WAIT, WHAT?!

Justice Kagan 'signaled' to other states how to get around 8-1 ruling on anti-gay therapy

SCOTUS SUPPORTS CONVERSION THERAPY

Tom Boggioni
March 31, 2026 
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Supreme Court Justice Elena Kagan (Photo by Evelyn Hockstein for Reuters)

Moments after the Supreme Court sided with a Christian counselor on Tuesday in her challenge to a Colorado law banning attempts to change a minor’s sexual orientation or gender identity, MS NOW’s Lisa Rubin claimed Associate Justice Elena Kagan provided a road map for other states to avoid a similar fate.

In an 8-1 decision, with Justice Ketanji Brown Jackson providing the only dissent, the court ruled sided with Kaley Chiles and agreed Colorado’s law regulated speech, which led two of the liberal justices to concur.

However, as Rubin pointed out, Justice Kagan in her concurrence, provided guidance on how to write or rewrite similar laws that have a better chance of surviving a challenge.

“For anyone who is shocked at their 8-1 ruling, I suggest they take a look at Justice Kagan’s concurrence that I just had an opportunity to read,” Rubin told host Anna Cabrera.

"Justice Kagan says, if this were viewpoint neutral and instead just regulated a subject matter of speech that is forbidden, for example, in doctor's offices, that would be a much tougher call,” Rubin explained. "Justice Kagan may be signaling to other states that have a concern about things like conversion therapy.”

“There is a way potentially to do this that wouldn't trigger this 8-1 divide that you see among this court with offense here is that you are telling people of one viewpoint that they can't express it while expressly endorsing the other viewpoint as permissible within the space of talk therapy,” she elaborated. “For example, the state had argued that this form of therapy, conversion therapy, was conduct. It was a form of treatment versus being about free speech. Clearly, the court didn't buy that argument.”