KING et al v. CHRISTIE et al
Filing
57
OPINION filed. Signed by Judge Freda L. Wolfson on 11/8/2013. (eaj)
*FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
The Honorable Freda L. Wolfson, U.S.D.J.
___________________________________
:
TARA KING, ED.D., et al.,
Civil Action No. 13-5038
:
Plaintiffs,
:
OPINION
:
vs.
:
:
CHRISTOPHER CHRISTIE,
Governor of New Jersey, et al.,
Defendants.
:
:
_______________________________________ :
Appearances:
Counsel for Plaintiffs
Counsel for Proposed Intervenor
Demetrios K. Stratis, Esq.
Law Office of Demetrios K. Stratis, LLC
10-04 River Road
Fair Lawn, NJ 07410
Andrew Bayer, Esq.
Gluck Walrath, LLP
428 Riverview Plaza
Trenton, NJ 08611
Counsel for Defendants
Susan Marie Scott, Esq.
Eric S. Pasternack, Esq.
Robert T. Lougy, Esq.
Office of the NJ Attorney General
R.J. Hughes Justice Complex
Po Box 112
Trenton, NJ 08625
On August 19, 2013, New Jersey Governor Christopher J. Christie
signed into law Assembly Bill Number A3371 (“A3371”) (codified at
N.J.S.A. 45:1-54, -55),1 which prohibits New Jersey state licensed
practitioners, who provide professional counseling services, from treating
minors using methods of Sexual Orientation Change Efforts (“SOCE”),
more commonly known as “gay conversion therapy;” A3371 became
effective on the same date. The Bill is the second piece of legislation of its
kind in the nation, with California having been the first state to
successfully enact such a law.2 In passing this statute, the New Jersey
Legislature determined, inter alia, that this type of treatment subjects
minors to potentially harmful consequences.
Challengers to the
constitutionality of A3371 are Plaintiffs, Tara King Ed.D. and Ronald
Newman, Ph.D., who are individual licensed therapists, as well as the
National Association for Research and Therapy of Homosexuality
(“NARTH”) and the American Association of Christian Counselors
(“AACC”) (collectively, “Plaintiffs”), whose members include various
At the time Plaintiffs brought this suit, Assembly Bill A3371 had not
been codified as a statute, and thus, the parties refer in their papers to the
now-codified statute as A3371.
In this Opinion, the Court will
interchangeably use A3371 or N.J.S.A. 45:1-54. -55.
1
Challengers of the California statute were unsuccessful in
overturning the law. The Ninth Circuit Court of Appeals, in Pickup v.
Brown, 728 F.3d 1042 (9th Cir. 2013), recently held that California’s
statute banning licensed professionals from practicing SOCE is
constitutional.
2
2
licensed professionals who practice or wish to engage in SOCE.
3
The
named defendants are Governor Christie, Eric T. Kanefsky, Director of the
New Jersey Dep’t of Law and Public Safety, Milagros Collazo, Executive
Director of the New Jersey Board of Marriage and Family Therapy
Examiners, J. Michael Walker, Executive Director of the New Jersey Board
of Psychological Examiners, and Paul Jordan, President of the New Jersey
State Board of Medical Examiners (collectively, “Defendants” or the
“State”).
Plaintiffs also bring constitutional claims on behalf of the
licensed professionals’ minor clients and the clients’ parents.4 Presently
before the Court are cross motions for summary judgment.5 During the
pendency of the briefing, Proposed Intervenor, Garden State Equality
(“Garden State”), moved to intervene as a defendant in this case, or in the
alternative, it sought amicus curiae status.
On these motions, the parties raise a host of legal issues, the most
significant of which focuses on whether, by prohibiting the practice of
SOCE, the State has impermissibly infringed upon Plaintiffs’ First
Amendment rights -- freedom of speech and free religious expression.
There is no dispute that NARTH and AACC have associational
standing to bring claims on behalf of their members.
3
Within the last week, a minor client and his parents, represented by
the same counsel as represents Plaintiffs here, filed a similar lawsuit
against Defendants challenging the constitutionality of A3371. This matter
also is assigned to me. See Doe v. Christie, et al., Civ. No. 13-6629(FLW).
4
5
Initially, Plaintiffs sought to preliminarily enjoin Defendants from
enforcing A3371; however, during the pendency of that motion, the parties
agreed to convert the preliminary injunction motion into one for summary
judgment, with Defendants cross moving for summary judgment.
3
Because the Court finds that A3371 restricts neither speech nor religious
expression, rational basis review applies. I further find that A3371 passes
constitutional muster under that standard. Accordingly, Defendants’ cross
motion for summary judgment is GRANTED in its entirety; and
Plaintiffs’ motion for summary judgment is DENIED. Garden State’s
motion to intervene is GRANTED.
BACKGROUND
Assembly Bill A3371 precludes persons licensed to practice in
certain counseling professions from engaging in “the practice of seeking to
change a [minor’s] sexual orientation.”
§ 2(b).
The statute has two
sections; Section 1 provides legislative findings and declarations, while
Section 2 defines SOCE and establishes the scope of the legislative
prohibition on such conduct.
Section 1 (N.J.S.A. 45:1-54)
In Section 1 of the Statute, the Legislature declared that “[b]eing
lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or
shortcoming. The major professional associations of mental health
practitioners and researchers in the United States have recognized this fact
for nearly 40 years.” § 1(a). The Legislature then went on to state that
“[m]inors who experience family rejection based on their sexual
orientation face especially serious health risks,” and that “[s]uch directed
efforts [at changing sexual orientation] are against fundamental principles
of psychoanalytic treatment and often result in substantial psychological
pain by reinforcing damaging internalized attitudes.” §§ 1(m), (j)(2).
4
In support of its determination, the Legislature cited many of the
position
statements
and
resolutions
of
professional
associations,
including, inter alia, the American Psychiatric Association, the American
Academy of Pediatrics and the American Academy of Child and Adolescent
Psychiatry.
§ 1 (c)-(m).
According to the Legislature, each of these
professional associations has concluded that there is little or no evidence
of the efficacy of SOCE, and that SOCE has the potential for harm, such as
causing those treated to experience depression, guilt, anxiety and thoughts
of suicide.
Id.
Specifically, relying on the American Psychological
Association’s report on Appropriate Therapeutic Responses to Sexual
Orientation, the Legislature found 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, selfblame, decreased self-esteem and authenticity to others, . . . [and] a feeling
of being dehumanized.” § 1(b).
Similarly, and particularly relevant to minors, citing an American
Academy of Pediatrics journal article, the Legislature concluded that
“[t]herapy directed at specifically changing sexual orientation is
contraindicated, since it can provoke guilt and anxiety while having little
or no potential for achieving changes in orientation.”
§ 1(f).
The
Legislature also looked to an American Academy of Child and Adolescent
Psychiatry journal article, which states that
5
[c]linicians 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 . . . . Indeed, there is no
medically valid basis for attempting to prevent
homosexuality, which is not an illness. On the contrary, such
efforts may encourage family rejection and undermine selfesteem, connectedness and caring, important protective
factors against suicidal ideation and attempts. Given that
there is no evidence that efforts to alter sexual orientation
are effective, beneficial or necessary, and the possibility that
they carry the risk of significant harm, such interventions are
contraindicated.
§ 1(k).
Indeed, based on these professional associations’ findings and other
evidence before the Legislature, the State concluded that it “has a
compelling interest in protecting the physical and psychological well-being
of minors, including gays, bisexual, and transgender youth, and in
protecting its minors against exposure to serious harms caused by sexual
orientation change efforts.” § 1(n).
Section 2 (N.J.S.A. 45:1-55)
Assembly Bill A3371’s prohibition on the practice of SOCE with a
person under 18 years of age applies to “[a] person who is licensed to
provide professional counseling under Title 45 of the Revised Statutes,
including, but not limited to, a psychiatrist, licensed practicing
psychologist, certified social worker, licensed clinical social worker,
licensed social worker, licensed marriage and family therapist, certified
psychoanalyst, or a person who performs counseling as part of the
6
person's professional training for any of these professions.”
§ 2(a).6
Further, the Legislature defines SOCE as “the practice of seeking to change
a person’s sexual orientation, including, but not limited to, efforts to
change behaviors, gender identity, or gender expressions, or to reduce or
eliminate sexual or romantic attractions or feelings toward a person of the
same gender . . . .” § 2(b).
However, the statute makes clear that the prohibition does not
include counseling for a person seeking to transition from one gender to
another, or counseling that: (1) “provides acceptance, support, and
understanding of a person or facilitates a person’s coping, social support,
and identity exploration and development, including sexual orientationneutral interventions to prevent or address unlawful or unsafe sexual
practices”; and (2) any other type of counseling that does not seek to
change sexual orientation. Id. at (1), (2).
Plaintiff’s Challenge to A3371
Plaintiffs challenge the constitutionality of A3371 because they
allege the statute violates their state and federal First Amendment rights,
namely, freedom of speech and free exercise of religion.
In addition,
Plaintiffs, on behalf of minor clients and their parents, assert that A3371
interferes with the minor clients’ right to self-determination and the
parents’ fundamental right to direct the upbringing of their children. As to
free speech, Plaintiffs maintain that A3371 prohibits licensed professionals
It is important to note that A3371 does not prohibit non-licensed
counselors or therapists, including non-licensed religious counselors, from
practicing SOCE.
6
7
from engaging in, or referring to a licensed professional who engages in,
counseling with a minor regarding his/her “unwanted” same-sex sexual
attractions, placing an unconstitutional restraint on the content of
Plaintiffs’ message to their clients. Plaintiffs reason that A3371 “authorizes
only one viewpoint on SOCE and unwanted same-sex sexual attractions,
behaviors, and identity by forcing . . . Plaintiffs . . . to present only one
viewpoint on the otherwise permissible subject matter of same-sex
attractions . . . .” Compl., ¶ 186.
Plaintiffs further complain that A3371 infringes on their “sincerely
held religious beliefs to provide spiritual counsel and assistance to their
clients who seek such counsel in order to honor their clients’ right to selfdetermination and to freely exercise their own sincerely held religious
beliefs to counsel on the subject matter of same-sex attractions . . . .”
Compl., ¶ 235.
By doing so, Plaintiffs allege that A3371 “impermissibly
burden[s] Plaintiffs’ and their clients’ sincerely held religious beliefs and
compels them to both change those religious beliefs and to act in
contradiction to them.” Id. at ¶ 237. This type of restriction, Plaintiffs
assert, violates their state and federal constitutional rights to the free
exercise of religion.
Finally, Plaintiffs assert that A3371 violates the
parents’ fundamental rights “to direct the upbringing and education of
their children according to their sincerely held religious beliefs,” Id., ¶
260, because the statute “prevents the parents . . . from seeking mental
health counseling for their minor children’s unwanted same-sex
attractions . . . .” Id. at ¶ 261.
8
Shortly after Plaintiffs filed suit, Garden State sought permissive
intervention to defend the constitutionality of A3371. Founded in 2004,
Garden State is a New Jersey civil rights organization, primarily
advocating for lesbian, gay, bisexual, and transgender (“LGBT”) equality
within the state.
It supports and lobbies for legislation, such as A3371,
that prohibits, inter alia, discrimination on the basis of sexual orientation.
Garden State aims to protect the interests of LGBT citizens in New Jersey,
including youth. This organization has over 125,000 members, including
LGBT minors and their parents, some of whom, according to Garden
State, might be subject to SOCE treatment at the insistence of a parent or
guardian, or based on the choice of a licensed mental health professional.
Procedural History
Plaintiffs filed their six-count Complaint on August 22, 2013.
Initially, Plaintiffs moved to temporarily restrain Defendants from
enforcing A3371. However, after a telephone conference, and with the
consent of the parties, the Court converted Plaintiffs’ motion for a
preliminary injunction to a summary judgment motion.
Defendants cross-moved for summary judgment.
Thereafter,
After the filing of
Plaintiffs’ initial motion, Garden State moved to intervene as a defendant
in this matter. By Text Order dated September 16, 2013, the Court granted
Garden State’s request, and indicated in that Order that the reasoning for
the Court’s decision would be stated more fully in a written opinion to
follow.
9
On October 1, 2013, the Court held oral argument on these
summary judgment motions, wherein counsel for Plaintiffs,7 Defendants
and the Intervenor participated. Notably, during the hearing, Plaintiffs
advanced an additional novel argument as to why Garden State should not
be granted intervenor status: Garden State must have Article III standing
to intervene at the district court level. The Court reserved its decision on
that question. In addition, in response to the parties’ various evidentiary
objections to certain expert opinions/certifications, the Court indicated
that all objections will be taken under advisement, and to the extent the
Court relies on any certifications, the Court will rule on the relevant
objections accordingly in this Opinion.
See Hearing Transcript (“Tr.”),
T58:12 – T59:11.
DISCUSSION
I.
Standard of Review
A moving party is entitled to judgment as a matter of law where
there is no genuine issue as to any material fact. See Fed. R. Civ.
56(c); Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000) (citing Fed. R.
Civ. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); Orson, Inc.
v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). The burden of
demonstrating the absence of a genuine issue of material fact falls on the
moving party. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d
During a teleconference, counsel for Plaintiffs indicated that they
were objecting to Garden State’s motion to intervene; however, counsel did
not object to Garden State’s alternative request to enter the litigation as
amicus.
7
10
Cir. 1999) (citations omitted). Once the moving party has satisfied this
initial burden, the opposing party must identify “specific facts which
demonstrate that there exists a genuine issue for trial.” Orson, 79 F.3d at
1366.
Not every issue of fact will be sufficient to defeat a motion for
summary judgment; issues of fact are genuine “if the evidence is such that
a
reasonable
jury
could
return
a
verdict
for
the
nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Further, the nonmoving party cannot rest upon mere allegations; he must
present actual evidence that creates a genuine issue of material
fact. See Fed. R. Civ. 56(c); Anderson, 477 U.S. at 249 (citing First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). In conducting a review
of the facts, the non-moving party is entitled to all reasonable inferences
and the record is construed in the light most favorable to that
party. See Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d
Cir. 1986). Accordingly, it is not the court's role to make findings of fact,
but to analyze the facts presented and determine if a reasonable jury could
return a verdict for the nonmoving party. See Brooks, 204 F.3d at 105 n.
5 (citing Anderson, 477 U.S. at 249); Big Apple BMW v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
II.
Motion to Intervene by Garden State
A.
Standing as an Intervenor
According to Plaintiffs, in their supplemental briefing, Garden State
must independently satisfy Article III standing requirements before it can
11
be granted leave to intervene under Fed. R. Civ. P. 24(b). Generally, to
demonstrate the "case or controversy" standing requirement under Article
III, § 2 of the United States Constitution, a plaintiff must establish that it
has suffered a cognizable injury that is causally related to the alleged
conduct of the defendant and is redressable by judicial action. Friends of
the Earth, Inc. v. Laidlaw Envt’l. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000); The Pitt News v. Fisher, 215 F.3d 354, 359 (3d Cir. 2000). Here,
Plaintiffs argue that Garden State, a proposed intervening defendant, must
also satisfy Article III’s standing mandate.
To
begin
the
analysis,
I
start
with
the
Third
Circuit’s
acknowledgement in Am. Auto. Ins. Co. v. Murray, 658 F.3d 311 (3d Cir.
2011), that neither the Third Circuit nor the Supreme Court “has
determined whether a potential intervenor must even have Article III
standing” to participate in district court proceedings. Id. at 318 n.4 (citing
Diamond v. Charles, 476 U.S. 54, 68-69 (1986)).8 While this circuit has
not answered the standing question in the context of intervention, Murray
recognized that other circuit courts are split on this issue. Compare Ruiz
Suggesting that the Third Circuit requires a proposed intervenor to
satisfy standing, Plaintiffs rely on Frempong v. Nat’l City Bank of In., 452
Fed. Appx. 167, 172 (3d Cir. 2011). Plaintiffs’ reliance is inapt. Frempong
dealt with a plaintiff husband -- not an intervenor -- who brought § 1983
claims in connection with defendant bank’s foreclosure of his wife’s
property. The court found that plaintiff did not have standing to bring
claims on his wife’s behalf because he did not have any interest in the
disputed property. In that context, the issue of whether a proposed
intervenor must have independent standing under Article III was not
addressed, let alone resolved – the question of intevenor status was not an
issue.
8
12
v. Estelle, 161 F.3d 814, 830 (5th Cir. 1998) (holding that Article III
standing is not a prerequisite to intervention); City of Colo. Springs v.
Climax Molybdenum Co., 587 F.3d 1071, 1079 (5th Cir. 2009) (same);
Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir.
1994) (same); Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir. 1991)
(same); Sagebrush Rebellion, Inc., v. Watt, 713 F.2d 525, 527 (9th Cir.
1983) (same); Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989)
(same); and United States Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d
Cir. 1978) (same); with Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir.
1996) (holding that Article III standing is necessary for intervention);
United States v. 36.96 Acres of Land, 754 F.2d 855, 859 (7th Cir. 1985)
(concluding that intervention under Rule 24 requires interest greater than
that of standing); and Rio Grande Pipeline Co. v. FERC, 178 F.3d 533, 538
(D.D.C. 1999) (an “intervenor must have standing to participate as an
intervenor rather than only as an amicus curiae.”).9
Having reviewed the conflicting authorities cited above, I find that
based on the circumstances of this case, Garden State need not satisfy
standing requirements in order to intervene in these proceedings. 10 I start
It bears noting that the recent Supreme Court decision in
Hollingworth v. Perry, 133 S.Ct. 2652, 2661 (2013), did not directly
address the issue of intervenor standing in general. Instead, in that case,
the Court dealt with a narrower issue: the Court found that standing was
lacking when an intervenor sought to appeal the judgment of the district
court after the unsuccessful defendant government had decided not to
pursue the lawsuit.
9
To the clear, an intervenor, by right or permission, normally has the
right to appeal an adverse final judgment by a trial court, just as any other
10
13
with the “minority” view’s reasoning. For example, the Eighth Circuit, in
Mausolf, takes a rigid approach to intervention. The court there held that
an intervenor, regardless of Rule 24 requirements, must have standing
because “[a]n Article III case or controversy is one where all parties have
standing, and a would-be intervenor, because he seeks to participate as a
party, must have standing as well.” Mausolf, 85 F.3d at 1300. In that
court’s view, any intervenor that does not have independent standing,
“destroys” an Article III case or controversy, regardless whether the
original parties have standing to bring suit. Id.
On the other side of the coin, the “majority” view does not impose
independent standing requirements on an intervenor at the district court
level.
“‘[O]n many occasions the Supreme Court has noted that an
intervenor may not have standing, but has not specifically resolved that
issue, so long as another party to the litigation has sufficient standing to
assert the claim at issue.'" San Juan County, Utah v. United States, 503
F.3d 1163, 1171-72 (10th Cir. 2007) (en banc) (quoting panel decision in
San Juan County, Utah v. United States, 420 F.3d 1197, 1205 (10th Cir.
2005) (citing McConnell v. Fed. Election Comm'n, 540 U.S. 93, 233
(2003)). These cases reason that Article III requires only that justiciable
“cases” and “controversies” may be maintained in a federal court, see
party. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 37576 (1987). However, as any other party, an intervenor seeking to appeal on
its own, must have standing under Article III of the Constitution to have
the court decide the merits of the dispute. Diamond, 476 U.S. at 68. The
standing requirement therefore may bar an appeal by an intervenor who
nevertheless participated in the litigation before the district court. United
States v. Van, 931 F.2d 384, 387 (6th Cir. 1991).
14
Brennan, 579 F.2d at 190, and, that a proposed intervenor is permitted to
intervene on the basis of an existing party's standing to assert the claim at
issue, based upon what the Supreme Court has described as “piggyback”
standing. See Diamond, 476 U.S. at 64, 68-9. Such standing is permissible
because "[i]n that circumstance the federal court has a Case or
Controversy before it regardless of the standing of the intervenor." City of
Colo., 587 F.3d at 1079.
The Eleventh Circuit has explained that the standing requirement
exists to ensure that a justiciable case or controversy exists. Chiles, 865
F.2d at 1212-13, and, Rule 24, authorizing intervention, presumes that a
justiciable case or controversy already exists before the court. See Id.; see
also, 7C Wright, Miller, and Kane, Federal Practice and Procedure: Civil
2d § 1917 (2d ed. 1986) at 457 ("Intervention presupposes the pendency of
an action in a court of competent jurisdiction . . . .") (footnote omitted).
Because a court's subject matter jurisdiction is necessarily established
before intervention, the Chiles court held that a party seeking to intervene
need not have independent standing. Id. at 1212-13.
While the Third Circuit has not spoken on this matter and there are
no cases on this issue in this district, there are at least three other district
court opinions in this circuit that have found that an intervenor need not
have independent standing to participate in district court proceedings.
See Indian River Recovery Co. v. The China, 108 F.R.D. 383, 386-87 (D.
Del. 1985) (“an intervenor need not have standing necessary to have
initiated the lawsuit”); Coca-Cola Bottling Co. of Elizabethtown, Inc. v.
15
The Coca-Cola Co., 696 F. Supp. 57, 93 (D. Del. 1988) (“The fact that [a
party] lack[s] standing, however, does not control the analysis of whether
[it] [is] entitled to intervene.”); United States v. Germantown Settlement
Homes, Inc., No. 84-2622, 1985 U.S. Dist. LEXIS 18193, at *6 n.1 (E.D. Pa.
Jul. 5, 1985).
I find the reasoning of those courts that do not require independent
standing by an intervenor to be persuasive.
First, the constitutional
requirement of standing only speaks to whether the federal district court
has a justiciable controversy.
In my view, so long there is a case or
controversy before the court, it is not necessary that an intervenor have
independent standing. Rather, Rule 24 aims to promote the efficient and
orderly use of judicial resources by allowing persons to participate in the
lawsuit to protect their interests or vindicate their rights.
In that
furtherance of the Rule, the court makes a determination whether those
interests would be impaired by the disposition of the case. Imposing
standing on an intervenor would eviscerate Rule 24’s practical approach.
And, furthermore, such a restriction would impinge on the purposes of
permissive intervention. Accordingly, I find that Garden State need not
separately satisfy standing requirements to intervene.
B.
Permissive Intervention Pursuant to Rule 24(b)
Garden State seeks to intervene on the basis of permissive
intervention.
Permissive intervention under Rule 24 requires (1) the
motion to be timely; (2) an applicant's claim or defense and the main
action have a question of law or fact in common; and (3) the intervention
16
may not cause undue delay or prejudice to the original parties' rights. See
Fed. R. Civ. P. 24(b); see also N.C.A.A. v. Governor of N.J., 520 Fed. Appx.
61, 63 (3d Cir. 2013); Appleton v. Comm'r, 430 Fed. Appx. 135, 137-38 (3d
Cir. 2011). So long as these threshold requirements are met, whether to
allow a party to permissively intervene is left to the sound discretion of the
court. See N.C.A.A., 520 Fed. Appx at 63.
As to the first factor, Garden State’s motion is timely. Garden State
moved to intervene only 14 days after the Complaint was filed. While
Plaintiffs suggest that they did not have sufficient time to respond to
Garden States’ briefing, the Court has provided all parties an opportunity
to respond to each other’s arguments. There was more than sufficient
time for Plaintiffs to address any arguments made by Garden State before
the summary judgment hearing. And, indeed, the Court afforded Plaintiffs
an opportunity to submit supplemental briefing on issues they deemed
important after the hearing, including on the question of the proposed
intervenor’s standing.
Next, Plaintiffs contend that intervention is not necessary because
Garden
State’s
Defendants.
interests
are
already
adequately
represented
by
However, the presence of overlapping interests between
Garden State and the State does not preclude permissive intervention.
Rather, “[t]he shared interests of [Garden State] and the state defendants
support [Garden State’s] argument that it shares a common question of
law with the current action because it plans to defend the constitutionality
of [A3371], the subject of the dispute between plaintiffs and the state
17
defendants.”
Pickup v. Brown, No. 12-2497, 2012 U.S. Dist. LEXIS
172027, at *13-14 (E.D. Cal. Dec. 4, 2012).
Indeed, Plaintiffs have not
disputed that Garden State’s claims or defenses share common questions
of law or fact with this action. Accordingly, I find that the second factor is
satisfied.
Plaintiffs also contend that allowing Garden State to intervene
would cause an undue delay of the resolution of Plaintiffs’ claims because
it would result in additional briefing by Plaintiffs. I do not find this
argument convincing. As I have already explained, Garden State’s filings
in this matter would not unduly expand Plaintiffs’ submissions because
Garden State’s arguments and positions are similar to those advanced by
the State. In other words, while Plaintiffs may have expended additional
time or expense in order to respond to Garden State’s arguments, those
efforts are not unduly prejudicial or burdensome. Rather, contrary to
Plaintiffs’ position, I find that Garden State has provided a “helpful,
alternative viewpoint from the vantage of some persons who have
undergone SOCE treatment or are potential patients of treatment that will
aid the court in resolving plaintiffs' claims fully and fairly.” Id. at *14.
Accordingly, having satisfied the Rule 24(b) factors, Garden State is
given leave to intervene.
III.
Eleventh Amendment
In their Complaint, Plaintiffs bring parallel state constitutional
claims against Defendants and they seek injunctive and declaratory relief,
as well as nominal money damages. Defendants argue that the Eleventh
18
Amendment bars Plaintiffs’ § 1983 claims for money damages and state
constitutional claims. During the hearing, Plaintiffs argued that they are
entitled to nominal money damages in this action should they prevail.
Since Plaintiffs did not brief their position on this issue, the Court
provided Plaintiffs an opportunity to submit additional briefing. Instead
of any substantive response, Plaintiffs subsequently withdrew their claim
for nominal damages.11 See Plaintiffs’ Response on Claim for Nominal
Damages, p. 2.
Moreover, Plaintiffs have also withdrawn their state
constitutional claims.12 See Tr., T7:22-T8:2.
Indeed, it is clear that the Eleventh Amendment bars suits for
damages, pursuant to 42 U.S.C. § 1983, against state officials sued in their
official capacities. The Eleventh Amendment provides "[t]he Judicial
power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign
State." U.S. Const. amend. XI. It is beyond cavil that the Eleventh
Amendment protects states and their agencies and departments from suit
in federal court. See Bayete v. Ricci, 489 Fed. Appx. 540, 542 (3d Cir.
2012); Hafer v. Melo, 502 U.S. 21, 30 (1991). Similarly, absent consent by
a state, the Eleventh Amendment bars federal court suits for money
damages against state officers in their official capacities, Id., and section
1983 does not override a state's Eleventh Amendment immunity.
11
Under the Eleventh Amendment, unlike federal claims seeking
prospective injunctive relief, Plaintiffs may not bring state law claims –
including state constitutional claims – against the State regardless the type
of relief it seeks. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 104-06 (1984). Likewise, supplemental jurisdiction does not
authorize district courts to exercise jurisdiction over claims against nonconsenting states. There is no doubt that “the Eleventh Amendment bars
the adjudication of pendent state law claims against nonconsenting state
defendants in federal court.” Raygor v. Regents of the Univ. of Minn., 534
U.S. 533, 540-41 (2002).
12
19
Accordingly, all federal claims for monetary damages -- however
nominal -- against Defendants in their official capacities are barred, and
Plaintiffs’ state constitutional claims, i.e., Counts II and V, are dismissed.
IV.
Third-Party Standing
As a jurisdictional matter, Defendants contend that Plaintiffs lack
third-party standing to pursue claims on behalf of Plaintiffs’ minor clients
and parents. As discussed previously, to satisfy the "case or controversy"
standing requirement under Article III, a plaintiff must establish that it
has suffered a cognizable injury that is causally related to the alleged
conduct of the defendant and is redressable by judicial action. Apart from
those standing requirements, the Supreme Court has imposed a set of
prudential limitations on the exercise of federal jurisdiction over thirdparty claims. Bennett v. Spear, 520 U.S. 154, 162 (1997) ("The federal
judiciary has also adhered to a set of prudential principles that bear on the
question of standing.") (quotation and citation omitted); Powell v. Ridge,
189 F.3d 387, 404 (3d Cir. 1999). The restrictions against third-party
standing do not stem from the Article III "case or controversy"
requirement, but rather from prudential concerns, Amato v. Wilentz, 952
F.2d 742, 748 (3d Cir. 1991), which prevent courts from “deciding
questions of broad social import where no individual rights would be
vindicated and . . . limit access to the federal courts to those litigants best
suited to assert a particular claim.” Gladstone Realtors v. Vill. of
Bellwood, 441 U.S. 91, 99-100 (1979); Sec'y of State v. Joseph H. Munson
Co., 467 U.S. 947, 955 (1984).
20
It is important to bear in mind that in the jurisprudence of
standing, a “litigant must assert his or her own legal rights and interests,
and cannot rest a claim to relief on the legal rights or interests of third
parties.” Powers v. Ohio, 499 U.S. 400, 410 (1991); Valley Forge Christian
Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S.
464, 474-75 (1982); Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d
Cir. 1994). This principle is based on the assumption that "third parties
themselves usually will be the best proponents of their own rights,"
Singleton v. Wulff, 428 U.S. 106, 114 (1976) (plurality opinion), which
serves to foster judicial restraint and ensure the clear presentation of
issues. See Munson, 467 U.S. at 955.
The prohibition against third-party standing, however, is not
absolute. The Supreme Court has found that the principles animating
these prudential concerns are not subverted if the third party is hindered
from asserting its own rights and shares an identity of interests with the
plaintiff. See Craig v. Boren, 429 U.S. 190, 193-94 (1976); Singleton, 428
U.S. at 114-15; Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972). Based on
that recognition, third-party standing is permitted so long as the plaintiff
can satisfy three preconditions: 1) the plaintiff must suffer injury; 2) the
plaintiff and the third party must have a "close relationship"; and 3) the
third party must face some obstacles that prevent it from pursuing its own
claims. Powers, 499 U.S. at 411; Pitt News, 215 F.3d at 362. It remains for
courts to balance these factors to determine if third-party standing is
warranted. Amato, 952 F.2d at 750.
21
Here, Plaintiffs assert constitutional claims on behalf of their minor
clients and parents. To establish standing for these third parties, Plaintiffs
must, in the first instance, show that they have suffered an injury. Indeed,
Plaintiffs’ ability to bring third-party claims hinges on whether they
suffered any constitutional wrongs by the passage of A3371.13
This
question will be addressed extensively later in this Opinion, and, because
the Court finds that Plaintiffs have suffered no injuries, they cannot meet
the first factor. Furthermore, Plaintiffs cannot meet the third element of
the test. Indeed, during the pendency of this matter, a minor and his
parents filed suit in this Court, challenging the constitutionality of A3371.
Therefore, since these litigants are bringing their own action against
Defendants, there can be no serious argument that these third parties are
facing obstacles that would prevent them from pursuing their own claims.
Accordingly, I find that Plaintiffs do not meet third-party standing
requirements, and thus, Counts III and VI are dismissed as well.
V.
First Amendment—Freedom of Speech
Plaintiffs first challenge the constitutionality of A3371 on the
ground that it violates their First Amendment right to free speech,
contending that the statute constitutes an impermissible viewpoint and
content-based restriction on their ability to discuss and engage in SOCE.
Specifically, Plaintiffs argue that the statute forbids licensed counselors
Plaintiffs concede that their ability to bring third-party claims
depends upon whether they have suffered any injuries as a result of the
passage of A3371. See T8:17-T917.
13
22
from both (1) speaking on or about the subject of SOCE to their minor
clients, including recommending SOCE or referring a client to SOCE, and
(2) administering SOCE to their minor clients under any circumstance,
regardless of the client’s informed consent to the practice. Plaintiffs posit
that because psychotherapy is carried out virtually exclusively through
“talk therapy,” any restriction on a therapist’s ability to engage in a
particular type of therapy is therefore a restriction on that therapist’s First
Amendment free speech right. Thus, Plaintiffs argue, that as a regulation
of speech, A3371 cannot survive the applicable standard of review, i.e.,
strict scrutiny.
The State rejects Plaintiffs’ interpretation of A3371, and, in
particular, that the statute regulates, or implicates, speech in any form.
Rather, the State claims that the statute merely restricts a licensed
professional from engaging in practicing SOCE counseling, and
accordingly is a rational exercise of the State’s long-recognized power to
reasonably regulate the counseling professions. In that connection, the
State asserts that A3371 targets conduct only, not speech. Accordingly,
Defendants argue that the statute does not implicate any fundamental
constitutional right and withstands rational basis review.
It is clear that the threshold issue before the Court is whether A3371
regulates constitutionally protected speech. I first determine whether the
statute on its face seeks to regulate speech; I then turn to whether the
statute has the effect of burdening speech or expressive conduct.
Ultimately, if the statute does not implicate or burden constitutionally
23
protected speech or expression in any manner, I apply rational basis
review. If, however, the statute does seek to regulate speech or has the
effect of burdening protected speech, directly or incidentally, I must
determine the degree of constitutional protection afforded to, as well as
the resulting burden on, that speech and then apply the appropriate
standard of review.
I note that A3371 is a novel statute in New Jersey and other
jurisdictions within the Third Circuit, as is the issue of whether counseling,
by means of talk therapy, is entitled to any special constitutional
protection.
However, I do not start with a blank slate.
Last year,
California passed a law, SB 1172, that is virtually identical to A3371 in both
language and purpose. After two district court challenges, one finding SB
1172 constitutional, Pickup v. Brown, No. 12-02497, 2012 WL 6021465
(E.D. Cal., Dec. 4, 2012), the other not, Welch v. Brown, 907 F. Supp. 2d
1102 (E.D. Cal. 2012), a panel for the Ninth Circuit Court of Appeals
concluded that the statute is constitutional.14 See Pickup v. Brown, 728
F.3d 1042 (9th Cir. 2013). Although the Pickup decision is not binding on
me, given the relevance of this opinion, and the dearth of decisions from
the Third Circuit or other jurisdictions addressing the interplay between
constitutionally protected speech and professional counseling, I will turn
Plaintiffs point out that the Ninth Circuit has directed the parties
involved in the California statute litigation to brief whether en banc review
of the panel’s decision would be appropriate. As of the date of this
Opinion, however, no order for en banc review has issued.
14
24
to the Ninth Circuit’s decision where appropriate, and explain my reason
for so doing.
A.
A3371 Does Not Regulate Speech
I begin by reviewing the plain language of A3371. Even a cursory
review
reveals
that
the
statute
nowhere
references
speech
or
communication; instead, the statute contains words and phrases that are
generally associated with conduct. For example, the operative statutory
language directs that a licensed counselor “shall not engage in sexual
orientation change efforts,” and further defines “‘sexual orientation
change efforts” as “the practice of seeking to change a person’s sexual
orientation.”
N.J.S.A. 45:1-55 (emphasis added).
Such language is
commonly understood to refer to conduct, and not speech, expression, or
some other form of communication. See, e.g., Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 572-73 (1991) (Scalia, J., concurring) (noting that a
criminal statute prohibiting a person from “engag[ing],” “appear[ing]”, or
“fondl[ing]” “is not directed at expression in particular”); United States v.
Tykarsky, 446 F.3d 458, 473 (3d Cir. 2006) (facially reviewing statute
with the operative words “engage in prostitution” and determining this
term governed conduct); cf. Associated Film Distribution Corp. v.
Thornburgh, 683 F.2d 808, 814 n.8 (3d Cir. 1982) (finding that
Pennsylvania statute regulating the bidding, distribution, screening, and
exhibition of motion pictures to have “no facial impact upon speech”);
United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1128 (N.D. Cal. 2002)
(finding that portion of Copyright Act that “ban[ned] trafficking in devices,
25
whether software, hardware, or other” did not on its face target speech).
Moreover, the Ninth Circuit reached the same conclusion in Pickup, 728
F.3d 1042, finding that the statute did not implicate speech. Specifically,
the Pickup panel determined that the California law did not do any of the
following:
•
•
•
•
•
•
•
Prevent mental health providers from communicating with
the public about SOCE
Prevent mental health providers from expressing their views
to patients, whether children or adults, about SOCE,
homosexuality, or any other topic
Prevent mental health providers from recommending SOCE
to patients, whether children or adults
Prevent mental health providers from administering SOCE
to any person who is 18 years of age or older
Prevent mental health providers from referring minors to
unlicensed counselors, such as religious leaders
Prevent unlicensed providers, such as religious leaders, from
administering SOCE to children or adults
Prevent minors from seeking SOCE from mental health
providers in other states
Id. at 1049-50. I find that the Pickup panel’s explanation of the reach of
the California law applies with equal force to A3371, given the statutes’
similarities. Nothing in the plain language of A3371 prevents licensed
professionals from voicing their opinions on the appropriateness or
efficacy of SOCE, either in public or private settings. Indeed, A3371 does
not prevent a licensed professional from, for example, lecturing about
SOCE at a conference or providing literature to a client on SOCE; the
statute only prohibits a licensed professional from engaging in counseling
for the purpose of actually practicing SOCE. In light of the foregoing—and
Plaintiffs’ failure to provide any substantive support to the contrary, other
26
than their own subjective interpretations—I find that A3371 does not
directly regulate or target speech on its face.
In that regard, although Plaintiffs do not meaningfully advance an
argument that A3371 regulates speech per se, Plaintiffs nevertheless
contend that A3371 clearly targets speech by virtue of the statute’s
application solely to licensed counselors. According to Plaintiffs, SOCE
counseling necessarily implicates speech because “SOCE counseling is talk
therapy.”
See Decl. of Dr. Tara King, ¶ 12;15 see also Pl. Reply, 8
I pause briefly to note that, following oral argument in this matter,
Plaintiffs filed a motion to “Reconsider Dispensing of Evidence and Deem
Certain Facts Admitted.” See Dkt. No. 50. The thrust of Plaintiffs’ motion
is twofold: (1) for the Court to reconsider its ruling that it would not
consider evidence submitted in connection with Plaintiffs’ summary
judgment motion, and (2) to deem the facts in Plaintiffs’ Complaint
admitted by virtue of the State’s failure to timely file an answer. Both of
these arguments are without merit.
First, Plaintiffs are mistaken in their belief that I have made any
ruling with respect to consideration of their supporting declarations and
other evidence. At oral argument, in a colloquy with Plaintiffs’ counsel, I
made clear that I would consider declarations from the named Plaintiffs as
“they are absolutely relevant.” Tr., T59:25-T60:8. I explicitly stated that
“I’m taking [Plaintiffs’] declarations,” and that “[i]f I find something in
there that shouldn’t be considered, I’ll make a note of it.” Id. at T60:12-14.
With respect to other declarations and evidence filed by Plaintiffs and
Intervenor, I noted that there were volumes of submissions and
objections, but that I was not making any rulings on the admissibility of
the submitted evidence unless and until I determined that such evidence
was necessary and appropriate to deciding the issues in this matter. Id. at
T58:12-59:3. In that connection, I explained that the law was clear that if I
were to find rational basis review applies to A3371, it would be
unnecessary to consider evidence beyond the legislature’s stated findings,
and thus there is no reason to prematurely decide the admissibly of such
evidence. Id. at T59:4-11. Accordingly, there is no basis for Plaintiffs’
reconsideration motion, and Plaintiffs’ motion is denied in that regard.
Second, Plaintiffs are not entitled to have certain facts in their
Complaint be deemed admitted. Initially, Plaintiffs filed their Complaint
accompanied by a motion for a preliminary injunction. Following a
conversation with counsel for Plaintiffs and the State on August 27, 2013,
15
27
(“Plaintiffs’ counseling involves no nonspeech elements, and should be
considered pure speech.”). Plaintiffs explain that:
SOCE counseling consists of discussions with the client
concerning the nature and cause of their unwanted same-sex
sexual attractions, behaviors, or identity; the extent of these
attractions, behaviors, or identity; assistance in
understanding traditional, gender-appropriate behaviors and
characteristics; and assistance in fostering and developing
those gender-appropriate behaviors and characteristics.
Decl. of Dr. Joseph Nicolosi, ¶ 10.
Similarly, during oral argument,
counsel for Plaintiffs stated that SOCE therapists “simply talk to [their
clients] . . . about what their ultimate objectives are, and they would try to
give them support to reach that objective, which in this case would be
change.” Tr., T18:18-23. Plaintiffs further stress that they do not use any
“aversion techniques”16 with clients seeking to change their sexual
the parties agreed that (1) the Complaint presented a legal issue only, (2)
Plaintiffs’ motion should be treated as one for summary judgment, and (3)
the State should be given the opportunity to file its own cross-motion for
summary judgment. See Dkt. No. 13. Under the Federal Rules of Civil
Procedure, the time in which a party must file a responsive pleading to a
claim is tolled if that party elects to instead file a motion to dismiss. See
Fed. R. Civ. P. 12(a)(4). In that connection, Rule 12 also permits a court to
convert a motion to dismiss into one for summary judgment if evidence
has been presented along with the motion. In light of Rule 12, and given
the atypical procedural developments in this matter, the State is not yet
required to file an answer to the Complaint. Accordingly, Plaintiffs’
motion to deem admitted facts in the Complaint is denied.
As Plaintiff King explained in her declaration, “aversion techniques,
such as electroshock treatments, pornographic viewing, nausea-inducing
drugs, etc. are unethical methods of treatment that have not been used by
any ethical and licensed mental health professional in decades.” Decl. of
Dr. Tara King, ¶ 12; see also Pickup, 728 F.3d at 1048-49 (“In the past,
aversive treatments included inducing nausea, vomiting, or paralysis;
providing electric shocks; or having an individual snap an elastic band
around the wrist when aroused by same-sex erotic images or thoughts.
Even more drastic methods, such as castration, have been used.”).
16
28
orientation, and that they only engage in SOCE with clients who, following
informed consent, voluntarily wish to receive such counseling. See, e.g.,
Decl. of Dr. Tara King, ¶¶ 10, 12-13; Decl. of Dr. Joseph Nicolosi, ¶¶ 7-8.
In sum, Plaintiffs’ position is that, regardless of whether A3371 facially
appears to target conduct, the statute is directed at “counseling,” and
counseling, as relevant here, consists almost solely of talk therapy; thus,
A3371 effects a constitutionally impermissible viewpoint and content
based restriction on Plaintiffs’ speech. In contrast, the State maintains
that counseling is conduct, subject to regulation by the state, and that
A3371, by its own terms, only governs counseling; the statute does not
prevent a licensed counselor from speaking about SOCE, but only
prohibits the actual practice of counseling to change a minor’s sexual
orientation.
Plaintiffs’ argument rests entirely on the premise that SOCE
counseling, in the form of talk therapy, is “speech” in the constitutional
sense. Indeed, Plaintiffs, both in their papers and at argument, essentially
treat this premise as self-evident, spending little time explaining why talk
therapy is properly considered constitutionally protected speech rather
than conduct. I believe a more far-reaching analysis is required because,
as explained in more detail infra, “it has never been deemed an
abridgment of freedom of speech or press to make a course of conduct
illegal merely because the conduct was in part initiated, evidenced, or
carried out by means of language, either spoken, written, or printed.”
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949).
29
Accordingly, I must determine whether SOCE counseling should be
considered (i) a form of speech, subject to constitutional protections, (ii)
mere conduct, subject to reasonable regulation by the state, or (iii) some
combination of both.
I begin with the statutory framework in which A3371 is found:
Subtitle 1 of Title 45 of the New Jersey Statutes, governing “Professions
And Occupations Regulated By State Boards Of Registration And
Examination.” N.J.S.A. 45:1-55. Indeed, A3371 expressly provides that
the statute only applies to: “A person who is licensed to provide
professional counseling under Title 45 of the Revised Statutes, including,
but not limited to, a psychiatrist, licensed practicing psychologist, certified
social worker, licensed clinical social worker, licensed social worker,
licensed marriage and family therapist, certified psychoanalyst . . . .” Id.
Because the statute only governs “professional counseling” by these, or
other similarly “licensed” individuals, I find it helpful to turn to the
statutes defining the nature of these licensed practices to better
understand the meaning of “counseling” as embodied in A3371.
Section 45:14B-2 of the New Jersey Statute covers psychologists
and defines the “practice of psychology” as “the rendering of professional
psychological services,” which in turn are defined as “the application of
psychological principles and procedures in the assessment, counseling or
psychotherapy of individuals for the purposes of promoting the optimal
development of their potential or ameliorating their personality
disturbances and maladjustments as manifested in personal and
30
interpersonal situations.” More simply put, this statute regulates licensed
psychologists’ “application of psychological principles and procedures” to
their clients. Because the statute targets the application of principles and
procedures, and not any speech, I view this as a regulation of treatment,
i.e., conduct.
In that sense, counseling, as it arises in the context of
psychology, is identified as one of the vehicles for psychological treatment,
not a form of speech or expression. It would therefore appear that the
means through which counseling is carried out by a psychologist—i.e.,
whether through talk therapy or actions—is immaterial for the purposes of
this statutory definition; the relevant inquiry is whether the psychologist is
applying psychological principles and procedures. Similar conclusions can
be drawn from other New Jersey statutes regulating the professions and
occupations covered by A3371, as these statutes abound with references to
counseling as the application of established sociological or psychological
methods, principles, and procedures.17
E.g., N.J. Stat. Ann. 45:8B-2(b) (“The practice of marriage and
family therapy consists of the application of principles, methods and
techniques of counseling and psychotherapy for the purpose of resolving
psychological conflict, modifying perception and behavior, altering old
attitudes and establishing new ones in the area of marriage and family
life.”); id. at 45:15BB-3 (“‘Clinical social work’ means the professional
application of social work methods and values in the assessment and
psychotherapeutic counseling of individuals, families, or groups. Clinical
social work services shall include, but shall not be limited to: assessment;
psychotherapy; client-centered advocacy; and consultation.”); id.
(“‘Psychotherapeutic counseling’ means the ongoing interaction between a
social worker and an individual, family or group for the purpose of helping
to resolve symptoms of mental disorder, psychosocial stress, relationship
problems or difficulties in coping with the social environment, through the
practice of psychotherapy.”); id. (“‘Social work counseling’ means the
professional application of social work methods and values in advising and
17
31
Beyond New Jersey’s statutory scheme, commentators have also
long discussed psychological counseling in a manner that suggests
counseling is therapy, and thus a form of conduct.
See, e.g., Note,
Regulation of Psychological Counseling and Psychotherapy, 51 Colum. L.
Rev. 474, 495 n.2 (1951) (“‘Counseling’ is a form of psychological aid
rendered by a psychologist to an individual for social-psychological
adjustment problems.” (citing Starke R. Hathaway, Some Considerations
Relative to Nondirective Counseling as Therapy, 4 J. Clin. Psychology
226-27 (1948); W. C. Menninger, The Relationship of Clinical Psychology
and Psychiatry, 5 Am. Psychologist 3, 9 (1950))). Similarly, in discussing
mental health treatment generally, commentators focus on describing the
“services” and “procedures” provided.
See, e.g., Stacey A. Tovino,
Conflicts of Interest in Medicine, Research, and Law: A Comparison, 117
Penn. St. L. Rev. 1291, 1309 (2013) (“Treatment may be defined as ‘the
providing guidance to individuals, families or groups for the purpose of
enhancing, protecting or restoring the capacity for coping with the social
environment, exclusive of the practice of psychotherapy.”); id. at 45:2D-3
(“‘Alcohol and drug counseling’ means the professional application of
alcohol and drug counseling methods which assist an individual or group
to develop an understanding of alcohol and drug dependency problems,
define goals, and plan action reflecting the individual's or group’s interest,
abilities and needs as affected by alcohol and drug dependency
problems.”); cf. id. at 45:9-5, (covering psychiatrists and defining “the
practice of medicine and surgery” to “include the practice of any branch of
medicine and/or surgery, and any method of treatment of human ailment,
disease, pain, injury, deformity, mental or physical condition”); id. at
45:11-23(b) (“The practice of nursing as a registered professional nurse is
defined as diagnosing and treating human responses to actual or potential
physical and emotional health problems, through such services as
casefinding, health teaching, health counseling, and provision of care
supportive to or restorative of life and well-being, and executing medical
regimens as prescribed by a licensed or otherwise legally authorized
physician or dentist.”).
32
provision, coordination, or management of health care and related
services by one or more health care providers’ to a particular individual.
The definition of treatment is based on the concept of health care, which
has been defined as care, services, and procedures related to the health of
a particular individual.
Health care is frequently defined to include
preventive, diagnostic, therapeutic, rehabilitative, maintenance, or
palliative care that is provided to a particular individual, as well as
counseling, assessments, and procedures that relate to the physical or
mental condition or functional status of a particular individual. Activities
are thus classified as treatment when they involve a health care service
provided by a health care provider that is tailored to the specific
preventive, diagnostic, therapeutic, or other health care needs of a
particular individual.”).
While such commentary certainly is not
dispositive, it provides further support for the concept that counseling is
more properly understood as a method of treatment, not speech, since the
core characteristic of counseling is not that it may be carried out through
talking, but rather that the counselor applies methods and procedures in a
therapeutic manner.
Notably, by their own admission, Plaintiffs define SOCE counseling
as being “no different than any other form of mental health counseling,”
involving “the traditional psychodynamic process of looking at root causes,
childhood issues, developmental factors, and other things that cause a
person to present with all types of physical, mental, emotional, or
psychological issues that in turn cause them distress.” Decl. of Dr. Tara
33
King, ¶ 12. Accordingly, I find that the mere fact that counseling may be
carried out through talk therapy does not alter my finding that A3371
regulates conduct and not speech.
Additional support for this conclusion comes from the Ninth
Circuit’s decision in Pickup.18 At the core of Pickup is the holding that:
Because SB 1172 regulates only treatment, while leaving
mental health providers free to discuss and recommend, or
recommend against, SOCE, we conclude that any effect it
may have on free speech interests is merely incidental.
Therefore, we hold that SB 1172 is subject to only rational
basis review and must be upheld if it “bear[s] . . . a rational
relationship to a legitimate state interest.”
Pickup, 728 F.3d at 1056.
The Pickup panel further concluded that
California had a rational basis for enacting SB 1172, and thus the statute
was constitutional.
Plaintiffs dispute the relevancy and persuasiveness of Pickup,
contending that the panel misapplied controlling Ninth Circuit and
Supreme Court precedent when it concluded that SB 1172, a law regulating
SOCE therapy, is not a regulation of speech, notwithstanding that, as here,
therapy in California is carried out almost entirely through “talk therapy.”
Plaintiffs further argue that even if the Pickup panel properly concluded
that a statute like A3371 regulates conduct with only an “incidental”
impact on speech, the panel nevertheless erred when it applied rational
Although I have already noted that the Pickup case is not binding, it
is significant in that it addresses California statute SB 1172, which is
virtually identical to A3371, and appears to be the only Court of Appeals
decision analyzing the relationship between conduct and speech in the
psychotherapy context. Indeed, both parties have devoted substantial
argument to the Pickup panel’s reasoning and its applicability to this case.
18
34
basis review rather than the more demanding O’Brien test in upholding
the statute. See United States v. O’Brien, 391 U.S. 367 (1968).
I have already independently concluded that A3371 regulates
conduct, not speech, and thus I need not devote much time to Plaintiffs’
argument that the Pickup panel, in its analysis of whether SOCE therapy is
conduct, not speech, erred when harmonizing the Ninth Circuit’s previous
holdings in National Association for the Advancement of Psychoanalysis
v. California Board of Psychology, 228 F.3d 1043 (9th Cir. 2000)
(“NAAP”), and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). Ninth
Circuit law is not binding on this Court, and I am under no obligation to
interpret and resolve issues internal to that circuit’s jurisprudence. In re
Grossman’s Inc., 607 F.3d 114, 121 (3d Cir. 2010). Indeed, in the absence
of controlling authority, I am free to adopt whatever reasoning I find
persuasive from another jurisdiction’s decision, while rejecting contrary
reasoning from that same jurisdiction—regardless of whether the
reasoning I rely on is binding in that jurisdiction. See Barrios v. Attorney
General of the United States, 339 F.3d 272, 277 (3d Cir. 2005) (finding
persuasive reasoning of dissenting Ninth Circuit opinion while rejecting
majority’s reasoning from same opinion). In that connection, I briefly
highlight certain observations and conclusions in Pickup that I find
persuasive here.
To begin, the Ninth Circuit, in Pickup, aptly explained that “the key
component of psychoanalysis is the treatment of emotional suffering and
depression, not speech. That psychoanalysts employ speech to treat their
35
clients does not entitle them, or their profession, to special First
Amendment protection.”
Pickup, 728 F.3d at 1052 (quotting NAAP,
Thus, the Pickup panel endorsed the principle that “the communication
that occurs during psychoanalysis is entitled to constitutional protection,
but it is not immune from regulation.” Id. However, the Pickup panel
clarified that the Ninth Circuit had “neither decided how much protection
that communication should receive nor considered whether the level of
protection might vary depending on the function of the communication.”
Id.
The Pickup panel distilled several principles applicable to the state’s
authority and limits in regulating the therapist-client relationship:
(1) doctor-patient communications about medical treatment
receive substantial First Amendment protection, but the
government has more leeway to regulate the conduct
necessary to administering treatment itself; (2)
psychotherapists are not entitled to special First Amendment
protection merely because the mechanism used to deliver
mental health treatment is the spoken word; and (3)
nevertheless,
communication
that
occurs
during
psychotherapy does receive some constitutional protection,
but it is not immune from regulation.
Id.
Although to some extent Plaintiffs take issue with all three of these
“principles,” the most salient to their challenge in this case is the second—
that psychotherapists are not entitled to special First Amendment
protection merely because they use the spoken word as therapy. See, e.g.,
Pl. Reply at 2. This argument is merely a corollary of Plaintiffs’ contention
that “counseling,” by its very nature, is constitutionally protected speech. I
36
have already explained why this is not so for the purposes of A3371. The
same rationale extends to why psychotherapists, and other similarly
regulated professionals, are not entitled to blanket First Amendment
protection for any and all conversations that occur in the counselor-client
relationship. To be clear, the line of demarcation between conduct and
speech is whether the counselor is attempting to communicate
information or a particular viewpoint to the client or whether the
counselor is attempting to apply methods, practices, and procedures to
bring about a change in the client—the former is speech and the latter is
conduct.
However, there is a more fundamental problem with Plaintiffs’
argument, because taken to its logical end, it would mean that any
regulation of professional counseling necessarily implicates fundamental
First Amendment free speech rights, and therefore would need to
withstand heightened scrutiny to be permissible.
Such a result runs
counter to the longstanding principle that a state generally may enact laws
rationally regulating professionals, including those providing medicine
and mental health services. See Watson v. Maryland, 218 U.S. 173, 176
(1910) (“It is too well settled to require discussion at this day that the
police power of the states extends to the regulation of certain trades and
callings, particularly those which closely concern the public health.”); see
also Dent v. West Virginia, 129 U.S. 114 (1889) (holding that states have a
legitimate interest in regulating the medical profession through doctors’
licensing requirements); Williamson v. Lee Optical of Oklahoma, Inc., 348
37
U.S. 483 (1955) (finding it constitutionally permissible for states to require
a prescription for opticians to fit or duplicate lenses); Ohralik v. Ohio
State Bar Ass’n, 436 U.S. 447, 460 (1978) (noting that “the State bears a
special responsibility for maintaining standards among members of the
licensed professions”); Eatough v. Albano, 673 F.2d 671, 676 (3d Cir.
1982) (“It is long settled that states have a legitimate interest in regulating
the practice of medicine . . . .”); Lange-Kessler v. Dep’t of Educ. of the
State of New York, 109 F.3d 137 (2d Cir. 1997) (finding that regulation of
the medical profession is afforded rational basis review); cf. Washington v.
Glucksberg, 521 U.S. 702, 731 (1997) (“The State also has an interest in
protecting the integrity and ethics of the medical profession.”); Sammon v.
New Jersey Bd. of Med. Examiners, 66 F.3d 639, 645 & nn. 9-10 (3d Cir.
1995) (rejecting argument that choice of provision of medical services is a
constitutionally significant interest triggering strict scrutiny review).
Finally, I address Plaintiffs’ reliance on Wollschlaeger v. Farmer, in
which the court found that a Florida law preventing doctors from inquiring
into a patient’s gun ownership invaded the constitutionally protected
realm of doctor-patient communications.19 880 F. Supp. 2d 1251, 1266-67
(S.D. Fla. 2012). The Wollschlaeger court relied on the proposition that
“[c]ourts have recognized that the free flow of truthful, non-misleading
The Wollschlaeger court relied on evidence that “as part of the
practice of preventive medicine, practitioners routinely ask and counsel
patients about a number of potential health and safety risks,” including
firearms, and that the Florida law “interfere[d] in the doctor-patient
relationship and ha[d] resulted in diminished efficacy of [physicians’]
practice of preventive medical care.” 880 F. Supp. 2d at 1257.
19
38
information is critical within the doctor-patient relationship,” id. at 1266,
and cited Trammel v. United States, 445 U.S. 40, 51 (1980) (“[T]he
physician must know all that a patient can articulate in order to identify
and to treat disease; barriers to full disclosure would impair diagnosis and
treatment.”), Conant, 309 F.3d at 636 (“An integral component of the
practice of medicine is the communication between a doctor and a patient.
Physicians must be able to speak frankly and openly to patients.”), and
Sorrell v. IMS Health, Inc., 131 S.Ct. 2653, 2664 (2011) (“A consumer’s
concern for the free flow of commercial speech often may be far keener
than his concern for urgent political dialogue. . . . That reality has great
relevance in the fields of medicine and public health, where information
can save lives.”). In contrast here, A3371 does not seek to regulate the
conveying of information, only the application of a particular therapeutic
method. Thus, Wollschlaeger is inapposite.20
Furthermore, here, the State has determined that the potential
harm to minors from SOCE, however slight, is sufficient to outweigh any
potential benefits. In that connection, I note that Plaintiffs themselves
acknowledge that there is a dearth of non-anecdotal evidence to support
the success rate, and benefits of SOCE. Thus, unlike the Florida law
precluding doctors from ascertaining medically relevant information from
their patients, the circumstances here are more akin to a state finding
physician assisted suicide to be harmful and enacting a law to prohibit its
practice. Because there is no constitutional right to practice a particular
type of medical or mental health treatment, A3371’s prohibition of a
particular form of counseling in which counselors apply therapeutic
principles and procedures similarly does not implicate fundamental
constitutional rights. See Washington, 521 U.S. at 728 (“[T]he asserted
‘right’ to assistance in committing suicide is not a fundamental liberty
interest protected by the Due Process Clause.”); Sammon v. New Jersey
Bd. of Med. Examiners, 66 F.3d 639, 645 & nn.9-10 (3d Cir. 1995)
(rejecting argument that choice of provision of medical services is a
constitutionally significant interest triggering strict scrutiny review).
20
39
For the foregoing reasons, I conclude that A3371 on its face does
not target speech, and “counseling” is not entitled to special constitutional
protection merely because it is primarily carried out through talk therapy.
Thus, I find that A3371 does not seek to regulate speech; rather the statute
regulates a particular type of conduct, SOCE counseling.
B.
Level of Scrutiny – Rational Basis Review Applies
Having determined that A3371 regulates conduct, I must still
determine if the statute carries with it any incidental effect on speech.
Plaintiffs argue that because the conduct being regulated by A3371—SOCE
counseling—is carried out entirely through speech, the statute necessarily
has, at the very least, an incidental effect on speech and thus, a heightened
level of judicial scrutiny applies.21 See Pl. Reply at 8. In that connection,
Plaintiffs assert that under Third Circuit precedent, a law that “burdens
expression but is content neutral” must be analyzed under the
“intermediate scrutiny” standard enunciated by the Supreme Court in
O’Brien. See Conchata Inc. v. Miller, 458 F.3d 258, 267 (3d Cir. 2006);
Plaintiffs similarly challenge the Pickup panel’s conclusion that the
California law, SB 1172, needed only to survive rational basis review.
According to Plaintiffs, the Pickup court erred by not applying O’Brien’s
intermediate scrutiny test after finding that “any effect [SB 1172] may have
on free speech interests is merely incidental.” Pickup, 728 F.3d at 1056.
Likewise, Plaintiffs contend that that the State here also conceded in its
papers that A3371 has an incidental burden on speech. Plaintiffs’
argument is misplaced; neither the Pickup panel, in connection with SB
1172, nor the State, in connection with A3371, expressly acknowledged that
the respective statutes actually had an effect on speech. Rather, both the
Ninth Circuit and the State noted that if there is an effect on speech, it is
no more than incidental. See id.; Def. Opp. at 15. In any event, as
explained by the analysis that follows, I find that A3371 does not have an
effect on speech that would trigger constitutional concerns.
21
40
Bartnicki v. Vopper, 200 F.3d 109, 121 (3d Cir. 1999) aff’d, 532 U.S. 514
(2001) (noting that O’Brien standard applies to regulations governing
conduct that incidentally restrict expressive behavior).
In response,
Defendants argue that the mere fact that the conduct in question here is
carried out through spoken words is not, by itself, sufficient to show that
the statute has an incidental burden on speech; rather, Plaintiffs must also
show that their conduct is inherently expressive, which they fail to do.
In O’Brien, the Supreme Court addressed a federal law that made it
a criminal offense to forge, alter, knowingly destroy, knowingly mutilate,
or in any manner change a draft card. O’Brien, 391 U.S. at 370. The
petitioner had been convicted for burning his draft card on the steps of a
court house, and appealed his conviction on the grounds that the law
unconstitutionally abridged his freedom of speech.
Id.
As an initial
matter, the Supreme Court found that the statute “on its face deals with
conduct having no connection with speech.
It prohibits the knowing
destruction of certificates issued by the Selective Service System, and there
is nothing necessarily expressive about such conduct.”
Id. at 375.
However, the O’Brien court recognized that the petitioner had burned his
draft card to protest the Vietnam War, and accordingly, determined that
this “communicative element in O’Brien’s conduct [was] sufficient to bring
into play the First Amendment.”
Id. at 376 (emphasis added).
The
Supreme Court reasoned that the federal law was constitutionally
permissible, notwithstanding its incidental effect on individuals like the
petitioner, explaining that “when ‘speech’ and ‘nonspeech’ elements are
41
combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms.”22 Id.
Thus, the inquiry into whether O’Brien’s intermediate scrutiny
review is appropriate turns on whether the alleged conduct falls within the
scope of the First Amendment’s right to freedom of expression, and
extends only to “conduct that is intended to be communicative and that, in
context, would reasonably be understood by the viewer to be
communicative [as] [s]ymbolic expression, otherwise known as expressive
conduct.” Bartnicki, 200 F.3d at 121 (internal quotation marks omitted)
(quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288,
293 (1984)).
On the other hand, as I have noted herein, “it has never been
deemed an abridgment of freedom of speech or press to make a course of
conduct illegal merely because the conduct was in part initiated,
evidenced, or carried out by means of language, either spoken, written, or
printed.” Giboney, 336 U.S. at 502. Similarly, “the State does not lose its
power to regulate commercial activity deemed harmful to the public
whenever speech is a component of that activity.” Ohralik, 436 U.S. at
456.
Thus, in determining whether conduct is deserving of First
Amendment speech protection, the focus is on “the nature of [the] activity,
Ultimately, the O’Brien court found that the government’s interest
in preventing the destruction of draft cards was sufficiently important, and
unrelated to the suppression of free expression, to justify the federal law.
O’Brien, 391 U.S. at 376.
22
42
combined with the factual context and environment in which it was
undertaken,” to determine whether “activity was sufficiently imbued with
elements of communication to fall within the scope of the First and
Fourteenth Amendments.” Spence v. State of Washington, 418 U.S. 405,
409-10 (1974).
In making that connection, the Supreme Court has
“rejected the view that conduct can be labeled “speech” whenever the
person engaging in the conduct intends thereby to express an idea [and
has] extended First Amendment protection only to conduct that is
inherently expressive.” Rumsfeld v. Forum for Academic & Institutional
Rights, Inc., 547 U.S. 47, 65-66 (2006) (other internal quotation marks
omitted).
Thus, contrary to Plaintiffs’ argument, the mere fact that
counseling is carried out through speech is not alone sufficient to show
that A3371 has an incidental effect on speech. Plaintiffs must also show
that counseling is inherently expressive conduct—i.e., that talk therapy (1)
is intended to be communicative, and (2) would be understood as such by
their clients.23 Plaintiffs fail to make such a showing.
Plaintiffs themselves discuss SOCE as a type of therapy, intended to
bring about some form of change in the client. See, e.g., Decl. of Dr. Tara
King, ¶ 12 (discussing SOCE as a form of counseling involving the
“traditional psychodynamic process” to effect “change” in the client’s
sexual orientation); Decl. of Dr. Ron Newman, ¶ 8 (“I also believe that
The Third Circuit has explained that Plaintiffs have the burden of
showing whether conduct is expressive. See Troster v. Pennsylvania State
Dep’t of Corr., 65 F.3d 1086, 1090 (3d Cir. 1995).
23
43
change is possible and have personally counseled individuals who have
successfully reduced or eliminated their unwanted same-sex attractions,
behaviors, or identity.”); Decl. of Dr. Joseph Nicolosi, ¶ 11 (discussing
SOCE as a means to eliminate or reduce a client’s unwanted same-sex
sexual attractions).24 Here, Plaintiffs’ explanation of their roles and
boundaries in the counselor-client relationship leads to the conclusion that
counseling is not “conduct that is intended to be communicative” because
the counselor’s goal is to apply traditional mental health treatment
methods and principles to effect a change in the client’s sexual orientation.
SOCE counseling is not a means of communication to express any
particular viewpoint; rather it is a means of treatment intended to bring
about a change in the mental health and psyche of the client who desires
and seeks out such a change.
I therefore do not find that SOCE
counseling, as performed by Plaintiffs, satisfies the Bartnicki requirement
of conduct that is intended to be communicative.
Moreover, SOCE counseling is not like other forms of conduct
traditionally found to be “inherently expressive,” such as the burning of a
draft card in O’Brien or the burning of a flag in Texas v. Johnson, 491 U.S.
Moreover, Plaintiffs repeatedly point out that they only engage in SOCE
with clients who approach them seeking such a change; indeed, Plaintiffs
explain that it would be unethical for them to try to impose their own
personal viewpoint on a client. See, e.g., Decl. of Dr. Tara King, ¶ 10 (“It is
unethical to attempt to impose any kind of ideology or framework on a
client in counseling, so I do not even raise SOCE discussions unless a
client wants to engage in such counseling.”); id., ¶¶ 12-13; Decl. of Dr.
Joseph Nicolosi, ¶¶ 7-8.
24
44
397, 405-406 (1989).25
In these cases, there was a clear distinction
between the conduct that the statute sought to govern and the expressive
conduct incidentally affected by the statute. Here, by contrast, Plaintiffs
have identified no conduct, let alone any expressive conduct, other than
that covered by A3371.
Thus, Plaintiffs’ claim is more appropriately
governed by Giboney, which affords no protection to speech that is
integrally part of validly prohibited conduct. Giboney, 336 U.S. at 498 (“It
rarely has been suggested that the constitutional freedom for speech and
press extends its immunity to speech or writing used as an integral part of
In Bartnicki v. Vopper, 200 F.3d at 120, aff’d, 532 U.S. 514 (2001),
the Third Circuit provided cited several examples of Supreme Court cases
addressing expressive conduct. See Barnes v. Glen Theatre, Inc., 501 U.S.
560 (1991) (reversing circuit court decision finding Indiana statute
prohibiting complete nudity in public places not an unconstitutional
abridgement of First Amendment speech rights related to exotic dancing);
Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986) (holding that
“unlike the symbolic draft card burning in O'Brien, the sexual activity
carried on in this case manifests absolutely no element of protected
expression” and thus statute authorizing closure of premises did not
implicate First Amendment concerns.); United States v. Albertini, 472
U.S. 675 (1985) (finding federal statute making it unlawful to reenter a
military base after having been barred by the commanding officer did not
implicate First Amendment concerns because “the First Amendment does
not bar application of a neutral regulation that incidentally burdens
speech merely because a party contends that allowing an exception in the
particular case will not threaten important government interest”); Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293-299 (1984)
(assuming without deciding that overnight camping in connection with a
demonstration was expressive conduct, but nevertheless concluding that
National Park Service regulation prohibiting camping in Lafayette Park
did not violate the First Amendment); R.A.V. v. City of St. Paul, 505 U.S.
377 (1992) (Minnesota statute prohibiting display of certain objects,
including a burning cross or Nazi swastika, improperly regulated
expressive conduct and violated the First Amendment because it was not
narrowly tailored). Significantly, all of these cases concern expressive
conduct different than the actual conduct the statute or regulation seeks to
prohibit.
25
45
conduct in violation of a valid criminal statute. We reject the contention
now.”); Rumsfeld, 547 U.S. at 66 (“If combining speech and conduct were
enough to create expressive conduct, a regulated party could always
transform conduct into ‘speech’ simply by talking about it. For instance, if
an individual announces that he intends to express his disapproval of the
Internal Revenue Service by refusing to pay his income taxes, we would
have to apply O’Brien to determine whether the Tax Code violates the First
Amendment. Neither O’Brien nor its progeny supports such a result.”);
United States v. Schiavo, 504 F.2d 1, 21 n.9 (3d Cir. 1974) (“Freedom of
expression can be suppressed if, and to the extent that, it is so brigaded
with illegal action as to be an inseparable part of it.”). Similarly, I find that
Plaintiffs have not shown that A3371 has an incidental effect on expressive
conduct, and thus, O’Brien does not govern Plaintiffs’ challenge to A3371.
Instead, I apply rational basis review. See Sammon, 66 F.3d at 645 &
nn.9-10.
“Where rational basis review is appropriate, a statute withstands a
substantive due process challenge if the state identifies a legitimate state
interest that the legislature rationally could conclude was served by the
statute.”26 Sammon, 66 F.3d at 644; see Scavone v. Pa. State Police, 501
F. App’x 179, 181 (3d Cir. 2012). “‘The law need not be in every respect
consistent with its aims to be constitutional. It is enough that there is an
evil at hand for correction, and that it might be thought that the particular
Because I have rejected Plaintiffs’ First Amendment free speech
challenge, my analysis here turns on whether there is any substantive due
process violation.
26
46
legislative measure was a rational way to correct it.’” Rogin v. Bensalem
Township, 616 F.2d 680, 689 (3d Cir. 1980), cert. denied, 450 U.S. 1029
(1981) (quoting Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S.
483, 487-88 (1955)); see also Midnight Sessions, Ltd. v. City of
Philadelphia, 945 F.2d 667, 682 (3d Cir. 1991), cert. denied, 503 U.S. 984
(1992); Mabey Bridge & Shore, Inc. v. Schoch, 666 F.3d 862, 876 (3d Cir.
2012). When legislation is being tested under rational basis review, “those
challenging the legislative judgment must convince the court that the
legislative facts on which the classification [of the statute] is apparently
based could not reasonably be conceived as true by the governmental
decisionmaker.”27 Id. (quoting Vance v. Bradley, 440 U.S. 93, 111 (1979));
see also Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023,
1034-35 (3d Cir.), cert. denied, 482 U.S. 906 (1987).
Indeed, “those
attacking the rationality of the legislative classification have the burden ‘to
negat[e] every conceivable basis which might support it.’” FCC v. Beach
Communications, Inc., 508 U.S. 307, 315 (1993) (quoting Lehnhausen v.
The Third Circuit has repeatedly cautioned that a court engaging in
rational basis review is not entitled
27
to second guess the legislature on the factual assumptions or
policy considerations underlying the statute. If the
legislature has assumed that people will react to the statute
in a given way or that it will serve the desired goal, the court
is not authorized to determine whether people have reacted
in the way predicted or whether the desired goal has been
served.
Sammon, 66 F.3d at 645. Thus, the sole question is “whether the
legislature rationally might have believed the predicted reaction would
occur or that the desired end would be served.” Scavone, 501 F. App’x at
181.
47
Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)); see, e.g., Heller v.
Doe, 509 U.S. 312, 319-20 (1993) (finding that laws scrutinized under
rational basis review are “accorded a strong presumption of validity”).
Ordinarily, that burden is nearly insurmountable. “[C]ourts are compelled
under rational-basis review to accept a legislature’s generalizations even
when there is an imperfect fit between means and ends. A classification
does not fail rational basis review because it is not made with
mathematical nicety or because in practice it results in some inequality.”
Heller, 509 U.S. at 321 (internal quotation marks and citations omitted);
N.J. Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 399 (3d Cir.
2012).
Importantly, a state need not provide justification or rationale for
its legislative decision.
Indeed, the Supreme Court has held that
“legislative choice[s] [are] not subject to court factfinding and may be
based on rational speculation unsupported by evidence or empirical data.”
Beach Communications, 508 U.S. at 315; N.J. Retail Merchs., 669 F.3d at
399. It is not the courts’ role, under a rational basis review, “‘to judge the
wisdom, fairness, or logic of legislative choices.’” Parker v. Conway, 581
F.3d 198, 202 (3d Cir. 2009) (quoting Beach Commc’ns, 508 U.S. at 313).
Nevertheless, the court must still determine “whether circumstances
vindicate the challenged regulation as a reasonable exertion of
governmental authority or condemn it as arbitrary or discriminatory.”
Nebbia v. New York, 291 U.S. 502, 536 (1934).
48
Here, the State’s professed interest is in protecting minors from
professional counseling it deems harmful. It is beyond debate that the
State has an interest in protecting vulnerable groups, Washington, 521
U.S. at 731, which includes minors. American Civil Liberties Union v.
Ashcroft, 322 F.3d 240, 251 (3d Cir. 2003) (“[T]here is a compelling
interest in protecting the physical and psychological well-being of minors.”
(Quoting Sable Commc’n of California, Inc. v. F.C.C., 492 U.S. 115, 126
(1989).28 A3371 accomplishes this by ensuring that licensed professionals
who engage in counseling do not perform SOCE on minors. Contrary to
Plaintiffs’ arguments, it is immaterial whether there is any actual evidence
of harm from SOCE; for A3371 to have a rational basis, it is sufficient that
the legislature could reasonably believe that SOCE conveyed no benefits
and potentially caused harm to minors. Beach Communications, 508 U.S.
at 315.
The legislative findings set forth in A3371 support such a
conclusion. See generally N.J.S.A. 45:1-54. For example, the legislature
found:
“Being lesbian, gay, or bisexual is not a disease, disorder,
illness, deficiency, or shortcoming”;
“[S]exual orientation change efforts can pose critical
health risks to lesbian, gay, and bisexual people”;
“[T]he [American Psychological Association] advises
parents, guardians, young people, and their families to
avoid sexual orientation change efforts that portray
homosexuality as a mental illness or developmental
disorder”;
Beyond that, the Supreme Court has recognized that “[t]he mental
health of our citizenry, no less than its physical health, is a public good of
transcendent importance,” Jaffee v. Redmond, 518 U.S. 1, 11 (1996), and
that states also have “an interest in protecting the integrity and ethics of
the medical profession.” Washington v. Glucksberg, 521 U.S. at 731.
28
49
“The American Academy of Pediatrics in 1993 published
an article in its journal, Pediatrics, stating: ‘Therapy
directed at specifically changing sexual orientation is
contraindicated, since it can provoke guilt and anxiety
while having little or no potential for achieving changes
in orientation’”; and
“The American Academy of Child and Adolescent
Psychiatry in 2012 published an article in its journal,
Journal of the American Academy of Child and
Adolescent Psychiatry, 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 . . . .’”
Id.
It is also immaterial that some of the legislature’s findings and
declarations address SOCE with respect to adults, as opposed to minors.
It is certainly rational for the legislature to believe that the potential harms
that attend SOCE for adults exist at least equally for minors. See Scavone,
501 Fed. Appx. at 181 (explaining the rational basis inquiry as “whether the
legislature rationally might have believed the predicted reaction would
occur or that the desired end would be served”).
Finally, because in
applying the rational basis test I rely only on the legislature’s stated
findings to determine whether there is a rational basis for A3371—indeed,
I need not even rely on those findings, as long as I can conceive of some
rational basis for the statute—Plaintiffs’ arguments attacking the validity
of the studies and reports relied on by the legislature carry no weight in
the analysis.29
See N.J. Retail Merchs., 669 F.3d at 399; Beach
Communications, 508 U.S. at 315.
For that reason, I need not consider the additional evidentiary
submissions filed by Plaintiffs and Intervenor, and thus I need not rule on
their admissibility. See supra, f.n. 15.
29
50
Similarly, A3371’s prohibition on the practice of SOCE counseling is
rationally related to the harm the statute seeks to prevent. A3371 targets
only licensed professionals who engage in professional counseling of
minors, and restricts them from performing the specific type of conduct—
SOCE counseling—the legislature deemed harmful. This nexus is more
than adequate to satisfy rational basis review. Id.
In sum, I conclude that: (1) A3371 on its face does not target speech;
(2) “counseling” is not constitutionally protected speech merely because it
is primarily carried out through talk therapy; (3) no speech or expressive
conduct is incidentally burdened by A3371’s prohibition, and thus (4)
rational basis review is appropriate for adjudging the statute’s
constitutionality, which is easily satisfied by the stated legislative findings
and the statute’s purpose.
C.
A3371 is Neither Vague Nor Overbroad
In connection with their free speech challenge, Plaintiffs also assert
that A3371 is both unconstitutionally vague and overbroad.
These
arguments are grounded in Plaintiffs’ contention that A3371 regulates
speech. Having determined that A3371 covers conduct only, the majority
of Plaintiffs’ arguments in this regard no longer apply. I nevertheless
address whether, as an otherwise constitutionally permissible, rational
regulation of conduct, A3371 is impermissibly vague or overbroad.
1.
Vagueness
Plaintiffs contend that A3371 is unconstitutionality vague because
Plaintiffs do not know what type of speech or conduct is actually
51
prohibited by the statute. The “vagueness inquiry is grounded in the
notice requirement of the Fourteenth Amendment’s due process clause.”
J.S. v. Blue Mt. Sch. Dist., 650 F.3d 915, 935 (3d Cir. 2011) (citing City of
Chicago v. Morales, 527 U.S. 41, 56 (1999)). A statute will be considered
void for vagueness if it does not allow a person of ordinary intelligence to
determine what conduct it prohibits, or if it authorizes arbitrary
enforcement. Id.; Hill v. Colorado, 530 U.S. 703, 732 (2000). However,
“perfect clarity and precise guidance have never been required even of
regulations that restrict expressive activity.”
Ward v. Rock Against
Racism, 491 U.S. 781, 794 (1989) (citations omitted). Indeed, voiding a
democratically enacted statute on grounds that it is unduly vague is an
extreme remedy. Id. More particularly, a facial vagueness attack on a
statute that does not infringe on constitutionally protected freedoms—as is
the case in this matter—can succeed only if the statute is incapable of any
valid application. Steffel v. Thompson, 415 U.S. 452, 474 (1974); Village of
Hoffman Estate v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-95
(1982); Brown v. City of Pittsburgh, 586 F.3d 263, 269 (3d Cir. 2009)
(“[A] successful facial challenge requires the challenger to establish that no
set of circumstances exists under which the Act would be valid.” (internal
quotation marks omitted.)); Humanitarian Law Project v. U.S. Treasury
Dep’t, 578 F.3d 1133, 1146 (9th Cir. 2009) (explaining that a statute will
survive a facial vagueness challenge so long as “it is clear what the statute
proscribes in the vast majority of its intended applications”).
In that
regard, it is significant to bear in mind that speculation about possible or
52
hypothetical applications does not suffice; a statute that is valid “in the
vast majority of its intended applications” cannot be struck down on a
facial challenge. Hill v. Colorado, 530 U.S. 703, 733 (2000).
Moreover, in the context of a statutory proscription that purports to
regulate a targeted industry or profession, a slightly different type of
analysis applies: “if the statutory prohibition involves conduct of a select
group of persons having specialized knowledge, and the challenged
phraseology is indigenous to the idiom of that class, the standard is
lowered and a court may uphold a statute which uses words or phrases
having a technical or other special meaning, well enough known to enable
those within its reach to correctly apply them.”
United States v.
Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1993) (emphasis added) (quoting
Precious Metals Assocs., Inc. v. Commodity Futures Trading Comm’n,
620 F.2d 900, 907 (1st Cir. 1980), in turn quoting Connally v. General
Constr. Co., 269 U.S. 385, 391 (1926) (internal quotations omitted)); cf.
Village of Hoffman Estate, 455 U.S. at 498 (“[E]conomic regulation is
subject to a less strict vagueness test because its subject matter is often
more narrow, and because . . . the regulated enterprise may have the
ability to clarify the meaning of the regulation by its own inquiry, or by
resort to an administrative process.”).
Plaintiffs contend that the term “sexual orientation” and the phrase
“sexual orientation change efforts” are impermissibly vague. The latter
challenge can be quickly dismissed, as it is based on, and significantly
overlaps with, Plaintiffs’ substantive free speech challenge.
53
Indeed,
Plaintiffs’ primary theory in this case is that it is unclear whether under
A3371 Plaintiffs can talk about SOCE to their clients, even if they are not
engaging in actual SOCE. Plaintiffs thus argue that A3371 burdens speech
because Plaintiffs will either be chilled from, or disciplined for, merely
speaking about SOCE.
As my earlier discussion makes clear, the
reasonable reading of A3371, as well as the State’s position throughout this
litigation, limits the application of the statute to the actual practice of
SOCE.
This limitation resolves Plaintiffs contention that SOCE, as a
phrase, is unconstitutionally vague.
The statute defines SOCE by providing an illustrative list of
practices: “‘sexual orientation change efforts’ means the practice of
seeking to change a person’s sexual orientation, including, but not limited
to, efforts to change behaviors, gender identity, or gender expressions, or
to reduce or eliminate sexual or romantic attractions or feelings toward a
person of the same gender.”30 N.J.S.A. 45:1-55(b). Given this definition, it
cannot be said that the statute does not allow a person of ordinary
intelligence to determine what conduct it prohibits, and therefore it is not
facially vague.
Nothing in A3371 prevents a counselor from mentioning the
existence of SOCE, recommending a book on SOCE or recommending
The statute further provides that “‘[s]exual orientation change
efforts’ shall not include . . . counseling that (1) provides acceptance,
support, and understanding of a person or facilitates a person’s coping,
social support, and identity exploration and development, including sexual
orientation-neutral interventions to prevent or address unlawful conduct
or unsafe sexual practices, and (2) does not seek to change sexual
orientation.” N.J.S.A. 45:1-55(b).
30
54
SOCE treatment by another unlicensed person such as a religious figure or
recommending a licensed person in another state. The statute does not
require affirmation of a patient’s homosexuality. Even if, “at the margins,”
there is some conjectural uncertainty as to what the statute proscribes,
such uncertainty is insufficient to void the statute for vagueness because
“it is clear what the statute proscribes in the vast majority of its intended
applications,” namely counseling intended to alter a minor patient’s sexual
orientation. See Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141,
1151 (9th Cir. 2001) (quoting Hill, 530 U.S. at 733). Moreover, Plaintiffs
are licensed professionals who engage in counseling, and if some Plaintiffs
are not familiar with how to practice SOCE, Plaintiffs have never
suggested that they, or any person who professionally counsels, is wholly
unfamiliar with the idea of SOCE.31 See Weitzenhoff, 35 F.3d at 1289.
Thus, Plaintiffs’ facial vagueness attack on the term “sexual orientation
change efforts” is without merit.
Plaintiffs also challenge the term “sexual orientation,” noting that it
is undefined in the statute, and citing the APA Task Force that explained
For similar reasons, I reject Plaintiffs’ reliance on Keyishian v.
Board of Regents of University of State of N.Y., 385 U.S. 589, 599 (1967),
which held that a statute prohibiting employing any teacher who
“advocates, advises, or teaches the doctrine of forceful overthrow of the
government” was unconstitutionally vague because “[i]t w[ould] prohibit
the employment of one who merely advocates the doctrine in the abstract
without any attempt to indoctrinate others.” Id. Keyishian is easily
distinguished from this case; Plaintiffs, as admitted practitioners of SOCE,
cannot claim that the phrase “sexual orientation change efforts” creates
uncertainty as to what a therapist can and cannot do, as was the case for
teachers in Keyishian. Indeed, A3371 expressly targets a specific form of
therapy known to the community in which it is practiced. See Pickup,
2012 WL 6021465, at *14.
31
55
that “[s]ame-sex sexual attractions and behavior occur in the context of a
variety of sexual orientations . . . and . . . is fluid or has an indefinite
outcome.” Plaintiffs reason that because the term “sexual orientation” has
subjective and interchanging meanings, its usage in the challenged statute
makes the statute vague.
I am not persuaded that the term “sexual
orientation” is unconstitutionally vague.
Plaintiffs, in their own declarations, demonstrate that they
understand what the term sexual orientation means and how that term
relates to the conduct prohibited by A3371. See, e.g., Decl. of Dr. Tara
King, ¶ 4 (“We offer counseling on numerous issues, including . . . sexual
orientation change efforts”) id., ¶ 5 (“I am a former lesbian who went
through SOCE counseling.” (Emphasis added.); Decl. of Dr. Ron.
Newman, ¶ 8 (“Part of my practice involves what is often called sexual
orientation change efforts.”).
Indeed, Plaintiffs are bringing this suit
precisely because they wish to engage in SOCE. For Plaintiffs to argue on
the one hand that their ability to engage in SOCE is impermissibly
restricted by A3371, and on the other hand claim that A3371 is
unconstitutionally vague because it fails to define “sexual orientation”
strains credulity. Regardless, because I find that a person of ordinary
intelligence—let alone Plaintiffs—would understand what the term sexual
orientation means, A3371 is not vague for the inclusion of this term.32
For the same reason, I am unpersuaded by Plaintiffs’ reliance on
the recent revision of the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Health Disorders, DSM-V. See Pl. Supp.
Authority, Dkt. No. 55. According to Plaintiffs, the DSM-V initially
32
56
Canvassing case law on this subject, I have found several courts that
have determined that the term sexual orientation is not unconstitutionally
vague. See Hyman v. City of Louisville, 132 F. Supp. 2d 528, 545-47 (W.D.
Ky. 2001) (relying on Black's dictionary definition, rejecting vagueness
challenge to statute banning discrimination on the basis of sexual
orientation), rev’d on other grounds, 53 Fed. Appx. 740 (6th Cir. 2002);
United States v. Jenkins, 909 F. Supp. 2d 758, 778-79 (E.D. Ky. 2012).
Most recently, the Ninth Circuit reached the same conclusion in Pickup,
728 F.3d. at 1059 (“Neither is the term ‘sexual orientation’ vague. Its
meaning is clear enough to a reasonable person and should be even more
apparent to mental health providers.”).
Likewise, the Supreme Court
issued an opinion last term on the constitutionality of Section Three of the
Defense of Marriage Act, 1 U.S.C. § 7, dealing with the Federal
government’s authority to define marriage, for federal law purposes, as
between members of the opposite sex and to the exclusion of those of the
same sex. See United States v. Windsor, __ U.S. __, 133 S.Ct. 2675
(2013). In discussing the issue of same-sex marriages, the majority and
dissenting opinions employed the term “sexual orientation” several times;
significantly, none of the authors of these opinions felt it necessary to
classified pedophilia as “sexual orientation,” but then later changed the
classification to “sexual interest,” which Plaintiffs claim shows that the
definition of sexual orientation is constantly changing. As the State
correctly points out, and indeed, Plaintiffs’ own filing shows, the APA
released a statement explaining that the initial classification of pedophilia
as a sexual orientation was merely a typographical error. Thus, Plaintiffs’
claim that sexual orientation lack clear definition based on the DSM-V is
meritless, and in fact, borders on being frivolous.
57
define this term. Accordingly, I am not persuaded that the term “sexual
orientation” is vague to the reasonable individual—and particularly not to
mental health counselors—and thus, Plaintiffs’ vagueness challenge is
dismissed.
2.
Overbreadth
Plaintiffs lastly raise an overbreadth claim to A3371 as part of their
First Amendment free speech challenge to the statute.
Under the
overbreadth doctrine, a law affecting speech will be deemed invalid on its
face if it prohibits “a substantial amount of constitutionally protected
speech.” City of Houston v. Hill, 482 U.S. 451, 466 (1987). In contrast,
“where conduct and not merely speech is involved, . . . the overbreadth of a
statute must not only be real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S.
601, 615 (1973). In such cases, “the mere fact that one can conceive of
some impermissible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge.” Members of City Council v.
Taxpayers for Vincent, 466 U.S. 789, 800 (1984) (emphasis added).
Thus, as was the case with their vagueness challenge, much of Plaintiffs’
overbreadth argument is premised on A3371 being a statute that restricts
or incidentally burdens speech.
Having found that the statute only
regulates conduct, and not speech in any constitutionally protected form,
Plaintiffs’ arguments regarding the statute’s overbreadth are largely
irrelevant.
58
Moreover, the overbreadth doctrine is more appropriately raised by
a party “whose own activities are unprotected . . . [to] challenge a statute
by showing that it substantially abridges the rights of other parties not
before the Court.” Schaumburg v. Citizens for a Better Env’t, 444 U.S.
620, 634 (1980) (emphasis added). Under this principle, courts should be
reluctant to entertain a facial overbreadth challenge “where the parties
challenging the statute are those who desire to engage in protected speech
that the overbroad statute purports to punish.”
Arcades, 472 U.S. 491, 504 (1985).
Brockett v. Spokane
As one court in this district has
explained:
Unless it appears that “any attempt to enforce” the
challenged legislation “would create an unacceptable risk of
the suppression of ideas,” a court should declare an entire
statute invalid on its face only if the record indicates that the
challenged statute will have a different impact upon third
parties not before the court than it has upon the plaintiffs.
Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio,
902 F. Supp. 492, 517 (D.N.J. 1995) (citing Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)), aff’d sub
nom., Presbytery of New Jersey of the Orthodox Presbyterian Church v.
Whitman, 99 F.3d 101 (3d Cir. 1996); see also id. (“Courts should not
engage in overbreadth analysis where a plaintiff claims that a statute is
overbroad precisely because it applies to him.” (citing Moore v. City of
Kilgore, 877 F.2d 364, 390-92 (5th Cir. 1989))).
Here, the State has represented throughout this litigation that it
only intends to enforce A3371 against licensed professionals who actually
59
conduct SOCE as a method of counseling, not against those who merely
discuss the existence of SOCE with their clients.
Because A3371 is
constitutional with respect to its prohibition of the practice of SOCE, as
explained supra in this Opinion, there exists at least one constitutional
means of enforcing the statute.
overbreadth challenge fails.
Thus, on this basis alone, Plaintiffs’
Florio, 902 F. Supp. at 517. For similar
reasons, I also find that A3371 does not encroach on any protected First
Amendment speech, as the statute by its own terms seeks to regulate the
“practice” of SOCE by a licensed professional, and not any speech, public
or private, by that professional or other individuals; thus there is not a
“real, but substantial” risk of overbreadth when A3371 is “judged in
relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at
613.
Accordingly,
Plaintiffs
have
not
shown
that
A3371
is
unconstitutionally overbroad, and Count I is dismissed.
VI.
First Amendment – Free Exercise of Religion
Plaintiffs maintain that in addition to their speech being unlawfully
constrained, A3371 infringes on their First Amendment right to exercise
their sincerely held religious beliefs that changing same-sex attraction or
behavior is possible.
Therefore, Plaintiffs reason, A3371 imposes a
substantial burden on those religious beliefs because it prohibits them
from providing spiritual counsel and assistance on the subject matter of
same-sex attractions.
Plaintiffs’ arguments fare no better under this
theory.
60
Under the First Amendment, “Congress shall make no law
respecting the establishment of religion or prohibiting the free exercise
thereof.” Conestoga Wood Specialties Corp. v. Sec'y of the United States
HHS, 724 F.3d 377, 382-83 (3d Cir. 2013).
It is well-settled that, at its
core, the Free Exercise Clause protects religious expression; however, it
does not afford absolute protection. See McTernan v. City of York, 577
F.3d 521, 532 (3d Cir. 2009).
Rather, where a law is “neutral and of
general applicability[,]” it “need not be justified by a compelling
government interest even if the law has the incidental effect of burdening a
particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 531 (1993) (citations omitted);
Employment Division, Department of Human Resources of Oregon v.
Smith, 494 U.S. 872, 890 (1990); Storeman, Inc. v. Selecky, 586 F.3d
1109, 1128 (9th Cir. 2012) (“right to freely exercise one’s religion . . . does
not relieve an individual of the obligation to comply with a ‘valid and
neutral law of general applicability on the ground that the law proscribes
conduct that his religion prescribes.’”).
If, on the other hand, the
government action is not neutral and generally applicable, strict scrutiny
applies, and the government action violates the Free Exercise Clause
unless it is narrowly tailored to advance a compelling government interest.
Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 165 (3d Cir.
2002).
Government action is not neutral and generally applicable if it
burdens religious conduct because of its religious motivation, or if it
61
burdens
religiously
motivated
conduct
but
exempts
substantial
comparable conduct that is not religiously motivated. See Hialeah, 508
U.S. at 543-46; Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir.
2004); Lukumi, 508 U.S. at 543-46; FOP Newark Lodge No. 12 v. City of
Newark, 170 F.3d 359, 364-66 (3d Cir. 1999). On the other hand, “[a] law
is ‘neutral if it does not target religiously motivated conduct [whether] on
its face or as applied in practice.” Conestgoa Wood Specialties Corp. v.
Sebelius, 917 F.Supp. 2d 394, 410 (E.D. Pa. 2012). Further, when the law
is neutral, the government cannot advance its interests solely by targeting
religiously motivated conduct. Instead, the regulation must be generally
applicable. See Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 242 (3d
Cir. 2008).
Here, A3371 makes no reference to any religious practice, conduct,
or motivation. Therefore, on its face, the statute is neutral. Plaintiffs
argue that the provisions of A3371 will disproportionately affect those
motivated by religious belief because A3371 effectively engages in
impermissible “religious gerrymandering” by providing individualized
exemptions from the general prohibitions.
Plaintiffs identify these
categories of exemptions: (1) minors seeking to transition from one gender
to another; (2) minors struggling with or confused about heterosexual
attractions, behaviors, or identity; (3) counseling that facilitates
exploration and development of same-sex attraction, behaviors, or
identity; (4) individuals over the age of 18 who are seeking to reduce or
eliminate same-sex attraction; and (5) counseling provided by unlicensed
62
persons. Contrary to Plaintiffs’ contentions, A3371 is one of generally
applicability, and therefore, it is only subject to a rational basis test.
To begin, there can be no serious doubt that the Legislature enacted
A3371 because it found that SOCE “poses critical health risks” to minors.
See N.J.S.A. 45:1-54. By doing so, the Legislature exercised its regulatory
powers to prohibit licensed mental health professionals in New Jersey
from engaging in SOCE. There is no indication in the record that religion
was a motivating factor in the passage of A3371. In fact, Plaintiffs have not
suggested that the Legislature was motivated by any religious purpose.
From its plain language, the law does not seek to target or burden religious
practices or beliefs.
Rather, A3371 bars all licensed mental health
providers from engaging in SOCE with minors, regardless of whether that
provider or the minor seeking SOCE is motivated by religion or motivated
by any other purpose. Plainly, A3371 is neutral in nature. See Brown v.
City of Pittsburgh, 586 F.3d 263, 284 (3d Cir. 2009) (finding no Free
Exercise violation where challenged restrictions on protests near abortion
clinic “app[lied] irrespective of whether the beliefs underpinning the
regulated expression are religious or secular”). Because of the statute’s
neutrality, even if A3371 disproportionately affects those motivated by
religious belief, this fact does not raise any Free Exercise concerns.
Lukumi, 508 U.S. at 581 (“a law that is neutral . . . need not be justified by
a compelling governmental interest even if the law has the incidental effect
of burdening a particular religious practice.”).
63
The statute is also generally applicable because A3371 does not
suppress, target, or single out the practice of any religion because of
religious conduct.
At the outset, the Court disagrees with Plaintiffs’
characterization that A3371 carves out certain exceptions. Rather, those
“exemptions” are areas that A3371 does not seek to regulate because they
fall outside the purpose of the statute. Nevertheless, addressing Plaintiffs’
arguments, the “exemptions” to which Plaintiffs point do not undermine
the purposes of the law. According to Plaintiffs, the first “exemption” in
A3371 is for “counseling for a person seeking to transition from one gender
to another”; that is, counseling not related to changing sexual orientation
or gender identity, but toward assisting someone seeking to live
consistently with his or her gender identity. This exemption does not
undermine the purposes of A3371.
In fact, it is consistent with the
Legislature’s concern that conversion therapy is harmful.
Next, that
unlicensed counselors are not covered by the statute also does not
undermine the purpose of the statute. As the Court has discussed earlier,
pursuant to its police power, the State only aimed to regulate those
professionals who are licensed. Stated differently, it is the State’s role to
regulate its professionals -- medical or otherwise -- and therefore, because
unlicensed professionals do not fall within the State’s comprehensive
regulatory schemes, this type of “exemption” neither undermines the
statute’s purpose nor does it somehow change the statute’s general
applicability.
64
Moreover, to the extent that the Legislature distinguished between
SOCE provided to minors and adults, this distinction does not render the
law not generally applicable. Indeed, because the Legislature determined,
pursuant to its regulatory powers, that SOCE treatment poses serious
health risks to minors, the limited reach of the statute does not change the
nature of the statute, particularly in light of the fact that the Legislature
has a strong interest in protecting minors, a vulnerable group in society.
See, supra, p. 49. Finally, and more importantly, A3371 does not contain a
mechanism for individual exemptions nor does it exempt a substantial
category of conduct that is not religiously motivated from its prohibition
on the practice of SOCE. Instead, the provision prohibits all state licensed
mental health providers from practicing SOCE. Finally, A3371 does not
prohibit any religious leaders, who are not licensed counselors, from
practicing SOCE.
This fact further demonstrates that A3371 has no
religious underpinnings and therefore, it does not selectively impose any
type of burden on religiously motivated conduct. Accordingly, A3371 is
generally applicable since it does not impermissibly target any religious
belief. Based upon that finding, the rational basis test applies. For the
same reasons why A3371 passes constitutional muster for free speech
purposes, it passes rational basis review in this context as well.
Lastly, Plaintiffs argue that even if A3371 is a neutral and generally
applicable law, A3371 is nevertheless subject to strict scrutiny as a
violation of the “hybrid rights” doctrine. I summarily reject Plaintiffs’
invitation to apply the hybrid rights doctrine, as the Third Circuit has
65
declined to apply this theory to Free Exercise claims. Brown, 586 F.3d at
284 n.24 (“Like many of our sister courts of appeals, we have not endorsed
this theory.”).
Count IV of the Complaint is dismissed.
VII.
CONCLUSION
For the reasons set forth above, Garden State’s motion for
permissive intervention is GRANTED. Plaintiffs’ motion for summary
judgment is DENIED. Defendants’ cross motion for summary judgment
is GRANTED in its entirety. Accordingly, all of Plaintiffs’ federal and
state constitutional claims against Defendants are DISMISSED, and
Plaintiffs have no standing to bring any third party claims on behalf of
their minor clients and the clients’ parents.
DATED: November 8, 2013
/s/
Freda L. Wolfson
Freda L. Wolfson
United States District Judge
66
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