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Federal Court Issues Preliminary Injunction against Enforcement of New York City Adult Establishment Zoning Regulations

Posted on: October 3rd, 2019 by Art Leonard No Comments

Continuing litigation efforts that date back a quarter of a century, a group of “gentlemen’s cabarets” (which the court alternatively describes as “strip clubs”) and adult bookstores located in Manhattan have brought suit to challenge the constitutionality of 2001 Amendments to the NYC Zoning Resolution as applied to “adult establishments.”  Numerous prior assaults on this measure, first passed during the Giuliani Administration in an attempt by the City to sharply reduce the number of adult establishments and to relocate them away from residential districts or close proximity to religious institutions, schools and other places where minors tend to congregate, were largely unsuccessful once they proceeded to the appellate level.  Surprisingly, however, given the City’s earnest attempts to beat back all challenges, U.S. District Judge William H. Pauley III relates that the City has not actively enforced the Resolution for eighteen years – effectively since the end of the Giuliani Administration.  Mayors Bloomberg and De Blasio turned their attentions elsewhere.  But the plaintiffs are concerned with the measure still on the books and the possibility it might be enforced against them in the future – thus this lawsuit.  725 Eatery Corp. d/b/a “Lace” v. City of New York, 2019 WL 4744218, 2019 U.S. Dist. LEXIS 169873 (S.D.N.Y., Sept. 30, 2019).

In this ruling, Judge Pauley grants the plaintiffs’ motion for a preliminary injunction against enforcement of the measure while the litigation goes forward on the merits.  This is in some sense largely symbolic, in light of the City’s prolonged failure to enforce the measure.

The list of counsel accompanying the opinion goes on for two pages, and the judge mentions that in connection with the pending motions, “the parties have offered a Homeric record of affidavits, documentary evidence, and stipulations.”  Most significant among the objections, perhaps, is that the Resolution was purportedly justified by a 1995 study of ‘secondary effects’ attributable to the presence of adult establishments, especially when several were located close together.  The reality is that, as a result of early enforcement efforts during the Giuliani Administration together with economic, residential and commercial development activity in the City over the past twenty years, the studies are clearly out-of-date and no longer easily support the Council’s conclusion that the rather drastic restrictions on the siting of adult establishments is still necessary in terms of public order and impact on property values.  Enforcement under Giuliani reduced the number of adult establishments and led to many of them significantly modifying their activities to try to avoid being labeled as adult establishments.

As Judge Pauley explains: “Tracing its origins to the City’s early 1990s crusade against adult entertainment businesses, this litigation has been ensnared in a time warp for a quarter century.  During that interval, related challenges to the City’s Zoning Resolution have sojourned through various levels of the state and federal courts.”  A major portion of the opinion is devoted to reciting in great detail the history of that litigation, from the initial 1995 enactment through the consequential 2001 amendments and a series of judicial decisions which culminated in a 2017 ruling by the New York Court of Appeals holding that the most recent version of the measure is constitutional, which was stayed until the Supreme Court denied review early in 2018.  For the People Theatres of N.Y., Inc. v. City of New York, 29 N.Y.3d 340, 57 N.Y.S.2d 69, 79 N.E.3d 461 (N.Y. 2017).

This new law suit was brought by Manhattan establishments that would not be considered “adult establishments” under the 1995 Regulation (which was construed by the courts to exempt establishments that devoted less than 40% of their space or stock to adult uses) but would be considered “adult establishments” under the 2001 amendments (which broadened coverage to deal with alleged “sham” reconfigurations that the City claimed had resulted in adult establishments continuing to operate while evading coverage).  In this case, the plaintiffs alleged deprivations of their 1st and 14th Amendment rights, arguing that if the 2001 Amendment were actively enforced, they “would decimate – and have already dramatically reduced – adult-oriented expression.”  The plaintiffs pointed out, restricting themselves to Manhattan numbers, that “the fifty-seven adult eating or drinking establishments existing at the time the City adopted the 2001 Amendments have now been culled to as few as twenty such establishments.  And for their part, the bookstore plaintiffs claim that of the roughly forty adult bookstores with booths that existed at the time of the 2001 Amendments, only twenty to twenty-five bookstores currently exist.”  They also pointed out that of these bookstores, virtually none are located in “permissible areas” under the 2001 Amendments.  The bookstore plaintiffs also pointed out that if the City were to actively enforce the 2001 rules, there would be very few places in the City, much less Manhattan, where such businesses could operate, essentially reduced to “undeveloped areas unsuitable for retail commercial enterprises, such as areas designated for amusement parks or heavy industry or areas containing toxic waste.”  They also noted yet again that the study of “secondary effects” conducted by the City prior to enactment of the 1995 measure has never been updated, never been validated in light of the 40% rule, and had addressed a Cityscape radically different from what exists today.

In deciding whether to grant a preliminary injunction – and noting that the City is not actively enforcing the current regulations – the court addressed several crucial factors: whether enforcement would inflict an irreparable injury on the plaintiffs, the likelihood the plaintiffs would succeed on their constitutional arguments, the balance of hardship on the plaintiffs and the City, and the Public Interest.

First, Judge Pauley concluded, “assuming that the 2001 Amendments – which purportedly impose a direct limitation on speech – violate the Constitution, Plaintiffs have demonstrated irreparable harm.”  This conclusion was based on many court opinions finding that monetary damages are insufficient to compensate somebody for a loss of their constitutional rights.

Turning to likelihood of success on the merits, the judge found that the weak link in the defendants’ opposition was the reduction of the number of locations where adult establishments could operate if the 2001 Regulations were enforced.  Precedents require that any regulation of adult uses must, because of its impact on freedom of speech, leave “reasonable alternative channels” for the speech to take place and be heard.  In other words, the zoning rules must allow enough appropriate locations so that adult businesses can operate and members of the public can access their goods and services.  “On this preliminary record,” wrote Pauley, “this Court is skeptical that the 2001 Amendments leave open sufficient alternative avenues of communication.  With respect to the outer boroughs, the DCP [Department of Consumer Protection] generated a map for each borough identifying the areas allowing and prohibiting adult establishments as of October 31, 2019. . . .  Compared to the maps the DCP created in connection with the 1995 Regulations, the 2019 maps appear to offer slightly less available space for adult entertainment.  But the City’s maps do not seem to indicate how the amount of available land would be affected by the requirement that adult establishments be located at least 500 feet from sensitive receptors or other adult establishments.”  After a critical analysis of the evidence presented, Pauley concluded that “plaintiffs have sufficiently demonstrated at this stage that the enforcement of the 2001 Amendments will deny them adequate alternative channels to offer their adult expression.”

Finally, the court determined “that the balance of hardships weighs in favor of Plaintiffs, and the issuance of preliminary injunctive relief would not disserve the public interest.”  The plaintiffs submitted affidavits showing that enforcement would cause them to lose their businesses, breaching contracts and leases, having to lay off employees, and suffering the financial and time costs of relocation.  Furthermore, since the City has not been actively enforcing these rules for eighteen years, according to the court, a preliminary injunction would not result in any harm to the City.  “While this Court credits Defendants’ contention that the 2001 Amendments are designed to abate the pernicious secondary effects of adult establishments,” wrote Pauley, “it also recognizes that the City ‘does not have an interest in the enforcement of an unconstitutional law.’”

Pauley’s concluding remarks leave little doubt about his skepticism about the further need for the adult zoning rules as last amended in 2001.  “The adult-use regulations that are the subject of these now-revived constitutional challenges are a throwback to a bygone era,” he wrote.  “The City’s landscape has transformed dramatically since Defendants last studied the secondary effects of adult establishments twenty-five years ago.  As Proust might say, the ‘reality that [the City] had known no longer existed,’ and ‘houses, roads, avenues are as fugitive, alas, as the years,’” quoting from Remembrance of Things Past (1913).  But, the judge was careful to caution that this was not a final ruling on the merits, and that issuing the preliminary injunction “says nothing about whether Plaintiffs will in fact succeed on the merits of their claims.” He set a status conference for October 31, and directed the parties to file a “joint status report” by October 24 “detailing their respective positions on how to proceed with the balance of this action.”  He also directed that they confer on a discover plan as the case moves forward.  Of course, in light of the passage of time and the changes in the City, what would make sense would be for the City to negotiate a settlement that would involve substantial revisions to the adult-use zoning provisions to reflect the changed situation.

The number of law firms with a piece of this case is altogether too long to list here.

Alliance Defending Freedom Asks Supreme Court to Revisit Religious Exemption Issue

Posted on: October 1st, 2019 by Art Leonard No Comments

Alliance Defending Freedom (ADF), a religious freedom litigation group, is asking the Supreme Court to take a second look at Arlene’s Flowers v. State of Washington, No. 19-333 (Docketed September 12, 2019), in which the Washington Supreme Court held that a florist who refused to provide her usual custom floral design and installation wedding services for a same-sex couple had violated the state’s anti-discrimination law, and did not have a valid 1st Amendment defense.  The Washington court’s original decision was vacated by the Court in June 2018 for reconsideration in light of the Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), but the Washington Supreme Court reiterated its earlier holding, 441 P.3d 1203 (Wash. 2019), finding that the record of proceedings in the Superior Court and the Supreme Court in the earlier litigation showed no evidence of hostility to religion and thus was not affected by the Supreme Court’s ruling in Masterpiece.

The Petition proposes two questions for review:  1. Whether the State violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and 2. Whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.

In the first question, the Petitioner asks the Court to take up the underlying constitutional issues in Masterpiece Cakeshop, which the Court evaded in its opinion, and to resolve them once and for all, pointing to litigation from around the country in which small businesses had declined to provide goods or services for same-sex weddings, based on the religious beliefs of the proprietors, and had been hauled into state human rights commissions or courts on charges of violating anti-discrimination laws.  There have been mixed results in these cases.  Beginning with a recalcitrant wedding photographer in New Mexico and continuing with cases involving bakers, florists, commercial wedding venues, stationers and videographers, administrative agencies and courts consistently ruled against allowing religious belief exemptions from generally-applicable anti-discrimination laws covering sexual orientation.  However, more recently, there has begun what may be a pendulum swing in the opposite direction, sparked in part by persistent appeals by ADF from adverse administrative and trial court rulings in affirmative litigation seeking declaratory judgments to establish religious exemptions.

In Masterpiece, the Court found several grounds taken together upon which to reverse the Colorado Court of Appeals’ ruling against the baker, most notably characterizing some public comments by Colorado commissioners that the Court found to evidence open hostility to the baker’s religious views.  The Court also noted an inconsistency in the Colorado Commission’s dismissal of complaints against bakers by a religious provocateur who sought to order cakes decorated to disparage same-sex marriages and was turned down.  The Court also noted that at the time the couple approach the baker, same-sex marriage was not yet legal in Colorado, so the baker could have believed he had no obligation to make such a cake.  While reasserting the general principle that businesses do not enjoy a religious freedom exemption from complying with public accommodation anti-discrimination laws, the Court observed that litigations raising religion freedom claims are entitled to a “neutral” forum to decide their cases, not one evidencing hostility to their religious views.

In Arlene’s Flowers, ADF had filed a statement with the Court after Masterpiece suggesting that evidence of hostility could be found in that case, and the Washington Supreme Court took the remand as a charge to scour the record for signs of such, which it did not find.  The Washington court read Masterpiece to be focused solely on the hostility or non-neutrality of the forum deciding the case.  That case did not involve a hearing before an administrative agency, as the first decision was by the trial court.

In its second proposed question, ADF argues that this was error by the Washington Supreme Court, contending that while the Masterpiece ruling was based on open hostility by commissioners, it could not properly be read to impose a ban on governmental hostility only on government actors performing the function of adjudicating cases.  ADF argues that the Attorney General of Washington evinced hostility and discrimination against religion by seizing upon news reports to come down hard on the florist, threatening litigation if she did not certify that in future should would provide her services to same-sex couples for weddings, making public comments criticizing religious objection to providing such services, and failing to bring similar action based on news reports about a coffee-shop owner expelling “Christians” from his establishment “based on religious views they expressed on a public street.”  ADF also criticized as “unprecedented” the Attorney General’s action in suing under the state’s Consumer Protection Law as well as the anti-discrimination law.

The Petition’s statement of facts is artfully written to suggest a saintly woman who loves gay people and happily sells them flowers for a variety of occasions, but just balks at providing custom weddings services based on her sincerely-held religious beliefs.  It argues that there is no evidence in the record of hostility toward gay people by the florist, emphasizing the long relationship she had selling floral goods to the men whom she turned down for wedding-related services, and maintaining that she had not turned down their business because they were gay but rather due to her religious objections to their wedding, and trying to draw that distinction as requiring dismissal of the discrimination complaint entirely.

The Petition argues that the Washington  Supreme Court took too narrow a view of the Supreme Court’s doctrine concerning the obligation of the government to refrain from hostility towards religion, pointing to cases where the Court had found legislatures as well as adjudicators to have violated the 1st Amendment, and argued that executives, such as the Attorney General, were no less bound by the First Amendment.  The Petition builds on a recent ruling by the 8th Circuit in the videographer case reported last month, Telescope Media Group v. Lucero, 2019 WL 3979621 (Aug. 23, 2019), and seeks to position the Petitioner, a florist, in the same category of First Amendment expression.  In effect, the Petition asks the Court to hold that any business that engages in creative expression for hire cannot be compelled to provide its services for an activity of which it disapproves on religious grounds.

Without making it a central part of the argument, the Petition notes several instances in which various members of the Court have suggested a need to reconsider its long-standing precedent in Employment Division v. Smith, 494 U.S. 872 (1990), intimating that this is the ideal case to do so.  That was the case that reversed decades of 1st Amendment free exercise precedents to hold that religious objectors do not enjoy a privilege to refuse to comply with religiously-neutral state laws of general application that incidentally may burden their free exercise of religion.  Employment Division prompted Congress to pass the Religious Freedom Restoration Act, applying the pre-Employment Division caselaw to the interpretation of federal statutes, and leading many states to pass similar laws.  A ruing overruling Employment Division and reinstating prior would law would, in effect, constitutionalize the Religious Freedom Restoration Act, making it more difficult in many cases for LGBTQ people suffering discrimination to vindicate their rights through legislative action, since the state and federal legislatures cannot overturn a Supreme Court constitutional ruling.

8th Circuit Revives Videographer’s 1st Amendment Claim Against Having to Make Same-Sex Wedding Videos

Posted on: August 29th, 2019 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit ruled by a vote of 2-1 on August 23 that a commercial videographer could assert a 1st Amendment claim that it was privileged to refuse to make wedding videos for same-sex couples, as an exemption from compliance with Minnesota’s Human Rights Act, which expressly forbids public accommodations from discrimination because of a customer’s sexual orientation.  Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320, 2019 WL 3979621.  The court reversed a decision by U.S. District Judge John R. Tunheim, which had dismissed the videographer’s suit seeking a declaratory judgment and injunctive relief against Minnesota’s Department of Human Rights.  See Telescope Media Group v. Lindsey, 271 F. Supp. 3d 1090 (D. Minn. 2017).

Circuit Judge David Stras, an appointee of President Donald Trump, wrote for the majority, which included Circuit Judge Bobby Shepard, an appointee of President George W. Bush.  The dissent was by Circuit Judge Jane Kelly, who was appointed by President Barack Obama, and is the only Democratic appointee now sitting on the 8th Circuit in either an active or senior capacity.  District Judge Tunheim was appointed by President Bill Clinton.

Carl and Angel Larsen, who make commercial videos under the corporate name of Telescope Media Group, decided they wanted to expand their business into wedding videos, but because of their religious beliefs, they did not want to get into this line of work if they would be required to make videos for same-sex weddings.  Anticipating that a refusal to make such videos would bring them into conflict with Minnesota’s Human Rights Law, the filed an action in federal district court seeking a ruling that they had a 1st Amendment right to refuse such business.  They argued that making wedding videos is an expressive activity protected by the Free Speech Clause, and that, although the Supreme Court has ruled that people are not excused from complying with neutral state laws of general application based on their religious beliefs, there was an argument that when a religious free exercise claim is intermingled with a claim based on another constitutional right (in this instance, free speech), the state may be required to accommodate the person claiming constitutional protection against enforcement of the state law.

Judge Tunheim rejected their constitutional arguments, dismissing their lawsuit, and they appealed to the 8th Circuit.  Their case presents a parallel to one of the earliest appellate rulings rejecting a constitutional exemption from complying with a state public accommodations law on similar facts: Elane Photography, LLC v. Willock, 309 P. 3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014).  In that case, the New Mexico Supreme Court ruled that a commercial wedding photographer who refused to make a photo album for a lesbian couple celebrating their commitment ceremony did not enjoy a 1st Amendment free speech or free exercise exemption from a state law banning sexual orientation discrimination.  That court also rejected the photographer’s claim under New Mexico’s Religious Freedom Restoration Act, finding that complying with the state’s anti-discrimination law would not substantially burden the photographer’s freedom of religion. The U.S. Supreme Court denied Elane Photography’s petition to review the New Mexico court’s ruling.

Judge Stras’s opinion based its conclusion on a conflation of the Larsens’ business with the film studies that make movies for public exhibition.  During oral argument, it was reported, the Larsen’s activities in making a video were likened to the work of prominent film producers/directors like Steven Spielberg.  This was a specious comparison, not because Spielberg is a great filmmaker, but because the Larsen’s do not produce feature films or documentaries aimed at a public market, in which the content of the film is the speech of the filmmaker.  Rather, they make films for hire, in order to communicate the message of the customer who hires them.

Stras wrote: “The Larsens . . . use their ‘unique skills to identify and tell compelling stories through video,’ including commercials, short films and live-event productions.  They exercise creative control over the videos they produce and make ‘editorial judgments’ about ‘what events to take on, what video content to use, what audio content to use, what text to use . . ., the order in which to present content, whether to use voiceovers.”  In other words, they exercise their professional judgment to make the films ordered by their customers, but the customers who are paying to have the films made ultimately determine what the message of the film will be.  The Larsens’ role is to translate that message into an effect filmic presentation.

In describing their contemplated move into making wedding videos, they want these videos to “capture the background stories of the couples’ love leading to commitment, the [couples’] joy . . . the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples’ lives.”

“The Larsens believe that the videos, which they intend to post and share online, will allow them to reach ‘a broader audience to achieve maximum cultural impact’ and ‘affect the cultural narrative regarding marriage.’”  Presumably, they hoped to tap into the burgeoning on-line phenomenon of shared wedding videos, which seem to have a considerable audience.  But their representation by Alliance Defending Freedom suggests an ulterior motive, that the Larsens have volunteered (or were recruited) to be plaintiffs as part of ADF’s strategy to get a case to the Supreme Court in hopes of broadening the rights of religious business owners to avoid complying with anti-discrimination laws, and perhaps even getting the Court to overrule its precedents denying religious free exercise exemptions from anti-discrimination laws, while at the same time creating a constitutional wedge issue for businesses whose goods or services might be characterized as “expressive.”

Even though the Larsens do not presently make wedding videos, and they do not claim that they have ever been approached to make a video of a same-sex wedding or threatened with prosecution for refusing to do so, the court first determined that they have standing to seek their declaratory judgment, because when the proposition was presented to officials of the Minnesota Department of Human Rights, they made clear that a refusal to provide videography services to same-sex couples would be considered a violation of the state’s anti-discrimination law.  Thus, the Larsens claimed to the satisfaction of the 8th Circuit panel that they faced a credible threat of prosecution and had standing to bring the case.

Turning to the merits, Stras wrote, “The Larsens’ videos are a form of speech that is entitled to First Amendment protection. . .  although the Larsens do not plan to make feature films, the videos they do wish to produce will convey a message designed to ‘affect public attitudes and behavior.’  According to their complaint, they will tell ‘healthy stories of sacrificial love and commitment between a man and a woman,’ depicting marriage as a divinely ordained covenant, and oppose the ‘current cultural narratives about marriage with which they disagree.’ By design, they will serve as a ‘medium for the communication of ideas’ about marriage.  And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial ‘editorial control and judgment.’”  He concluded, “The videos themselves are, in a word, speech.”

Stras insisted that applying the Minnesota Human Rights Act to the Larsens’ business “is at odds with the ‘cardinal constitutional command’ against compelled speech.  The Larsens to not want to make videos celebrating same-sex marriage, which they find objectionable.  Instead, they wish to actively promote opposite-sex weddings through their videos, which at a minimum will convey a different message than the videos the MHRA would require them to make.”

Stras insisted that this case fell into line with various U.S. Supreme Court precedents blocking the government from compelling a private actor to express a message they don’t want to express, citing, among other cases, Boy Scouts of America v. Dale, where the Court recognized the Scouts’ 1st Amendment right to ban gay men from serving as volunteer leaders of Scout troops.  In that case, the Court said that requiring the Scouts to let out gay James Dale be an assistant scoutmaster would be compelling them to communicate a message of approval for homosexuality.  The ruling in that case was by a vote of 5-4, overruling a 4-3 decision by the New Jersey Supreme Court.  Stras also placed great weight on the Supreme Court’s ruling in Hurley v. GLIB, holding that Massachusetts could not compel the Catholic veterans association that ran Boston’s St. Patrick’s Day Parade to include a gay Irish organization marching with a banner proclaiming their identity, because that would be forcing a message on to the parade that the organizers did not want to communicate.

The consequence of Stras’s analysis was not only that the Larsens can assert their free speech claim, but that the court must subject the application of the MHRA to strict scrutiny, placing the burden on the state to prove that requiring the Larsens to made same-sex wedding videos is necessary to fulfill a compelling government interest.

The court also accepted the Larsens’ argument that they should be allowed to assert a free exercise of religion claim “because it is intertwined with their free speech claim,” constituting a so-called “hybrid rights claim.”  The Supreme Court has mentioned that possibility in some cases, although it remains more theoretical than precedential at this point because most legal analysts have considered these mentions as not part of the holdings in the opinions where they appear.  But Stras pointed out two 8th Circuit decisions where that court has used the hybrid rights theory, making it fair game for litigation within the circuit.  The Supreme Court had articulated it as a possible exception to the general rule in Employment Discrimination v. Smith, speculating that had the plaintiff been able to claim a violation of some other constitutional right in addition to free exercise of religion, he might have a valid claim.  But Stras insisted that the Court’s comments actually related to the holdings in some prior cases.  However, he noted, “it is not at all clear that the hybrid-rights doctrine will make any real difference in the end” because the Court was already holding that the Larsens’ free speech claim “requires the application of strict scrutiny.”

The court did reject the Larsens’ alternative theories of freedom of association and equal protection. The former claim, if recognized, would render anti-discrimination laws virtually unenforceable, and the latter defeated by the general application of the MHRA, which did not on its face single out any particular group for disfavored treatment.  The court also rejected the Larsens’ argument that the law was unconstitutionally vague, or imposed unconstitutional conditions upon the operation of a business in the state.

The court sent the case back to the district with directions to “consider in the first instance whether the Larsens are entitled to a preliminary injunction, keeping in mind the principle that ‘when a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.”

Judge Kelly’s dissent was several pages longer than the majority opinion.  “No court has ever afforded ‘affirmative constitutional protections’ to private discrimination,” she wrote.  “Indeed, caselaw has long recognized that generally applicable laws like Minnesota’s may limit the First Amendment rights of an individual in his capacity as the owner of a business serving the public.”  On this point, she cited Justice Anthony Kennedy’s opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), in which the reluctant baker had refused to make a wedding cake for a same-sex couple.  In that opinion, Kennedy acknowledged that religious and philosophical objects to same-sex marriage enjoy First Amendment protection, but “such objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”  Judge Kelley observed, “That well-established principle should have easily disposed of this case.”

She contested Judge Stras’s attempt to “recharacterize Minnesota’s law as a content-based regulation of speech.”  She argued that the law does not compel the Larsens to communicate any particular message about marriage.  “What they cannot do,” she wrote, “is to operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake,” she continued, “that is what today’s decision affords them license to do.”  She asserted that the conduct in which the Larsens wish to engage if they expand into the wedding video business would involve denying services based on the sexual orientation of customers.  “That the service the Larsens want to make available to the public is expressive does not transform Minnesota’s law into a content-based regulation, nor should it empower the Larsens to discriminate against prospective customers based on sexual orientation.”  The rest of her opinion takes much inspiration from Justice Ruth Bader Ginsburg’s dissent from the Court’s holding in Masterpiece.

Pointing to an earlier ruling, she wrote, “The Supreme Court has already health that the MHRA is constitutional, in the process rejecting many of the same arguments that the court adopts today.  Just recently, it reaffirmed that, although ‘religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.’ The Supreme Court is free to revise or overturn its precedents,” she continued.  “We are not.  Rather than disturb bedrock principles of law, I would affirm the district court’s order in full.”

The state can seek review of this decision by the full bench of the 8th Circuit, but that circuit has an overwhelmingly Republican/conservative tilt at present.  Of the eleven active judges, only one, Judge Kelly, was appointed by a Democratic president.  Trump has managed to place four judges on the court, where all but one of the other judges was appointed by George W. Bush, with the senior-most of the active judges having been appointed by the first President Bush.  Clinton’s appointees have all died or retired.  Perhaps the state should apply directly to the Supreme Court for review, but who is to say that Justice Kennedy’s comments, relied upon by Judge Kelly, would find majority support on the Court now that Neil Gorsuch has replaced Kennedy?

Florida Federal Judge Refuses to Enjoin Anti-Conversion Therapy Ordinances

Posted on: February 14th, 2019 by Art Leonard No Comments

On February 13, U.S. District Judge Robin L. Rosenberg denied a motion by two Palm Beach County psychologists to block enforcement of the county’s ordinance forbidding licensed health care practitioners from providing “sexual orientation change efforts” (SOCE, alsocommonly referred to as “conversion therapy”) to minors.  The refusal of a preliminary injunction extends as well to a similar ordinance enacted by the city of Boca Raton, which is in Palm Beach County.  Judge Rosenberg concluded that the plaintiffs failed to show that they were likely to prevail on their argument that the measures violate their First Amendment free speech rights.  Otto v. City of Boca Raton, 2019 WL 588645, 2019 U.S. Dist. LEXIS 23363 (S.D. Fla.).

Judge Rosenberg appears to be the first district judge to take on recent Supreme Court rulings that might make it more difficult for governments to defend these laws against constitutional attacks.  Just weeks ago, a federal magistrate judge in Tampa recommended to the district court there to grant a preliminary injunction against enforcement of Tampa’s ordinance against conversion therapy practitioners in that city while the litigation proceeds. The district court has not yet ruled on that recommendation, and Judge Rosenberg’s extensive and detailed opinion may influence the other district judge to reject the magistrate’s recommendation.

Magistrate Judge Amanda Arnold Sansone’s recommendation in the Tampa case was based heavily on the U.S. Supreme Court’s June 26 ruling, in National Instituyte of Family and Life Advocates (NIFLA) v. Becerra, 138 S.Ct. 2361 (2018), that a California statute requiring clinics in that state to advise clients about the availability of state-financed abortion services violated the clinics’ First Amendment rights.  In the course of that opinion, Justice Clarence Thomas, writing for the Court, specifically rejected assertions by two federal appeals courts that “professional speech” is entitled to less constitutional protection than other speech, in cases involving challenges to laws against conversion therapy.

Judge Sansone construed the Supreme Court’s ruling to require using the “strict scrutiny” test to evaluate the Tampa ordinance, and concluded that the plaintiffs were likely to prevail on their claim that the ordinance would not survive strict scrutiny, at least regarding the consensual “talk therapy” that the plaintiffs claimed to be providing to their patients.

Without explicitly mentioning Magistrate Sansone’s analysis, Judge Rosenberg rejected it, concluding that the question of the level of judicial review to be provided to these ordinances is “unsettled” at best, and that the cases that Sansone cited and relied upon do not necessarily lead to the conclusion she reached.

Instead, finding that the appropriate level of review of a ban on talk therapy to attempt to change a person’s sexual orientation (or gender identity, for that matter) is “unsettled,” Judge Rosenberg decided to analyze the issue using the three different levels of judicial review of a statute, always keeping in mind that in requesting a preliminary injunction to block a duly-enacted statute while its constitutionality is being litigated, the plaintiffs have a heavy burden to show a substantial likelihood of prevailing on the merits of their claim.

Using the least demanding level of review, “rational basis,” Judge Rosenberg easily rejected the contention that the city or county were acting irrationally or without any justification in passing the ordinances.  She devoted a substantial part of her opinion to summarizing the evidence that was presented to persuade the county and city legislators that they should pass these laws, concluding that a substantial body of professional opinion unanimously rejects the use of conversion therapy, especially on minors, both because of the lack of evidence that talk therapy can change a person’s sexual orientation, and the mounting evidence of its harmful effects.  Furthermore, she noted, minors are not really capable of giving informed consent and are particularly vulnerable to the psychological harm associated with conversion therapy.

Turning to the next level of scrutiny, which has been applied by other courts in evaluating free speech claims against such laws, “heightened scrutiny,” she found that the legislative record here would back up the defendant’s claims of important governmental interests in protecting minors that are advanced by passing these laws.

Turning to the most demanding level of review, “strict scrutiny,” Judge Rosenberg noted that generally content-based governmental actions to restrict speech are subject to this standard, putting the burden on the government to show that it has a compelling interest at stake and that the measure is narrowly tailored to achieve that interest without unnecessarily abridging free speech.  Narrow tailoring means that the governmental body has to have considered whether a narrower prohibition (the “least restrictive alternative”) would suffice to achieve its compelling goal.

Key to her analysis here is that the defendants met the compelling interest test, because protecting minors is an important role for government, especially when it is necessary to protect them from what may be well-meaning but ultimately harmful decisions by their parents.  The issue which she deemed less conclusive was the narrow tailoring part.  The plaintiffs suggested, as plaintiffs had successfully argued to the Tampa magistrate judge, that a ban on aversion therapy or non-consensual therapy would suffice.  Rosenberg cited reasons for doubting this, including the evidence that talk therapy itself may have harmful effects, as well as her reservations, noted above, about whether such therapy practiced on minors is really consensual.

The bottom line for Rosenberg, however, was that the plaintiffs did not meet the bar of showing that strict scrutiny was definitely the appropriate test to apply, or that they had a substantial likelihood of proving at trial that the measures were insufficiently narrowly-tailored.  As a result, they were not entitled to the preliminary injunction.  She reached a similar conclusion analyzing plaintiffs’ claim that the ordinances are an unconstitutional prior restraint on speech or unduly vague.

Most importantly, she took great pains to explain why the Supreme Court’s ruling in the California clinics case does not necessarily mandate that strict scrutiny should be the standard in this case.  For one thing, she pointed out, that case did not involve regulating speech that was part of treatment, while in this case, the speech is a tool in the process of providing treatment, and state and local governments have traditionally regulated treatments offered by licensed professionals.  The California case involved requiring clinics to provide information that they did not want to be compelled to provide, which is a different story entirely.  “There,” she wrote, “the doctors were compelled to speak, despite the fact that the required notice ‘is not an informed-consent requirement or tied to a procedure at all.’”

She also noted that Justice Thomas’s opinion did not even specify what the level of judicial review should be in that case.  She pointed to the Supreme Court’s earlier case, Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the Court considered a state law requiring that doctors make certain “factual disclosures” to patients seeking abortions in an attempt to dissuade them.  In that case, the Court’s opinion said that “the physician’s First Amendment rights” were only “implicated as part of the practice of medicine, subject to reasonable licensing and regulation by the state.”  This suggests that the rational basis test might apply, or at most heightened scrutiny.

Because she concluded that at this preliminary stage it was possible to conclude that plaintiffs had not shown a substantial likelihood of winning under any of the potentially applicable standards of review, Judge Rosenberg denied the preliminary injunction, leaving to a later stage in the litigation a more definite ruling on the appropriate level of review and the ultimate merits of the case.  This means that the performance of conversion therapy on minors in Palm Beach County and the city of Boca Raton will continue to be illegal for licensed health care practitioners while the litigation proceeds.

Plaintiffs are represented by Liberty Counsel, the anti-LGBT legal organization that also represents the psychologists attacking the Tampa ordinance, as well as psychologists in New Jersey who have petitioned the Supreme Court to revive their 1st Amendment challenge to that state’s ban on conversion therapy for minors.

Federal Magistrate Recommends Limited Preliminary Injunction Against Enforcement of Tampa Conversion Therapy Ban

Posted on: February 2nd, 2019 by Art Leonard No Comments

On January 30, U.S. Magistrate Judge Amanda Arnold Sansone (M.D. Fla., Tampa Div.), issued a Report and Recommendation to the U.S. District Court, recommending that the court issue a limited preliminary injunction barring the City of Tampa, Florida, from enforcing its Ordinance banning licensed health care professionals from performing conversion therapy on minors. The Ordinance forbids all kinds of therapy for the purpose of attempting to change a person’s sexual orientation or to reduce or eliminate same-sex attraction. Judge Sansone concluded, relying on the 1st Amendment’s free speech provision, that the plaintiffs were likely to prevail regarding the type of therapy they claim to provide: non-coercive, consensual “talk therapy,” eschewing electro-shock or other aversion therapy methods, and that failure to enjoin the Ordinance would cause irreparable injury to the plaintiffs by restraining their freedom of speech. Vazzo v. City of Tampa, Case No. 8:17-cv-2896-T-02AAS. Plaintiffs are represented by Liberty Counsel, a right-wing Christian advocacy law firm.

In addition to Robert L. Vazzo, a Florida-licensed marriage and family therapist, plaintiffs include David Pickup, who holds a similar license from California, where his practice of conversion therapy has been prohibited by state law. Pickup alleges that he is seeking Florida licensure. Also suing is New Hearts Outreach Tampa Bay, a Christian organization that refers people to licensed therapists for conversion therapy. Equality Florida, a state-wide LGBT rights advocacy group, sought to intervene in defense of the Ordinance, but its attempt was rejected by Judge Sanson and District Judge Charlene Edwards Honeywell, so it is participating only in an amicus capacity. Of course, the City of Tampa’s legal representative is defending the Ordinance. As a preliminary matter, Judge Sansone concluded that plaintiffs were unlikely to succeed on their claim that the Tampa City Council lacked subject matter jurisdiction to pass the law. She found that the legislature’s regulation of mental health services does not expressly preempt the field, and that implied preemption is disfavored.

Judge Sansone’s recommendation for injunctive relief flies in the face of rulings by the U.S. Courts of Appeals for the 3rd Circuit and the 9th Circuit, which rejected 1st Amendment challenges to similar state laws. In Pickup v. Brown, 740 F.3d 1208 (2014), the 9th Circuit rejected Dr. Pickup’s 1st Amendment attack on California’s conversion therapy ban, finding that the statute was primarily a regulation of conduct by health care providers, which only incidentally affected professional speech. Subjecting the statute to rational basis review, the court found the state’s interest in protecting minors from harmful effects of conversion therapy that were documented in the legislative process by studies and reports and professional opinions were sufficient to meet the rational basis test. In King v. Governor of New Jersey, 767 F.3d 216 (2014), the 3rd Circuit differed from the 9th Circuit and decided the state was a content-based regulation of speech, but that it was “professional speech” in the context of a pervasively regulated profession – health care –and was thus subject only to heightened scrutiny, not strict scrutiny. The 3rd Circuit found that New Jersey had a substantial interest in protecting its citizens from harmful professional practices, relying on the same kind of evidence that was considered in the California case. Thus, in both cases, the 1st Amendment challenges were unsuccessful because the courts found sufficient justification for the legislature’s action. Both cases were denied review by the U.S. Supreme Court.

While acknowledging these2014 rulings in other circuits, Judge Sansone put greater weight on two more recent cases. In Wollschlaeger v. Governor of Florida, 848 F.3d 1293 (2017), the 11th Circuit, with binding appellate authority on a Florida District Court, found that Florida’s law prohibiting doctors from asking their patients whether they had firearms in their homes was a content-based regulation of speech that failed heightened scrutiny. As described by Judge Sansone, “the challenged provision failed to address concerns identified by the six anecdotes the legislature relied on when passing the law.” However, the more weighty recent precedent is National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361 (2018), in which the U.S. Supreme Court ruled that a California law that requires “pregnancy centers” to inform their patients that free or low-cost abortions are available from the state government was unconstitutional as a form of compelled speech. California sought to defend its law using the same sort argument thatt prevailed in the Pickup case: that the statute was a regulation of health care practice, only incidentally affecting professional speech, but this argument did not save the statute.

Wrote Judge Sansone: “NIFLA expressly rejected the analyses in Pickup and King recognizing “professional speech” as a separate category of speech subject to differing constitutional analysis. Instead, professional speech is usually given less protection if it is commercial speech or if a law regulates professional conduct that incidentally involves speech. Although stating traditional strict scrutiny analysis applies to a content-based law that regulates neither commercial speech nor conduct that incidentally involves speech, NIFLA applied intermediate scrutiny to the California law requiring pregnancy centers to post notices.” The Supreme Court had stated that it was not necessary to determine whether strict scrutiny should be applied because, in its view, the law did not even survive intermediate scrutiny.

Taking these cases together, Judge Sansone concluded that the Tampa Ordinance is, at least as applied to “talk therapy” as described by the plaintiffs, a content-based regulation of speech that should be subject to strict scrutiny. She noted in support of this conclusion that the Tampa Ordinance itself refers to the counseling at which it is aimed as “professional speech” in a findings provision explaining that it would be “subject to a lower level of judicial scrutiny.” Judge Sansone’s assertion that this is thus a strict scrutiny case appears to go beyond the authorities upon which she claims to rely, since neither of them applied strict scrutiny or held it was appropriate in a comparable context.

However, proceeding to apply strict scrutiny, she found the plaintiffs were likely to succeed on the merits, at least as to talk therapy that is non-coercive and consensual, even though she found that the Ordinance serves a compelling governmental interesting in protecting the physical and psychological well-being of minors. This is because in a strict scrutiny case, the content-based law has to be “narrowly tailored to serve a compelling government interest.” She continued, “The court will not assume plausible alternatives will fail to protect a compelling interest,” and found nothing in the legislative record to suggest that this law was enacted as “the least restrictive means” to achieve the government’s purpose. “If a less restrictive means would serve the compelling governmental interest,” she wrote, “the government must use that alternative.” She found plaintiffs were likely to prevail on their argument that an across-the-board ban of all kinds of SOCE techniques was unduly broad, giving credence to their suggestion that the City could accomplish its goal by banning aversion therapy techniques while allowing talk therapy, and by requiring informed consent from minors and their parents. Without explaining why, Judge Sansone appeared to accept the plaintiffs’ argument that “talk therapy” seeking to change sexual orientation is not harmful to minors, a point that the defendant and amici will sharply contest in a trial of the merits of this case. Also contestable is the contention that there is meaningful consent by minors whose perhaps parents persuade or compel them to submit to conversion therapy.

She also found that plaintiffs were likely to prevail on their claim that the ordinance is a form of viewpoint discrimination and is overbroad. Once again, she appears to buy into the plaintiffs’ contentions that “talk therapy” is not a waste of the patient’s time or potentially harmful. (This despite a ruling she does not discuss, the JONAH case, in which a New Jersey trial court found that SOCE practitioners’ representations of being able to change people’s sexual orientation is a form of fraud in violation of the state’s consumer protection law.) She also considered the ordinance to be potentially a prior restraint of protected speech and unconstitutionally vague.

As to the other grounds for preliminary injunctive relief, she found that any restraint on protected speech causes irreparable harm to the persons whose speech is suppressed, and that the equities in this case tipped in favor of the plaintiffs because the harm to them outweighs any harm to the City. “The City, however, failed to show any harm it may suffer if enforcement of Ordinance 2017-47 is enjoined,” she wrote. “The City and Equality Florida instead focus on potential harm to non-defendants, especially minors, if the Ordinance is enjoined.” But this overlooks the traditional role of government as a protector of the health and welfare of minors under the parens patriae doctrine; the Ordinance was adopted in pursuit of that function, based on evidence offered in the legislative process that conversion therapy is not merely fraudulent but also harmful to minors. The court exclaimed that it is not in the public interest to enforce an unconstitutional statute, but there has been on finding on the merits after trial that this statute is unconstitutional, and there surely is a public interest in protecting minors from harm.

Reciting the doctrine that injunctions should be “no broader than necessary to avoid the harm on which the injunction is based,” Judge Sansone recommended that the injunction be narrowly focused on protecting the practice of “non-coercive talk therapy,” and allow to be enforced against therapy that is coercive or goes beyond talk. As she phrased it, “The plaintiffs’ motion for preliminary injunction should be granted to the extent that the City should be enjoined from enforcing Ordinance 2017-47 against mental health professionals who provide non-coercive, non-aversive SOCE counseling – which consists entirely of speech, or ‘talk therapy’ – to minors within city limits.” The City will have an opportunity to contest this recommendation when it is presented to the district judge.

Texas Appeals Court Denies Constitutional Challenge to “Online Impersonation” Statute in Manhunt.net Case

Posted on: September 1st, 2016 by Art Leonard No Comments

Who knew? It is potentially a crime in Texas, and apparently several other states, to pose as somebody else on social media sites like Manhunt.net, and this does not violate anybody’s 1st Amendment rights, held a panel of the Texas 5th District Court of Appeals in Ex parte Bradshaw, 2016 Tex. App. LEXIS 9203, 2016 WL 4443714 (Aug. 23, 2016).

According to the opinion by Justice Robert M. Fillmore, Michael Dwain Bradshaw has been charged with violating Texas Penal Code Sec. 33.07(a), titled “Online Impersonation.” The statute provides that a person “commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to (1) create a web page on a commercial social networking site or other Internet website; or (2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.” The indictment charges Bradshaw with “intentionally or knowingly using Joel Martin’s name or persona to post or send one or more messages on or though manhunt.net, an Internet website, without obtaining Martin’s consent, and with the intent to harm Martin.”  Justice Fillmore does not get any more specific about the factual allegations against Bradshaw, devoting the entire balance of the opinion to rejecting his constitutional claims.  Bradshaw, represented by attorneys Mark W. Bennett and Toby L. Shook, filed a pretrial application for writ of habeas corpus, seeking to get the indictment quashed on the ground that the statute is facially unconstitutional.  A Dallas County Criminal Court judge denied the petition, and Bradshaw appealed to the 5th District court.

Bradshaw’s first argument was unconstitutional overbreadth, claiming that as worded the statute has the effect of “restricting a substantial amount of protected speech based on the content of the speech.” The state argued that the statute regulates only conduct and unprotected speech, and that any incidental effect on protected speech “is marginal when weighed against the plainly legitimate sweep of the statute.”  Justice Fillmore noted Supreme Court precedents describing the overbreadth doctrine as “strong medicine that is used sparingly and only as a last resort,” reserved for statutes presenting a “realistic” danger of inhibiting constitutionally protected speech.  The level of judicial scrutiny in such cases depends on whether the statute is content-based – that is, coverage triggered by the substance of the speech involved.  The court concluded that the “vast majority” of speech covered by the statute is not protected by the 1st Amendment, and agreed with the state’s argument that the statute is mainly about regulating conduct.

“Impersonation is a nature-of-conduct offense,” wrote Fillmore, which “does not implicate the First Amendment unless the conduct qualifies as ‘expressive conduct’ akin to speech.” Bradshaw contended that “using another’s name or persona to create a webpage, post a message, send a message” is inherently expressive conduct, but the court did not buy this argument, finding that the focus of the statute was on how somebody used another’s name or image: “Any subsequent ‘speech’ related to that conduct is integral to criminal conduct and may be prevented and punished without violating the First Amendment,” wrote Fillmore. As such, the level of judicial review of the statute would not be strict scrutiny – reserved for content-based speech restrictions – but rather “intermediate review” requiring the government to show that the statute advances a significant state interest.  Contrary to Bradshaw’s argument, the court found the statute to be content-neutral.  It didn’t matter whose name or persona was being appropriated; it was the fact of appropriation of identity, which the court saw as conduct, that was being punished, and then only if it was being done for purposes specified in the statute.

Looking to the legislative history of the statute, Justice Fillmore found Texas House committee hearings generating a report that the purpose of the statute was “to ‘deter and punish’ individuals who assumed the identity of another and sent false, harassing, or threatening electronic messages to the victim or a third party who was unaware of the perpetrator’s true identity. The committee noted that online harassment had resulted in suicide, threats of physical or mental abuse, and more, but ‘current Texas law does not provide a means of prosecuting some of the most egregious of these acts.  There is nothing in the legislative history,” wrote Fillmore, “that would suggest the legislature was targeting or expressing its disagreement with any particular topic or viewpoint by enacting section 33.07(a).”  And the court concluded that addressing this problem did involve a significant governmental interest of “protecting citizens from crime, fraud, defamation or threats from online impersonation.”

“It also serves a significant First Amendment interest in regulating false and compelled speech on the part of the individual whose identity has been appropriated,” wrote Fillmore, dismissing the “hypotheticals” posed by Bradshaw in his argument as insubstantial “in comparison to the statute’s plainly legitimate sweep over unprotected speech and conduct.”

Bradshaw also attacked the law under the 14th Amendment Due Process Clause as unduly vague, not giving specific enough warning to people about what conduct crossed the line of legality.  In this case, the court found, the legislature had avoided any vagueness problem by including elsewhere in the Texas Penal Code a definition of “harm” generally as “anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.”  More specifically, Chapter 33 of the Penal Code, which contains the challenged statute, has its own definition of “harm” that includes harm to computer data and “any other loss, disadvantage, or injury that might reasonably be suffered as a result of the actor’s conduct.”  Noting that harm is a word in common use, the court also cited to dictionaries, concluding that a “person of ordinary intelligence” would have “fair notice of what the statute prohibits.”

Finally, Bradshaw contended that Texas could not regulate conduct involving the internet because this “unduly burdens interstate commerce by attempting to place regulations on Internet users everywhere,” invoking a legal doctrine called the Dormant Commerce Clause. Fillmore rejected the contention that the Texas law burdens interstate commerce.  “Evenhanded local regulation intended to effectuate a legitimate local public interest that has only incidental effects on interstate commerce will be upheld,” he wrote, “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”  Here, he observed, the court had found that Texas has a significant interest in protecting its citizens.  “It is difficult to envision how interstate commerce is benefitted by the conduct proscribed by section 33.07(a),” wrote Fillmore, “and we believe the burden of the statute on interstate commerce is small.”  Thus, the writ was denied and the prosecution can proceed.

Which leads the reader to speculate about the facts of this case. Did Bradshaw use Martin’s picture or name to cruise on Manhunt.net, to lure people into compromising situations, or to engage in conduct that would damage Martin’s reputation or subject him to liability or prosecution if attributed to him?  If this case goes to trial and produces written opinions or attracts media attention, perhaps we will find out.  If, as is true in the overwhelming majority of criminal prosecutions, Bradshaw accepts a plea bargain offered by the prosecution, we may never find out.

9th Circuit Rejects Religious Freedom Challenge to California Law Banning Conversion Therapy for Minors

Posted on: August 24th, 2016 by Art Leonard No Comments

California’s S.B. 1172, which prohibits state-licensed mental health providers from engaging in “sexual orientation change efforts” (commonly known as “conversion therapy”) with minors, withstood another 1st Amendment challenge in a new decision by the San Francisco-based U.S. Court of Appeals for the 9th Circuit in the case of Welch v. Brown, 2016 U.S. App. LEXIS 15444, 2016 WL 4437617, announced on August 23.

A unanimous three-judge panel of the court of appeals affirmed a ruling by U.S. District Judge William B. Shubb that the law does not violate the religious freedom rights of mental health providers who wish to provide such “therapy” to minors or of their potential patients.

In a previous ruling, the court had rejected the plaintiffs’ claim that the law violated their free speech rights. They had argued that such therapy mainly involves talking, making the law an impermissible abridgement of freedom of speech. The court had countered that this was a regulation of health care practice, which is within the traditional powers of the state.  As such, the court found that the state had a rational basis for imposing this regulation, in light of evidence in the legislative record of the harms that such therapy could do to minors.

In this case, the plaintiffs were arguing that their 1st Amendment religious freedom claim required the court to apply strict scrutiny to the law, putting the burden on the state to show that the law was narrowly-tailored to achieve a compelling state interest.  They contended that the law “excessively entangles the State with religion,” but the court, in an opinion by Circuit Judge Susan P. Graber, said that this argument “rests on a misconception of the scope of SB 1172,” rejecting the plaintiffs’ claims that the law would prohibit “certain prayers during religious services.”  Graber pointed out that the law “regulates conduct only within the confines of the counselor-client relationship” and doesn’t apply to clergy (even if they also happen to hold a state mental health practitioner license) when they are carrying out clerical functions.

“SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship,” she wrote, a conclusion that “flows primarily from the text of the law.” Under a well-established doctrine called “constitutional avoidance,” the court was required not to interpret the statute in the manner suggested by the plaintiffs.  This conclusion was bolstered by legislative history, ironically submitted by the plaintiffs, which showed the narrow application intended by the legislature.  Thus, “Plaintiffs are in no practical danger of enforcement outside the confines of the counselor-client relationship.”

Plaintiffs also advanced an Establishment Clause argument, contending that the measure has a principal or primary purpose of “inhibiting religion.” Graber countered with the legislature’s stated purpose to “protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and to protect its minors against exposure to serious harm cause by” this “therapy.”  The court found that the “operative provisions” of the statute are “fully consistent with that secular purpose.”  A law that has a secular purpose with a possible incidental effect on religious practice is not subject to strict scrutiny under Supreme Court precedents.  Again, the court pointed out, religious leaders acting in their capacity as clergy are not affected by this law.

The court also rejected the contention that a minor’s religiously-motivated intent in seeking such therapy would be thwarted by the law, thus impeding their free exercise of religion. The court pointed out that “minors who seek to change their sexual orientation – for religious or secular reasons – are free to do so on their own and with the help of friends, family, and religious leaders.  If they prefer to obtain such assistance from a state-licensed mental health provider acting within the confines of a counselor-client relationship, they can do so when they turn 18.”

The court acknowledged that a law “aimed only at persons with religious motivations” could raise constitutional concerns, but that was not this law. The court said that the evidence of legislative history “falls far short of demonstrating that the primary intended effect of SB 1172 was to inhibit religion,” since the legislative hearing record was replete with evidence from professional associations about the harmful effects of SOCE therapy, regardless of the motivation of minors in seeking it out.  Referring in particularly to an American Psychiatric Association Task Force Report, Judge Graber wrote, “Although the report concluded that those who seek SOCE ‘tend’ to have strong religious views, the report is replete with references to non-religious motivations, such as social stigma and the desire to live in accordance with ‘personal’ values.”  Thus, wrote the court, “an informed and reasonable observer would conclude that the ‘primary effect’ of SB 1172 is not the inhibition (or endorsement) of religion.”

The court also rejected the argument that the law failed the requirement that government be “neutral” concerning religion and religious controversies. It also rejected the argument that prohibiting this treatment violates the privacy or liberty interests of the practitioners or their potential patients, quoting from a prior 9th Circuit ruling: “We have held that ‘substantive due process rights do not extend to the choice of type of treatment or of a particular health care provider.’”

Attorneys from the Pacific Justice Institute, a conservative legal organization, represent the plaintiffs. The statute was defended by the office of California Attorney General Kamala D. Harris.  Attorneys from the National Center for Lesbian Rights, with pro bono assistance from attorneys at Munger, Tolles & Olson LLP, filed an amicus brief defending the statute on behalf of Equality California, a state-wide LGBT rights political organization.