The Colorado Rockies baseball team hasn’t had a winning season since 2018. Last year they were 9–50 in their first 59 games, the worst early season record of any team since 1901. By the end of 2025, they were 43–119, dead last in Major League Baseball.
The “Colorado Ideologues”—if I may call them that—are on a losing streak as well; this time the playing field is the Supreme Court of the United States (SCOTUS). The cadre of woke political elites in Denver are in competition with traditional values, but they have now struck out against a baker, a web designer, and, on March 31, a mental health counselor. Not an encouraging record.
Kaley Chiles is a master-prepared licensed mental health counselor working in Colorado Springs. She brought suit against the state of Colorado, arguing that the 2019 “conversion therapy ban” interferes with her obligation to provide sound and professional mental health counseling. She readily acknowledges abuses associated with so-called conversion therapy, especially those practices that involve physical “aversion” techniques and tactics that degrade individuals.
She argues, however, that her method of treatment is solely “talk therapy,” by which she responds to the concerns of her patients. The Colorado law, however, prevents her from even suggesting to patients experiencing gender and sexual confusion that one option may be to consider whether the confusion and emotions that these teens are experiencing might be transitory. In other words, embracing one’s given biological gender and heterosexual attractions may be the best path to well-being. Chiles argued, however, that the Colorado law as written prevents her from even mentioning the possibility that resisting certain impulses may be a patient’s best path to peace and mental health.
A Decisive Bipartisan Majority Opinion
SCOTUS rendered the verdict overwhelmingly in favor of Chiles with an 8–1 vote. The opinion was decided on the basis of the First Amendment guarantee of freedom of speech. More specifically, the Court reasoned that the speech involved was “viewpoint speech,” which must be jealously guarded by the Constitution, even more than other forms of speech. Viewpoint speech means that one’s reasonably held worldview, and the philosophical and moral ideas upon which it rests, involves principles that must be protected against state attempts to mandate an arbitrary “orthodoxy.” Chiles held that questions of gender dysphoria and sexual orientation may involve different points of view, yet the Colorado law mandated only one acceptable position to which a counselor must adhere. If not, they may be fined, disciplined, or lose their professional licensure.
The law draws a line based on the speaker’s “opinion or perspective,” and thus enables “speech on only one side”—the State’s preferred side—of an ideologically charged issue.
In a sixty-seven-page opinion, Justice Gorsuch writes for the majority, “Colorado’s law regulates the content of [Chile’s] speech and goes further to prescribe what views she may and may not express, discriminating on the basis of viewpoint.” He further notes,
The law permits [Chiles] to express acceptance and support for clients exploring their identity or undergoing gender transition . . . but forbids her from saying anything that attempts to change a client’s “sexual orientation or gender identity,” including efforts to change “behaviors . . . gender expressions . . . or romantic attractions.”
Consequently, “if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it.” Gorsuch continues,
Today, tomorrow, and forever, too, any professional speech that deviates from ‘current beliefs about the safety and efficacy of various medical treatments’ could be silenced with relative ease.
The Court warns, “History is littered with examples of governments that have sought to manipulate professional speech ‘to increase state power,’ ‘suppress minorities,’ and censor ‘unpopular ideas.’”
The Chiles opinion includes a brief concurring opinion written by Justice Elena Kagan that was joined by Justice Sonia Sotomayor. A concurring opinion agrees with the majority opinion conclusion but sometimes for different reasons. To be sure, a concurring opinion may be much different than the majority opinion. In this case, however, Kagan and Sotomayor strengthen Gorsuch’s reasoning. Justice Kagan astutely observes that the Colorado law was egregiously one-sided when she notes that the law “only censors speech in one direction.” She elaborates:
Or said a bit differently, the law draws a line based on the speaker’s “opinion or perspective,” and thus enables “speech on only one side”—the State’s preferred side—of an ideologically charged issue.
Notably, Kagan could be channeling Thomas Jefferson when she emphasizes the importance of a free exchange of ideas to discover what is right and what is wrong:
A law drawing a line based on the “ideology” of the speaker—disadvantaging one view and advantaging another—skews the marketplace of ideas our society depends on to discover truth.
Kagan underscores that this case is so clear as to be “textbook,” because “the State has suppressed one side of a debate, while aiding the other.” Accordingly, the Court’s conclusion is “straightforward.”
Jackson’s Troubling Dissent
In her dissent, Justice Ketanji Brown Jackson apparently reads from a different “textbook” than the one that fellow progressive Justices Kagan and Sotomayor read. Jackson is the newest SCOTUS justice, having joined the Court in 2022. Sometimes dissenting opinions are easily forgotten, and this one would have been if it had not boded ill for the future of the Supreme Court. Jackson is a tender fifty-five years old; barring the unforeseen, she has a long SCOTUS future ahead of her.
In the interest of reasonable debate and freedom of conscience, Justice Jackson is, of course, free to disagree with the majority; there is nothing exceptional about that. But the logic and manner of her reasoning are disquieting.
First of all, she is intellectually dishonest. Contrary to the facts of the case, explicitly reported in the majority opinion and elsewhere, Jackson characterizes Chiles’s approach to therapy as the worst of “conversion therapy.” In so doing, Jackson violates an elementary rule of informal logic by creating a “straw man”—that is, a fictitious individual or idea—and it is against this fabrication that she directs her criticism. Accordingly, Jackson warns that Chiles’s careful, professional approach to counseling is nothing short of “malpractice.” She asserts, moreover, that Chiles’s practice “causes lasting psychological harm” and teaches children “to feel shame and self-hatred.”
Second, Jackson’s rhetoric, as directed toward her eight senior colleagues on the Court, is alarmingly condescending. The majority opinion, she says, is “strangely” written. The majority reasoning, moreover, is “maddeningly circular, and is based on happenstance, not logic.” As if she were addressing a group of middle schoolers, she writes, “Like it or not, treatment standards exist in America.”
Jackson adds hysterics when she warns, “Ultimately, because the majority plays with fire in this case, I fear that the people of this country will get burned.” As if the metaphor of fire isn’t frightening enough, she switches to a nuclear allusion: The “fallout” of the majority opinion “could be catastrophic.” But wait: Jackson adds yet another misleading metaphor when she writes, “It is baffling that we could now be standing on the edge of a precipitous drop in the quality of healthcare services in America.” Wait, there’s more: To disagree with Jackson is to open “a dangerous can of worms.” Wait again, as the ominous allusions continue: The Supreme Court is leading the country into “uncharted territory.”
Sometimes dissenting opinions are easily forgotten, and this one would have been if it had not boded ill for the future of the Supreme Court.
Remember, this jumble of spine-chilling metaphors refers to a well-trained mental health professional who by all accounts calmly, prudently, and even-handedly suggests that there are two sides to a life-changing issue. Perhaps one day, should a more self-reflective Jackson reread her dissent, she may see the irony of accusing the majority of acting in “an utterly irrational fashion.” Who exactly is guilty of irrational rhetoric?
Third, Jackson’s dissent is an uninformed endorsement of the most extreme positions in the ongoing muddled exchanges about gender and sexual orientation. She argues that there exists “robust professional consensus” about the new terra incognita in sexuality and gender identity. Yet medical academics are already backtracking on some of their most stubborn assertions, thereby admitting that what was once considered “settled” and “evidence-based science” is not as “robust” nor as “evidenced-based” as they once pretended. (A momentary aside: If you want to be taken seriously by many of today’s academics, use the adjective “robust” as much as possible—a robust argument, robust evidence, robust research, robust theories. For good measure, add a robust breakfast or lunch.)
Finally, this is not the first time that Jackson’s jurisprudence has raised curious eyebrows. Yet one suspects that she has little critical distance from herself. She seems unable or unwilling to recognize the weaknesses of her own arguments. It is troubling that she, unlike her colleagues, sees no contradiction in Colorado’s rule that a therapist may only speak with a patient about the state-dictated side of an important issue, while pretending the other side doesn’t exist. She apparently finds it perfectly reasonable for the state of Colorado to forbid a therapist to even suggest that a young person’s doubts about his or her own sex may dissipate over time, or that a teenager’s inclination to radically escape his or her biological sex might not be the best response to his or her confusion or doubts.
Any junior member of the Supreme Court should be reluctant to be the lone dissent in a decision as important as this one. But we must hope that Jackson’s judgment will evolve over time. No one should want those making judgments at the highest level of the US judiciary system to be overconfident. Prudence—in this case judicial prudence—is the intellectual virtue that enables one to apply general principles to concrete situations. A brash attitude, however, will quickly override prudence.
Colorado Back at the Plate
Colorado is going to bat again.
The Supreme Court just agreed on April 20, 2026, to hear St. Mary Catholic Parish v. Roy. The dispute has to do with a challenge by Colorado Catholic preschools that are excluded from a state-funded universal preschool program because of Colorado policies against any school that does not admit LGBTQ+ children or those with LGBTQ+ parents. The case pits the Free Exercise Clause of the First Amendment against Colorado’s nondiscrimination requirements.
Will Colorado’s self-appointed guardians of misguided virtue strike out again? Time will tell.