Katanji Brown Jackson

Justice Kagan rebukes fellow liberal Jackson in footnote over free speech ruling on Colorado conversion therapy ban

Justice Elena Kagan sided with seven colleagues to strike down Colorado's ban on so-called conversion therapy for minors, then used a footnote in her concurrence to take apart the reasoning of the lone holdout, fellow liberal Justice Ketanji Brown Jackson.

The 8-1 decision, handed down Tuesday, found that Colorado's 2019 law restricting what licensed therapists could say to minor clients amounted to unconstitutional viewpoint discrimination under the First Amendment.

The ruling is a landmark win for religious liberty and free speech. But the sharper story may be what happened inside the Court's liberal wing, where Kagan and Justice Sonia Sotomayor broke from Jackson and joined the conservative majority, then went out of their way to explain why Jackson's dissent didn't hold together.

That kind of public correction between ideological allies is rare. It signals that Jackson's position, that states can regulate therapists' speech as mere "professional conduct", failed to persuade even the justices most sympathetic to her worldview.

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