Edmund Burke vs. John Stuart Mill on Conversion Therapy and Free Speech: Why These Two, and Why Now
A behind-the-scenes look at the debate, the sources, and why they took the positions they did
WHY THIS TOPIC
The Supreme Court handed down Chiles v. Salazar on March 31, 2026, and the ruling landed in a place that nobody had entirely predicted. Kaley Chiles, a Colorado therapist who describes herself as a practicing Christian, challenged the state's ban on conversion therapy for minors. The court held that the ban, as applied to her talk therapy sessions, constitutes viewpoint-based speech regulation and therefore warrants strict scrutiny under the First Amendment. Colorado's law, in practical terms, is unlikely to survive that standard.
The surface-level question is a legal one: does a professional licensing restriction that prohibits therapists from steering clients toward a specific conclusion about sexual orientation count as regulating conduct or regulating speech? The court said speech. Specifically, viewpoint-based speech. And that answer opens a much larger question that legal doctrine alone cannot resolve.
What we are really arguing about is the relationship between professional authority and individual liberty, between the state's power to protect vulnerable people and the state's power to define what licensed experts are permitted to believe. That is not a procedural question. It is one of the oldest questions in political philosophy, and it turns out that two thinkers who have been dead for well over a century have more to say about it than most of the commentary produced in the last two weeks.
---
WHY EDMUND BURKE
Burke is the obvious candidate for the side skeptical of importing First Amendment public-sphere doctrine wholesale into the professional licensing context. His entire intellectual career was a sustained argument against untethering principles from the accumulated experience of institutions. In Reflections on the Revolution in France (1790), he warned that abstract rights become dangerous when they float free of the historical and institutional context that gives them meaning. A rule that works cleanly in the public square may be catastrophic when applied without modification to the therapy room, and Burke is the philosopher most equipped to explain exactly why.
What makes Burke genuinely interesting in this debate, rather than just useful as a foil, is that his conservatism cuts in an unexpected direction here. He should, on first principles, be defending Colorado's law as the kind of accumulated professional wisdom encoded in licensing standards that he normally champions. Instead, he finds himself agreeing with the court's conclusion that the law is viewpoint discrimination, because he understands something about how state power operates that many defenders of the law do not: the machinery you build to enforce one orthodoxy does not stay pointed in one direction.
The specific Burke text that grounds his position in this debate is An Appeal from the New to the Old Whigs (1791), where he distinguishes between the legitimate authority of professional institutions built up through practice and the illegitimate authority of ideological enforcement imposed from above. Burke also draws heavily on his parliamentary speeches on professional regulation, particularly his arguments that the state's relationship to licensed professions must be one of oversight rather than ideological direction.
---
WHY JOHN STUART MILL
Mill is the natural candidate for the side defending viewpoint neutrality, but his position in this debate is considerably more complicated than that framing suggests. On Liberty (1859) contains the harm principle, which provides the strongest possible philosophical argument for banning conversion therapy if it causes harm. It also contains one of the most rigorous defenses of free expression in the Western canon. Mill pulls in both directions simultaneously, and that internal tension makes him more interesting dramatically than a simpler free-speech absolutist would be.
The Subjection of Women (1869) adds a dimension that most commentators on the Chiles ruling have missed. Mill spent considerable intellectual energy analyzing how authority operates in asymmetric relationships, where one party has power and the other has dependence. His analysis of marriage as a power relationship that shapes the available conclusions of the less powerful party translates directly to the therapy room, and it creates genuine tension with his own marketplace-of-ideas model. Mill, of all philosophers, understood that the marketplace of ideas only works as a liberty-protecting mechanism when the parties exchanging ideas are something like equals.
Mill's personal history also matters here in a way that is unusual. He was subjected from birth to an educational regime designed by his father James Mill to shape his intellectual conclusions, an experiment in applied philosophy that produced a nervous breakdown at the age of twenty. Mill understood viscerally what it feels like to have a trusted authority figure systematically direct your development toward conclusions you did not choose. He recovered, eventually, by encountering Wordsworth and discovering that pure reason without emotional grounding was not sufficient for a human life. That experience gives his engagement with this topic a weight that purely abstract argument would not produce.
---
WHO ELSE WE CONSIDERED
John Locke was the first serious alternative. Locke's theory of parens patriae, the state's authority to act in a parental capacity when guardians fail to protect a child, maps directly onto the question of whether Colorado could restrict therapeutic harm to minors. We held him back because Locke's framework is more useful for the specific legal question than for the deeper philosophical one, and because we want to save Locke for a debate where his social contract theory is more central rather than peripheral.
Immanuel Kant was a strong candidate for Mill's role. The categorical imperative provides a clean framework for the viewpoint discrimination argument: you cannot universalize a principle that the state may prohibit therapeutic viewpoints it dislikes, therefore the prohibition is impermissible. We found this argument a little too clean. Kant gives you the answer too quickly and without the internal tension that makes Mill genuinely interesting in this pairing. The debate would have been more precise and considerably less alive.
Jean-Jacques Rousseau was considered for Burke's position because his concept of the general will provides a strong argument for the community's authority to define what professional practice must look like. We rejected him partly because Rousseau and Mill would spend the entire debate arguing about liberty and authority in the abstract without ever getting to the specific question of professional speech, and partly because the documented philosophical antagonism between Burke and Mill gives us more productive historical friction to work with.
Thomas Jefferson was briefly considered for his First Amendment thinking, but we have already used Jefferson in this series and wanted fresh voices for a topic this specific.
---
WHY EACH MAN TAKES THE POSITION HE DOES
Burke's position is genuinely paradoxical, and we think that paradox is the most intellectually honest thing about casting him here. He should be defending Colorado's law. Professional licensing that sets standards for what practitioners may say to clients is exactly the kind of accumulated social wisdom he champions throughout Reflections and his parliamentary career. Instead, he finds himself siding with the ruling, not because he endorses conversion therapy but because he recognizes the specific mechanism Colorado used as something more dangerous than the practice it was targeting.
In Reflections, Burke writes that the most dangerous things in political life are not bad intentions but good mechanisms badly applied. Colorado's legislators had good intentions. But they built a mechanism that allows the state to identify which therapeutic conclusions are permissible and which are forbidden based on the content of the viewpoint being expressed. Burke looks at that mechanism and sees a tool that a different government with different values could aim at different therapists, at therapists whose viewpoints happen to conflict with whatever the next orthodoxy turns out to be. His opposition to Colorado's law is not a defense of conversion therapy. It is a warning about institutional power that he would have issued regardless of which viewpoint was being suppressed.
Mill's position is the mirror image in complexity. He is simultaneously committed to the harm principle, which supports the ban, and to free expression doctrine, which opposes it. The resolution he reaches is not comfortable, and we did not try to make it comfortable in the script. Mill defends the ruling because he believes the alternative, a regime in which states can define professional viewpoint orthodoxy outside the First Amendment framework, is structurally more dangerous over time than the specific harm the ruling permits in the short term. His key evidence is historical: professional consensus classified homosexuality as a disorder until 1973. Applied with Burke's framework in that era, that consensus would have licensed the very therapy that consensus now condemns. Mill does not trust the consensus of today any more than the consensus of 1870, and his harm principle, properly applied, requires him to take seriously the harm of giving the state that kind of authority over future generations.
What neither man can resolve, and what produces the shouting in Part 2, is the question of the specific child. The child in the therapy room right now is not a framework problem. The constitutional precedent being set is not a visible harm that can be pointed to in the way that depression and suicidal ideation can be pointed to. Burke and Mill agree on both of those facts. They cannot agree on which one should govern.
---
A NOTE ON THE SOURCES
The primary sources for Burke are Reflections on the Revolution in France (1790) and the collection of parliamentary speeches available in the Oxford World's Classics edition. Burke's voice in this debate is drawn specifically from his arguments about abstract rights and institutional wisdom in Reflections, and from his repeated parliamentary insistence that professional bodies derive their authority from accumulated practice rather than from ideological mandate.
The primary sources for Mill are On Liberty (1859) and The Subjection of Women (1869), both also available in Oxford World's Classics editions. The directly relevant chapters are Of the Liberty of Thought and Discussion and Of the Limits to the Authority of Society over the Individual in On Liberty, and Mill's extended analysis of asymmetric authority in The Subjection of Women. The Autobiography provides the personal context for Mill's engagement with intellectual formation and authority.
One honest note about the historical record: neither Burke nor Mill directly addressed professional licensing as a free speech question, because First Amendment viewpoint discrimination doctrine did not exist in its modern form in either man's lifetime. The positions in this debate are historically grounded extrapolations from their documented views, not direct applications of arguments they made about these specific facts. We believe both men would have found the question fascinating, and we are reasonably confident they would have taken roughly the positions we have assigned them, because those positions follow directly from the arguments they actually made about liberty, authority, and professional institutions.
---
WHAT COMES NEXT
This debate is part of our ongoing series exploring current events through the lens of historical philosophy. Coming up, we are looking at voting rights and racial gerrymandering questions currently before the court.
If you want to know when each new debate drops, subscribe to PhilosophersTalk.com on Substack. You will get the companion post the same day the video goes live on YouTube.
---
This debate was produced using AITalkerApp.com (https://AITalkerApp.com), which converts voice recordings, photos, and scripts into two-person animated conversations. No production experience needed. Link in the description.