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N.J. Federal Court Rejects Constitutional Challenge to State Ban on “Gay Conversion Therapy” for Minors

Posted on: November 9th, 2013 by Art Leonard No Comments

U.S. District Judge Freda L. Wolfson has granted the state of New Jersey’s motion for summary judgment, rejecting a constitutional challenge by practitioners of “sexual orientation change efforts” (SOCE) to a recently enacted state law that prohibits licensed counselors from providing such therapy to minors.  (SOCE is popularly known as “gay conversion therapy.”)  Following along the lines of a recent decision by the U.S. Court of Appeals for the 9th Circuit in San Francisco, which rejected a similar challenge to a virtually identical California statute, Judge Wolfson found in King v. Christie, 2013 U.S. Dist. LEXIS 160035, announced on November 8, that the New Jersey statute neither regulated constitutionally protected speech nor improperly restricted free exercise of religion.

The New Jersey legislature approved A3371 over the summer, and Governor Chris Christie signed it into law on August 19, 2013, to take effect immediately.  Just days later, the plaintiffs — two practitioners of SOCE and two associations that promote such therapy — filed their lawsuit.  Since the suit was filed, a separate lawsuit was started on behalf of a minor client and his parents making a similar constitutional argument.  This case was also assigned to Judge Wolfson, but no motions are yet on file in that case, Doe v. Christie.

The legislature included in the bill its findings, based on testimony and official statements from a variety of professional counseling organizations, that SOCE cannot deliver on what it promises — that is, that sexual orientation is a human characteristic that is not amenable to change through counseling — and that the practice of SOCE may cause psychological harm to the client.  The legislature did not seek to ban licensed counselors from offering such therapy to adults, but concluded that the danger of harm was particularly acute for minors, who are not necessarily in the position to give informed consent and may be pressured into submitting to the therapy by their parents or other authority figures.  Judge Wolfson noted that the statute applies only to professional counselors licensed by the state, and does not purport to regulate the activities of unlicensed counselors, such as clergy.  Furthermore, she noted, as had the federal courts in California considering the same issues, that the statute does not prohibit licensed counselors from speaking about SOCE, recommending it, or referring clients to unlicensed persons or out-of-state counselors.

These details bolstered the court’s conclusion that A3371 was not intended to regulate speech, but rather was a regulation of clinical practice — conduct.  Judge Wolfson relied on precedents holding that the state may regulate the conduct of licensed professionals who are providing healthcare services, even when those services may be delivered — as is the present-day case of many practitioners of SOCE — through talking to and with the client.  (Historically, however, SOCE has not been so limited, as practitioners have in the past used various non-speech therapies to attempt to “change” their clients’ sexual orientation.  Some of those therapies would today be considered forms of physical or psychological torture, and others would be deemed laughably pathetic.)  She observed that both court decisions and professional literature refer to counseling as a process of applying theories and practices to produce some change in the client, which is conduct, not just speech, even though speech may be a mechanism by which the counseling service is provided.

Although the 9th Circuit’s decision upholding the California statute, Pickup v. Brown, 728 F.3d 1042 (2013), is not binding on a federal district judge in New Jersey, which is within the 3rd Circuit, Judge Wolfson pointed out that in the absence of any direct 3rd Circuit precedents, she would “turn to the Ninth Circuit’s decision where appropriate,” and she ended up quoting from it extensively in her opinion.

In rejecting the plaintiffs’ argument that the state was barred by the First Amendment from banning a particular form of therapy that is delivered through speech, Wolfson identified as a “fundamental problem” with the argument that “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.”

Thus, the law would be upheld if the legislature could rationally believe that it would serve a legitimate interest of the state.  As to this, the professional literature was sufficient grounds for legislators to believe that the law would advance a legitimate interest in protecting minors.  Wolfson wrote, “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. . .  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.”

Judge Wolfson found that “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.”  She also rejected the Plaintiffs’ argument that the statute was vague or overbroad, rejecting the argument that its enactment left the plaintiffs in a quandary as to what was prohibited and what was permitted regarding SOCE.   She particularly noted that the legislature was careful to distinguish between counseling intended to “change” sexual orientation and counseling “including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices” which “does not seek to change sexual orientation.”  Included in permissible counseling, of course, is counseling to assist individuals making a gender transition.  “Even if, ‘at the margins,’ there is some conjectural uncertainty as to what the statute proscribes,” she wrote, “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.”  She also noted that many courts had rejected the contention that the term “sexual orientation” is vague when used in a statute.

As to overbreadth, Wolfson found that this doctrine only applies when a statute forbids more constitutionally protected speech than is necessary to achieve a legitimate state purpose, but the doctrine would not apply here, in light of her conclusion that the statute does not regulate speech as such.

Wolfson also rejected an alternative argument by the plaintiffs that the statute infringes on the free exercise of religion of counselors or their clients.  She noted that clergy are not restricted from pursuing SOCE, so long as they are not acting as licensed professional counselors.  “Here, A3371 makes no reference to any religious practice, conduct, or motivation,” she wrote.  “Therefore, on its face, the statute is neutral” with respect to religion.  “Plaintiffs argue that 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” by allowing counseling for gender transition or to help minors to adjust to their perceived sexual orientation.  Rejecting this argument, Wolfson pointed out that the history of this law shows that the legislature did not act out of any motivation concerning religion.  “From its plain language,” she wrote, “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,” so it is plainly “neutral in nature.”  Because of that facial neutrality, under Supreme Court precedents, “even if A3371 disproportionately affects those motivated by religious belief, this fact does not raise any Free Exercise concerns.”

As part of her opinion, Judge Wolfson also explained her prior bench ruling that Garden State Equality, New Jersey’s statewide gay rights organization, could intervene as a party to join the state of New Jersey in defending the statute.  The plaintiffs had argued that Garden State Equality did not have “standing” under Article III of the federal constitution to be a party in the case.  Wolfson pointed out that there is a split of authority among federal courts about whether a defendant intervenor needs constitutional standing, and no controlling precedent from the 3rd Circuit that would impose such a requirement in this case.  Normally, the issue of standing applies primarily to the plaintiffs.  Once plaintiffs with standing have sued an appropriate defendant, other parties with an interest can intervene with the permission of the court if they can show a legitimate interest in the matter.  Garden State’s membership includes parents and children who could be affected by the statute, so the court found this requirement to be satisfied.

Judge Wolfson’s ruling is subject to appeal to the 3rd Circuit.  There was no immediate indication whether an appeal would be filed.