Colorado conversion-therapy ban meets tougher science test

A Tenth Circuit dissent in Chiles v. Salazar says Colorado cannot defend a speech restriction on a licensed counselor just by wrapping it in medical authority. The judge warned that courts should not treat the pronouncements of prestigious people or institutions as "science" unless the evidence behind them is sound.

The point is bigger than one Colorado dispute. It goes to a basic constitutional question: when the government says it is protecting the public with expert-backed rules, do judges accept the label, or do they make the state prove the record actually supports what it is claiming?

Where deference goes wrong

The dissent's answer is that constitutional review has to be real. Applying objective standards, whether a court calls it strict review, exacting review, rigorous review or something else, is an essential judicial task when "science" is invoked to justify restrictions on free speech. In that view, the court is not deciding medical policy from scratch. It is checking whether the government has shown its work.

That distinction matters because regulators often lean on professional consensus, public health concerns or expert studies to defend rules. The dissent warns that if judges let prestige stand in for proof, those claims can become a shortcut around the First Amendment. Once that happens, speech rights can shrink without the hard checking the Constitution is supposed to require.