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

Filing 88

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 11/4/14 ORDERING that Plaintiffs' MOTION for a Preliminary Injunction 9 is DENIED.(Mena-Sanchez, L)

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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,
Plaintiffs,

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CIV. NO. 2:12-2484 WBS KJN
MEMORANDUM AND ORDER RE: MOTION
FOR PRELIMINARY INJUNCTION

v.
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 LOCKDAWSON, 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

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Members of the
of California,

Medical Board

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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prohibits mental health providers in California from engaging in

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sexual orientation change efforts (“SOCE”) with minors.

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court previously granted plaintiffs’ motion for a preliminary

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injunction after finding they could likely show that SB 1172

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violated their rights to free speech under the First Amendment.

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Characterizing SB 1172 as a regulation of therapeutic treatment,

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not expressive speech, the Ninth Circuit held that SB 1172 did

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not violate free speech rights and thus reversed the court’s

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order granting plaintiffs’ motion for a preliminary injunction.

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See Pickup v. Brown, 740 F.3d 1208, 1229-32, 1236 (9th Cir.

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2014).

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unconstitutionally vague or overbroad and does not violate First

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Amendment expressive association rights or the fundamental rights

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of parents seeking SOCE for their minor children.

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36.

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The

The Ninth Circuit also held that SB 1172 is not

Id. at 1232-

Because the court’s previous order concluded that

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plaintiffs were likely to prevail on their 42 U.S.C. § 1983 claim

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asserting that SB 1172 violated their rights to free speech, the

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court did not address the alleged constitutional violations

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underlying plaintiffs’ remaining § 1983 claims.

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the parties with the opportunity for supplemental briefing, the

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court now addresses plaintiffs’ motion for a preliminary
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After providing

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injunction on the grounds that SB 1172 violates the Free Exercise

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and Establishment Clauses and privacy rights.

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Circuit’s decision on appeal, the court need not address

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plaintiffs’ § 1983 claims alleging that SB 1172 is

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unconstitutionally vague or overbroad and violates First

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Amendment expressive association rights and the fundamental

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rights of parents seeking SOCE for their minor children.

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(rejecting such claims).

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I.

Based on the Ninth

See id.

SB 1172 and Plaintiffs

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SB 1172 went into effect on January 1, 2013 and was

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codified in sections 865, 865.1, and 865.2 of the California

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Business and Professions Code.1

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circumstances shall a mental health provider engage in sexual

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orientation change efforts with a patient under 18 years of age.”

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Cal. Bus. & Prof. Code § 865.1.

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SOCE “attempted on a patient under 18 years of age by a mental

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health provider shall be considered unprofessional conduct and

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shall subject a mental health provider to discipline by the

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licensing entity for that mental health provider.”

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Section 865.1 states, “Under no

Section 865.2 provides that any

Id. § 865.2.

Subsection 865(b)(1) defines “sexual orientation change

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efforts” as “any practices by mental health providers that seek

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to change an individual’s sexual orientation,” including “efforts

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to change behaviors or gender expressions, or to eliminate or

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reduce sexual or romantic attractions or feelings toward

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individuals of the same sex.”

Id. § 865(b)(1).

Excluded from

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Although SB 1172 is now codified under the
aforementioned code sections, the court will continue to refer to
“SB 1172” when discussing the three sections collectively.
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classification as SOCE are “psychotherapies that: (A) provide

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acceptance, support, and understanding of clients or the

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facilitation of clients’ coping, social support, and identity

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exploration and development, including sexual orientation-neutral

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interventions to prevent or address unlawful conduct or unsafe

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sexual practices; and (B) do not seek to change sexual

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orientation.”

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Id. § 865(b)(2).

Plaintiff Donald Welch is a licensed marriage and
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.

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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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He is currently the president of a

(Id. ¶ 4.)

Welch is also employed part-time

(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 private practice who works with adults

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and children over the age of sixteen.

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13).)

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homosexuality and bisexuality and he utilizes SOCE.

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Plaintiff Aaron Bitzer is an adult who was “involved in” SOCE as

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an adult and had plans to become a therapist and practice SOCE.

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

His current patients include minors “struggling with”
(Id. ¶ 6.)

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II.

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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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).

The Supreme Court has repeatedly emphasized that

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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.”

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.,

Section 1983 Claims for Violations of the Religion

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Clauses

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1. Application of SB 1172 to Welch

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SB 1172 prohibits the use of SOCE with minors only when

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performed by a “mental health provider,” which is limited to:

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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 person designated as a mental
health
professional
under
California
law
or
regulation.

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Cal. Bus. & Prof. Code § 865(a).

Based on this definition, the

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parties agree that SB 1172 does not affect a religious leader’s

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ability to provide SOCE through his or her church so long as that

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religious leader is not a “mental health provider” under the

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statute.

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The parties dispute, however, whether SB 1172 extends

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to a religious leader providing SOCE through his or her church

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when, like Welch, the religious leader is also a “mental health

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provider” under the statute.

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would not restrict Welch from providing SOCE in his capacity as a

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Counseling Pastor, so long as he does not “hold himself out” as a

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licensed marriage and family therapist when providing therapeutic

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treatment as a Counseling Pastor.

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(Docket No. 33); cf. Amicus Curiae Opp’n at 9:7-10 (Docket No.

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39) (“When he is practicing marriage and family therapy as a

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state-licensed therapist, whatever the setting, [] he is subject

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to the same regulations as every other licensed marriage and

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family therapist, and must comply with SB 1172.”).)

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Defendants contend that SB 1172

(Defs.’ Opp’n at 14:25-27

Defendants rely on several statutory exemptions for the

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proposition that SB 1172 would not restrict Welch from offering

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SOCE when working as a Counseling Pastor.

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is the Licensed Marriage and Family Therapist Act (“LMFT Act”),

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which governs the licensing and regulation of marriage and family

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therapists.

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Cal. Bus. & Prof. Code § 4980.04 (providing the short title).

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The LMFT Act prohibits the unlicensed practice of marriage and

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family therapy as defined in the LMFT Act.2

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LMFT Act provides that “[a] person engages in the practice of

Most relevant to Welch

Cal. Bus. & Prof. Code §§ 4980-4980.90; see also

Id. § 4980(b).

The

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marriage and family therapy when he or she performs or offers to

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perform or holds himself or herself out as able to perform this

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service for remuneration in any form, including donations.”

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§ 4980.10 (emphasis added).

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application of the LMFT Act to “any priest, rabbi, or minister of

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the gospel of any religious denomination when performing

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counseling services as part of his or her pastoral or

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Id.

Section 4980.01, however, exempts

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Section 4980.02 of the LMFT Act defines “the practice
of marriage and family therapy” as:
[The] service performed with individuals, couples, or
groups
wherein
interpersonal
relationships
are
examined for the purpose of achieving more adequate,
satisfying,
and
productive
marriage
and
family
adjustments. This practice includes relationship and
premarriage counseling.
The application of marriage
and family therapy principles and methods includes,
but
is
not
limited
to,
the
use
of
applied
psychotherapeutic techniques, to enable individuals to
mature and grow within marriage and the family, the
provision of explanations and interpretations of the
psychosexual
and
psychosocial
aspects
of
relationships,
and
the
use,
application,
and
integration of the coursework and training required by
Sections 4980.36, 4980.37, and 4980.41, as applicable.
Id. § 4980.02.
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professional duties.”

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Cmty. Church, 47 Cal. 3d 278, 298 (1988) (“[T]he Legislature has

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exempted the clergy from the licensing requirements applicable to

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marriage, family, child and domestic counselors . . . .”).

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Id. § 4980.01; see also Nally v. Grace

Although section 4980.01 exempts religious leaders from

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having to obtain a license to provide marriage and family

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counseling through their church, it does not resolve the

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application of SB 1172 to Welch.

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under the LMFT Act and presumably wants to “hold himself out” as

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a licensed marriage and family therapist when providing therapy

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as a Counseling Pastor for his church.

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Welch from having to obtain a license to provide therapy through

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his church, but does not appear to exempt him from regulation of

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his conduct while performing therapy pursuant to his license.

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Albeit in dicta, the Ninth Circuit seemed to recognize that SB

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1172 would govern Welch’s conduct when it emphasized that SB 1172

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does not:

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Welch already has a license

Section 4980.01 exempts

• Prevent mental health providers from
minors to unlicensed counselors, such as
leaders
• Prevent unlicensed providers, such
leaders, from administering SOCE to
adults.

referring
religious

as religious
children and

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Pickup, 740 F.3d at 1223 (emphasis added).

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likely Welch will be able to show that SB 1172 will subject him

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to the possibility of discipline if, as a licensed marriage and

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family therapist, he utilizes SOCE while working as a Counseling

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Pastor for his church.

Accordingly, it is

Welch can therefore pursue his § 1983

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claims asserting that SB 1172 violates his rights under the Free

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Exercise and Establishment Clauses.

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2.

Free Exercise Clause

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“The Free Exercise Clause, applicable to the states

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through the Fourteenth Amendment, provides that ‘Congress shall

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make no law . . . prohibiting the free exercise [of religion].’”

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)

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(quoting U.S. Const., amend. I) (omission and alteration in

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original).

“Under the Free Exercise Clause of the First

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Amendment, the government may not, among other things, ‘impose

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special disabilities on the basis of religious views or religious

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status.’”

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804 (9th Cir. 2011) (quoting Emp’t Div., Dep’t of Human Res. of

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Or. v. Smith, 494 U.S. 872, 877 (1990)).

Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790,

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“The right to freely exercise one’s religion, however,

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‘does not relieve an individual of the obligation to comply with

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a “valid and neutral law of general applicability on the ground

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that the law proscribes (or prescribes) conduct that his religion

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prescribes (or proscribes).”’”

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(quoting Smith, 494 U.S. at 879).

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held that “a law that is neutral and of general applicability

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need not be justified by a compelling governmental interest even

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if the law has the incidental effect of burdening a particular

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religious practice.”

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City of Hialeah, 508 U.S. 520, 531 (1993) (citing Smith, 494 U.S.

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872).

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Stormans, 586 F.2d at 1127
The Supreme Court has thus

Church of the Lukumi Babalu Aye, Inc. v.

In Stormans, the Ninth Circuit examined the Supreme
Court’s free exercise jurisprudence and traced the development of
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the Court’s decision to apply only rational basis review to laws

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that are neutral and of general applicability.

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F.3d at 1128-1130.

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Supreme Court’s jurisprudence is the principle that the Free

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Exercise Clause ‘embraces two concepts[]—freedom to believe and

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freedom to act.’

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things, the second cannot be.”

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original).

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allowing individual exceptions based on religious beliefs from

See Stormans, 586

The Ninth Circuit explained, “Underlying the

The first is absolute but, in the nature of
Id. at 1128 (alteration in

“This principle traces its roots to the idea that

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laws governing general practices ‘would . . . make the professed

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doctrines of religious belief superior to the law of the land,

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and in effect [] permit every citizen to become a law unto

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himself.’”

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167 (1878) (alteration in original)).

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Id. (quoting Reynolds v. United States, 98 U.S. 145,

a. Neutrality

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“[I]f the object of a law is to infringe upon or

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restrict practices because of their religious motivation, the law

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is not neutral.”

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whether a law is neutral, the court must examine the text of the

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statute and its operation.

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lacks facial neutrality if it refers to a religious practice

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without a secular meaning discernable from the language or

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context.”

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dispute that SB 1172 is facially neutral.

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Nonetheless, “[a]part from the text, the effect of a law in its

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real operation is strong evidence of its object,” Lukumi, 508

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U.S. at 535, and laws may lack neutrality if they “suppress,

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target, or single out the practice of any religion because of
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Lukumi, 508 U.S. at 533.

In determining

Stormans, 586 F.3d at 1130.

Lukumi, 508 U.S. at 533.

“A law

Here, the parties do not
(Pls.’ Mem. at 10:14.)

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religious content.”

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Stormans, 586 F.3d at 1131.

Plaintiffs contend that SB 1172 lacks neutrality based

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primarily on two comments in the legislative history of the bill.

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As a threshold matter, whether a court can consider legislative

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history in free exercise challenges is an “unsettled” area of

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law.

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examined legislative history to illustrate that the prohibition

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on animal sacrifice was aimed at the Santeria religion, only one

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justice joined in that part of decision, and two justices

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expressly disagreed with the consideration of legislative

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history.

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cf. United States v. O’Brien, 391 U.S. 367, 383 (1968) (stating

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that, in the context of a First Amendment free speech claim, the

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“Court will not strike down an otherwise constitutional statute

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on the basis of an alleged illicit legislative motive”).

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Id. at 1131-32.

Although the Supreme Court in Lukumi

See id. at 1132 (discussing the votes of the justices);

Assuming consideration of legislative history is proper

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in free exercises cases, the statements in the bill analyses of

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SB 1172 are easily distinguishable from the blatant animosity

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expressed toward the Santeria religion during the passage of the

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ordinances in Lukumi.

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held just weeks after the Santeria Church announced its plans to

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open, one councilman said that the “Santeria devotees at the

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Church ‘are in violation of everything this country stands for.’”

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Lukumi, 508 U.S. at 541.

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department “told the city council that Santeria was a sin,

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‘foolishness,’ ‘an abomination to the Lord,’ and the worship of

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‘demons.’”

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Santeria religion as “abhorrent” and the public crowd at the
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Id.

For example, at the city council meeting

The chaplain of the local police

The city attorney described the practices of the

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meeting “interrupted statements by council members critical of

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Santeria with cheers.”

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Id. at 541-42.

Here, plaintiffs first rely on the statement in the

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Senate Rules Committee Analysis indicating that the World Health

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Organization (“WHO”) notes that sexual orientation “by itself is

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not to be regarded as a disorder? [sic] it is often a result of

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unfavorable and intolerant attitudes of the society or a conflict

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between sexual urges and religious belief systems.’”

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Rules Committee, Committee Analysis of SB 1172, at 6 (Aug. 28,

Senate

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2012).

This statement appears in a section of the analysis that

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traces the changing views of sexual orientation by the American

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Psychiatric Association and the WHO.

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the WHO raises both secular and religious influences as factors

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contributing to reasons individuals may seek SOCE.

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suggest that the California Legislature was targeting religious

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beliefs or religious motivations underlying SOCE when enacting SB

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1172.

The quoted statement from

It does not

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The second statement plaintiffs rely on appears in the

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section of the same bill analysis that describes the practice of

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SOCE.

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how a founder of modern reparative theory defines it, and then

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states, “Others, particularly conservative Christian

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transformational ministries, use the term conversion therapy to

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refer to the utilization of prayer, religious conversion, [and]

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individual and group counseling to change a person’s sexual

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orientation.”

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including religious groups, define SOCE does not demonstrate that

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the Legislature was targeting SOCE performed by religious groups,
12

The section explains how the APA defines the treatment,

Id. at 7.

Discussing how various groups,

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especially when SB 1172 does not prohibit SOCE performed within a

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church setting so long as it is not performed by a mental health

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provider.

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The legislative analyses leading to SB 1172 illustrate

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that the Legislature was concerned with the harm SOCE therapy

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causes minors regardless of whether it is motivated by secular or

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religious beliefs.

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to the inference that, in enacting the bill, the Legislature

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sought to suppress, target, or single out the practice of any

Nothing in the legislative history gives rise

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religion.

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ordinances “because of, not merely in spite of their suppression

12

of Santeria religious practice,” Lukumi, 508 U.S. at 540, the

13

legislative history reveals that the California Legislature

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enacted SB 1172 despite religious views, not because of them.

15

Unlike in Lukumi, where the city enacted the

Lastly, the fact that Welch may be restricted from

16

performing SOCE as a Counseling Pastor does not defeat the

17

neutrality of SB 1172.

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passed regulations that, with limited exceptions, required

19

pharmacists and pharmacies to deliver all lawfully prescribed

20

medications, including Plan B, an emergency contraceptive.

21

Similar to the limitation Welch may face, the Ninth Circuit in

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Stormans concluded, “That the rules may affect pharmacists who

23

object to Plan B for religious reasons does not undermine the

24

neutrality of the rules.”

25

In Stormans, the state of Washington

Stormans, 586 F.3d at 1131.

Plaintiffs point out that on remand and after a more

26

complete record developed at trial, the district court in

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Stormans ultimately concluded that Washington’s regulations

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requiring stocking and disbursing of all medications, including
13

1

Plan B, was subject to strict scrutiny and violated the Free

2

Exercise Clause.

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1172, 1199 (W.D. Wash. 2012).

4

regulations “target religious conduct” and therefore lacked

5

neutrality, however, was the fact that the regulations “exempt

6

pharmacies and pharmacists from stocking and delivering lawfully

7

prescribed drugs for an almost unlimited variety of secular

8

reasons, but fail to provide exemptions for reasons of

9

conscience.”

See Stormans Inc. v. Selecky, 844 F. Supp. 2d

Id. at 1189.

Pivotal to its finding that the

The district court also found that

10

the “Board of Pharmacy has interpreted the stocking and delivery

11

rules in a way that favors secular conduct over religiously-

12

motivated conduct.”

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comparison of the district court’s decision in Stormans and this

14

case is inapposite because SB 1172 does not contain a single

15

secular exception but provides an unqualified exemption for

16

unlicensed religious leaders.

17

Id. at 1192.

In this respect, the

When faced with a similar state statute prohibiting

18

SOCE with minors, the Third Circuit recently held that the

19

statute was neutral.

20

Jersey, 767 F.3d 216, 242-43 (3d Cir. 2014).

21

distinguish King on the ground that the New Jersey law

22

“prohibit[ed] all attempts to change sexual orientation,

23

regardless of whether such efforts were intended to influence a

24

client toward heterosexuality or homosexuality.”

25

at 2 (Docket No. 86).)

26

SB 1172 is limited to or aimed at SOCE efforts affecting only

27

homosexuality,3 the distinction is irrelevant.

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3

King v. Governor of the State of New
Plaintiffs seek to

(Pls.’ Ltr. Br.

Even assuming plaintiffs are correct that

As the Ninth

The definition of SOCE in section 865 is not limited
14

1

Circuit has explained, “The Free Exercise Clause is not violated

2

even though a group motivated by religious reasons may be more

3

likely to engage in the proscribed conduct.”

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at 1131.

5

Stormans, 586 F.3d

Similar to other neutral laws that have an effect on

6

religious conduct, the evidence before the court indicates that

7

SB 1172 “‘punishe[s] conduct for the harm it causes, not because

8

the conduct is religiously motivated.’”

9

League, Inc. v. Reno, 47 F.3d 642, 654 (4th Cir. 1995)).

Id. (quoting Am. Life
It is

10

therefore unlikely that plaintiffs could establish that SB 1172

11

lacks neutrality.4

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b. General Applicability

13

“A law is not generally applicable when the government,

14

‘in a selective manner[,] impose[s] burdens only on conduct

15

motivated by religious belief.’”

16

508 U.S. at 543).

17

rules for substantial underinclusiveness.”

18

does not impose burdens on religiously-motivated conduct, but

19

categorically prohibits SOCE performed by a “mental health

Id. at 1134 (quoting Lukumi,

“The ‘selective manner’ analysis tests the
Id.

Here, SB 1172

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21
22
23
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homosexuality, but merely indicates that the definition “includes
efforts to change behaviors or gender expressions, or to
eliminate or reduce sexual or romantic attractions or feelings
toward individuals of the same sex.” Cal. Bus. & Prof. Code §
865(b)(1). Plaintiffs nonetheless contend that “the Ninth
Circuit’s interpretation of SB 1172 focused exclusively on
efforts to reduce same-sex attraction.” (Pls.’ Ltr. Br. at 2.)
4

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26
27
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Plaintiffs’ reliance on Burwell v. Hobby Lobby Stores,
Inc., 134 S. Ct. 2751 (2014) is misplaced. Hobby Lobby Stores,
Inc., involved a claim under the Religious Freedom and
Restoration Act (“RFRA”), which provides “very broad protection
for religious liberty” and rejects the Supreme Court’s holding in
Smith that a neutral law of general applicability is subject only
to rational basis review. See Hobby Lobby Stores, Inc., 134 S.
Ct. at 2760-61. Plaintiffs have not brought a claim under RFRA.
15

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provider” regardless of the motivation for providing SOCE.

2

Stormans, there is no evidence that the California Legislature

3

sought to eliminate the use of SOCE with minor patients only when

4

motivated by religious beliefs.

5

As in

See id.

In fact, the only way SB 1172 could be viewed as under-

6

inclusive is in its exclusion of SOCE performed by an individual

7

who is not a “mental health provider,” such as an unlicensed

8

religious leader.

9

finding that SB 1172 selectively imposes a burden on conduct

This accommodation for religion cuts against a

10

motivated by religious belief.

11

not selectively impose an undue obligation on conduct motivated

12

by religious belief because the rules actually provide for

13

religious accommodation.”).

14

unlicensed religious leaders to provide SOCE and the lack of any

15

evidence suggesting that SB 1172 is under-inclusive, it is

16

unlikely that plaintiffs could show that SB 1172 is not generally

17

applicable.

18

See id. at 1137 (“[T]he rules do

In light of the exemption allowing

Because it is likely that SB 1172 is a neutral law of

19

general applicability, plaintiffs’ claim based on a violation of

20

the Free Exercise Clause would likely be examined under only

21

rationale basis scrutiny.5

22
23
24
25
26
27
28

5

Accord King, 767 F.3d at 243.

For the first time in their supplemental letter brief,
plaintiffs mention the possibility of seeking strict scrutiny
under a hybrid rights theory. See Smith, 494 U.S. at 882; see
generally Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir. 1999)
(“Smith, however, excepts a hybrid-rights claim from its rational
basis test. In Smith, the Court distinguished the strict
scrutiny imposed in ‘hybrid situation[s]’ in which a law
‘involve[s] not the Free Exercise Clause alone, but the Free
Exercise Clause in conjunction with other constitutional
protections.’”). Notwithstanding the fact that plaintiffs failed
to purse such a theory in their motion for a preliminary
16

1

3. Establishment Clause

2

The Establishment Clause of the First Amendment,

3

applied against the states by incorporation into the Fourteenth

4

Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940),

5

provides, “Congress shall make no law respecting an establishment

6

of religion.”

7

only to official condonement of a particular religion or

8

religious belief, but also to official disapproval or hostility

9

towards religion.”

10

U.S. Const. amend. I.

“This clause applies not

Am. Family Ass’n, Inc. v. City & County of

San Francisco, 277 F.3d 1114, 1120-21 (9th Cir. 2002).

11

“A statute or regulation will survive an Establishment

12

Clause attack if (1) it has a secular legislative purpose, (2)

13

its primary effect neither advances nor inhibits religion, and

14

(3) it does not foster excessive government entanglement with

15

religion.”

16

2014) (citing Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971)).

17

“Although the Lemon test is perhaps most frequently used in cases

18

involving government allegedly giving preference to a religion,

19

the Lemon test accommodates the analysis of a claim brought under

20

a hostility to religion theory as well.”

21

277 F.2d at 1121.

22

prong of the Lemon test, arguing that SB 1172 results in

23

excessive government entanglement with religion.

24
25

Williams v. California, 764 F.3d 1002, 1014 (9th Cir.

Am. Family Ass’n, Inc.,

Here, plaintiffs rely exclusively on the third

“In determining whether there is an excessive
entanglement with religion, [the court] must analyze ‘the

26
27
28

injunction, plaintiffs do not explain how they could rely on any
free speech rights after the Ninth Circuit’s decision on appeal.
17

1

character and purpose of the institutions that are benefitted,

2

the nature of the aid that the State provides, and the resulting

3

relationships between the government and the religious

4

activity.’”

5

at 615).

6

claim based on hostility toward religion.

7

results in an excessive entanglement with religion if it requires

8

‘sustained and detailed’ interaction between church and State

9

‘for enforcement of statutory or administrative standards.’”

10
11

Williams, 764 F.3d at 1015 (quoting Lemon, 403 U.S.

Here, only the third inquiry is relevant to plaintiffs’
“A relationship

Id.

(quoting Lemon, 403 U.S. at 621).
In contending that SB 1172 results in excessive

12

entanglement in violation of the Establishment Clause, plaintiffs

13

first rely on cases rejecting clergy malpractice claims.

14

“[I]t is well settled that civil tort claims against clerics that

15

require the courts to review and interpret church law, policies,

16

or practices in the determination of the claims are barred by the

17

First Amendment under the entanglement doctrine.”

18

Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 204

19

(Utah 2011) (citing Serbian E. Orthodox Diocese v. Milivojevich,

20

426 U.S. 696, 709–10 (1976)).

21

bring a state law malpractice claim based on a church bishop’s

22

ecclesiastical counseling and advice to “forgive, forget, and

23

seek Atonement” in response to the minor plaintiff’s claim of

24

sexual abuse.

25

the Establishment Clause prohibited the claim because

26

adjudication of it would “necessarily entangle the courts in the

27

examination of religious doctrine, practice, or church polity.”

28

Id. at 204.

Id. at 200-01.

Franco v. The

In Franco, plaintiffs sought to

The Utah Supreme Court held that

18

1

Plaintiffs also rely on the Tenth Circuit’s decision in

2

Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir.

3

2008).

4

students who attended any accredited public or private college in

5

Colorado unless the state determined that the college was

6

“pervasively sectarian.”

7

Circuit held that the program violated the Establishment Clause

8

because “it expressly discriminates among religions, allowing aid

9

to ‘sectarian’ but not ‘pervasively sectarian’ institutions, and

In Weaver, Colorado provided scholarships to eligible

Weaver, 534 F.3d at 1250.

The Tenth

10

it does so on the basis of criteria that entail intrusive

11

governmental judgments regarding matters of religious belief and

12

practice.”

13

into the recipient’s religious views required by a focus on

14

whether a school is pervasively sectarian is not only unnecessary

15

but also offensive.

16

contexts, that courts should refrain from trolling through a

17

person’s or institution’s religious beliefs.’”

18

(quoting Mitchell v. Helms, 530 U.S. 793, 828 (1999)).

19

Id. at 1256.

The court explained, “‘[T]he inquiry

It is well established, in numerous other

Id. at 1261

Unlike clergy malpractice claims or the scholarship

20

program in Weaver, SB 1172 neither contemplates nor requires an

21

examination of religious views or doctrine.

22

consideration of the motive or justification for providing SOCE,

23

SB 1172 categorically prohibits a mental health provider from

24

providing that type of therapeutic treatment to a minor.

25

enforcing SB 1172, the state need not evaluate or even understand

26

the teachings, doctrines, or beliefs of a church about

27

homosexuality or one’s ability to change his or her sexual

28

orientation.

Without

In

The inquiry into whether a mental health provider
19

1

performed SOCE will be the same regardless of whether the

2

provider utilized the treatment while working for a church.

3

1172 will thus not require the state to engage in “intrusive

4

judgments regarding contested questions of religious belief or

5

practice.”

6

SB

Id.

The case at hand is also distinguishable from N.L.R.B.

7

v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).

In that

8

case, the Supreme Court found that the National Labor Relations

9

Board’s exercise of jurisdiction over teachers of parochial

10

schools presented a “significant risk” that the Establishment

11

Clause would be infringed.

12

explained that, in response to teachers’ charges of unfair labor

13

practices, the schools claimed that “their challenged actions

14

were mandated by their religious creeds.”

15

concerned that resolution of such religious defenses would result

16

in excessive entanglement because it would “necessarily involve

17

inquiry into the good faith of the position asserted by the

18

clergy-administrators and its relationship to the school’s

19

religious mission.”

N.L.R.B., 440 U.S. at 502.

Id.

The Court

The Court was

Id.

20

Here, however, even if a mental health provider’s use

21

of SOCE relies on church doctrines or teachings, the state need

22

not evaluate or consider those religious teachings in order to

23

determine whether the provider performed SOCE.

24

provider cannot defend against a disciplinary action under SB

25

1172 on the ground that the SOCE was utilized because of the

26

provider’s or patient’s religious beliefs.

27
28

A mental health

It is also unlikely that SB 1172 will require continued
state oversight of a church, its teachings, or counseling, which
20

1

weighs against a finding of excessive entanglement.

2

v. Hanna Boys Ctr., 940 F.2d 1295, 1304 (9th Cir. 1991) (finding

3

the lack of an Establishment Clause violation when, inter alia,

4

the government would not be involved “in continuing or systematic

5

monitoring of the Church’s activities and should not involve

6

monitoring the religious aspects of [the institutions] activities

7

at all[, and government] involvement will not create the reality

8

or the appearance of the government’s supervising or

9

collaborating with the Church”).

10

Cf. N.L.R.B.

Lastly, plaintiffs attempt to raise the relevance of

11

religious doctrine by arguing that Welch offers “some degree of

12

conversion therapy but [plaintiffs] do not believe that [he]

13

‘seek[s] to change’ clients as prohibited by the statute.”

14

(Pls.’ Ltr. Br. at 4.)

15

held that SOCE is a type of “therapeutic treatment” and that the

16

text of the statute “is clear to a reasonable person.”

17

740 F.3d at 1229, 1234.

18

understand how therapists who identify themselves as SOCE

19

practitioners can credibly argue that they do not understand what

20

practices qualify as SOCE.”

21

reasoning, this line of argument is disingenuous.

22

In the prior appeal, the Ninth Circuit

Pickup,

The Ninth Circuit found it “hard to

Id.

Under the Ninth Circuit’s

Accordingly, it is unlikely plaintiffs will be able to

23

show that SB 1172 impermissibly entangles the state with religion

24

and thus it will likely be subject only to rational basis review.

25

4. Rational Basis Review

26

Because it appears likely that SB 1172 does not run

27

afoul of the Religion Clauses, it will likely be subject only to

28

rational basis review.

Stormans, 586 F.3d at 1137.
21

“Under

1

rational basis review, the rules will be upheld if they are

2

rationally related to a legitimate governmental purpose.”

3

“To invalidate a law reviewed under this standard, ‘[t]he burden

4

is on the one attacking the legislative arrangement to negative

5

[sic] every conceivable basis which might support it.’”

6

(quoting Heller v. Doe by Doe, 509 U.S. 312, 320 (1993))

7

(alteration in original).

8

argument as to why SB 1172 could not survive rational basis

9

review and, more importantly, the Ninth Circuit held on appeal

Id.

Id.

Plaintiffs have not proffered any

10

that “SB 1172 is rationally related to the legitimate government

11

interest of protecting the well-being of minors.”

12

F.3d at 1232.

13

B.

Pickup, 740

Section 1983 Claims for Violations of Privacy Rights

14

1.

Third-Party Standing

15

Plaintiffs’ § 1983 claim for violations of privacy

16

rights relies primarily, if not exclusively, on parents’ and

17

minors’ privacy rights.

18

order, the court found that plaintiffs may not assert the third-

19

party rights of parents of minor children or minors who want to

20

pursue SOCE.

21

“credibly suggest that parents of minor children who seek SOCE

22

and minors who desire SOCE face a hindrance in asserting their

23

own rights” because those very individuals challenged the

24

constitutionality of SB 1172 in a case filed three days after

25

plaintiffs initiated this action.

26

17); accord King, 767 F.3d at 244 (“[T]he fact that minor clients

27

have previously filed suit [challenging a state law banning SOCE

28

with minors] bolsters our conclusion that they are not
22

(See Compl. ¶¶ 65-76.)

In its previous

The court reasoned that plaintiffs could not

(Dec. 3, 2012 Order at 8:8-

1

sufficiently hindered in their ability to protect their own

2

interests.”).

3

Plaintiffs now suggest that the court should reconsider

4

its prior decision in light of the negative publicity surrounding

5

this case.

6

at this court, not individuals seeking SOCE--did not deter the

7

parent and minor plaintiffs in Pickup from pursuing their rights

8

on appeal.

9

circumstances constitute a substantial obstacle to filing suit,”

That negative publicity--which was more often aimed

While “a fear of social stigma can in some

10

an assertion that a client does not want “others to even know

11

they are in therapy” is insufficient to merit third-party

12

standing.

13

plaintiffs lack prudential standing to assert the rights of

14

parents and minors, plaintiffs are unlikely to prevail on any

15

privacy claims based on those rights.

King, 767 F.3d at 244.

Having determined that

16

2.

Evidentiary Privileges

17

Plaintiffs further allege that SB 1172 lacks

18

“safeguards to protect such basic concepts of privacy as the

19

psychotherapist-patient privilege or even the clergy-penitent

20

privilege.”

21

1014 a psychotherapeutic patient has the privilege to refuse to

22

disclose and to prevent others from disclosing confidential

23

communications between the patient and doctor.”

24

Mountanos, 542 F.2d 1064, 1066 (9th Cir. 1976); see also Cal.

25

Evid. Code § 1016.

26

exceptions to the testimonial privilege must comport with a

27

patient’s “conditional right of privacy in the doctor-patient

28

relationship” and that the litigation exception in section 1016
23

(Compl. ¶ 71.)

“Under California Evidence Code §

Caesar v.

The Ninth Circuit has recognized that

1

is “properly justified.”

2

Plaintiffs’ reliance on such testimonial privileges attempts to

3

import constitutional significance to state evidentiary

4

privileges.

5

legislative history purports to alter California’s existing

6

psychotherapist-patient privilege.6

7

unlikely that plaintiffs could prevail on any claim based on the

8

psychotherapist-patient, penitent, or clergy privileges.

9

Caesar, 542 F.2d at 1067-68.

More importantly, nothing in SB 1172 or its

It therefore appears

C. Conclusion

10

Plaintiffs have not shown they are likely to succeed on

11

the merits of their § 1983 claims based on violations of the Free

12

Exercise and Establishment Clauses or any privacy rights.

13

such a showing, plaintiffs are not entitled to a preliminary

14

injunction and the court need not address irreparable harm, the

15

balance of equities, or the public interest.

16

de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 953 (9th

17

Cir. 2013).

18

prevail on any of their claims that remained after the Ninth

19

Circuit’s decision in Pickup, the court must deny plaintiffs’

Absent

Ass’n des Eleveurs

Accordingly, because plaintiffs are not likely to

20
21
22
23
24
25
26
27
28

6

Because SB 1172 is limited to “mental health providers”
as defined in the statute, it does not appear to extend to a
“member of the clergy” as contemplated by penitent or clergy
privileges in California Evidence Code sections 1033 and 1034.
Cal. Evid. Code §§ 1033 (penitent privilege), 1034 (clergy
privilege); see also id. § 1030 (defining “member of the clergy”
as a “priest, minister, religious practitioner, or similar
functionary of a church or of a religious denomination or
religious organization”). Even if a licensed family therapist
providing therapy for the church, such as Welch, comes within the
definition of “clergy” for purposes of the penitent and clergy
privileges, SB 1172 again does not appear to alter the
privileges.
24

1

motion for a preliminary injunction.

2

IT IS THEREFORE ORDERED that plaintiffs’ motion for a

3

preliminary injunction as it remains after the appeal in this

4

matter be, and the same hereby is, DENIED.

5

Dated:

November 4, 2014

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