September 2, 2013

Following are excerpts from Christopher Doyle’s article “9th Circuit Court of Appeals Avoids the Real Question of SOCE Ban” on the Voice of the Voiceless website:… “At the crux of the Court’s opinion, they decided that SOCE is subject to rational basis review, which means that the law will not be overturned on constitutional grounds if the legislature enacted it for any good reason. If a standard of rational basis review is applied, the Court will provide no constitutional protection for the issue at hand as it is always possible to find some reason, no matter how small or controversial, for a law to be enacted.”

… “Thus, in the Court’s decision to employ rational basis review, they essentially punted on the question as to whether the basis of the law was actually legitimate: … This is perhaps the most troubling statement of all. The Court, in its use of rational basis review, completely disregarded the task of deciding whether there was sufficient evidence to ban a particular form of treatment. While the “plaintiffs argue that the legislature acted irrationally when it banned SOCE for minors because there is a lack of scientifically credible proof of harm. . . under rational basis review, ‘[w]e ask only whether there are plausible reasons for [the legislature’s] action, and if there are, our inquiry is at an end (pg. 28).’”

“There you go. Essentially, the Court can decide that the medical and psychological establishment’s opinion is sufficient, even if that opinion is not based on scientific research. As I have argued in New Jersey and Liberty Counsel in California, there is not one research study published that documents any outcomes for adolescents undergoing SOCE.”

“Thus, it is clear now that the erosion of political correctness, not scientific evidence, can be justification for banning a particular form of treatment. One has to ask the question, is the Court not supposed be the final arbiter of laws that have been enacted unjustly? Or has the court succumbed, just as the elected body of officials in California, to popular opinion and not sound science?”

“It thus appears that the Court, in their employment of the rational basis review argument, has done so due to certain political motives. To quote a legal associate of mine, employing rational basis review is the ‘judicial equivalent of giving litigants the finger.’”