Oregon fined Catholic counselor Frank Canepa nearly $90,000 after he declined to affirm a viewpoint that violated his faith. After Chiles v. Salazar, his case shows what happens when states treat Supreme Court precedent as optional.
When the Supreme Court speaks on the meaning of the Constitution, do states get to pretend that following that ruling is optional? That is the larger issue now surrounding a lawsuit brought by counselor Frank Canepa, who was massively fined by Oregon’s licensing board for professional misconduct in early May after expressing a prohibited belief during a counseling session.
But his case isn’t about one counselor, one client, or one state licensing board; it’s about whether state officials can continue punishing constitutionally protected speech after the Supreme Court has made clear that viewpoint-based restrictions on counseling conversations violate the First Amendment.
In Chiles v. Salazar, handed down on March 31, the Supreme Court ruled 8-1 against Colorado’s ban on certain forms of so-called talk-based “conversion therapy” for minors. The phrase “conversion therapy” is a loaded term used by LGBTQ activists and allies to describe any counseling that does not affirm gender confusion or same-sex attraction or that counsels clients to accept their biological sex. Nearly 30 states have placed restrictions on counselors’ speech regarding LGBTQ issues, usually for minors. Colorado’s law was the one that reached the Supreme Court.
The Court did not rule that states are powerless to regulate licensed professionals. It ruled that states may not use licensing power to censor one side of a disputed moral and political issue while permitting the other side. As Justice Neil Gorsuch wrote, a counselor’s “speech does not become conduct just because the State may call it that.”
Oregon has its own conversion therapy ban. Under ORS 675.850, mental health professionals may not practice conversion therapy if the recipient is under 18. That matters because Canepa’s case appears to involve an adult client, not a minor, and the board’s punishment was not based on a claim that he used coercive physical techniques. According to Alliance Defending Freedom, which represents Canepa, the punishment came after he answered a client’s repeated demand that he personally affirm same-sex relationships.
Canepa’s attorneys say he counseled the client for more than two and a half years and never raised his personal religious views during at least 44 prior sessions in which the subject of same-sex relationships came up. In one later session, they say, the client, then in a lesbian relationship, pressed him for roughly 20 minutes to give his personal view of same-sex relationships and to “bless” her decision to enter one. Canepa finally responded that his Catholic faith prevented him from personally affirming same-sex relationships.
His honesty came with a cost — a big one, in fact. Oregon’s Board of Licensed Professional Counselors and Therapists fined him $89,636 after Canepa’s client filed a complaint.
Attorneys with Alliance Defending Freedom (ADF) have now appealed that punishment on Canepa’s behalf, asking the Oregon Court of Appeals to overturn the board’s order based on the Chiles precedent.
It’s important to point out that Oregon didn’t overtly fine Canepa because of his Christian faith. Its reasoning is simpler but still indefensible: The state has an official position on what licensed counselors can and cannot say about sexuality and relationships. In other words, it openly admits it punished Canepa because his answer departed from its official state-sanctioned orthodoxy — and officials insist that stance is perfectly justified.
But as Jonathan Scruggs, ADF senior counsel and vice president of litigation strategy, explained, “The government can’t target counselors for their views and can’t force people to say things that go against their core convictions.”
The allegation is not that Canepa abused his client, berated her, refused to continue counseling her, or launched into a sermon. The record shows that he gave a candid answer to a direct question after repeated pressure from the client. If his answer had affirmed same-sex relationships, there is little reason to believe the board would have imposed a nearly $90,000 penalty. He was punished only after he stood against the system.
This is exactly the danger the Supreme Court identified in Chiles. Colorado’s law allowed counselors to support a client’s gender transition or identity exploration but restricted any counseling that moved in the opposite direction. The Court held that this kind of one-sided rule targets speech based on viewpoint and triggers the highest level of First Amendment scrutiny.
Even liberal Justices Elena Kagan and Sonia Sotomayor joined the majority in calling out the law as an “egregious assault” on free speech that enabled the “official suppression of ideas.”
The Chiles precedent doesn’t only protect Christian counselors, however. It protects any counselor — atheist, secular, Jewish, and so forth — whose professional judgment or personal answer falls outside the state’s preferred view.
And yet Oregon’s defiance of this ruling is a harbinger of things to come. Whatever the outcome of Canepa’s appeal, other progressive states are sure to follow Oregon’s lead, though they’ll likely take one of two tacts: 1) continue to enforce their conversion therapy bans and force counselors to sue; or 2) repackage the same censorship as professional ethics, standard-of-care enforcement, or anti-discrimination policy. Either way, the constitutional problem remains if the government is punishing one side of a debate while approving the other.
This state defiance of the Supreme Court is hardly new. In 1957, President Dwight Eisenhower had to send the Army to force Little Rock, Arkansas, to integrate its schools after Gov. Orval Faubus, D, openly refused to follow the Supreme Court’s ruling in Brown v. Board of Education.
And it has continued to happen in other constitutional contexts in the years since. After the Supreme Court recognized robust Second Amendment protections in New York State Rifle & Pistol Association v. Bruen in 2022, many progressive states have continued to enforce existing gun restrictions or adopted new ones, triggering additional litigation. And despite the Court directly protecting the equal right of religious student clubs to access school facilities in the 2001 case of Good News Club v. Milford Central School, many local schools are still trying to freeze out Good News Clubs — despite knowing it’s going to be a losing and costly effort.
Supreme Court rulings matter, but as history has shown, the legal fight over Chiles will continue in states that resist its constitutional conclusion.
The good news for Canepa is that courts are not left to wonder whether people of faith can serve as mental health counselors without abandoning their convictions. Chiles affirmatively answered that question. The First Amendment does not disappear the moment a person is granted a professional license.
The question now is whether the Oregon Court of Appeals will obey the Constitution or force Canepa to keep fighting for rights the Supreme Court has already recognized.
Even Americans who disagree with Canepa’s beliefs should recognize the danger of a state insisting it has the authority to decide the “right” beliefs. A government that can punish a counselor for declining to affirm one contested viewpoint today can punish a different professional for dissenting from another official viewpoint tomorrow.
A republic cannot function if states treat Supreme Court rulings as suggestions. When constitutional rights are violated, other courts must uphold their precedents, and the executive branch must be willing to enforce the rule of law. Otherwise, Supreme Court opinions become little more than words on paper, and Americans will be left with “freedoms” wholly dependent on the willingness of state officials to respect them.
When government turns a professional license into a muzzle, freedom is no longer safe behind courthouse marble. Your tax-deductible gift helps the Standing for Freedom Center expose state overreach, defend free speech and religious liberty, and equip believers to speak the truth with courage, conviction, and grace.
