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9th Circuit Rejects Constitutional Challenge to California Ban on Conversion Therapy for Minors

Posted on: August 29th, 2013 by Art Leonard No Comments
California Senate Bill 1172, which bans state-licensed mental health providers from conducting “sexual orientation change efforts” (SOCE), commonly known as “conversion therapy,” on patients who are under age 18, was scheduled to go into effect on January 1, 2013, but two lawsuits challenging its constitutionality, mainly on First Amendment free speech grounds, were filed by practitioners and others, leading to conflicting rulings on motions for preliminary relief.   On August 29, a 9th Circuit panel, ruling in a consolidated consideration of appeals from the two district court rulings, held that S.B. 1172 survived the constitutional challenges presented to the court, and remanded the two cases to the respective district court judges for further consistent proceedings.  Most significantly, the court ruled that the practice of SOCE, even though it mainly involves talking by the therapist and patient, is not “speech” protected by the First Amendment, but rather a medical practice that incidentally involves speech.  Pickup v. Brown, 2013 U.S. App. LEXIS 18068, 2013 WL 4564249. 

Writing for the court, Circuit Judge Susan P. Graber began by providing a brief history of SOCE and summarizing the views of professional associations in mental health and related fields.  SOCE efforts date from a time when it was widely believed that homosexuality was a form of mental illness requiring a cure, and both “aversive” and “non-aversive” methods were tried to attempt to change an individual’s sexual orientation.  Among the most controversial aversive methods were lobotomies, shock treatment, and induced nausea.  These have been disavowed by most contemporary practitioners of SOCE, including the plaintiffs in these cases, who assert that their treatments rely almost entirely on speech.  As such, they claim a First Amendment right to be free of state regulation of the treatments.   Since the American Psychiatric Association voted in 1973 to remove homosexuality from its published list of mental disorders (the Diagnostic and Statistical Manual), other major professional health organizations have followed suit, and having declared that homosexuality is not a mental illness, the mainstream mental health professions have rejected SOCE as unnecessary and ineffective.  Furthermore, based mainly on anecdotal evidence, which was considered by California legislators when they enacted S.B. 1172, the professional associations now condemn SOCE as potentially harmful to patients.

The legislation does not impose criminal penalties on therapists for providing SOCE to minors, but as a matter of regulation mandates that such treatment not be provided by licensed therapists and makes it a basis for loss of a license for unprofessional conduct.  Judge Graber points out that the law leaves licensed therapists free to talk about SOCE, to recommend it to their minor clients (who would have to go out of state to receive such “treatment” from a licensed professional), to advocate it publicly, and event to refer a minor to a non-licensed individual such as a religious authority.  However, if they want to provide such treatment themselves, they must either “wait until the minor turns 18 or be subject to professional discipline.”  Thus, in the court’s view, the law “regulates the provision of medical treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic.”

Regulations of conduct are treated differently from regulations of speech.  The plaintiffs argued that because the treatment consisted mainly of speech, the strict rules worked out by the courts to protect speech under the First Amendment should apply, putting a high burden on the legislature to justify this restriction.  The court disagreed, finding that past cases had drawn a distinction between mental health treatment and speech.  “We distill the following relevant principles” from prior cases, wrote Graber: “(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administer 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.”

“Because SB 1172 regulates only treatment,” wrote Graber, “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 ‘bears a rational relationship to a legitimate state interest.’”  As to that, “protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and in protecting minors against exposure to serious harms caused by sexual orientation change efforts” was the interest stated by the legislature, and the court found that “protecting the well-being of minors is a legitimate state interest.”  Did legislators have a rational basis for concluding that this law could advance such an interest?  Surely yes, in light of the evidence considered by the legislature about the ineffectiveness of SOCE and its harmful effects.

The legislature relied heavily on a report compiled by an American Psychological Association Task Force, as well as formal resolutions adopted by “many other professional associations.”   With few exceptions, the mainstream of professional organizations in the medical and mental health fields has arrived at “the overwhelming consensus” that “SOCE was harmful and ineffective.”  Wrote Graber, “On this record, we have no trouble concluding that the legislature acted rationally by relying on that consensus.”

The court also disposed of various other arguments plaintiffs had raised.  It found that the relationship of doctor and patient did not amount to an “expressive association” meriting constitutional protection, that the measure was not unduly vague or overly broad, and that it did not abridge the fundamental rights of parents regarding the upbringing of their children.  “Although the plaintiffs argue that they cannot ascertain where the line is between what is prohibited and what is permitted – for example, they wonder whether the mere dissemination of information about SOCE would subject them to discipline – the text of SB 1172 is clear to a reasonable person.”

“Moreover,” Graber pointed out, “considering that SB 1172 regulates licensed mental health providers, who constitute ‘a select group of persons having specialized knowledge,’ the standard for clarity is lower.” 

As to the overbreadth argument, Graber reiterated that the effect of the law on speech was incidental to its regulation of medical practice, and “any incidental effect,” she wrote, “is small in comparison with the ‘plainly legitimate sweep’ of the ban.”

Finally, as to parental rights, she pointed out that the state has been upheld in a variety of contexts in imposing or prohibiting particular medical treatments.  For example, compulsory vaccination schemes have been upheld over the protest of parents, and the courts have stepped in to mandate medical treatments that were rejected by parents on religious grounds.  “We are unaware of any case that specifically addresses whether a parent’s fundamental rights encompass the right to choose for a child a particular type of provider for a particular treatment that the state has deemed harmful,” Judge Graber wrote, “but courts that have considered whether patients have the right to choose specific treatments for themselves have concluded that they do not.”  Clearly, parents’ rights concerning treatment for their children would not be greater than their rights concerning their own treatment.

Although it seems likely that the plaintiffs will seek further review, it is unlikely that the 9th Circuit would agree to delay further the implementation of the law pending such an appeal.

In addition to attorneys from the Attorney General’s Office, the law was defended by intervenors represented by the National Center for Lesbian Rights, whose legal director, Shannon Minter, participated in the oral argument before the 9th Circuit.  The case attracted amicus briefs from a wide range of professional groups, and all the major LGBT rights organizations participated in some form in the case.  The court’s decision may prove influential outside the 9th Circuit, as a legal challenge gets underway in New Jersey to a similar statute recently signed into law by Governor Chris Christie.

Supreme Court: Clearing Up the Cert Backlog After the DOMA and Prop 8 Decisions

Posted on: June 27th, 2013 by Art Leonard No Comments

Yesterday the Supreme Court decided U.S. v. Windsor, affirming the 2nd Circuit and holding that Section 3 of the Defense of Marriage Act violates the 5th Amendment, and Hollingsworth v. Perry, holding that the initiative proponents of Proposition 8, who had been allowed to intervene in its defense at trial, lacked standing to appeal the district court’s ruling.   The decisions will go into effect after the Court issues its mandate, which is normally 25 days after decision day, in order to give the losing party a shot at filing a motion for rehearing. 

One could argue that there is no “losing party” in Windsor, since neither Edie Windsor nor the U.S. Government has any beef with the Court’s ruling.  The Bipartisan Legal Advisory Group of the House of Representatives (BLAG) may have a beef with it, but I think any motion for rehearing that they might file would be quickly dismissed, inasmuch as Justice Kennedy’s opinion does not rule on whether they had standing to participate in the case as a full party, and none of the dissenters argued that they have standing, either.  In Hollingsworth, the mandate would send the case back to the 9th Circuit, which would then lift its stay of Judge Vaughn Walker’s Order, which enjoins California officials from enforcing Proposition 8.  At that point, same-sex marriages would resume in California.  Governor Brown has already authorized a memorandum that was sent out to County Clerks instructing them the state believes that Walker’s Order is binding throughout the state, and that they are to begin issuing licenses to same-sex couples as soon as the stay is lifted.

Today, June 27, the Supreme Court addressed the backlog of cert petitions that have piled up in the wake of the same-sex marriage cases, so here is the rundown from the Court’s announcements this morning:

1 – The Windsor case.  The court had three cert petitions in the Windsor case, one filed by Robbie Kaplan and the ACLU on behalf of Edith Windsor, the others filed by the U.S. Goverment and BLAG.  The Court granted the government’s petition, which is why the case is called U.S. v. Windsor in the Supreme Court.  This morning, the Court denied certiorari in the petitions filed by Windsor, No. 12-63, and BLAG, No. 12-785.  (BLAG didn’t file its petition until after the 2nd Circuit had ruled, and in fact the Court granted the government’s petition before BLAG filed its petition.)

2 – The 1st Circuit Gill/Massachusetts case.  The 1st Circuit Court of Appeals issued a decision holding Section 3 of DOMA unconstitutional under the 5th Amendment, but rejecting the state of Massachusetts’ argument that DOMA violated the 10th Amendment by overriding the prerogatives of the state.  BLAG filed a petition for certiorari from the ruling against the private plaintiffs, represented by Gay & Lesbian Advocates and Defenders, and that petition was denied this morning in No. 12-13.  The government also filed a petition for certiorari, in the name of the U.S. Department of Health & Human Services, which was the lead defendant in the case, and that petition was denied today, No. 12-15.  The state of Massachusetts also filed a petition, seeking to vindicate its federalism claim.  The Court denied that petition as well, No. 12-97. 

Justice Kennedy’s opinion in Windsor made something out of the federalism argument, although I think Chief Justice Roberts was strategically misrepresenting the majority opinion when he wrote in dissent that the main theme of the majority opinion was federalism.  It was not.  The ruling was premised on the 5th Amendment’s Due Process and Equal Protection requirements, although Kennedy did discuss the federalism aspects of the case as one of the factors that required the Court to give “careful consideration” to this constitutional challenge.  BLAG did not file a petition in this case. 

The Court noted that Justice Kagan did not participate in the consideration or decision on these petitions on the 1st Circuit case, presumably because as Solicitor General she had participated in the Justice Department’s internal discussions about the District Court proceedings and the appeal to the 1st Circuit.   It is likely that the reason the Court decided to take the Windsor case instead of this case was so that a full bench could participate, as both cases presented the identical issues under the 5th Amendment.  The original district court complaint in Windsor was filed after Justice Kagan took the bench, so she was not involved in the Justice Department’s conduct of the litigation and did not feel any need to recuse herself.

3 – The Golinski case.  Lambda Legal represents Karen Golinski, an employee of the 9th Circuit Court of Appeals who was denied health insurance coverage for her same-sex spouse after they married in California in 2008 prior to the passage of Proposition 8.  Golinski won a ruling from a federal district judge within the 9th Circuit that Section 3 is unconstitutional, and the government had filed a petition for certiorari, seeking to bypass the 9th Circuit and bring the case directly to the Supreme Court.  This morning, the Court denied the petition, No. 12-16.  In light of the ruling in Windsor, federal court employees legally married to their same-sex partners in California will clearly be eligible to participate in the group insurance plan for the federal courts on the same-basis as employees married to different-sex couples, since California recognizes the marriages that were performed in 2008 prior to the enactment of Prop 8, by virtue of a California Supreme Court decision issued in 2009 in response to a challenge to the passage of Prop 8.  Still to be sorted out, but likely, is that federal court employees who work in states that don’t recognize their same-sex marriages will be similarly-entitled, but stay tuned on that issue. 

5 – The Pedersen case.  After having won their DOMA case in Massachusetts, GLAD decided to venture into the New England portion of the 2nd Circuit by filing a similar case in Connecticut, where they won a ruling from the district court and then petitioned the Supreme Court to take the case directly, bypassing the 2nd Circuit.  This seemed to make sense, as the 2nd Circuit was focused on the Windsor case from New York, and it seemed likely that all the pending DOMA cases were in a position to contend for Supreme Court review.  The government also obliged by filing a petition shortly after GLAD had filed.  This morning, the Court dismissed the Pedersen (GLAD) petition, No. 12-231, and the government’s petition, which was filed on behalf of the Office of Personnel Management, No. 12-302.

6 – The Arizona Domestic Partnership Benefits Case.  The Supreme Court also received a petition last summer from Arizona Governor Jan Brewer, asking the Court to overturn a preliminary injunction that had been issued by a federal judge in Arizona requiring the state to continue providing health benefits to same-sex domestic partners of Arizona state employees while the court considered the merits of Lambda Legal’s claim that the government’s revocation of those benefits violated the 14th Amendment.  The 9th Circuit had affirmed the district court’s grant of preliminary injunctive relief, agreeing with the district judge that plaintiffs had adequately shown a likelihood of success on the merits and irreparable injury if they were to lose their insurance coverage while the case was being litigated.  This morning, the Court denied the petition in Brewer v. Diaz, No. 12-23.  I think it is most likely this one was denied because the Court would rarely get involved in an interlocutory appeal of a pre-trial order of this type unless it was overwhelmingly eager to get into the substantive legal issues in the case, and yesterday’s decision in Hollingsworth v. Perry, dismissing the Prop 8 appeal on standing grounds, seems to signal that the Court is determined to put off for now the question of how to analyze sexual orientation equal protection claims under the 14th Amendment. 

7 – The Nevada marriage case.   This is the strangest and most “long-shot” petition of those denied this morning.  In Nevada, Lambda Legal is suing for a ruling that the state’s anti-gay marriage amendment is unconstitutional and gay people should be entitled to marry.  The district court allowed the Coalition for the Protection of Marriage, which was behind the marriage amendment, to intervene as co-defendants with the state.  The district court ruled against the plaintiffs, finding that there is no right under the 14th Amendment for same-sex couples to marry (explicitly disagreeing with Judge Walker’s decision in the Prop 8 case), and the case would next logically go to the 9th Circuit.  But the Coalition filed a cert petition, asking the Supreme Court to take the case directly and affirm the district court.   (Now, this sounds odd in light of the arguments about the U.S. government’s standing in the Windsor case to appeal a ruling with which it agreed, doesn’t it?)  Yesterday’s ruling in Hollingsworth seems to dispose of this one quite easily on standing grounds.  Clearly, the Coalition does not have standing to bring this case to the Supreme Court under the majority opinion’s reasoning in Hollingsworth, especially since the state of Nevada is defending its marriage amendment in court, unlike the state of California in the Prop 8 case, and the state will presumably fight to defend the district court’s ruling in the 9th Circuit.  Anyway, the petition in Coalition v. Sevcik was dismissed this morning, No. 12-689.  The legislature in Nevada has given initial approval to a ballot measure that would repeal the anti-gay marriage amendment and replace it with a marriage amendment that institutes marriage equality in the state.  The proposed amendment will need to be approved again after a new legislature has been elected before it can be placed on the ballot.  

So that clears the decks at the Supreme Court on same-sex couple legal recognition cases for now, unless a motion for rehearing is filed in Windsor or Perry.  The Court rarely grants motions for rehearing, and the likelihood that such a motion would be granted in either of these cases is slight, so a mandate to put the opinions into effect should be issued by the fourth week in July (which has 4-1/2 weeks).

Presumed Parenthood for California Domestic Partners – Did This Issue Have to Be Litigated?

Posted on: May 18th, 2013 by Art Leonard No Comments

Under longstanding legal principles in most American jurisdictions, and definitely in California, when a married woman has a child, her spouse is presumed to be the legal parent of the child.  When California first established legally-recognized domestic partnerships for same-sex couples, this status brought with it only a limited menu of rights and responsibilities.  However, through a few rounds of amendments, the domestic partnership status was expanded to come close to matching the legal rights and responsibilities of spouses.  The last such round of amendments, taking effect on January 1, 2005, provides that “the rights and obligations of registered domestic partners with respect toa  child of either of them shall be the same as those of spouses.”

On October 19, 2006, C.P., a party to a domestic partnership with D.F., filed a petition in San Bernardino County Superior Court seeking a dissolution of the domestic partnership.  C.P. is the biological mother of their child, H., who was born in 2004, shortly after the women registered their domestic partnership.  In the context of the dissolution proceeding, D.F. sought joint custody of H.  C.P. objected to this, asserting that as the biological mother she was entitled to sole legal custody, and that under California law a child could have only one mother.  The trial judge overruled this objection, and awarded joint legal custody and physical custody, ordering as well that D.F. make monthly child support payments to C.P.  C.P. appealed.

The 4th District Court of Appeal ruled on May 16 that C.P.’s argument was inconsistent with California law.  Indeed, since 2005, in Elisa B. v. Superior Court, 37 Cal.4th 108, the California Supreme Court has adopted the view that a child can have two mothers, and that in a scenario similar to that of the C.P.-D.F. situation, California law should be interpreted to recognize presumptive parental statute for a lesbian co-parent of a child conceived within the partnership of the two women and jointly raised by them until they decided to end their relationship.

So one wonders why C.P. was litigating this question of established law?  The answer, apparent from the face of the opinion, see 2013 Westlaw 2099156, was that C.P. was representing herself in appealing the trial judge’s order to the Court of Appeal.  Presumably a competent lawyer would have figured out that the chances of winning this case on appeal, in light of the findings and reasoning of Superior Court Judge John M. Pacheco, were nil.  Indeed, the result is so uncontroversial that the court has designated its decision as unpublished, since it is virtually superfluous. 

So, it’s time to get the word out in California, to the lay public as well as the practicing bar, that when it comes to issues of parental status and rights, registered domestic partners have the same rights as legal spouses.  If that wasn’t totally clear prior to the tumultuous events of 2008/9 — when the California Supreme Court ruled that same-sex couples have  a right to marry under the state constitution, the voters passed Proposition 8 taking that right away, and then the Supreme Court ruled in 2009 that California constitutional law after enactment of Prop 8 required that domestic partnerships carry all the same rights as marriage — it is clear now.

Which raises an interesting question about the opinion by Acting Presiding Justice McKinster.  Why not just declare that D.F.’s right to seek custody is presumptively established by her domestic partnership status at the time the child was born?  Instead, the court goes through the analysis of the Elisa B. case to independently establish D.F.’s parental rights apart from any presumption.  In a footnote, the court suggests that D.F. did not rely on the presumptive parentage doctrine to see her parental rights affirmed by the court.  But these short-cuts and presumptions exist in support of judicial economy, so it would undoubtedly have been better for the court to apply the presumption without engaging in the extended factual analysis, which sends the wrong signal to trial courts in the state. 

Perhaps this will all be rendered superfluous when the U.S. Supreme Court ruled in Hollingsworth v. Perry next month.  One can hope.