The South Carolina attorney general issued an opinion on February 16, stating that cities in South Carolina can’t ban conversion therapy, because doing so violates the First Amendment, and because — even if the First Amendment allowed such bans — such bans could only be imposed by the state, not municipal governments:
While courts have reached varying conclusions regarding whether an ordinance [or statute] banning conversion therapy violates the First Amendment, we think a court is likely to conclude that the First Amendment is infringed by the Columbia ordinance. The Eleventh Circuit decision in Otto, which concluded that the First Amendment is violated in such circumstances, is well reasoned, and follows the Supreme Court’s decision in NIFLA. As the Court in Otto concluded, “[p]eople have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.” We agree.
The NIFLA Court had recognized that “professional speech” is “not a separate category of speech and “is not unprotected merely because it is uttered by “professionals.”‘ According to the NIFLA Court, “content-based regulations ‘in the fields of medicine and public health'” can be particularly dangerous. In our view, the Columbia ordinance is content-based, and thus would be subject to strict scrutiny. Under such an exacting standard, the Columbia ordinance is likely to be struck down by a court. As discussed above, our Supreme Court invalidated a Hilton Head ordinance prohibiting nude or semi-nude dancing as content-based. Thus, it is our opinion that a South Carolina court would likely follow these decisions and deem the Columbia ordinance invalid as violative of the First Amendment.
In addition, there is the issue of the power of a local government to regulate or legislate in an area which is also regulated or licensed by the State. Our Supreme Court has consistently held that a local government is impliedly preempted under its Home Rule powers as to any regulation “which requires statewide uniformity.” See S.C. Const. Art. VIII, § 14. In Vazzo v. City of Tampa, the District Court concluded that the regulation of conversion therapy is prohibited at the local level because the “substantive regulation of psychotherapy” is “a state, not a municipal concern.” Thus, a court, employing this analysis, may well deem that an ordinance, such as that adopted by of the City of Columbia, is impliedly preempted as an attempt to regulate a statewide area of concern rather than a local matter. Moreover, inasmuch as a $500 fine is imposed for each “offense,” a court may see the ordinance as making unlawful a lawful activity under state law..