An 8–1 SCOTUS Warning Shot Illinois Can’t Ignore

Written by David Curtin, 

The U.S. Supreme Court does not hand down 8–1 rulings very often, especially on culture-war issues. So when this Court—this Court—lands almost unanimously on one side, it’s an earthquake.

Justices John Roberts, Elena Kagan, Sonia Sotomayor, AND the Court’s conservatives all converged to say a particular law in Colorado was unconstitutional. Cue the earthquake.

The U.S. Supreme Court ruled in Chiles v. Salazar that Colorado’s conversion-therapy ban crossed the line because it “censors speech based on viewpoint.” That phrase ought to jump off the page for anyone looking at HB 4554 (Faver Dias) in Springfield. It puts in peril this and other far-left Illinois legislation as well as a disastrous 11-year-old Illinois law. Wow.

HB 4554 does not just express a policy preference. It says Illinois “shall not expend or invest any public funds” in any organization—including nonprofits and religious organizations—if the money is used for conversion therapy. It goes even further to say any state contract used for that purpose is “void and unenforceable as contrary to public policy.”

That is where Gorsuch’s warning becomes particularly devastating. He wrote that the First Amendment protects against any government attempt to “enforce orthodoxy in thought or speech.” That is exactly what HB 4554 does.

The bill uses the power of the state treasury and the state contracting process to financially punish one side of a counseling conversation while leaving the opposite viewpoint untouched. In other words, if a counselor, nonprofit, or religious organization helps a young person move in one direction (converting away from homosexuality toward heterosexuality), the state cuts off funding and voids contracts. If the counseling conversation moves in the opposite direction (reaffirming homosexuality and converting away from heterosexuality), the financial hammer never falls.

That is not neutral budgeting. That is viewpoint discrimination with a checkbook.

And I never thought I’d be writing these words, but Justice Elena Kagan’s concurrence makes the point even clearer. She wrote that

“a law drawing a line based on the ideology of the speaker—disadvantaging one view and advantaging another—skews the marketplace of ideas our society depends on to discover truth.”

Whew. That sentence could have been written with HB 4554 sitting on the desk in front of her.

That’s exactly what the bill does: it draws a line based on ideology and then uses public funding and contract eligibility as the enforcement weapon.

Supporters may argue the state is free to decide how it spends money. Of course it is.

But after Chiles, the state cannot use public financing rules as a backdoor method to suppress a disfavored viewpoint in counseling conversations. Once the funding condition is tied directly to the ideas being expressed, the constitutional problem is no longer about finance—it becomes a free-speech case.

So you can see why HB 4554 now looks vulnerable. As for HB 4966 (Cassidy), the issue is subtler but still real.

Most of that bill is DCFS placement law, youth protections, and interstate custody safeguards. But it expressly includes a “prohibition on consent to conversion therapy” in out-of-state placements.

The moment Illinois begins requiring DCFS contractors, residential placements, foster caregivers, or treatment providers to suppress one therapeutic viewpoint while mandating another, the same Chiles logic starts creeping in.

Springfield can legislate. But after Gorsuch’s warning against “enforcing orthodoxy in thought or speech,” and Kagan’s reminder that government may not “disadvantage one view and advantage another,” lawmakers no longer get to pretend that speech restrictions become constitutional just because they are hidden inside appropriations language or DCFS contract terms.

And that, as they say, is a moment when the music just stopped. The same constitutional logic now threatening HB 4554 (and HB 4966) may ultimately force Illinois to take a hard second look at its own 2015 conversion-therapy ban against counselors, the law long held up as a model by its supporters.

If, as the U.S. Supreme Court just held by an almost unheard-of 8–1 vote, government cannot silence one side of a voluntary counseling conversation because it disfavors the viewpoint, it may be the beginning of a direct challenge to Illinois’ original ban itself.

David Curtin is a veteran pro-life advocate, political consultant, and lobbyist for the Illinois Family Institute. A native of Stonington and a graduate of the University of Illinois Urbana-Champaign, he lives and works in Springfield.