Supreme Court of the United States · Official docket →
Brian Tingley v. Robert W. Ferguson, Attorney General of Washington, et al.
Paid petition · United States Court of Appeals for the Ninth Circuit, No. 21-35815, 21-35856 · judgment September 6, 2022
Before the decision, about 3.6× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Ninth Circuit decision below, and a circuit split argued in the petition, and down for a state or local-government respondent.
Questions presented
Brian Tingley is a licensed marriage and family counselor who helps clients with various issues, including sexuality and gender identity. A practicing Christian, Tingley grounds human identity in God’s design rather than a person’s feelings or wishes. Many of his clients agree and seek his counsel precisely because they want to align their identity with their faith. But Washington censors Tingley from speaking with clients in that way. Its Counseling Censorship Law prohibits any conversations that might encourage “change [of] an individual’s sexual orientation or gender identity,” while allowing conversations that “support … identity exploration” and “do not seek to change sexual orientation or gender identity.” Wash. Rev. Code § 18.130.020(4). The Ninth Circuit allowed the state to censor Tingley’s conversations with clients, holding that the Law prohibits Tingley’s conduct, not speech. In so doing, the court split with the Third and Eleventh Circuits, which do not treat counseling—i.e., mere talking—as conduct, and exacerbated a larger split over professional speech regulation. The court also rejected Tingley’s free-exercise claim even though the Law’s burden falls predominantly on those who seek and provide counseling for religious reasons. The questions presented are:
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Whether a law that censors conversations between counselors and clients as “unprofessional conduct” violates the Free Speech Clause.
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Whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the Court should overrule Employment Division v. Smith, 494 U.S. 872 (1990).
Counsel of record
For petitioner
John J. Bursch
Alliance Defending Freedom
For respondent
Cristina Marie Hwang Sepe
Washington State Office of the Attorney General
Case
Conference history
Distributed for 10 conferences
Amicus briefs
13 cert-stage
Argument & decision
Decided December 11, 2023.
Proceedings
- Dec 11 2023Petition DENIED. Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (Detached Opinion) Justice Alito, dissenting from the denial of certiorari. (Detached Opinion)
- Dec 01 2023Rescheduled.
- Dec 01 2023DISTRIBUTED for Conference of 12/8/2023.
- Nov 27 2023DISTRIBUTED for Conference of 12/1/2023.
- Nov 13 2023DISTRIBUTED for Conference of 11/17/2023.
- Nov 06 2023DISTRIBUTED for Conference of 11/9/2023.
- Oct 30 2023DISTRIBUTED for Conference of 11/3/2023.
- Oct 23 2023DISTRIBUTED for Conference of 10/27/2023.
- Oct 10 2023DISTRIBUTED for Conference of 10/13/2023.
- Oct 02 2023DISTRIBUTED for Conference of 10/6/2023.
- Jul 21 2023Reply of petitioner Brian Tingley filed. (Distributed)
- Jul 19 2023DISTRIBUTED for Conference of 9/26/2023.
- Jul 05 2023Brief of respondent Equal Rights Washington in opposition filed.
- Jul 05 2023Brief of State Respondents in opposition filed.
- May 12 2023Motion to extend the time to file a response is granted and the time is extended to and including July 5, 2023, for all respondents.
- May 10 2023Motion to extend the time to file a response from June 5, 2023 to July 5, 2023, submitted to The Clerk.
- May 10 2023Response to motion to extend the time to file a response from petitioner Brian Tingley filed.
- May 10 2023Reply in support of motion from respondent Robert Ferguson, et al. filed.
- May 05 2023Response Requested. (Due June 5, 2023)
- May 02 2023DISTRIBUTED for Conference of 5/18/2023.
- Apr 27 2023Brief amicus curiae of David Wiedis filed.
- Apr 27 2023Brief amici curiae of Jewish Coalition For Religious Liberty, et al. filed.
- Apr 27 2023Brief amicus curiae of Christian Medical and Dental Associations filed.
- Apr 27 2023Brief amicus curiae of Heartbeat International filed.
- Apr 27 2023Brief amicus curiae of CatholicVote.org Education Fund filed.
- Apr 27 2023Brief amicus curiae of Women's Liberation Front filed.
- Apr 27 2023Proof of Service filed with respect to brief of amicus curiae of Jewish Coalition for Religious Liberty, et al.
- Apr 27 2023Brief amicus curiae of American College of Pediatricians filed.
- Apr 27 2023Brief amici curiae of America's Future, et al. filed.
- Apr 26 2023Waiver of right of respondent Equal Rights Washington to respond filed.
- Apr 26 2023Amicus brief of Idaho, et al. not accepted for filing.(Corrected version submitted) (April 27, 2023.)
- Apr 26 2023Brief amici curiae of Idaho, et al. filed (May 2, 2023). (Distributed)
- Apr 26 2023Brief amici curiae of Institute for Faith and Family, et al. filed.
- Apr 26 2023Brief amicus curiae of Wagner Faith & Freedom Center filed.
- Apr 25 2023Waiver of right of respondents Robert Ferguson, et al. to respond filed.
- Apr 25 2023Brief amicus curiae of Liberty Justice Center filed.
- Apr 25 2023Amicus brief of Ethics and Public Policy Center not accepted for filing. (April 28, 2023)
- Apr 25 2023Brief amicus curiae of Ethics and Public Policy Center filed. (Distributed)
- Mar 27 2023Petition for a writ of certiorari filed. (Response due April 27, 2023)