New York Law School

Art Leonard Observations

N.J. Federal Judge Rejects Parents’ Challenge to “Gay Conversion Therapy” Ban

Posted on: August 4th, 2014 by Art Leonard No Comments

U.S. District Judge Freda L. Wolfson, who ruled last November 8 that New Jersey’s legislative ban on licensed therapists using “sexual orientation change efforts” (SOCE) on minors did not violate the 1st Amendment rights of the therapists, has issued a further ruling on July 30, 2014, holding in a parallel case that the statute did not violate the 1st and 14th Amendment rights of a minor seeking to gain such therapy or the minor’s parents.  Judge Wolfson’s decision in Doe v. Christie, 2014 WL 3765310, 2014 U.S. Dist. LEXIS 104363 (D.N.J.), granted the state’s motion to dismiss the lawsuit, denied the plaintiffs’ motion for a preliminary injunction, and, as in the prior case, granted a motion by Garden State Equality, New Jersey’s state-wide LGBT rights political group, to intervene as a plaintiff.  Judge Wolfson’s decision from last year in the therapists’ case is pending on appeal before the U.S. Court of Appeals for the 3rd Circuit.

The plaintiffs in this case, identified in the opinion as John Doe (the minor) and Jack and Jane Doe (the minor’s parents), filed their lawsuit before Judge Wolfson had ruled on the therapists’ case, but are represented by the same attorneys.  After she had ruled in the other case and received pre-trial motions, Judge Wolfson contacted the attorneys and asked how they wanted to proceed in light of the overlap between the cases.  The plaintiffs’ attorney indicated they would rely on the arguments they had already submitted, asking the court to “revisit” its 1st Amendment ruling in the context of a lawsuit by a potential SOCE client and his parents.

At the time, the therapists who had challenged California’s statutory ban on SOCE for minors were petitioning the Supreme Court to review the 9th Circuit’s decision, Pickup v. Brown, 740 F.3d 1208, which had rejected the constitutional challenge in that case.  Judge Wolfson decided that since she had relied on the 9th Circuit ruling as precedent, and as the 3rd Circuit had not yet ruled on the appeal of her earlier decision, she would put the matter “on hold” to see what would happen before proceeding further.  On June 30, 2014, the Supreme Court denied review in the 9th Circuit case, and Judge Wolfson decided to activate this case and rule on the pending motions by the plaintiffs, the defendant, and Garden State Equality.

A large part of the court’s decision repeated the 1st Amendment analysis from the prior ruling, except this time the court was facing the 1st Amendment issues from a different perspective.  In the earlier case, the therapists were arguing that as SOCE was a speech-based therapy, the 1st Amendment’s protection for freedom of speech, protected their right to provide the therapy unless the state had a compelling reason to ban it.  Judge Wolfson had rejected that argument, concluding that SOCE was a form of medical treatment that incidentally involved speech, and as such could be regulated or prohibited by the state if the state found that SOCE lack efficacy or was harmful to the patient.  In this case, by contrast, plaintiffs were arguing the other side of the 1st Amendment right, the right of an individual to receive information, claiming that the state law improperly prevented them from getting access to information relevant to John Doe’s desire to change his sexual orientation and his parents’ desire to make the treatment available to him.  Judge Wolfson concluded that the changed perspective did not change the outcome.  SOCE was still medical treatment that the state could regulate or ban.

“Surely it is undisputed,” wrote the judge, “that a state has the power to regulate not only medical and mental health treatments deemed harmful, but also those that are based not on medical or scientific principles but, instead, on pseudo-science.  Thus, regardless of whether the legislature’s findings show that SOCE is harmful or merely ineffective, I find that the enactment of A3371 prohibiting SOCE on minors is a rational and legitimate exercise of New Jersey’s power to reasonably regulate licensed medical and mental health professionals.”

Judge Wolfson similarly rejected the parents’ free exercise of religion claim, also based on the 1st Amendment.  The Does claimed that the law “imposes a substantial burden” on their religious beliefs “that changing same-sex attraction or behavior is possible.”  They claimed that the law “prohibits Plaintiff John Doe from obtaining spiritual advice and assistance on the subject matter of same-sex attractions.”

Judge Wolfson pointed out that this misconstrued the statute.  Spiritual counseling about same-sex attraction is not affected by the law, which applies only to licensed medical or mental health professionals seeking to provide SOCE as “therapy.”  Judge Wolfson found that the statute is facially neutral with respect to religion, and is one of general applicability.  Since it doesn’t target religion in general or any specific religious belief, it is evaluated under the rational basis test and, as she had found in her free speech analysis, easily survived that challenge.

The one major difference between this case and the prior case was the parents’ due process claim.  The Supreme Court has repeatedly recognized that parents have a liberty interest in deciding how to raise their children without significant state interference.  However, Judge Wolfson pointed out, such a right “is not without qualification.”  Parents have raised religious objections in the past to state law requirements, such as compulsory vaccination or public education, and the courts have balanced parental rights with the state’s traditional role as a guardian of the welfare of children.

“Plaintiffs provide no case law or other authority in support of the proposition that Jack and Jane Doe’s fundamental parental rights encompass the right to choose for their son any medical treatment they desire,” wrote Wolfson.  “Indeed, to the contrary, the Ninth Circuit — in one of the few decisions that speaks directly to this issue — has concluded that ‘the fundamental rights of parents do not include the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful.'”  Wolfson found that the state’s right to ban ineffective or harmful treatments was well-established.  “To find otherwise,” she wrote, “would create unimaginable and unintentional consequences,” and would effectively gut the state’s ability to regulate health care providers.

Although she dismissed the complaint and denied the plaintiff’s request for preliminary injunctive relief, it was important that Judge Wolfson also granted Garden State Equality’s motion to intervene, since that preserved the organization’s right to participate as a party on the appeal that plaintiffs will undoubtedly take to the 3rd Circuit, perhaps seeking to join this case to the appeal that their attorney has already filed form Judge Wolfson’s prior decision.

The multiple rulings that have now upheld state statutory bans on SOCE for minors, as well as a pending lawsuit in New Jersey state court in which former clients are seeking damages from SOCE practitioners for breach of contract and infliction of emotional distress, have provided momentum for efforts in more states, including New York, to enact bans on such therapy.

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