
The Question That Ends the Case
Here is the question that cuts through every layer of constitutional framing: what was Kaley Chiles asking for that no other licensed therapist in the country has ever needed to ask for?
Therapists and psychologists have been Christians, Jews, atheists, Muslims, and practitioners of virtually every faith tradition on the planet for as long as the licensed profession has existed. None of them have sought a legal carve-out to practice their faith within their sessions. None of them have needed one. Because a competent therapist of any background already understands that their personal beliefs do not enter the therapeutic session as a predetermined destination for the patient.
The Socratic methodology of licensed talk therapy is not a burden on practitioners of faith. It is the definition of the practice. The therapist asks questions designed to create conditions for patient-led insight. The direction of the session belongs to the patient. The therapist does not get to know where the patient needs to end up before the session begins. That is not a constraint imposed on Chiles because of what she believes. It is the standard every licensed therapist already accepts, regardless of what they believe.
When a plaintiff asks for something that no competent practitioner of their profession has ever needed, that is not a rights claim. That is a description of a practice that falls outside the profession.
The Interview That Confirms the Violation
In a public interview, Chiles described her concern with Colorado's law: if a young girl believes she is a boy, therapists under the ban cannot say anything but affirm that belief. She wants the legal right to contradict it.
That statement is not a free speech grievance. It is a confession of a code of conduct violation.
The foundational ethics of licensed talk therapy prohibit organizing a session around any predetermined outcome. The moment a practitioner's faith tradition determines where the patient must arrive, the questions stop functioning as therapeutic tools. They become rhetoric conducted under the cover of a clinical credential.
Chiles is not being persecuted for her faith. She is being held to the same standard every other licensed therapist already accepts. The fact that she experienced that standard as a restriction tells you everything about the practice she was actually running.
What the SCOTUS Ruling Did Not Do
Here is what most coverage of this decision has missed: Chiles v. Salazar does not immunize Kaley Chiles from a professional licensing board complaint. It does not come close.
The ruling addressed the constitutionality of Colorado's statutory ban on conversion therapy. That is a legislative instrument. A licensing board complaint operates under entirely separate authority. The Colorado State Board of Licensed Professional Counselors does not adjudicate constitutional questions. It adjudicates whether a licensed professional met the standard of care governing their license. Those are different proceedings, governed by different rules, producing different outcomes.
A licensing board complaint against Chiles would not allege that she said the wrong thing. It would allege that she publicly described a practice pattern that violates the code of professional conduct attached to her license. The evidence is her own interview statement, provided voluntarily, in a public forum, in which she described organizing therapeutic sessions around a predetermined outcome for the patient.
Gorsuch's majority opinion, in arguing that what Chiles does is protected speech, inadvertently strengthened that complaint. The majority confirmed that Chiles directs sessions toward a predetermined outcome. They argued that direction is constitutionally protected. The licensing board does not care whether it is constitutionally protected. It cares whether it meets the standard of care. It does not.
That complaint can be filed today. The SCOTUS ruling is not a barrier. It is not even relevant to the proceeding.
The Architecture the Majority Broke
Professional licensing exists to give patients a reliable basis for trusting the people who hold credentials. The license is a representation from the state that the practitioner meets a defined standard of conduct. When a parent brings a minor child to a licensed therapist, they are entitled to expect that the practitioner is operating within the ethics of that licensed practice.
Gorsuch's framework breaks that architecture. If the First Amendment shields any speech-based practice from conduct regulation under a professional license, the license stops functioning as a marker of a defined practice with defined ethical obligations. It becomes a permission slip. The credential stops representing anything to the patient who relies on it.
Jackson raised this concern and was right to. But the root of the problem is not the level of scrutiny the majority applied to medical speech. The root is that the majority treated a licensing enforcement action as a speech restriction. It is not. It never was.
Chiles v. Salazar should have been dismissed as a licensing and conduct matter, because that is what it is. The First Amendment has no jurisdiction over the terms of a professional license. The answer to the actual question in this case has always been no. No therapist gets to violate their code of conduct and claim constitutional shelter from the board that issued their license.
The statutory path in Colorado is now more complicated. The licensing board path is not. Someone should be using it.
PolicyTorque does not publish arguments it is unwilling to act on. As of today, a formal complaint has been filed with the Colorado State Board of Licensed Professional Counselor Examiners against license number LPC.0013546, on the grounds described in this piece. The Supreme Court addressed the statute. It did not address the standard of care. That question now sits in front of the Board, where it belongs. If you are a former patient, the parent of a former minor patient, or a licensed mental health professional who believes this complaint should be supported, the Board's complaint process is public and open. The door is not closed. It was never closed.
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