Tingley’s lawsuit, which was first filed in 2021, was initially dismissed by a U.S. district court the same year; in 2022, the Ninth Circuit Court ruled that Washington’s conversion therapy ban did not violate the state Constitution. However, since there’s a split between the Third and Eleventh Circuit Courts, Tingley claims that the Ninth Circuit’s decision only exacerbates this split. So far, the court has not yet acted on the petition and has relisted it for the past four weeks. While the Supreme Court’s conservative majority has been particularly interested in First Amendment cases as of late, it’s unclear if they will choose to take it up.
The fact that there is a split in the circuits, Franke notes, “often provides a justification for the court to step in and resolve that conflict.” While she says this is a generally reasonable thing for the Supreme Court to do, she does not have the utmost confidence that the court will rule in a way that is unbiased to Tingley and the ADF’s religious convictions.
“I do worry that the more conservative members of the court will be more than open to taking this kind of case, independent of the circuit split,” Franke said, “because it’s the next step in what is the ADF’s agenda, which is to have free speech and religious liberty rights basically become a mechanism by which to supersede any reasonable government regulation that is enacted in the public’s interest.”