Welch, et. al. v. Brown, et. al.

Filing 55

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 12/3/2012 re 9 Motion for Preliminary Injunction : IT IS ORDERED that plaintiffs' motion for a preliminary injunction be, and the same hereby is, GRANTED. Pending final resolution of this action, defendants are hereby enjoined from enforcing the provisions of SB 1172 (to be codified at Cal. Bus. & Prof. Code §§ 865-865.2) as against plaintiffs Donald Welch, Anthony Duk, and Aaron Bitzer. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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DONALD WELCH, ANTHONY DUK,
AARON BITZER,

NO. CIV. 2:12-2484 WBS KJN

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MEMORANDUM AND ORDER RE:
MOTION FOR PRELIMINARY
INJUNCTION

Plaintiffs,
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v.
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EDMUND G. BROWN, JR., Governor
of the State of California, In
His Official Capacity, ANNA M.
CABALLERO, Secretary of
California State and Consumer
Services Agency, In Her
Official Capacity, DENISE
BROWN, Director of Consumer
Affairs, In Her Official
Capacity, CHRISTINE
WIETLISBACH, PATRICIA
LOCK-DAWSON, SAMARA ASHLEY,
HARRY DOUGLAS, JULIA JOHNSON,
SARITA KOHLI, RENEE LONNER,
KAREN PINES, CHRISTINA WONG,
In Their Official Capacities
as Members of the California
Board of Behavioral Sciences,
SHARON LEVINE, MICHAEL BISHOP,
SILVIA DIEGO, DEV GNANADEV,
REGINALD LOW, DENISE PINES,
JANET SALOMONSON, GERRIE
SCHIPSKE, DAVID SERRANO
SEWELL, BARBARA YAROSLAYSKY,
In Their Official Capacities
as Members of the Medical
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Board of California,

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Defendants.
/

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----oo0oo----

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Plaintiffs Donald Welch, Anthony Duk, and Aaron Bitzer

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seek to enjoin enforcement of Senate Bill 1172 (“SB 1172”), which

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if it goes into effect on January 1, 2013, will prohibit mental

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health providers from engaging in sexual orientation change

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efforts (“SOCE”) with minors.
Because the court finds that SB 1172 is subject to

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strict scrutiny and is unlikely to satisfy this standard, the

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court finds that plaintiffs are likely to succeed on the merits

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of their 42 U.S.C. § 1983 claims based on violations of their

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rights to freedom of speech under the First Amendment.

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plaintiffs have also shown that they are likely to suffer

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irreparable harm in the absence of an injunction, that the

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balance of equities tips in their favor, and that an injunction

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is in the public interest, the court grants plaintiffs’ motion

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for a preliminary injunction.1

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I.

Because

Factual and Procedural Background
On September 29, 2013, defendant Governor Edmund G.

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Brown, Jr., signed SB 1172.

SB 1172 prohibits a “mental health

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provider” from engaging in “sexual orientation change efforts

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with a patient under 18 years of age” under all circumstances.

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The court accordingly does not reach plaintiffs’
remaining constitutional challenges, namely, that SB 1172
violates any rights to privacy, violates the First Amendment Free
Exercise and Establishment Clauses, or is unconstitutionally
vague and overbroad under the First Amendment.
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Cal. Stats. 2012, ch. 835, at 91 (“SB 1172”) (to be codified at

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Cal. Bus. & Prof. Code §§ 865(a), 865.1).

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that “[a]ny sexual orientation change efforts attempted on a

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patient under 18 years of age by a mental health provider shall

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be considered unprofessional conduct and shall subject a mental

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health provider to discipline by the licensing entity for that

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mental health provider.”

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Prof. Code § 865.2).

It further provides

Id. (to be codified at Cal. Bus. &

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SB 1172 defines “sexual orientation change efforts” as

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“any practices by mental health providers that seek to change an

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individual’s sexual orientation.

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behaviors or gender expressions, or to eliminate or reduce sexual

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or romantic attractions or feelings toward individuals of the

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same sex.”

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865(b)(1)).

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“psychotherapies that: (A) provide acceptance, support, and

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understanding of clients or the facilitation of clients’ coping,

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social support, and identity exploration and development,

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including sexual orientation-neutral interventions to prevent or

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address unlawful conduct or unsafe sexual practices; and (B) do

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not seek to change sexual orientation.”

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Cal. Bus. & Prof. Code § 865(b)(2)).

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health provider” as:

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This includes efforts to change

Id. (to be codified at Cal. Bus. & Prof. Code §
From this definition, SB 1172 excludes

Id. (to be codified at

The bill defines “mental

a physician and surgeon specializing in the practice of
psychiatry, a psychologist, a psychological assistant,
intern, or trainee, a licensed marriage and family
therapist, a registered marriage and family therapist,
intern, or trainee, a licensed educational psychologist,
a credentialed school psychologist, a licensed clinical
social worker, an associate clinical social worker, a
licensed professional clinical counselor, a registered
clinical counselor, intern, or trainee, or any other
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person designated as a mental health professional under
California law or regulation.

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Id. (to be codified at Cal. Bus. & Prof. Code § 865(a)).

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Plaintiff Donald Welch is a licensed marriage and

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family therapist in California and an ordained minister.

(Welch

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Decl. ¶ 1 (Docket No. 11).)

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non-profit professional counseling center, the owner and director

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of a for-profit counseling center, and an adjunct professor at

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two universities.

He is currently the president of a

(Id. ¶ 4.)

Welch is also employed part-time

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as a Counseling Pastor for Skyline Wesleyan Church, which teaches

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that “human sexuality . . . is to be expressed only in a

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monogamous lifelong relationship between one man and one woman

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within the framework of marriage.”

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provides treatment that qualifies as SOCE under SB 1172 and his

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“compliance with SB 1172 will jeopardize [his] employment” at

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Skyline Wesleyan Church.

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(Id. ¶ 5, Ex. A at 3.)

Welch

(Id. ¶¶ 5, 8-9, 11, 17.)

Plaintiff Anthony Duk is a medical doctor and board

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certified psychiatrist in full-time private practice who works

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with adults and children over the age of sixteen.

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(Docket No. 13).)

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“struggling with” homosexuality and bisexuality.

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his practice, Duk utilizes treatment that qualifies as SOCE under

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SB 1172.

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(Duk Decl. ¶ 1

His current patients include minors
(Id. ¶ 6.)

In

(Id.)
Plaintiff Aaron Bitzer is an adult who has had same-sex

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attractions beginning in his childhood and was “involved in

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sexual orientation efforts commonly called ‘SOCE’” as an adult in

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2011 and 2012.

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Bitzer “had been planning on becoming a therapist specifically to

(Bitzer Decl. ¶¶ 1-11, 15 (Docket No. 12).)

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work” with individuals having same-sex attractions and to help

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men like himself.

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SB 1172, [he has] had to reorder all of [his] career plans and

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[is] trying to pursue a doctorate so as to also contribute

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research to this field.”2

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(Id. ¶ 26.)

He explains that, “[b]ecause of

(Id.)

On October 1, 2012, plaintiffs initiated this action

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under 42 U.S.C. § 1983 against various state defendants to

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challenge the constitutionality of SB 1172.

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In their Complaint, plaintiffs seek declaratory relief and

(See Docket No. 1.)

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preliminary and permanent injunctions.

Presently before the

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court is plaintiffs’ motion for a preliminary injunction in which

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they seek to enjoin enforcement of SB 1172 before the new law

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goes into effect on January 1, 2013.3

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Justice permission to submit briefs and present oral argument as

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an amicus curiae in this case.

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II.

The court granted Equality

(See Docket No. 30.)

Analysis

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To succeed on a motion for a preliminary injunction,

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plaintiffs must establish that (1) they are likely to succeed on

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the merits; (2) they are likely to suffer irreparable harm in the

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absence of preliminary relief; (3) the balance of equities tips

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Neither defendants nor amicus challenged whether Bitzer
has Article III standing.
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Defendants submitted numerous evidentiary objections to
the declarations of Duk, Welch, and Bitzer “to the extent that
they are offered as scientific opinion evidence on the efficacy
or safety of [SOCE] generally, or on minors in particular, or on
the nature and/or causes of homosexuality, bisexuality, or
heterosexuality.” (See Docket No. 37.) The court neither
considers nor relies on these declarations for such purposes and
discusses plaintiffs’ statements in the declarations only to
provide background information and to identify how Duk and Welch
perform SOCE. The court therefore need not resolve defendants’
evidentiary objections.
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in their favor; and (4) an injunction is in the public interest.

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);

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Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir.

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2011).

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“injunctive relief [i]s an extraordinary remedy that may only be

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awarded upon a clear showing that the plaintiff is entitled to

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such relief.”

The Supreme Court has repeatedly emphasized that

Winter, 555 U.S. at 22.

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“The purpose of a preliminary injunction is merely to

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preserve the relative positions of the parties until a trial on

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the merits can be held.”

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390, 395 (1981).

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preliminary adjudication on the merits but rather a device for

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preserving the status quo and preventing the irreparable loss of

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rights before judgment.’”

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590 F.3d 1091, 1094 (9th Cir. 2010) (quoting Sierra On–Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984))

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(omission in original).

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A.

Univ. of Tex. v. Camenisch, 451 U.S.

“‘A preliminary injunction . . . is not a

U.S. Philips Corp. v. KBC Bank N.V.,

Plaintiffs May Not Assert the Rights of Parents and

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Minors

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“As a prudential matter, even when a plaintiff has

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Article III standing, [federal courts] do not allow third parties

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to litigate on the basis of the rights of others.”

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Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 917 (9th Cir.

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2004).

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‘generally must assert his own legal rights and interests, and

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cannot rest his claim to relief on the legal rights or interests

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of third parties.’”

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(quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).

Planned

The Supreme Court has “adhered to the rule that a party

Kowalski v. Tesmer, 543 U.S. 125, 129 (2004)

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This limitation on prudential standing is not

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“absolute,” and the Court has recognized “that there may be

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circumstances where it is necessary to grant a third party

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standing to assert the rights of another.”

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Specifically, a litigant may bring an action on behalf of a third

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party if “three important criteria are satisfied”: “The litigant

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must have suffered an ‘injury in fact,’ thus giving him or her a

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‘sufficiently concrete interest’ in the outcome of the issue in

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dispute; the litigant must have a close relation to the third

Id. at 129-30.

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party; and there must exist some hindrance to the third party’s

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ability to protect his or her own interests.”

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499 U.S. 400, 410-11 (1991); accord Coalition of Clergy, Lawyers,

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& Professors v. Bush, 310 F.3d 1153, 1163 (9th Cir. 2002).

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Powers v. Ohio,

Third-party standing for physicians asserting the

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rights of their patients first developed in the abortion context.

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For example, in Singleton v. Wulff, 428 U.S. 106 (1976), the

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Supreme Court concluded that “it generally is appropriate to

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allow a physician to assert the rights of women patients as

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against governmental interference with the abortion decision.”4

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Only three justices joined in Justice Blackmun’s
rationale as to why the physicians could assert the rights of
their patients. Singleton, 428 U.S. at 108 (plurality opinion).
Justice Stevens, the fifth vote in the outcome, concluded that
the doctors had standing because they “have a financial stake in
the outcome of the litigation” and “claim that the statute
impairs their own constitutional rights.” Singleton, 428 U.S. at
121 (Stevens, J., concurring in part). Despite only three
justices having joined Justice Blackmun’s analysis, “[m]any cases
nonetheless speak of the court in Singleton as having ‘held’ that
the physician had third-party standing.” Aid for Women v.
Foulston, 441 F.3d 1101, 1113 n.13 (10th Cir. 2006); see also
Singleton, 428 U.S. at 122 (Powell, J., dissenting) (“The Court
further holds that . . . respondents may assert, in addition to
their own rights, the constitutional rights of their patients . .
. . I dissent from this holding.”).
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Singleton, 428 U.S. at 118 (plurality opinion); see also Planned

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Parenthood of Idaho, Inc., 376 F.3d at 917 (“Since at least

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Singleton v. Wulff, [] it has been held repeatedly that

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physicians may acquire jus tertii standing to assert their

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patients’ due process rights in facial challenges to abortion

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laws.”).

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Even assuming plaintiffs can satisfy the first two

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criteria, plaintiffs cannot credibly suggest that parents of

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minor children who seek SOCE and minors who desire SOCE face a

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hindrance in asserting their own rights.

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plaintiffs initiated this action, a second case challenging SB

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1172 was filed in this court.

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include parents of minor children seeking SOCE for their minor

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children and minor children seeking SOCE, and the plaintiffs in

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that case have similarly sought a preliminary injunction.

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Pickup v. Brown, Civ. No. 2:12-2497 KJM EFB (E.D. Cal.) Compl. ¶¶

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2-6 (Docket No. 1).)

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Three days after

The plaintiffs in that case

(See

Not only is it clear that parents and minors do not

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face a hindrance in challenging SB 1172 as it relates to their

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rights, determining whether the statute will violate their rights

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is more appropriately addressed in the case in which they are

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plaintiffs.

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the third-party rights of parents of minor children or minors and

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the court’s analysis of SB 1172 will be limited to challenges

Accordingly, plaintiffs in this case may not assert

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In Singleton, the physicians had alleged that the
statute at issue violated their “constitutional rights to
practice medicine.” Singleton, 428 U.S. at 113 (internal
quotation marks and citation omitted). Justice Brennan stated
that the Court had “no occasion to decide whether such a right
exists.” Id.
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based on plaintiffs’ own rights.

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Bd. of Sch. Comm’rs, 641 F.3d 197, 208-09 (6th Cir. 2011)

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(finding that teachers lacked prudential standing to assert the

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rights of their students when, even though the teachers had a

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sufficiently close relationship to their students, “[t]here is no

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evidence that the students or their parents might be deterred

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from suing,” “that the claims of the students would be imminently

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moot,” or “that the students face systemic practical challenges

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to filing suit”).

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B.

Cf. Smith v. Jefferson Cnty.

Plaintiffs’ Right of Free Speech under the First

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Amendment

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“The First Amendment applies to state laws and

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regulations through the Due Process Clause of the Fourteenth

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Amendment.”

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Cal. Bd. of Psychology, 228 F.3d 1043, 1053 (9th Cir. 2000)

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(hereinafter “NAAP”).

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physician speech is entitled to First Amendment protection

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because of the significance of the doctor-patient relationship.”

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Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002) (citing

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Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992)

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(plurality opinion); Rust v. Sullivan, 500 U.S. 173, 200 (1991)).

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The Ninth Circuit has also “recognized that communication that

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occurs during psychoanalysis is entitled to First Amendment

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protection.”

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Nat’l Ass’n for the Advancement of Psychoanalysis v.

“The Supreme Court has recognized that

Conant, 309 F.3d at 637.
Because SB 1172 Would Restrict the Content of

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Speech and Prohibit the Expression of Particular

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Viewpoints It Is Subject to Strict Scrutiny Review

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a.

The Fact that SB 1172 Is a Professional

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Regulation Does Not Exempt It from

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Strict Scrutiny

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Defendants and amicus first argue that, even though

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physician speech receives First Amendment protection, SB 1172 is

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subject only to rational basis or a reasonableness level of

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review because it is a regulation of professional conduct.

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concurring opinion in Lowe v. SEC, 472 U.S. 181 (1985), Justice

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White, joined by two other justices, stated that “[r]egulations

In a

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on entry into a profession, as a general matter, are

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constitutional if they ‘have a rational connection with the

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applicant’s fitness or capacity to practice’ the profession.”

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Lowe, 472 U.S. at 228 (White, J., concurring) (quoting Schware v.

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Bd. of Bar Examiners, 353 U.S. 232, 239 (1957)).

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Lowe, the Fourth Circuit held that “[a] statute that governs the

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practice of an occupation is not unconstitutional as an

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abridgment of the right to free speech, so long as any inhibition

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of that right is merely the incidental effect of observing an

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otherwise legitimate regulation.”

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Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (internal quotation

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marks and citation omitted).5

Relying on

Accountant’s Soc. of Va. v.

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In Dittman v. California, 191 F.3d 1020 (9th Cir.
1999), the Ninth Circuit rejected the plaintiff’s substantive due
process challenge to a regulation requiring disclosure of his
social security number to renew his acupuncturist license. In
doing so, the court quoted Lowe for “the fundamental principle
that ‘[r]egulations on entry into a profession, as a general
matter, are constitutional if they “have a rational connection
with the applicant’s fitness or capacity to practice” the
profession.’” Dittman, 191 F.3d at 1030 (quoting Lowe, 472 U.S.
at 228). Unlike Lowe and Dittman, SB 1172 is not a regulation
“on entry into a profession,” Lowe, 472 U.S. at 228.
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In a brief paragraph of the plurality decision in

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Casey, Justice O’Connor, with little analysis and joined by only

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two justices, addressed plaintiffs’ “asserted First Amendment

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right of a physician not to provide information about the risks

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of abortion, and childbirth, in a manner mandated by the State.”

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Casey, 505 U.S. at 884 (plurality opinion).

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rejected this claim, stating, “To be sure, the physician’s First

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Amendment rights not to speak are implicated, but only as part of

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the practice of medicine, subject to reasonable licensing and

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regulation by the State.”

Justice O’Connor

Id. (internal citation omitted).

In Lowe, Justice White recognized that, “[a]t some

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point, a measure is no longer a regulation of a profession but a

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regulation of speech or of the press; beyond that point, the

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statute must survive the level of scrutiny demanded by the First

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Amendment.”

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Ninth Circuit has also stated that the plurality opinion in Casey

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“did not uphold restrictions on speech itself.”

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at 638.

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Casey thus do not appear to apply if a law imposes restrictions

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on a professional’s speech.

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a lower level of review to professional regulations addressing

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the speech of a professional.

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No. 2:09-646, 2010 WL 1141452, at *9-10 (M.D. Ala. Mar. 3, 2010)

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(upholding discipline of licensed chiropractor who advised

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patient to stop taking prescriptions as a reasonable regulation

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of speech in the doctor-patient relationship); see generally

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Wollschlaeger v. Farmer, --- F. Supp. 2d ----, 2012 WL 3064336,

Lowe, 472 U.S. at 230 (White, J., concurring).

The

Conant, 309 F.3d

The lower levels of review contemplated in Lowe and

Some courts have nonetheless applied

See, e.g., Shultz v. Wells, Civ.

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at *9 (S.D. Fla. June 29, 2012).6

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The Ninth Circuit, however, has explained that a

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content- or viewpoint-based professional regulation is subject to

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strict scrutiny.

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California’s mental health licensing laws, which prohibited the

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plaintiffs from practicing psychoanalysis in California, did not

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violate the First Amendment.

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that the licensing scheme implicated speech,7 the Ninth Circuit

In NAAP, the Ninth Circuit held that

NAAP, 228 F.3d at 1056.

Assuming

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In Wollschlaeger, the Southern District of Florida
cites Conant as requiring that professional regulations “must
have the requisite ‘narrow specificity.’” Wollschlaeger, 2012 WL
3064336, at *9 (quoting Conant, 309 F.3d at 639). The Ninth
Circuit’s reference to “narrow specificity” derives from Supreme
Court jurisprudence addressing vagueness, and the court
ultimately upheld the injunction against the federal policy
because “the government has been unable to articulate exactly
what speech is proscribed, describing it only in terms of speech
the patient believes to be a recommendation of marijuana.”
Conant, 309 F.3d at 639.
In NAACP v. Button, 371 U.S. 415, 433 (1963), which the
Ninth Circuit cited as authority for the “narrow specificity”
standard, the Supreme Court addressed an allegedly vague statute
and concluded, “Because First Amendment freedoms need breathing
space to survive, government may regulate in the area only with
narrow specificity.” Button, 371 U.S. at 433 (citing Cantwell v.
Connecticut, 310 U.S. 296, 311 (1940)); see also Cantwell, 310
U.S. at 311 (“[I]n the absence of a statute narrowly drawn to
define and punish specific conduct as constituting a clear and
present danger to a substantial interest of the State, the
petitioner’s communication, considered in the light of the
constitutional guarantees, raised no such clear and present
menace to public peace and order as to render him liable to
conviction of the common law offense in question.”).
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The Ninth Circuit did not determine whether First
Amendment rights to speech were in fact implicated by the
challenged licensing scheme. See NAAP, 228 F.3d at 1053 (“We
conclude that, even if a speech interest is implicated,
California’s licensing scheme passes First Amendment scrutiny.”)
(emphasis added); id. at 1056 (“Although some speech interest may
be implicated, California’s content-neutral mental health
licensing scheme is a valid exercise of its police power to
protect the health and safety of its citizens and does not offend
the First Amendment.”) (emphasis added). Two years later in
Conant, however, the Ninth Circuit stated that, in NAAP, “we
recognized that communication that occurs during psychoanalysis

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rejected the plaintiffs’ argument that psychoanalysis deserved

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unique First Amendment protection because it is the “talking

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cure.”

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conclusion that “the key component of psychoanalysis is the

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treatment of emotional suffering and depression, not speech. . .

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. That psychoanalysts employ speech to treat their clients does

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not entitle them, or their profession, to special First Amendment

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protection.”

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Circuit then explained that “[t]he communication that occurs

Id. at 1054.

The court agreed with the district court’s

Id. (internal quotation marks omitted).

The Ninth

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during psychoanalysis is entitled to constitutional protection,

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but it is not immune from regulation.”

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Id. at 1054-55.

After concluding that “the licensing scheme is a valid

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exercise of California’s police power,” the Ninth Circuit held

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that it was not subject to strict scrutiny because it was

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content- and viewpoint-neutral.

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specifically stated, “We have held that ‘“[t]he appropriate level

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of scrutiny is tied to whether the statute distinguishes between

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prohibited and permitted speech on the basis of content.”’”

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(quoting Black v. Arthur, 201 F.3d 1120, 1123 (9th Cir. 2000))

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(alteration in original).

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that a lower standard governed California’s mental health

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licensing laws regardless of content simply because they were

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professional regulations.

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“[a]lthough the California laws and regulations may require

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certain training, speech is not being suppressed based on its

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message”).

Id. at 1055.

The court

Id.

The court neither suggested nor held

See id. at 1055 (emphasizing that,

It therefore follows under NAAP that a professional

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is entitled to First Amendment protection.”
637.
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Conant, 309 F.3d at

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regulation would be subject to strict scrutiny if it is not

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content- and viewpoint-neutral.

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Since NAAP, the Ninth Circuit has continued to adhere

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to the traditional standards governing content- or viewpoint-

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based regulations.

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physicians from recommending marijuana to patients violated the

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First Amendment, the Ninth Circuit recognized that “[b]eing a

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member of a regulated profession does not, as the government

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suggests, result in a surrender of First Amendment rights” and

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found that the federal policy was content- and viewpoint-based.

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Conant, 309 F.3d at 637.

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constitutional regulations in NAAP were content-neutral, id. at

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637, and emphasized that “content-based restrictions on speech

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are ‘presumptively invalid.’”

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Circuit cited NAAP as authority for the rule that “both

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viewpoint-based and content-based speech restrictions trigger

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strict scrutiny.”

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419, 431 (9th Cir. 2008).

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as a professional regulation, it is subject to strict scrutiny if

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it is content- or viewpoint-based.

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b.

In finding that a federal policy prohibiting

The Conant court explained how the

Id. at 637-38.

In 2008, the Ninth

Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d
Accordingly, even if SB 1172 is viewed

SB 1172 Is Not Exempt from Strict Scrutiny
Review as a Statute Regulating Conduct

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Defendants and amicus next contend that 1) SB 1172 is

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not subject to review under the First Amendment because it

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regulates conduct, not speech; and 2) even if SB 1172 is subject

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to First Amendment review, it is reviewed under intermediate

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scrutiny.

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“‘it has never been deemed an abridgment of freedom of speech or

Under Supreme Court First Amendment jurisprudence,

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press to make a course of conduct illegal merely because the

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conduct was in part initiated, evidenced, or carried out by means

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of language, either spoken, written, or printed.’”

4

Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (quoting Giboney

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v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)); see also

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Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 604 (2001)

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(Stevens, J., concurring) (“This Court has long recognized the

8

need to differentiate between legislation that targets expression

9

and legislation that targets conduct for legitimate

Ohralik v.

10

non-speech-related reasons but imposes an incidental burden on

11

expression.”).

12

SB 1172 defines SOCE as “any practices by mental health

13

providers that seek to change an individual’s sexual orientation.

14

This includes efforts to change behaviors or gender expressions,

15

or to eliminate or reduce sexual or romantic attractions or

16

feelings toward individuals of the same sex.”

17

codified at Cal. Bus. & Prof. Code § 865(b)(1)).

18

bill analyses leading up to the passage of SB 1172 illustrates

19

that there is not a single method of performing SOCE.

20

example, a Senate Judiciary Committee bill analysis explains that

21

“SOCE techniques may include aversive treatments such as electric

22

shock or nausea inducing drugs administered simultaneously with

23

the presentation of homoerotic stimuli.

24

try to alter a patient’s sexuality with visualization, social

25

skills training, psychoanalytic therapy, and spiritual

26

interventions.”

27

at 3 (May 8, 2012).

28

modern reparative therapy,” promotes SOCE intervention plans that

SB 1172 (to be
A review of the

For

Practitioners may also

S. Judiciary Comm., Comm. Analysis of SB 1172,
Joseph Nicolosi, “one of the founders of

15

1

“involve conditioning a man to a traditional masculine gender

2

role via participation in sports activities, avoidance of the

3

other sex unless for romantic contact, avoiding contact with

4

homosexuals, increasing time spent with heterosexuals, engaging

5

in group therapy, marrying a person of the opposite sex and

6

fathering children.”

7

Comm. Analysis of SB 1172, at 8 (Apr. 19, 2012).

8

particularly conservative Christian transformational ministries,

9

use the term conversion therapy to refer to the utilization of

S. Comm. on Bus., Professions & Econ. Dev.,
“Others,

10

prayer, religious conversion, individual and group counseling to

11

change a person’s sexual orientation.”

12

Id.

In the 2009 “Report of the American Psychological

13

Association Task Force on Appropriate Therapeutic Responses to

14

Sexual Orientation” (“2009 APA Report”), the array of treatments

15

used in SOCE, many of which do not include speech, are described

16

as follows:

17
18
19
20
21
22
23
24

Behavior therapists tried a variety of aversion
treatments, such as inducing nausea, vomiting, or
paralysis; providing electric shocks; or having the
individual snap an elastic band around the wrist when the
individual became aroused to same-sex erotic images or
thoughts.
Other examples of aversive behavioral
treatments included covert sensitization, shame aversion,
systematic desensitization, orgasmic reconditioning, and
satration therapy. Some nonaversive treatments used an
educational process of dating skills, assertiveness, and
affection training with physical and social reinforcement
to increase other-sex sexual behaviors.
Cognitive
therapists attempted to change gay men’s and lesbians’
thought patterns by reframing desires, redirecting
thoughts, or using hypnosis, with the goal of changing
sexual arousal, behavior, and orientation.

25
26

(Stein Decl. Ex. 1 (“2009 APA Report”) at 22 (Docket No. 34-1).)

27

From the myriad of explanations about the various SOCE

28

treatments, it is clear that there is not a single method for a
16

1

mental health provider to engage in SOCE.

2

also recognized that “the key component of psychoanalysis is the

3

treatment of emotional suffering and depression, not speech.”

4

NAAP, 228 F.3d at 1054 (internal quotation marks omitted).

5

Nonetheless, at least some forms of SOCE, such as “talk therapy,”

6

involve speech and the Ninth Circuit has stated that the

7

“communication that occurs during psychoanalysis is entitled to

8

First Amendment protection.”

9

Therefore, even if SB 1172 is characterized as primarily aimed at

10

regulating conduct, it also extends to forms of SOCE that utilize

11

speech and, at a minimum, regulates conduct that has an

12

incidental effect on speech.

13

The Ninth Circuit has

Conant, 309 F.3d at 637.

In United States v. O’Brien, 391 U.S. 367 (1968), the

14

Supreme Court explained that, “when ‘speech’ and ‘nonspeech’

15

elements are combined in the same course of conduct, a

16

sufficiently important governmental interest in regulating the

17

nonspeech element can justify incidental limitations on First

18

Amendment freedoms.”

19

circumstances, “a government regulation is sufficiently justified

20

[1] if it is within the constitutional power of the Government;

21

[2] if it furthers an important or substantial governmental

22

interest; [3] if the governmental interest is unrelated to the

23

suppression of free expression; and [4] if the incidental

24

restriction on alleged First Amendment freedoms is no greater

25

than is essential to the furtherance of that interest.”

26

377.

O’Brien, 391 U.S. at 376.

In such

Id. at

27

In O’Brien, the Court rejected a First Amendment free

28

speech challenge to a law criminalizing the knowing destruction
17

1

of draft registration certificates when O’Brien claimed he burned

2

his certificate as a demonstration against the war.

3

concluding that the law satisfied the four-part test, the Court

4

reasoned that “[t]he case at bar is therefore unlike one where

5

the alleged governmental interest in regulating conduct arises in

6

some measure because the communication allegedly integral to the

7

conduct is itself thought to be harmful.”

8

intermediate scrutiny standard from O’Brien therefore “does not

9

provide the applicable standard for reviewing a content-based

10

regulation of speech.”

11

After

Id. at 382.

The

U.S. ----, 130 S. Ct. 2705, 2723 (2010).

12

Holder v. Humanitarian Law Project, ---

In Humanitarian Law Project, the Supreme Court

13

addressed a preenforcement challenge to the federal material-

14

support statute and held that it could not be assessed under the

15

O’Brien test.

16

crime to ‘knowingly provid[e] material support or resources to a

17

foreign terrorist organization.’”

18

§ 2339B).

19

statute prohibited “most often does not take the form of speech

20

at all,” but that the plaintiffs in the case intended to provide

21

material support through speech.

22

that the statute was content-based and therefore subject to

23

strict scrutiny, the Court rejected the government’s argument

24

that it should nonetheless be subject to intermediate scrutiny

25

“because it generally functions as a regulation of conduct.”

26

at 2724.

27

emphasized, “The law here may be described as directed at

28

conduct, . . . but as applied to plaintiffs the conduct

The material-support statute “makes it a federal

Id. at 2713 (quoting 18 U.S.C.

The Court recognized that the “material support” the

Id. at 2723.

After concluding

In rejecting the government’s position, the Court

18

Id.

1

triggering coverage under the statute consists of communicating a

2

message” because the plaintiffs intended to “provide material

3

support to the PKK and LTTE in the form of speech.”

4

Id.

Similar to Humanitarian Law Project, plaintiffs in this

5

case have indicated that they wish to engage in SOCE through

6

speech.

7

performed through conduct and that SOCE generally functions to

8

regulate conduct, it is not automatically subject to review under

9

the O’Brien test.

Moreover, even if the court assumes that most SOCE is

As the Court made clear in O’Brien and has

10

repeatedly confirmed since that decision, a law regulating

11

conduct that incidentally affects speech is subject to strict

12

scrutiny if it is content or viewpoint-based.

13

assuming SB 1172 is properly characterized as a statue regulating

14

conduct, because it has at least an incidental effect on speech

15

and plaintiffs intend to engage in SOCE through speech,

16

intermediate scrutiny applies only if SB 1172 is content- and

17

viewpoint-neutral.

18
19
20

c.

Accordingly, even

SB 1172 Lacks Content and Viewpoint
Neutrality

Because SB 1172 cannot be reviewed under a lower level

21

of review as a professional regulation or a regulation of conduct

22

if it is content- or viewpoint-based, the court must assess its

23

neutrality to determine the appropriate level of review.

24

principal inquiry in determining whether a regulation is

25

content-neutral or content-based is whether the government has

26

adopted [the] regulation . . . because of [agreement or]

27

disagreement with the message it conveys.”

28

1055 (internal quotation marks omitted) (alterations and omission
19

“The

NAAP, 228 F.3d at

1

in original); accord Fla. Bar v. Went For It, Inc., 515 U.S. 618,

2

642 (1994); see also Berger v. City of Seattle, 569 F.3d 1029,

3

1051 (9th Cir. 2009) (“A regulation is content-based if either

4

the underlying purpose of the regulation is to suppress

5

particular ideas or if the regulation, by its very terms, singles

6

out particular content for differential treatment.”).

7

discrimination is [] an egregious form of content discrimination”

8

and occurs “when the specific motivating ideology or the opinion

9

or perspective of the speaker is the rationale for the

10

restriction.”

11

“Viewpoint

515 U.S. 819, 829 (1995).

12

Rosenberger v. Rector & Visitors of Univ. of Va.,

In Conant, the Ninth Circuit relied on the First

13

Amendment to uphold a permanent injunction enjoining the federal

14

government from revoking a physician’s license to prescribe

15

controlled substances or initiating an investigation of the

16

physician on the sole ground that the physician recommended

17

medical marijuana to a patient.

18

Ninth Circuit emphasized that “[t]he government’s policy . . .

19

seeks to punish physicians on the basis of the content of

20

doctor-patient communications” because “[o]nly doctor-patient

21

conversations that include discussions of the medical use of

22

marijuana trigger the policy.”

23

explained that “the policy does not merely prohibit the

24

discussion of marijuana; it condemns expression of a particular

25

viewpoint, i.e., that medical marijuana would likely help a

26

specific patient.”

27

(explaining that the challenged regulations “do not significantly

28

impinge upon the doctor-patient relationship” in violation of the

Conant, 309 F.3d at 631.

Id. at 637.

The

The court further

Id. at 639; cf. Rust, 500 U.S. at 200

20

1

First Amendment because they do not “require[] a doctor to

2

represent as his own any opinion that he does not in fact hold”).

3

Defendants argue that SB 1172 is distinguishable from

4

Conant because it does not extend as far as the challenged

5

federal policy against a physician recommending marijuana for a

6

patient.

7

providers from engaging in SOCE with minor patients.

8

be codified at Cal Bus. & Prof. Code § 865.1).

9

SOCE as “any practices by mental health providers that seek to

SB 1172’s ban is limited to prohibiting mental health
SB 1172 (to

The bill defines

10

change an individual’s sexual orientation[, including] . . .

11

efforts to change behaviors or gender expressions, or to

12

eliminate or reduce sexual or romantic attractions or feelings

13

toward individuals of the same sex.”

14

Bus. & Prof. Code § 865(b)(1)).

Id. (to be codified at Cal.

15

Based on SB 1172’s definition of SOCE, defendants argue

16

that the new law would not preclude a mental health provider from

17

expressing his or her views to a minor patient that the minor’s

18

sexual orientation could be changed, informing a minor about

19

SOCE, recommending that a minor pursue SOCE, providing a minor

20

with contact information for an individual who could perform

21

SOCE, or sharing his or her views about the morality of

22

homosexuality.8

23

SB 1172 would still allow mental health providers to exercise

24

their medical judgment to recommend SOCE, see Conant, 309 F.3d at

25

638, and would preclude them only from providing a minor with

Assuming defendants’ interpretation is correct,

26
27
28

8

Plaintiffs disagree, arguing that such statements would
come with SB 1172’s prohibition because such statements could be
viewed as seeking to change a patient’s sexual orientation.
21

1
2

SOCE.
This distinction, however, addresses only whether SB

3

1172 is viewpoint-based.

The Ninth Circuit’s analysis in NAAP

4

and Supreme Court precedent render it difficult to conclude that

5

SB 1172 is content-neutral simply because it is limited to

6

prohibiting SOCE.

7

challenged licensing laws were content-neutral because “they do

8

not dictate what can be said between psychologists and patients

9

during treatment” or “the content of what is said in therapy” and

In NAAP, the Ninth Circuit concluded that the

10

“[n]othing in the statutes prevents licensed therapists from

11

utilizing psychoanalytical methods.”

12

The court emphasized that “speech is not being suppressed based

13

on its message” and that the scheme “was not adopted because of

14

any disagreement with psychoanalytical theories.”

15

NAAP, 228 F.3d at 1055-56.

Id.

Humanitarian Law Project, in which the Supreme Court

16

held that the material support statute was content-based and

17

therefore subject to strict scrutiny, provides further guidance.

18

In that case, the Court recognized that the statute did not

19

“suppress ideas or opinions in the form of ‘pure political

20

speech’” because plaintiffs could “say anything they wish on any

21

topic” and independently advocate for or join one of the

22

terrorists organizations.

23

at 2722-23.

24

“regulates speech on the basis of its content” because whether

25

the plaintiffs’ speech to a foreign terrorist organization would

26

be barred by the statute depended on what the plaintiffs said.

27

See id. at 2723-24.

28

Humanitarian Law Project, 130 S. Ct.

Nonetheless, the court concluded that the statute

Under NAAP and Humanitarian Law Project, the fact that
22

1

SB 1172 may allow mental health providers to “say anything they

2

wish” about the value or benefits of SOCE or advocate for it does

3

not render SB 1172 content-neutral.

4

sand governing a therapy session and the moment that the mental

5

health provider’s speech “seek[s] to change an individual’s

6

sexual orientation,” including a patient’s behavior, gender

7

expression, or sexual or romantic attractions or feelings toward

8

individuals of the same sex, the mental health provider can no

9

longer speak.

SB 1172 draws a line in the

Regardless of the breathing room SB 1172 may leave

10

for speech about SOCE, when applied to SOCE performed through

11

“talk therapy,” SB 1172 will give rise to disciplinary action

12

solely on the basis of what the mental health provider says or

13

the message he or she conveys.

14

There is also little question that the Legislature

15

enacted SB 1172 at least in part because it found that SOCE was

16

harmful to minors and disagreed with the practice.

17

in SB 1172, the Legislature enacted findings and declarations

18

based on the conclusions of numerous studies about the purported

19

harmful effects and ineffectiveness of SOCE:

20
21
22
23
24
25
26
27
28

For example,

The [American Psychological Association] task force
concluded that sexual orientation change efforts can pose
critical health risks to lesbian, gay, and bisexual
people,
including
confusion,
depression,
guilt,
helplessness, hopelessness, shame, social withdrawal,
suicidality, substance abuse, stress, disappointment,
self-blame, decreased self-esteem and authenticity to
others, increased self-hatred, hostility and blame toward
parents, feelings of anger and betrayal, loss of friends
and potential romantic partners, problems in sexual and
emotional intimacy, sexual dysfunction, high-risk sexual
behaviors, a feeling of being dehumanized and untrue to
self, a loss of faith, and a sense of having wasted time
and resources. . . . The American Psychiatric Association
published a position statement in March of 2000 in which
it stated: “Psychotherapeutic modalities to convert or
‘repair’ homosexuality are based on developmental
23

1
2
3
4
5
6
7

theories whose scientific validity is questionable.” . .
. The National Association of Social Workers prepared a
1997 policy statement in which it stated: . . . “No data
demonstrates that reparative or conversion therapies are
effective, and, in fact, they may be harmful.” . . . The
American Academy of Child and Adolescent Psychiatry in
2012 published an article . . . stating: “Clinicians
should be aware that there is no evidence that sexual
orientation can be altered through therapy, and that
attempts to do so may be harmful.” . . . The Pan American
Health Organization . . . noted that reparative therapies
“lack medical justification and represent a serious
threat to the health and well-being of affected people.”

8

SB 1172 (Findings & Decls. §§ 1(b), 1(d), 1(h), 1(k), 1(l)).9

9

The Legislature’s findings and declarations convey a consistent

10

and unequivocal message that the Legislature found that SOCE is

11

ineffective and harmful.

12

content-based exception in O’Brien when intermediate scrutiny

13

does not apply because “the alleged governmental interest in

14

regulating conduct arises in some measure because the

15

communication allegedly integral to the conduct is itself thought

16

to be harmful.”

17

1055-56 (explaining that the challenged regulations were content-

18

neutral because they were “not adopted because of any

19

disagreement with psychoanalytical theories”).

Such findings bring SB 1172 within the

O’Brien, 391 U.S. at 382; see NAAP, 228 F.3d at

Especially with plaintiffs in this case, it is also

20
21

difficult to conclude that just because SOCE utilizing speech is

22

a type of treatment, that the treatment can be separated from a

23
24
25
26
27
28

9

The court is relying only on findings and declarations
that the Legislature enacted in SB 1172, not statements in the
legislative history or bill analyses. Cf. O’Brien, 391 U.S. at
383 (“[The] Court will not strike down an otherwise
constitutional statute on the basis of an alleged illicit
legislative motive.”); see generally Stormans, Inc. v. Selecky,
586 F.3d 1109, 1127 (9th Cir. 2009) (explaining why, in the
context of Free Exercise claims, whether a court can consider
legislative history is an “unsettled” area of law).
24

1

mental health provider’s viewpoint or message.

2

that the SOCE treatment he provides to his minor patients

3

includes counseling.

4

with patients that share his faith, he discusses tenants of the

5

Catholic faith, including that “homosexuality is not a natural

6

variant of human sexuality, it is changeable, and it is not

7

predominantly determined by genetics.”

8

Similarly, Welch has explained that he shares the views of his

9

church that homosexual behavior is a sin and that SB 1172 will

(Duk Decl. ¶ 6.)

Duk has explained

Duk is a Catholic and,

(Id. ¶¶ 11-13.)

10

“disallow [his] clients from choosing to execute biblical truths

11

as a foundation for their beliefs about their sexual

12

orientation.”

13

(Welch Decl. ¶¶ 5, 8, Ex. 14.)

When a mental health provider’s pursuit of SOCE is

14

guided by the provider’s or patient’s views of homosexuality, it

15

is difficult, if not impossible, to view the conduct of

16

performing SOCE as anything but integrally intertwined with

17

viewpoints, messages, and expression about homosexuality.

18

declarations defendants submitted in opposition to plaintiffs’

19

motion are consistent with this conclusion.

20

¶ 8 (Docket No. 40) (“A review of the literature relating to SOCE

21

reflects that the premise underlying treatments designed to

22

change homosexual orientation is that homosexuality is a mental

23

disorder that needs to be ‘cured.’”); Beckstead Decl. ¶ 8 (Docket

24

No. 36) (“A review of the literature in the field of [SOCE]

25

reveals that the premise underlying SOCE is that homosexuality is

26

a mental disorder, and that it is counter to some practitioners’

27

religious and/or personal beliefs.”).)

28

(See Haldeman Decl.

Although it does not appear that the Legislature
25

Expert

1

intended to suppress the spectrum of messages that may be

2

intertwined with SOCE, such as whether homosexuality is innate or

3

immutable, its enacted finding “that [b]eing lesbian, gay, or

4

bisexual is not a disease, disorder, illness, deficiency, or

5

shortcoming” strongly suggests that the Legislature at least

6

sought to suppress the performance of SOCE that contained a

7

message contrary to this finding.

8

1(a)); see Rosenberger, 515 U.S. at 829 (“The government must

9

abstain from regulating speech when the specific motivating

10

ideology or the opinion or perspective of the speaker is the

11

rationale for the restriction.”).

12

homosexuality can be inextricably intertwined with SOCE renders

13

it likely that, along with SOCE treatment, SB 1172 bans a mental

14

health provider from expressing his or her viewpoints about

15

homosexuality as part of SOCE treatment.

16

Pap’s A.M., 529 U.S. 277, 293 (2000) (plurality opinion)

17

(“[T]here may be cases in which banning the means of expression

18

so interferes with the message that it essentially bans the

19

message.”).

SB 1172 (Findings & Decls. §

That messages about

Cf. City of Erie v.

Against the backdrop of NAAP, Conant, and Humanitarian

20
21

Law Project, this court would be hard-pressed to conclude that SB

22

1172 is content- and viewpoint-neutral.

23

appears that SB 1172 lacks content and viewpoint neutrality, it

24

is likely that it must ultimately be assessed under strict

25

scrutiny.

Accordingly, because it

26

2.

27

If a statute “imposes a restriction on the content of

28

SB 1172 Is Unlikely to Withstand Strict Scrutiny

protected speech, it is invalid unless California can demonstrate
26

1

that it passes strict scrutiny--that is, unless it is justified

2

by a compelling government interest and is narrowly drawn to

3

serve that interest.”

4

----, 131 S. Ct. 2729, 2738 (2011).

5

“demanding standard” and “‘[i]t is rare that a regulation

6

restricting speech because of its content will ever be

7

permissible.’”

8

Grp., Inc., 529 U.S. 803, 818 (2000)).

Brown v. Entm’t Merchants Ass’n, --- U.S.
Strict scrutiny is a

Id. (quoting United States v. Playboy Entm’t

9

To overcome strict scrutiny, “[t]he State must

10

specifically identify an ‘actual problem’ in need of solving, and

11

the curtailment of free speech must be actually necessary to the

12

solution.”

13

strict scrutiny is substantial, especially when contrasted to the

14

lowest level of review, which does “not require that the

15

government’s action actually advance its stated purposes, but

16

merely look[s] to see whether the government could have had a

17

legitimate reason for acting as it did.”

18

191 F.3d 1020, 1031 (9th Cir. 1999).

19

Brown, 131 S. Ct. at 2738.

The state’s burden on

Dittman v. California,

In Brown, the Supreme Court held that California’s law

20

banning the sale of violent video games to minors without

21

parental consent did not pass strict scrutiny.

22

recognized that it could not “show a direct causal link between

23

violent video games and harm to minors,” but argued that strict

24

scrutiny could be satisfied based on the Legislature’s

25

“predictive judgment that such a link exists, based on competing

26

psychological studies.”

27

rejected this argument, explaining that, under strict scrutiny,

28

the state “bears the risk of uncertainty” and “ambiguous proof

The state

Brown, 131 S. Ct. at 2738-39.

27

The Court

1

will not suffice.”

2

studies of research psychologists “purport[ing] to show a

3

connection between exposure to violent video games and harmful

4

effects on children,” the Court held that the studies did not

5

satisfy strict scrutiny because the studies had “been rejected by

6

every court to consider them” and did not “prove that violent

7

video games cause minors to act aggressively.”

Although the state submitted

Id.10

The Court similarly criticized evidence of harm that

8
9

Id. at 2739.

the government submitted in support of a regulation that sought

10

to prevent children from seeing “signal bleed” on sexually-

11

oriented programming in Playboy Entertainment Group, Inc.

12

that case, the Court explained,

13
14
15
16

In

There is little hard evidence of how widespread or how
serious the problem of signal bleed is. Indeed, there is
no proof as to how likely any child is to view a
discernible explicit image, and no proof of the duration
of the bleed or the quality of the pictures or sound. To
say that millions of children are subject to a risk of
viewing signal bleed is one thing; to avoid articulating

17
18
19
20
21
22
23
24
25
26
27
28

10

For the first time at oral argument, counsel for amicus
cited three cases for the proposition that the court must defer
to the Legislature’s determination in matters of “uncertain
science.” The Supreme Court, however, does not appear to have
been applying strict scrutiny in any of those cases. See
Gonzales v. Carhart, 550 U.S. 124, 146, 161-64 (2007) (“[W]e must
determine whether the [challenged abortion] Act furthers the
legitimate interest of the Government in protecting the life of
the fetus that may become a child,” which was resolved, in part,
by determining “whether the Act creates significant health risks
for women”); Kansas v. Hendricks, 521 U.S. 346, 357-60 (1997)
(upholding a civil commitment statute because it was not contrary
to “our understanding of ordered liberty”); Jones v. United
States, 463 U.S. 354, 364-66 (1983) (holding that a civil
commitment statute was not unconstitutional under the Due Process
Clause because Congress’s determination was not “unreasonable”).
Amicus’s argument is also inconsistent with Brown, which applied
strict scrutiny, was decided after the three cited cases, and
specifically rejected the state’s argument that strict scrutiny
could be satisfied based on the Legislature’s “predictive
judgment . . . based on competing psychological studies.” Brown,
131 S. Ct. at 2738-39.
28

1

the true nature and extent of the risk is quite another.

2

Playboy Entm’t Grp., Inc., 529 U.S. at 819.

3

that the “First Amendment requires a more careful assessment and

4

characterization of an evil in order to justify a regulation as

5

sweeping” as the one at issue in the case.

6

It further emphasized that the government was required to present

7

more than “anecdote and supposition” to prove an “actual

8

problem.”

9

The Court concluded

Id. at 819, 822-23.

Id.
In the findings and declarations of SB 1172, the

10

California Legislature found that “California has a compelling

11

interest in protecting the physical and psychological well-being

12

of minors, including lesbian, gay, bisexual, and transgender

13

youth, and in protecting its minors against exposure to serious

14

harms caused by sexual orientation change efforts.”

15

(Findings & Decls. § 1(n)).

16

state has a compelling interest in “protecting the physical and

17

psychological well-being of minors.”

18

of San Diego, 114 F.3d 935, 946 (9th Cir. 1997) (“The City’s

19

interest in protecting the safety and welfare of its minors is []

20

a compelling interest.”).

21

also identified a compelling interest in “protecting all of

22

society from harmful, risky, or unproven, medical health

23

treatments.”

24

1054 (“Given the health and safety implications, California’s

25

interest in regulating mental health is even more compelling than

26

a state’s interest in regulating in-person solicitation by

27

attorneys.”); see Nunez, 114 F.3d at 947 (recognizing the

28

“ostensible purposes of the ordinance identified by the City in

SB 1172

The court does not doubt that the

See Nunez by Nunez v. City

In its opposition brief, defendants

(Defs.’ Opp’n at 28:14-15); cf. NAAP, 228 F.3d at

29

1

its brief” when determining whether it demonstrated a compelling

2

interest).

3

As the Brown Court explained, SB 1172 cannot withstand

4

strict scrutiny unless the state demonstrates an “‘actual

5

problem’ in need of solving” and “a direct causal link” between

6

SOCE and harm to minors.

7

however, defendants have shown that SOCE may cause harm to

8

minors.

9
10
11
12
13
14
15
16
17
18
19
20

Brown, 131 S. Ct. at 2738-39.

At most,

For example in the 2009 APA Report, the APA states:

We conclude that there is a dearth of scientifically
sound research on the safety of SOCE. Early and recent
research studies provide no clear indication of the
prevalence of harmful outcomes among people who have
undergone efforts to change their sexual orientation or
the frequency of occurrence of harm because no study to
date of adequate scientific rigor has been explicitly
designed to do so. Thus, we cannot conclude how likely
it is that harm will occur from SOCE. However, studies
from both periods indicate that attempts to change sexual
orientation may cause or exacerbate distress and poor
mental health in some individuals, including depression
and suicidal thoughts.
(2009 APA Report at 42.)

The report further explains:

A central issue in the debates regarding efforts to
change same-sex sexual attractions concerns the risk of
harm to people that may result from attempts to change
their sexual orientation. . . . Although the recent
studies do not provide valid causal evidence of the
efficacy of SOCE or of its harm, some recent studies
document that there are people who perceive that they
have been harmed through SOCE.

21
22

(Id. at 41-42; see also Herek Decl. ¶¶ 39, 45 (“[E]vidence exists

23

that [SOCE] may cause harm . . . [and] such interventions may be

24

psychologically harmful in an unknown number of cases.”)

25

(emphasis added).)

26

Additionally, the studies discussed and criticized as

27

incomplete in the 2009 APA Report do not appear to have focused

28

on harms to minors, and the 2009 APA Report indicates that
30

1

“[t]here is a lack of published research on SOCE among children.”

2

(See 2009 APA Report at 41-43, 72.)

3

whether the reports of harm referenced in the 2009 APA Report

4

were made exclusively by adults.

5

similarly criticized reliance on national statistics regarding a

6

rising juvenile crime rate to demonstrate that a juvenile curfew

7

was a narrowly tailored solution for a particular city.

8

114 F.3d at 947.

It is therefore unclear

In Nunez, the Ninth Circuit

Nunez,

In expert declarations defendants and amicus submitted,

9
10

individuals opined that SOCE causes harm.11

11

¶ 16; Haldeman Decl. ¶ 7; Ryan Decl. ¶ 21 (Docket No. 41).)

12

of the experts, however, identify or rely on comprehensive

13

studies that adhere to scientific principles or address the

14

inadequacies of the studies discussed in the 2009 APA Report.

15

For example, Ryan’s opinion primarily relies on analysis

16

performed of “LGBT young adults, ages 21-25” and her personal

17

interviews with LGTB youth who underwent SOCE.

18

14-16.)

19

government to produce ‘scientifically certain criteria of

20

legislation,’” Nunez, 114 F.3d at 947 (quoting Ginsberg v. New

21

York, 390 U.S. 629, 642-43 (1968)), the Brown Court rejected

22

“research [] based on correlation, not evidence of causation”

23

that “suffer[ed] from significant, admitted flaws in

24

methodology,” Brown, 131 S. Ct. at 2739 (internal quotation marks

(See Beckstead Decl.
None

(Ryan Decl. ¶¶

“Although the Constitution does not require the

25
26
27
28

11
Plaintiffs submitted lengthy evidentiary objections to
the declarations defendants and amicus submitted. (See Dockets
Nos. 50, 51.) The court cites to these declarations only to
demonstrate the insufficiency of the evidence defendants
submitted and therefore need not resolve plaintiffs’ evidentiary
objections.

31

1

omitted).

2

based on questionable and scientifically incomplete studies that

3

may not have included minors is unlikely to satisfy the demands

4

of strict scrutiny.

5

Here, evidence that SOCE “may” cause harm to minors

The Brown Court was also concerned with the state’s

6

inability to prove that harm to minors was caused by video games

7

as opposed to other sources of media.

8

2739-40.

9

distinguish between harm caused by SOCE versus other factors.

See Brown, 131 S. Ct. at

Here, defendants face a similar inability to

10

For example, in his declaration, Herek details the harms

11

homosexual individuals experience as a result of societal

12

stigmas, harassment and bullying, discrimination, and

13

rejection.12

14

12-14, 20 (describing the harms that her research shows are

15

caused by parents’ and caregivers’ “rejecting behaviors” to LGBT

16

youth).)

17

harms of SOCE do not appear to have assessed whether the harms

18

reported after undergoing SOCE were caused by SOCE as opposed to

19

other internal or external factors and thus would have been

20

sustained regardless of SOCE.

The few and arguably incomplete studies addressing

Lastly, the Brown Court also explained that, even when

21
22

(See Herek Decl. ¶¶ 18-21; see also Ryan Decl. ¶¶

statutes pursue legitimate interests, “when they affect First

23
24
25
26
27
28

12

In its findings and declarations, it appears that the
California Legislature sought to help end some of that stigma,
finding, “Being lesbian, gay, or bisexual is not a disease,
disorder, illness, deficiency, or shortcoming.” No matter how
worthy this effort may be, it cannot override First Amendment
protections. Cf. Brown, 131 S. Ct. at 2739 n.8 (“But there are
all sorts of ‘problems’--some of them surely more serious than
this one--that cannot be addressed by governmental restriction of
free expression: for example, the problem of encouraging
anti-Semitism.”).
32

1

Amendment rights they must be pursued by means that are neither

2

seriously underinclusive nor seriously overinclusive.”

3

131 S. Ct. at 2741-42.

4

legislation to be “seriously underinclusive, not only because it

5

excludes portrayals other than video games, but also because it

6

permits a parental or avuncular veto.”

7

time, “as a means of assisting concerned parents it is seriously

8

overinclusive because it abridges the First Amendment rights of

9

young people whose parents (and aunts and uncles) think violent

10

Brown,

In Brown, the Court found California’s

video games are a harmless pastime.”

Id. at 2742.

At the same

Id.

Here, SB 1172 prohibits only mental health providers

11
12

from engaging in SOCE and, as defendants have pointed out,

13

unlicensed individuals who do not qualify as “mental health

14

providers” under the bill can engage in SOCE.

15

and ineffective, the harm minors will endure at the hands of

16

unlicensed individuals performing SOCE is equal, if not greater,

17

than the harm they would endure from mental health providers

18

performing SOCE.

19

previously “recognized the actual and potential consumer harm

20

that can result from the unlicensed, unqualified or incompetent

21

practice of psychology.”

22

scope of SB 1172 therefore suggests that it is likely

23

underinclusive in its application only to mental health

24

providers.

25

If SOCE is harmful

In fact, the California Legislature has

NAAP, 228 F.3d at 1047.

The limited

The Ninth Circuit has observed that regulations subject

26

to strict scrutiny “almost always violate the First Amendment.”

27

DISH Network Corp. v. FCC, 653 F.3d 771, 778 (9th Cir. 2011).

28

light of the heavy burden strict scrutiny imposes on defendants,
33

In

1

the lack of evidence demonstrating “actual harm” and a causal

2

relationship between SOCE and harm to minors, and the

3

underinclusiveness of SB 1172, the court finds at this

4

preliminary stage that SB 1172 is not likely to withstand strict

5

scrutiny.

6

content- and viewpoint-based and unlikely to withstand strict

7

scrutiny, plaintiffs have established that they are likely to

8

prevail on the merits of their claim that SB 1172 violates their

9

rights to freedom of speech under the First Amendment.

10

C.

Accordingly, because it appears that SB 1172 is

Remaining Preliminary Injunction Considerations

11

The Ninth Circuit “and the Supreme Court have

12

repeatedly held that ‘[t]he loss of First Amendment freedoms, for

13

even minimal periods of time, unquestionably constitutes

14

irreparable injury.’”

15

1196, 1207-08 (9th Cir. 2009) (quoting Elrod v. Burns, 427 U.S.

16

347, 373 (1976)).

17

likely to suffer irreparable harm in the absence of an

18

injunction.

19

Klein v. City of San Clemente, 584 F.3d

Plaintiffs have therefore shown that they are

In determining whether plaintiffs have shown that the

20

balance of equities tips in their favor, “the district court has

21

a ‘duty . . . to balance the interests of all parties and weigh

22

the damage to each.’”

23

1138 (9th Cir. 2009) (quoting L.A. Mem’l Coliseum Comm’n v. Nat’l

24

Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)).

25

proven that they are likely to succeed on their First Amendment

26

free speech challenge to SB 1172, the most significant hardship

27

to Welch and Duk is that SB 1172 will likely infringe on their

28

First Amendment rights because it will restrict them from

Stormans, Inc. v. Selecky, 586 F.3d 1109,

34

Having

1

engaging in SOCE with their minor patients.

2

is more remote and less significant because he is not currently a

3

“mental health provider” and thus his speech would not be

4

governed by SB 1172.

5

would require him to change his career plans, even if SB 1172 is

6

not enjoined, he could engage in SOCE with the various religious

7

groups he has described because SB 1172 would not extend to him.

8
9

Any harm to Bitzer

Although he has explained that SB 1172

If defendants are enjoined from enforcing SB 1172
against plaintiffs, a law that the California Legislature enacted

10

would be, at least until this case is resolved on the merits,

11

unenforceable as against these three plaintiffs.13

12

Court has recognized that, “any time a State is enjoined by a

13

court from effectuating statutes enacted by representatives of

14

its people, it suffers a form of irreparable injury.”

15

v. King, --- U.S. ----, 133 S. Ct. 1, 3 (2012) (internal

16

quotation marks and citation omitted).

17

interest in protecting the health and welfare of minor children,

18

and the Legislature found that SOCE causes harm to minor

19

children.

20

possesses legitimate power to protect children from harm, but

21

that does not include a free-floating power to restrict the ideas

22

to which children may be exposed.”) (internal citation omitted).

The Supreme

Maryland

The state also has an

Cf. Brown, 131 S. Ct. at 2736 (“No doubt a State

The harm to the state in being unable to enforce SB

23
24
25
26
27
28

13

A preliminary injunction in this case would be limited
to plaintiffs. See generally Zepeda v. INS, 753 F.2d 719, 727-28
(9th Cir. 1984) (“A federal court may issue an injunction if it
has personal jurisdiction over the parties and subject matter
jurisdiction over the claim; it may not attempt to determine the
rights of persons not before the court. . . . The district court
must, therefore, tailor the injunction to affect only those
persons over which it has power.”).
35

1

1172 against plaintiffs is not as substantial as it may initially

2

appear.

3

law and it would be a stretch of reason to conclude that it would

4

suffer significant harm having to wait a few more months to know

5

whether the law is enforceable as against the three plaintiffs in

6

this case.

7

plaintiffs’ First Amendment rights, forcing the state to preserve

8

the long-standing status quo so that the case can be resolved on

9

the merits and through the appellate process confirms that any

10
11

California has arguably survived 150 years without this

When balanced against the risk of infringing on

harm the state faces is de minimis.
The final consideration in determining whether to grant

12

a preliminary injunction is the public interest.

Although the

13

Ninth Circuit has “at times subsumed this inquiry into the

14

balancing of the hardships, it is better seen as an element that

15

deserves separate attention in cases where the public interest

16

may be affected.”

17

for Cnty. of Carson, 303 F.3d 959, 974 (9th Cir. 2002) (internal

18

citation omitted).

19

addresses impact on non-parties rather than parties” and

20

“[c]ourts considering requests for preliminary injunctions have

21

consistently recognized the significant public interest in

22

upholding First Amendment principles.”

23

Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001) (“[W]e believe

24

that the public interest is better served by following binding

25

Supreme Court precedent and protecting the core First Amendment

26

right of political expression.”).

27

maintaining a free exchange of ideas, though great, has in some

28

cases been found to be overcome by a strong showing of other

Sammartano v. First Judicial Dist. Ct., in &

“The public interest inquiry primarily

36

Id.; see, e.g., Homans v.

“The public interest in

1

competing public interests, especially where the First Amendment

2

activities of the public are only limited, rather than entirely

3

eliminated.”

Sammartano, 303 F.3d at 974.

4

Here, the public has an interest in the protection and

5

mental well-being of minors, and the court does not take lightly

6

the possible harm SOCE may cause minors, especially when forced

7

on minors who did not choose to undergo SOCE.

8

Inc., 586 F.3d at 1139 (“The ‘general public has an interest in

9

the health’ of state residents.”).

See Stormans,

Countered against this is the

10

public’s interest in preserving First Amendment rights.

Given

11

the limited scope and duration of a preliminary injunction in

12

this case, the court has no difficulty in concluding that

13

protecting an individual’s First Amendment rights outweighs the

14

public’s interest in rushing to enforce an unprecedented law.

15

That public perception in favor of this law may be

16

heightened because “it appears that homosexuality has gained

17

greater societal acceptance . . . is scarcely an argument for

18

denying First Amendment protection to those who refuse to accept

19

these views.

20

the popular variety or not.”

21

640, 660 (2000).

22

adequate showing under each of the four factors discussed in

23

Winter, the court will grant their motion for a preliminary

24

injunction.

25

The First Amendment protects expression, be it of
Boy Scouts of Am. v. Dale, 530 U.S.

Accordingly, because plaintiffs have made an

IT IS THEREFORE ORDERED that plaintiffs’ motion for a

26

preliminary injunction be, and the same hereby is, GRANTED.

27

Pending final resolution of this action, defendants are hereby

28

enjoined from enforcing the provisions of SB 1172 (to be codified
37

1

at Cal. Bus. & Prof. Code §§ 865-865.2) as against plaintiffs

2

Donald Welch, Anthony Duk, and Aaron Bitzer.

3

DATED:

December 3, 2012

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