Kaley Chiles v. Patty Salazar

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
KALEY CHILES,
Plaintiff - Appellant/ Cross -
Appellee,
v.
PATTY SALAZAR, in her official
capacity as Executive Director of the
Department of Regulatory Agencies;
REINA SBARBARO-GORDON, in her
official capacity as Program Director of the
State Board of Licensed Professional
Counselor Examiners and the State Board
of Addiction Counselor Examiners;
JENNIFER LUTTMAN, in her official
capacity as a member of the State Board of
Licensed Professional Counselor
Examiners; AMY SKINNER, in her
official capacity as a member of the State
Board of Licensed Professional Counselor
Examiners; KAREN VAN ZUIDEN, in her
official capacity as a member of the State
Board of Licensed Professional Counselor
Examiners; MARYKAY JIMENEZ, in her
official capacity as a member of the State
Board of Licensed Professional Counselor
Examiners; KALLI LIKNESS, in her
official capacity as a member of the State
Board of Licensed Professional Counselor
Examiners; SUE NOFFSINGER, in her
official capacity as a member of the State
Board of Licensed Professional Counselor
Examiners; RICHARD GLOVER, in his
official capacity as a member of the State
Board of Licensed Professional Counselor
Examiners; ERKIA HOY, in her official
capacity as a member of the State Board of
Nos. 22-1445 & 23-1002
(D.C. No. 1:22-CV-02287-CNS-STV)
(D. Colo.)
FILED
United States Court of Appeals
Tenth Circuit
May 27, 2026
Christopher M. Wolpert
Clerk of Court
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Licensed Professional Counselor
Examiners; KRISTINA DANIEL, in her
official capacity as a member of the State
Board of Addiction Counselor Examiners;
HALCYON DRISKELL, in her official
capacity as a member of the State Board of
Addiction Counselor Examiners;
CRYSTAL KISSELBURGH, in her
official capacity as a member of the State
Board of Addiction Counselor Examiners;
ANJALI JONES, in her official capacity as
a member of the State Board of Addiction
Counselor Examiners; THERESA LOPEZ,
in her official capacity as a member of the
State Board of Addiction Counselor
Examiners; JONATHAN CULWELL, in
his official capacity as a member of the
State Board of Addiction Counselor
Examiners,
Defendants - Appellees/ Cross -
Appellants.
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INSTITUTE FOR FAITH AND FAMILY;
ASSOCIATIONS OF CERTIFIED
BIBLICAL COUNSELORS; INSTITUTE
FOR JUSTICE; ETHICS AND PUBLIC
POLICY CENTER,SSOCIATIONS OF
CERTIFIED BIBLICAL COUNSELORS;
ETHICS AND PUBLIC POLICY
CENTER; INSTITUTE FOR FAITH AND
FAMILY; INSTITUTE FOR JUSTICE;
AMERICAN ASSOCIATION OF
SUICIDOLOGY; AMERICAN
FOUNDATION FOR SUICIDE
PREVENTION; TREVOR PROJECT,
INC.; DISTRICT OF COLUMBIA;
STATE OF CALIFORNIA; STATE OF
CONNECTICUT; STATE OF
DELAWARE; STATE OF HAWAII;
STATE OF ILLINOIS; STATE OF
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MAINE; STATE OF MASSACHUSETTS;
STATE OF MICHIGAN; STATE OF
MINNESOTA; STATE OF NEVADA;
STATE OF NEW JERSEY; STATE OF
NEW MEXICO; STATE OF NEW YORK;
STATE OF OREGON; STATE OF
PENNSYLVANIA; STATE OF RHODE
ISLAND; STATE OF VERMONT;
STATE OF WASHINGSON; ONE
COLORADO; CARLOS A. BALL;
ASHUTOSH BHAGWAT; MICHAEL
BOUCAI; ALAN E. BROWNSTEIN;
ERIN CARROLL; ERWIN
CHEMERINSKY; MICHAEL C. DORF;
THOMAS E. KADRI; SUZETTE M.
MALVEAUX; TONI MASSARO; NEIL
RICHARDS; JOCELYN SIMONSON;
SCOTT SKINNER-THOMPSON;
CATHERINE SMITH; KYLE
COURTENAY VELTE; ARI E.
WALDMAN,
Amici Curiae.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges.
_________________________________
This matter is before us on remand from the United States Supreme Court.
Chiles v. Salazar, 146 S. Ct. 1010 (2026) (reversing judgment of this court and
remanding for further proceedings). Upon careful consideration, this matter is
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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remanded to the U.S. District Court for the District of Colorado for further
proceedings consistent with the Supreme Court’s opinion.
Plaintiff-Appellant/Cross-Appellee’s Unopposed Motion Under F.R.A.P. 27 to
Expedite the Issuance of the Mandate Consistent with the Supreme Court’s Judgment
is GRANTED. A copy of this order and judgment shall stand as and for the mandate
of the court.
Entered for the Court,
Per curiam
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22-1445, 23-1002, Chiles v. Salazar
HARTZ, J., dissenting
I respectfully dissent from the order remanding this case to the district court for
further proceedings. This court regularly resolves appeals directly upon remand from the
Supreme Court. It seems to me that there is a high likelihood we could do so in this case,
relieving the parties and the district court from further time and effort in disposing of this
case and promptly concluding this litigation.
The Supreme Court has definitively ruled that the Colorado MCTL regulates Ms.
Chiles’s speech in a viewpoint-discriminatory manner and therefore the regulation of her
speech is subject to strict scrutiny. Colorado must “prove its restriction on speech is
narrowly tailored to serve compelling state interests.” Chiles v. Salazar, 146 S. Ct. 1010,
1021 (2026) (internal quotation marks omitted). “Under that test, it is rare that a
regulation will ever be permissible.” Id. (ellipsis and internal quotation marks omitted).
The regulation of Ms. Chiles’s speech does not come close to satisfying the test.
When I wrote my dissent on the initial appeal in this case, my view was that the district
court should review in the first instance whether there is any scientific support for the
proposition that speech-only conversion therapy administered by licensed mental-health
professionals is dangerous to minors and that the danger rises to the level of the dangers
of other therapies that are prohibited to licensed practitioners. But that was 20 months
ago and, given the notoriety of this case, any scientific evidence supporting Colorado
would likely have emerged. In any event, it would not be burdensome for this court to
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request supplemental briefing to determine whether any purpose would be served by a
remand to consider further evidence.
Moreover, if the need to prohibit the therapy provided by Ms. Chiles is such a
compelling state interest, why does the Colorado statute place no restrictions on such
therapy by those without licenses, including clergy, which has been the subject of much,
if not most, of the literature condemning conversion therapy? Such underinclusiveness
has long been recognized as undermining a claim of a compelling state interest. See, e.g.,
Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 802 (2011) (ban on sale to minors of
violent videogames is “wildly underinclusive” in the absence of regulation of, say,
Saturday morning cartoons); Reed v. Town of Gilbert, 576 U.S. 155, 172 (2015) (local
law severely restricting temporary directional signs but “allow[ing] unlimited
proliferation of larger ideological signs”); Church of Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520, 547 (1993) (“It is established in our strict scrutiny jurisprudence
that a law cannot be regarded as protecting an interest of the highest order when it leaves
appreciable damage to that supposedly vital interest unprohibited” (ellipsis and internal
quotation marks omitted)). What possible argument does the State have to counter the
application of these precedents? We should at least ask for supplemental briefing on the
subject before remanding.
If possible (and that surely seems to be the case), this litigation should be brought
to a speedy conclusion. I see no need for a remand to the district court.
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