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Ninth Circuit Denies En Banc Rehearing in Washington Conversion Therapy Case, Setting Up Possible Supreme Court Review

Posted on: January 25th, 2023 by Art Leonard No Comments

On January 23, the U.S. Court of Appeals for the 9th Circuit announced denial of rehearing en banc in Tingley v. Ferguson, 47 F. 4th 1055 (9th Cir., September 6, 2022), in which a three judge panel, following 9th Circuit precedent in Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), rejected a First Amendment free speech challenge to Washington’s statute prohibiting licensed health care providers from performing “sexual orientation change efforts” (informally referred to as conversion therapy) on minors.  Alliance Defending Freedom (ADF), the anti-LGBT religious litigation group, represented Brian Tingley, a licensed Washington therapist, in challenging the law.  The National Center for Lesbian Rights (NCLR) represented Equal Rights Washington, a political group, as intervenor-defendant in the case.  The announcement and attendant dissenting opinions are published at 2023 WL 353213, 2023 U.S. App. LEXIS 1632.

District Judge Robert J. Bryan granted a motion to dismiss in 2021, see 557 F.Supp.3d 1131 (W.D. Wash.), in light of the 9th Circuit precedent of Pickup. A three-judge panel of Circuit Judges Ronald Gould, Kim Lane Wardlaw and Mark J. Bennett, affirmed, restating the legal analysis of the Pickup decision, which held that the law was regulating professional conduct, only incidentally affecting speech, in an opinion by Gould joined by Wardlaw (Clinton appointees) with a concurrence by Bennett (Trump appointee).

It takes a majority of the 29 active judges of the circuit to grant en banc review by an eleven-judge panel.  In announcing the denial of en banc review, the court released two dissenting opinions.  Senior Circuit Judge Diarmuid O’Scannlain, a Reagan appointee who couldn’t vote on the issue, nonetheless was moved to write about why he thought the 9th Circuit had to reconsider Pickup, and his dissent was joined by Circuit Judge Sandra Ikuta (George W. Bush appointee) and Circuit Judges Ryan Nelson and Lawrence VanDyke (Trump appointees).  Circuit Judge Patrick Bumatay (Trump appointee) wrote a separate dissenting opinion.

O’Scannlain’s dissent argued that Pickup was no longer good law.  In NIFLA v. Becerra, 138 S. Ct. 2361 (2018), a free speech case challenging California’s law requiring clinics providing reproductive health services to advise patrons about the availability of abortion providers, the Court had rejected the proposition that “professional speech” receives less First Amendment protection than other speech, and Justice Clarence Thomas, writing for the Court, specifically mentioned the Pickup decision as having erred on this point.  O’Scannlain wrote that “the Supreme Court has rejected Pickup by name… And other circuits have rejected Pickup’s holding, concluding instead that therapeutic speech is – speech, entitled to some First Amendment protection.”  He argued that “the panel’s defense of Pickup’s continuing viability is unconvincing.  We should have granted rehearing en banc to reconsider Pickup and so to resolve this circuit split.”  He also criticized the panel’s discussion of a “long tradition” of regulating professional conduct in the health care field as somehow supporting the law.

However, the panel had distinguished Pickup from NIFLA.  In the California statute at issue in NIFLA, the state was not regulating “therapeutic speech,” but rather was requiring clinics to convey the government’s message about availability of services that these clinics – which were devoted to dissuading pregnant women from terminating their pregnancy – did not want to provide.  Thus, it was compelled speech, in the view of the Court, and it violated the First Amendment for the government to compel the clinics to convey this message.  This is distinguishable from the conversion therapy statutes, which restrict licensed therapists from providing the therapy – which incidentally involves speech, although some may go beyond speech in their therapeutic methods – but do not restrict them from discussing conversion therapy with their clients/patients, or require them to state anything in particular about it.  The 3rd Circuit, evaluating New Jersey’s conversion therapy law in King v. Governor of New Jersey, 767 F.3d 216 (2014), differed from the 9th Circuit, holding that the law did raise free speech issues, but found that the state’s legislative findings support a legitimate interest to sustain the law.  Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020), which was subsequently denied rehearing en banc, rejected Pickup and struck down two local government bans on conversion therapy in Florida.  Thus, the circuit split on the free speech issue.

Judge Bumatay wrote separately to assert that “conversion therapy is often grounded in religious faith,” and that Tingley had alleged that “his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings.”  Bumatay developed this theme to conclude that this was actually a hybrid rights case, melding together free speech and free exercise of religion, which he insisted would require at least heightened scrutiny rather than the rationality approach taken by the panel in this case (and the panel in Pickup).  He would vote to rehear the case en banc in order to incorporate this additional consideration in evaluating whether Washington State had a strong enough justification to support overriding the therapist’s religious convictions.  He did concede that it is possible the court could find that the law survived heightened scrutiny depending on the strength of Washington’s case.

ADF brings cases challenging LGBTQ rights laws as part of a broad agenda to get the courts to condemn such laws, usually on religious freedom grounds.  Since it is a test case litigator, a cert petition is the next likely development in this litigation.  Although the panel majority strived to distinguish the NIFLA case, Justice Thomas’s dicta expressing disapproval of Pickup may stimulate the four votes on the Court necessary to grant certiorari.  And the combination of free speech and free exercise suggested by Judge Bumatay is likely to appeal to the conservative majority on the current Court, which could spell the end of laws banning conversion therapy in the United States – at least to the extent that therapy is carried out solely through speech, as the plaintiff therapists have argued in challenging these laws.

Given the timing of all this, a cert petition filed in February or March could not be granted in time for a hearing to take place during the current term of the Court, but Tingley v. Ferguson may loom as a significant LGBT-related case on the Court’s October 2023 calendar.

Washington Law Against Conversion Therapy Survives Constitutional Attack

Posted on: September 7th, 2022 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, which included the first member of that bench appointed by President Donald Trump, unanimously ruled in Tingley v. Ferguson, 2022 WL 4076121 (September 6) that a circuit precedent from 2014, Pickup v. Brown, 740 F. 3d 1208, which rejected a constitutional challenge to California’s ban on conversion therapy for minors, is still a binding precedent in the 9th Circuit, thus affirming U.S. District Judge Robert J. Bryan’s decision (557 F.Supp.3d 1131 [W.D. Wash., 2021] to dismiss a challenge to a virtually identical law enacted in 2018 by the state of Washington.

The only real point of suspense in the case was what effect the panel might give to the U.S. Supreme Court’s decision in 2018 in National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361.  Three-judge panels of a circuit court of appeals are bound by past decisions of the circuit court unless they are reversed or superseded by an “en banc” decision (in the 9th Circuit an expanded panel of eleven judges) or by the U.S. Supreme Court.  The 2018 decision is usually referred to as the NIFLA case.

NIFLA operates a “pregnancy clinic” that counsels its clients not to resort to abortion.  It challenged a California statute that required licensed pregnancy clinics to inform clients that California law provides free or low-cost family planning services, including abortion.  NIFLA claimed that this requirement violated its free speech rights, compelling it to speak the state’s message rather than its own.  The 9th Circuit rejected that challenge, finding that the state could regulate “professional speech” as a distinct category of speech enjoying less protection under the 1st Amendment than other categories, such as political or artistic speech.

The Supreme Court reversed with an opinion by Justice Clarence Thomas, stating that “professional speech” was not less protected by the 1st Amendment than other forms of speech, and specifically criticizing decisions by the 3rd and 9th Circuits that had rejected free speech challenges to state laws designating performance of conversion therapy by licensed counselors as professional misconduct for which they could incur professional discipline.   Both of those cases had referred to “professional speech” as being less protected than other forms of speech.

In this new challenge to Washington’s law, licensed counselor Brian Tingley, who describes himself as a “Christian counselor” who attempts to get children to feel comfortable with their biological sex and to minimize homosexual attractions, sued with the representation of Alliance Defending Freedom, claiming that after the NIFLA decision, the 9th Circuit’s prior rulings on conversion therapy were no longer valid precedents.

District Judge Bryan disagreed, finding that the prior rulings had not depended solely on the “professional speech” theory.  Instead, the district court considered a regulation of health care practice to be concerned with conduct that incidentally involved speech, in which case the state could regulate the conduct to achieve an important governmental interest.  hat interest would be to protect minors from the adverse psychological and emotional effects of conversion therapy, which have been well-documented by numerous studies and led most professional associations in the health care field to condemn the practice.

The 9th Circuit panel agreed with Judge Bryan that the NIFLA opinion had not effectively overruled Pickup v. Brown or a subsequent case from California, Walsh v. Brown, that the Washington statute was virtually identical with the California statute that had been upheld, and that circuit precedent thus dictated that Tingley’s case be dismissed.

Judge Ronald M. Gould, writing for the panel, added a section to the opinion, speaking only for himself and Judge Kim McLane Wardlaw, identifying an “additional reason” for reaching the conclusion that the Washington law is constitutional.  “The Supreme Court has recognized that laws regulating categories of speech belonging to a ‘long tradition’ of restriction are subject to lesser scrutiny.”  Looking back at the NIFLA ruling, he noted that Justice Thomas wrote that in the NIFLA case there was not “persuasive evidence of a long (if hereto unrecognized) tradition” of exempting speech by professionals from First Amendment protection.  However, Gould pointed out, there was a long tradition of the states regulating licensed health care practice.

“There is a long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders,” he wrote, citing U.S. Supreme Court cases from 1889 and 1898 to make his point.  “And such regulation of the health professions has applied to all health care providers, not just those prescribing drugs.”  He also noted that the Supreme Court had in the past “relied upon the positions of the professional organizations Tingley criticizes, even when those positions have changed over time.”

Gould commented that “the evidence presented shows some difference in opinion about the efficacy and harm of conversion therapy, but the ‘preponderating opinion’ in the medical communicate is against its use.”

“That doctors prescribed whiskey in 1922, and thought of homosexuality as a disease in 1962, does not mean that we stop trusting the consensus of the medical community in 2022 or allow the individual desires of patients to overcome the government’s power to regulate medical treatments.”  And he pointed out that invalidating the conversion therapy ban because the “therapy” consisted of speech “would endanger other regulations on the practice of medicine where speech is part of the treatment.”  For example, he noted a Washington statute that prohibits doctors from promoting “for personal gain any unnecessary inefficacious drug, device, treatment, procedure or service.”  Such promotion would normally be done through speech.  Other sections of the law would subject to discipline the offering “to cure or treat diseases by a secret method,” and prohibit all advertising by health care professionals that is “false, fraudulent, or misleading.”

He also noted that the law was narrowly focused on licensed professionals, exempted unlicensed religious counselors, and clearly did not apply outside the confines of professional-client treatment relationships.  Counselors are free to state their views about conversion therapy, both to their clients and publicly, but are just forbidden to provide conversion therapy to clients.

As to Tingley’s separate claim that the law violates his free exercise of religion, the court concluded that  this was a religiously-neutral law of general applicability, and thus under existing Supreme Court precedent Tingley could not claim an exemption from complying based on his religious beliefs.   The court also rejected Tingley’s argument that the law was unconstitutionally vague, finding that past decisions had rejected the argument that “sexual orientation” and “gender identity” are terms whose meaning is uncertain.  “’Sexual orientation’ and ‘gender identity’ have common meanings that are clear to a reasonable person,” wrote Judge Gould, “let alone a licensed mental health provider.”

Judge Mark Bennett, the Trump appointee on the panel, joined the majority opinion, but only to the extent that it found the question of constitutionality to be governed by the 9th Circuit precedents.  “Respectfully,” he wrote, “I believe that we should not hypothesize with dicta when our conclusion is commanded by binding precedent.”  Judges Gould and Wardlaw were appointed by President Bill Clinton.

Numerous amicus briefs were filed in this case, reflecting the heavy investment by the faith-based community in attempting to protect the practice of conversion therapy, especially by religiously-motivated licensed counselors, and the commitment by LGBTQ and other civil liberties groups to protect minors from a dangerous and exploitative practice.

Alliance Defending Freedom is likely to seek en banc review and, ultimately, to asking the Supreme Court to take up this case.  Judge Gould recognized in his opinion for the court that this ruling opens up a split with a recent opinion by the 11th Circuit, Otto v. Boca Raton, 981 F.3d 854 (2020), which struck down a municipal conversion therapy ban on the theory that conversion therapy that is limited to speech enjoys full 1st Amendment protection, rejecting the argument that it was a regulation of professional conduct only incidentally burdening speech.  The 11th Circuit took a different view of the impact of the Supreme Court’s NIFLA ruling, so it is possible that this case will provide ADF with the vehicle it is seeking to get the issue back before the Supreme Court.

Federal Appeals Court Rules Laws Against Conversion Therapy Using Solely Speech Violate the First Amendment

Posted on: November 22nd, 2020 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled on November 20 in Otto v. City of Boca Raton, 2020 U.S. App. LEXIS 36589, 2020 WL 6813994, that laws enacted by Boca Raton and Palm Beach County, Florida, prohibiting licensed therapists from performing conversion therapy on minors, violate the therapists’ rights to freedom of speech under the First Amendment.  The panel voted 2-1.  Two judges appointed by Donald Trump – Britt Grant and Barbara Lagoa – made up the majority.  Beverly Martin, appointed by Barack Obama, dissented.

Both of the local laws at issue were enacted in 2017.  In both cases, the local legislatures reviewed the voluminous professional literature condemning “sexual orientation change efforts” (SOCE), commonly called “conversion therapy,” as being fraudulent and causing potential harm to minors.  The legislatures concluded that this evidence was sufficient to justify outlawing the procedure.  Since local governments do not have authority to suspend or terminate a professional license granted by the state, instead they authorized fines to be imposed on licensed counselors who were found to have performed such “therapy.”  The local laws do not apply to unlicensed counselors, including religious counselors who are not required by the state to be licensed.

Nobody has actually been prosecuted under either law, but two licensed counselors, Robert W. Otto and Julie H. Hamilton, represented by lawyers from Liberty Counsel, an anti-LGBT legal organization, filed lawsuits claiming that the therapy they provide consists entirely of speech which cannot be outlawed by the government. They asserted that they do not claim that they can change a person’s sexual orientation, but that their therapy is intended to help their clients to “reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity.”  They also asserted that their patients “typically” have religious beliefs that conflict with homosexuality and “seek SOCE counseling in order to live in congruence with their faith and to confirm their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs.”

The plaintiffs also argued that their equal protection rights were violated because unlicensed counselors were not prohibited from performing SOCE, and that the localities were preempted from passing any law regulating the practice of therapists licensed by the state.  They sought a preliminary injunction barring enforcement of the laws while the case was pending, which was denied to them by the district court.  This appeal to the 11th Circuit sought to overturn the district court ruling and get the preliminary injunction pending a final ruling on the merits of their claims.

Similar laws passed by several states and other localities have been upheld against 1st Amendment claims.  Both the 3rd Circuit Court of Appeals in King v. Governor of New Jersey, 767 F. 3d 216 (2014), ruling on a New Jersey statute, and the 9th Circuit in Pickup v. Brown, 740 F.3d 1208 (2014), ruling on a California statute, have rejected the argument that this “talk therapy” is shielded from state regulation by the First Amendment.  They have held that the incidental burden on therapists’ speech was justified within the government’s legitimate role of regulating the practices of licensed practitioners, and the 3rd Circuit, in particular, held that when therapists are using speech in the context of providing “therapy,” that is professional speech that comes within the sphere of regulatory authority.  Furthermore, these other courts have recognized the compelling interest of states in protecting minors from harm.

In 2018, the Supreme Court ruled in a California case, National Institute of Life Advocates v. Becerra, 138 S. Ct. 2361, that a state law requiring reproductive health clinics that do not provide abortion services to provide their clients with information about the availability of such services from other providers, was an unconstitutional imposition of a speech requirement in violation of the 1st Amendment.  California sought to defend its law by invoking the concept of “professional speech” as falling within the sphere of legitimate state regulation.  Writing for the Court in that case, Justice Clarence Thomas rejected the idea that speech employed in the context of providing health care was a separate category of speech to be evaluated differently from other forms of speech that receive the full protection of the 1st Amendment.  He specifically criticized the 3rd and 9th Circuit conversion therapy opinions in this connection, rejecting the idea that speech should enjoy less robust constitutional protection because it was used by licensed counselors as their method of providing therapy.

Following Justice Thomas’s lead, the panel majority in this case held that the local laws should be reviewed under the “strict scrutiny” standard, as a content-based and viewpoint-based restriction on speech. This means that the laws would be treated as presumptively unconstitutional, placing the burden on the government to prove that they were necessary to achieving a compelling state interest and were narrowly tailored to avoid imposing unnecessary burdens on free speech.

Applying this strict scrutiny test, the majority of the panel concluded that the laws were unconstitutional.  Although Judge Britt Grant, writing for the majority, acknowledged that protecting children from harm is a compelling state interest, she rejected the argument that harm to children had been sufficiently shown to justify this abridgement of speech.

Pointing to the reports and studies that were considered by the legislatures in passing these laws, Grant wrote, “But when examined closely, these documents offer assertions rather than evidence, at least regarding the effects of purely speech-based SOCE.  Indeed, a report from the American Psychological Association [a Task Force Report from 2009], relied on by the defendants, concedes that ‘nonaversive and recent approaches to SOCE have not been rigorously evaluated.’  In fact, it found a ‘complete lack’ of ‘rigorous recent prospective research’ on SOCE.”  She also noted that the same report stated that “there are individuals who perceive they have been harmed and others who perceived they have benefited from nonaversive SOCE.’ What’s more, because of this ‘complete lack’ of rigorous recent research, the report concludes that it has ‘no clear indication of the prevalence of harmful outcomes among people who have undergone’ SOCE.”

“We fail to see,” Grant continued, “how, even completely crediting the report, such equivocal conclusions can satisfy strict scrutiny and overcome the strong presumption against content-based limitations on speech.”  Grant pointed out that people who claimed to have been harmed by SOCE practitioners can bring malpractice claims or file complaints with state regulators of professional practice, but he asserted that the state may not categorically outlaw the practice without stronger evidence that it actually causes harm.

When a plaintiff seeks a preliminary injunction barring enforcement of a challenged law before the trial court has ruled on the merits of the challenge, the plaintiff must show that it has stated a potentially valid claim and would suffer irreparable injury if the law can be enforced against them.  In this case, Judge Grant wrote, since the majority of the panel found the law to be unconstitutional, it was reversing the district court decision and sending the case back to the district court “for entry of a preliminary injunction consistent with this opinion.”

The dissenting judge, Beverly Martin, conceded that the challenged laws are subject to “strict scrutiny.”  In the face of Justice Thomas’s statements in the 2018 NIFLA decision, it seems likely that basing her dissent on the idea that these laws regulate professional conduct and not speech as such was not going to get anywhere.  But, she argued, this is that rare case where a statute that prohibits a form of speech based on its content and viewpoint could be justified as serving the compelling interest of protecting minors from harm.

She rejected the majority’s conclusion that the laws “restrict ideas to which children may be exposed” by pointing out that nothing in the laws prevents therapists from discussing with their minor patients “the perceived benefits of SOCE,” and also that the therapists “may recommend that their minor patients receive SOCE treatment from a provider elsewhere in Florida.”  The only limitation imposed by the laws was the actual practice of this “talk therapy” on their patients within the jurisdictions of Boca Raton and Palm Beach County.

Most of her dissent was devoted to dissecting the majority’s dismissive evaluation of the evidence on which the Boca Raton and Palm Beach County legislators had relied to find it necessary to ban conversion therapy in order to protect minors.  She rejected Judge Grant’s assertion that there is “insufficient evidence to conclude that SOCE is so harmful as to merit regulation.”  Pointing to the 2009 APA Task Force report, she quoted, “there was some evidence to indicate that individuals experienced harm from SOCE,” including nonaversive methods.  The Task Force Report went on to say that “attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.”  And the Report “catalogued recent studies reporting that patients who undergo SOCE experience negative consequences including ‘anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family, loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction.’”

She was particularly critical of Grant’s heavy reliance on the Report’s comment about the lack of “rigorous recent prospective research” on SOCE.  First, she wrote, “what studies have been done ‘show that enduring change to an individual’s sexual orientation is uncommon,’ and that there is, in fact, already ‘evidence to indicate that individuals experience harm from SOCE.”

Perhaps more significantly, she pointed out that rigorous research would require an unethical methodology.  She wrote, “the APA has cautioned that ‘to conduct a random controlled trial of a treatment that has not been determined to be safe is not ethically permissible and to do such research with vulnerable minors who cannot themselves provide legal consent would be out of the question for institutional review boards to approve.”

“To be clear,” wrote Martin, “the very research the majority opinion seems to demand is ‘not ethically permissible’ to conduct.  Thus, one implication of the majority holding is that because SOCE is too dangerous to study, children can continue to be subjected to it.  The majority opinion has the result of inviting unethical research that is nowhere to be found in First Amendment jurisprudence.”

Further, she noted, there is “the recognition that homosexuality is not a mental illness as well as the particular vulnerability of minors as a test-study population.  All of this evidence leads to the inescapable conclusion that performing efficacy studies for SOCE on minors would be not only dangerous (by exposing children to a harmful practice known to increase the likelihood of suicide) but pointless (by studying a treatment for something that is not a mental-health issue).”

She also criticized the majority for focusing on comments selectively quoted from one APA Task Force report, and discounting that “SOCE is a practice that has already been deemed by institutions of science, research and practice” – listing nine of them – “to pose real risks of harm on children.  It is reasonable for the Localities to enact the Ordinances based on the existing evidentiary record as to harm.”

She rejected the plaintiffs’ argument that the Ordinances were either too overinclusive or underinclusive to survive strict scrutiny review.  “I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility,” she concluded,” asserting that the plaintiffs are not entitled to a preliminary injunction.

At this point, the Boca Raton and Palm Beach County governments have strategic decisions to make.  The “luck of the draw” exposed them to a three-judge panel whose majority were Trump appointees.  Since this opinion is out of step with rulings by other federal courts of appeals, it is possible that the 11th Circuit would grant a motion for reconsideration en banc.

However, at present, six Trump appointees are balanced by four Obama appointees, one Clinton appointee, and an appointee of George W. Bush, so the “Trump judges” make up exactly half of the 11th Circuit bench, and the chances that the full circuit would overturn this ruling seem slim.

The defendants could also directly petition the Supreme Court for review.  But in light of the current line-up of that Court, to take this issue to that Court directly would really be tempting fate and, in the past, the Supreme Court has declined to review the constitutionality of anti-SOCE laws from other jurisdictions.

This is the first federal court of appeals to part company from the many cases rejecting First Amendment challenges to  these laws, increasing the likelihood that the Supreme Court would grant review, which could produce (in a worst case scenario) an opinion invalidating all the existing U.S. laws against conversion therapy.  On the other hand, a Supreme Court opinion upholding the constitutionality of these laws could encourage the current campaign to get more state and local governments to adopt them.  But given the odds, it may be particularly prudent for the defendants not to appeal, let the preliminary injunction go into effect, and concentrate on putting together a strengthened evidentiary record on the harms that SOCE does to minors to make it more likely they will prevail on the merits before the district court.

The court received five amicus briefs, all defending the challenged laws.  Among the organizations signing the briefs were the National Center for Lesbian Rights, Southern Poverty Law Center, Equality Florida Institute, Inc., The Trevor Project, American Psychological Association, Florida Psychological Association, National Association of Social Workers, National Association of Social Workers Florida Chapter, and American Association For Marriage and Family Therapy.

Federal Judge Voids Tampa Ban on Conversion Therapy

Posted on: October 18th, 2019 by Art Leonard No Comments

U.S. District Judge William F. Jung ruled on October 4 in Vazzo v. City of Tampa, 2019 U.S. Dist. LEXIS 172734, 2019 WL 4919302 (M.D. Fla.), that the state of Florida’s pervasive regulation of professional health care deprives the city of Tampa from the authority to impose sanctions on licensed health care workers who perform “conversion therapy” on minors.

Jung’s ruling was a startling departure from the way most courts have responded to challenges against laws cracking down on the charlatans who engage in this discredited practice.  Several federal courts, including some courts of appeals, have rejected challenges based on the 1st and 14th Amendments, but those cases mainly involved state laws.  Although the challengers in the Tampa case – Robert L. Vazzo, David Pickup, and Soli Deo Gloria International, Inc. – made those same constitutional arguments, which provided the basis for their case to be in federal court, Judge Jung resolved the case on a state law basis that appeared to be a mere make-weight in the original Complaint.

Tampa passed its ordinance in April 2017.  It bans “therapy” within the City by medical doctors and mental health professionals intended to assist minors to avoid being gay or transgender.  The ordinance uses the term “conversion therapy,” but the practice is also sometimes referred to as “sexual orientation change efforts” or SOCE.  The ordinance cites numerous professional studies discrediting SOCE and contending that it may be harmful to minors, and also cites decisions by the U.S. Courts of Appeals for the 3rd and 9th Circuits upholding New Jersey and California statutes making the performance of this “therapy” a violation of licensing standards that could subject the practitioners to penalties and possible loss of licensure.  A New Jersey state court has also condemned the practice under that state’s consumer fraud statute.

The Tampa City Council stated its intention to protect minors from being subjected to a potentially harmful practice, premised on its authority to exercise its police power for the public safety, health and welfare.  Enforcement was assigned to the same city employees who enforce other standards and codes.

Vazzo, a marriage and family therapist licensed in Florida, practices SOCE on minors, claiming that his treatment may help minors “reduce or eliminate same-sex sexual attractions, behaviors or identity,” and claiming that his therapy is rendered entirely in speech.  He also claimed that all clients initiate SOCE counseling by giving informed consent; a questionable assertion when they are minors who, under the law, are recognized as having only limited capacity to give legal consent to a variety of things.  As a practical matter, this normally involves parents who want to “cure” their children from being gay or trans and give consent to the SOCE practitioner on their children’s behalf.

Co-plaintiff David Pickup was the lead plaintiff in a case challenging California’s state law ban on SOCE, and claims in this case that he had intended to get Florida certification and treat patients in Tampa.  The other plaintiff is an organization that refers individuals, including minors, for SOCE treatment.

Jung invoked a doctrine called “implied preemption.”  When a state pervasively regulates a particular activity, it may be found to have “occupied the field” of regulating that activity, thus depriving local governments of doing the same, particularly if the local regulation may conflict in some way with the state regulation or interfere with the state’s ability effectively to regulate.  By contrast, the doctrine of “express preemption” applies to situations where the state constitution or a state law or regulation explicitly reserves sole authority over a particular subject to the state.  Thus, application of implied preemption requires the court to provide a justification for finding that the local government should not be allowed to regulate a particular activity, whereas “express preemption” relies on a clear statement by the legislature that its regulation of a field is exclusive.

Analyzing implied preemption in this case, Judge Jung wrote, “There is no grant of authority by the Florida legislature to municipalities to substantively regulate healthcare treatment and discipline.  The State, not localities, occupies this field. . .  Here, there is nothing local or unique to Tampa about SOCE that would suggest the statewide, uniform medical regulation regime should vary because of Tampa’s peculiarities, and should vary across the State, from town to town and from county to county. The matter legislated against – SOCE – is statewide, not Tampa-specific.  And, a uniform and statewide system of healthcare treatment and practitioner discipline already exists, for sound reasons.  Implied preemption is a disfavored remedy because cities have broad powers to address municipal concerns.  But substantive regulation of psychotherapy is a State, not a municipal concern.”

The judge also suggested that the Tampa Ordinance “encroaches upon” five state-mandated areas.

First, he found that Florida’s constitution protects a broad right of privacy against government intrusions, which “suggests that government should stay out of the therapy room.”

Second, he notes that Florida court cases recognize that “with very few exceptions, parents are responsible for selecting the manner of medical treatment received by their children,” and the ordinance interferes with the right of parents to select SOCE for their children.

Third, he points to the state’s statutory “Patient Bill of Rights,” which protects a patient’s right to select the course of treatment that he or she deems best.  He finds that “the Tampa Ordinance enters this area at odds with this portion of the Florida statutory scheme.”

Fourth, he notes a provision of the Florida law regulating health care which states, as “legislative intent,” that “citizens be able to make informed choices for any type of health care they deem to be an effective option for treating human disease, pain, injury, deformity, or other physical or mental condition,” and that “the health care practitioner may, in his or her discretion and without restriction, recommend any mode or treatment that is, in his or her judgment, in the best interest of the patience in accordance with the provisions of his or her license.”  He asserts that the Tampa Ordinance seeks to place a restriction where state law says there should be none.

Fifth, he asserts that the Tampa Ordinance interferes with the state’s statutory doctrine of informed consent.  Florida law allows health care workers to perform procedures with the informed consent of their patients, by protecting doctors against liability for performing procedures with a patient’s informed consent “so long as the substantial risks and hazards are fully disclosed and accepted.”  He finds that the Tampa Ordinance “simply ignores this well-known and broad Florida concept of informed consent,” subjecting health care practitioners to potential sanctions if they perform SOCE with the full informed consent of their patients.

In effect, he finds, if opponents of SOCE want to see the government restrict health care practitioners from engaging in this practice, they have to convince the medical boards that control the licensing practice that they should condemn SOCE as a violation of standards, or get the legislature to ban the practice.  “Tampa’s divergent standard for punishing errant mental health therapy is relevant in the preemption analysis because it creates a danger of conflict with an area pervasively regulated, for which the Legislature has stated a policy of statewide uniformity,” he concluded, noting particularly the detailed regulations and educational requirements for those seeking to hold the kind of licensing certification that Vazzo has earned.

Judge Jung, treading in controversial waters, goes on to challenge the competency of the Tampa City Council to set standards for medical practice.  “With due respect for the citizen legislators on the Tampa City Council, none are skilled in mental health issues,” he wrote, “nor are any of the City’s code enforcement personnel.  In contrast the Florida Department of Health, with its skilled adjudicatory bodies, is equipped to address this dynamic area of psychotherapy.”  Then he challenges the “certitude” of the City Council’s factual findings by cherry picking isolated statements from statements by the city’s expert witnesses in this case that might be used to impugn some of the conclusions about SOCE and its effects.  Asserting that “the field of gender expression is especially complex,” he suggests that it is best left to the state regulators.

Having decided the case entirely on preemption grounds, Judge Jung expressed no view regarding the constitutional arguments under the 1st and 14th Amendments.  Those arguments have been mainly rejected by the courts, although some uncertainty has been injecting into this field by comments made by Supreme Court Justice Clarence Thomas last year in an unrelated case, in which he castigated the concept of “professional speech” and cited with disdain the 3rd and 9th Circuit decisions mentioned above for having used that concept to analyze the 1st Amendment free speech issues.

Ironically, at the same time as Judge Jung was rendering his decision, rulings rejecting challenges to anti-conversion therapy laws passed by two other local Florida governments are on appeal before the 11th Circuit Court of Appeals.  The Florida legislature and state house, fully controlled by Republicans, are not going to address this issue, which is why Florida has been a hotbed of local legislative activity.  It will be interesting to see whether the preemption issue is raised by the 11th Circuit in considering the appeals in those cases, and whether the City of Tampa – which has an out lesbian mayor and a very political active LGBTQ community – will seek to appeal this ruling.

Vazzo and his co-plaintiffs are represented by lawyers from Liberty Counsel, an advocacy legal organization that seeks to deny liberty to LGBTQ people whenever possible.

Judge Jung, appointed by President Donald Trump, has been on the bench for barely a year.

 

 

New Jersey Judge Orders Shut-Down of “Alter Ego” of Former Conversion Therapy Group

Posted on: June 17th, 2019 by Art Leonard No Comments

Hudson County (NJ) Superior Court Judge Peter F. Bariso, Jr., issued a scathing opinion on June 10, ordering the immediate dissolution of an organization calling itself Jewish Institute for Global Awareness (JIFGA) , based on his finding that JIFGA was an “alter ego” of “Jews Offering New Alternatives to Homosexuality” (JONAH), a conversion therapy service that had been convicted of violating the New Jersey Consumer Fraud Act by a jury in Judge Bariso’s court on June 25, 2015.  Ferguson v. JONAH Jews Offering New Alternatives for Healing f/k/a Jews Offering New Alternatives to Homosexuality, 2019 N.J. Super. Unpub. LEXIS 1336 (N.J. Super. Ct., Hudson Co.).

The jury verdict followed a lengthy trial in which “clients” of JONAH testified about the absurd and extreme treatments to which they were exposed.  Many of the clients were young people who were pushed into “therapy” with JONAH by their religiously-observant parents in a desperate attempt to “turn them straight.”  The jury verdict concluded that JONAH, its operators and those associated with it were engaged in consumer fraud, misrepresenting their ability to change a person’s sexual orientation.

After the jury verdict, the parties negotiated a settlement agreement, approved by the judge, under which JONAH was supposed to go out of business and pay substantial damages as reparation to the plaintiffs who had been defrauded.  Arthur Goldberg and other individual defendants were targeted by a permanent injunction issued by Judge Bariso, being “permanently enjoined from engaging, whether directly or through referrals, in any therapy, counseling, treatment or activity that has the goal of changing, affecting or influencing sexual orientation, “same sex attraction” or “gender wholeness,” or any other equivalent term, whether referred to as “conversion therapy,” “reparative therapy,” “gender affirmation process” or any other equivalent term (“Conversion Therapy”), or advertising or promoting Conversion Therapy-related commerce in or directed at New Jersey or New Jersey residents.”

As part of the settlement agreement, which precluded an appeal by the defendants, the plaintiffs agreed to a lower level of damages than would otherwise be awarded by the court in exchange for defendants’ commitment to pay agreed-upon damages promptly and to put JONAH out of business and comply with the terms of the injunction, which was also binding on the named individual defendants.

But evidence presented by the plaintiffs in support of a March 2018 motion to enforce their rights under the settlement agreement persuaded the court that Goldberg was “blatantly” flouting the settlement agreement and violating the injunction by starting a new organization, JIFGA, to pick up where JONAH left off.  Baroso headed the first part of his findings: “There is clear and convincing evidence that defendants repeatedly violated the settlement agreement and the permanent injunction.”

The ink was barely dry on the signatures before Goldberg resumed making referrals to conversion therapy practitioners for people who called for assistance, and the damages agreed upon were not paid in full.  Goldberg claimed that he understood that the injunction only pertained to clients and therapists in New Jersey, and that he was receiving calls from out of state and referring the callers to therapists who practiced outside the state.  Bariso rejected this crabbed reading of the injunction, finding that there were no geographical “loopholes,” and referred to evidence showing that Goldberg had actually acknowledged in writing the possibility that his referrals were illegal.

Furthermore, the opinion documents Goldberg’s ambitions to take his conversion therapy promotion “global,” as indicated by the name of his new organization.  Wrote Bariso, “Goldberg’s use of his New Jersey non-profit organization has extended outside the United States.  In the spring of 2018, Goldberg reached out to Alan Alencar, a Brazilian leader of Joel 2:25 (conversion therapy organization modeled on JONAH).  In an email, Goldberg wrote, ‘after the demise of JONAH, I created the Jewish Institute for Global Awareness’ and offering to ‘be helpful down there to you.’  When Alencar responded that Joel 2:25 was planning to work on men with SSA [same-sex attraction] and start something similar to JIM [a conversion therapy weekend program], Goldberg jumped on the opportunity to discuss his experience working with ‘the SSA issue’ and how he could help.”  Goldberg put Alencar in touch with three conversion therapy providers in Brazil, and urged the creation of similar programs in Europe after returning from a conference on conversion therapy in Slovakia.

Bariso wrote that various Goldberg communications that surfaced through discovery on this motion “highlight the lies in Goldberg’s statement to this court that JIFGA has not worked ‘to promote commerce in conversion therapy.’”

As to the “alter ego” finding, Bariso wrote, “JONAH and JIFGA have the same co-founders and co-directors (Goldberg and [Elaine] Berk), occupy the same office, and are reachable at the same phone number and email addresses.  Arguably, they have the same name , as JIFGA is a recycled acronym that JONAH once used to market itself to a wider audience.  Through discovery, it was found that JIFGA plainly continues JONAH’s general operations and that JIFGA picked up where JONAH left off.”

Judge Bariso concluded that defendants had committed fraud on the court, “constituting criminal contempt of this court and its orders.”  The court found that Goldberg and JIFGA continued to make referrals to conversion therapy practitioners even as the motion was being litigated, and while they were representing to the court that they were complying with the injunction.

Bariso ruled that JIFGA would be made subject to the existing injunction against JONAH, and specified that “all communications channels in JIFGA’s control and use for JIFGA’s operations, including the email accounts and phone numbers from JONAH, must be terminated.  Goldberg and Berk are also enjoined from serving as directors or officers of or incorporating any tax-exempt entity incorporated in or having operations in New Jersey.”  Since the court found a violation of the settlement agreement, the requirement to pay damages at the full original rate was triggered, “a payment that could have been avoided by simply complying with the permanent injunction and the settlement agreement.”  The court also ordered the defendants to pay the plaintiff’s legal expenses of litigating this motion, which involved lots of discovery time.

However, Judge Bariso denied the plaintiffs’ request to hold the individual defendants in criminal contempt.  “This court seriously questions the direct falsities outlined in Goldberg’s certifications,” wrote Bariso, “along with his willingness to blatantly disobey the permanent injunction.  However, the remedies awarded to plaintiffs will serve the dual purpose of contempt hearings: to deter and to punish.  The inability for defendants to incorporate another tax-exempt entity in New Jersey will insure that defendants no longer use a similar platform to again violate the injunction and the New Jersey Consumer Fraud Act.   Additionally, the monetary damages awarded to plaintiffs will deter defendants from defying this court’s orders.”

Based on his past conduct, it seems likely that Goldberg will try to devise new ways to defy the court’s orders without getting caught, so Judge Bariso’s concluding paragraph seems unduly optimistic and surprisingly naïve.

The plaintiffs are represented by Bruce D. Greenberg of Lite DePalma Greenberg, LLC; David C. Dinielli, of Southern Poverty Law Center; and Lina Bensman of Cleary Gottlieb Steen & Hamilton LLP (New York).

Supreme Court Rejects Appeals from Gay Death Row Inmate and Conversion Therapy Practitioners

Posted on: April 15th, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on April 15 that it will not hear an appeal by gay death row inmate Charles Rhines, who contends that the jury that chose death over life in prison without parole in his murder trial in 1993 was tainted by homophobic statements by some of the jurors during deliberations.  Rhines v. Young, No. 18-8029 (filed Feb. 15, 2019).  At the same time, the Court announced that it will not take up the question whether the U.S. 3rd Circuit Court of Appeals, based in Philadelphia, should reconsider its 2014 decision to reject a constitutional challenge to a New Jersey law prohibiting licensed health care providers from providing “conversion therapy” to minors.  King v. Murphy, No. 18-1073 (filed Feb. 11, 2019). Both of these petitions for review were considered long shots at best.

The South Dakota Attorney General’s Office filed a short reply to Rhines’ petition, insisting that its own investigation of the jury – sparked by his contentions – had failed to substantiate his claim that the jurors sentenced him to death because he is gay.   There is no doubt that a juror joked that Rhines, as a gay man, would enjoy being locked up for life in an all-male environment where he would be able to mingle with other prisoners and enjoy sexual contacts, as even interviews conducted by the AG’s office confirmed this.  Interviews of jurors by Rhines’ lawyers, conducted long after the trial, produced a range of recollections, ranging from a recollection that the juror in question was challenged for his remarks and apologized, to a recollection that there was considerable discussion of Rhines’ sexuality, which had been a topic of testimony during the penalty phase of the trial, when a family member testified that Rhines had struggled with his sexuality.

The jury sent a note to the trial judge during penalty deliberations, posing a series of questions about the conditions under which Rhines would be serving if he were sentenced to life without parole. Some of the questions inspired concerns by Rhines’ defense attorney that the jurors were inappropriately taking his sexual orientation into account in making their decision. The trial judge refused to respond to the questions, instructing the jurors to rely on the instructions he had previously given them.

Rhines has spent a quarter-century on death row since his conviction and sentencing, seeking to get courts to set aside the death sentence based on a variety of theories, but his hopes were spurred by a Supreme Court decision last year, holding that a court could breach the usual confidentiality of jury deliberations when there was evidence of inappropriate race discrimination by a jury.  Had the Court taken Rhines’ case, it would have provided an opportunity to determine whether juror homophobia should receive the same constitutional evaluation as jury racism.

Unfortunately, the federal courts in South Dakota and the 8th Circuit Court of Appeals found that this issue was not raised early enough in the appellate process, and that Rhines’ attempt to bring a fuller account of the juror interviews before the courts came too late.  As a result, no court has ever considered Rhines’ evidence of jury homophobia on the merits.  The Supreme Court had turned down a prior attempt by Rhines last year, while a prior appeal was pending before the 8th Circuit.  After the 8th Circuit rejected his latest attempt, Rhines filed a new petition, but in vain.

Publicity to his plight resulted in the submission of three briefs in support of his petition, by a Law Professors group, the NAACP Legal Defense & Education Fund, and the American Civil Liberties Union.  Although the Court granted the motions to receive those briefs, it rejected Rhines’ petition without comment.

The conversion therapy petition posed a novel question to the Court.  Should it order a federal appeals court to reopen a decision that had received unfavorable mention in a recent Supreme Court opinion in an unrelated case, when the Supreme Court itself had years ago rejected a petition to review the appeals court decision?

Conversion therapy practitioners filed a constitutional challenge to the New Jersey law banning conversion therapy, claiming it violated their constitutional free speech rights.  The federal district court and the 3rd Circuit Court of Appeals both rejected their argument.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014), cert. denied, 135 S. Ct. 2048 (2015).  The speech involved was “professional speech,” said the court of appeals, and thus entitled to less protection than political or literary speech.  The 3rd Circuit’s ruling reached the same result as a ruling by the San Francisco-based 9th Circuit in rejecting an earlier challenge to California’s conversion therapy ban, but the 9th Circuit had opined that the regulation of therapy was not subject to 1st Amendment challenge because it was a regulation of health care practice, not specifically aimed at speech as such.  These distinctions did not affect the outcome of the two cases.  Either way, the courts found that the state’s legitimate concerns about protecting minors from a practiced that he been condemned by leading professional associations outweighed the practitioners’ free speech claims.

However, in a new case arising from California last year, Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (June 26, 2018), the Supreme Court found fault with a state law that required licensed clinics providing services to pregnant women to advise them of the availability of abortion services from the state.  The Supreme Court found this to be “compelled speech” subject to the most demanding level of judicial review, “strict scrutiny.”  The state’s argument defending this requirement relied on the conversion therapy cases, arguing that the speech in question was “professional speech” subject to a less demanding level of judicial review.  Writing for the Court, Justice Clarence Thomas rejected that argument, and he specifically mentioned the 3rd Circuit’s ruling with disfavor.

Even though the Supreme Court had refused a petition to review the 3rd Circuit’s ruling in 2015, the conversion therapy practitioners asked the 3rd Circuit to reconsider its ruling in light of the Supreme Court’s negative comments about the earlier decision.  The 3rd Circuit refused, and this petition for Supreme Court review was filed on February 11.  Counsel for the respondents – New Jersey’s Attorney General and Garden State Equality, which had intervened as a co-defendant in the original case – thought so little of the petitioners’ chances that they did not file briefs in opposition.  Their confidence was justified.  It was never likely that the Supreme Court would order a circuit court to reopen a case from years ago that had already been denied direct review by the Supreme Court.

The Supreme Court’s April 15 announcements, deriving from its April 12 conference, failed to include any mention of five other pending cases related to LGBT rights that are being closely watched.  The Court will hold another conference to discuss pending petitions on April 18 (a day earlier than normal because of the Good Friday holiday on April 19), so there may be word on April 22 whether the Court will address sexual orientation and gender identity discrimination issues next term, as well as another “gay wedding cake” case.

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.

Liberty Counsel Revives Assault on New Jersey Conversion Therapy Ban

Posted on: February 12th, 2019 by Art Leonard No Comments

Usually the U.S. Supreme Court’s refusal to review a lower court decision puts an end to the case, but Liberty Counsel, a right-wing religious group that represents psychologists in New Jersey who want to provide conversion therapy to “change” people from gay to straight, has seized upon an opening created by a U.S. Supreme Court decision from last June to revive their constitutional attack on New Jersey’s law prohibiting licensed professional counselors from providing such therapy to minors.  On February 11, the organization petitioned the Supreme Court to effectively reopen the case.  King v. Governor of New Jersey & Garden State Equality.

Governor Chris Christie signed the measure into law on August 19, 2013.  Liberty Counsel promptly filed suit on behalf of two psychologists and their patients, as well as the National Association for Research and Therapy of Homosexuality (NARTH), and the American Association of Christian Counselors, claiming that the measure violated the constitutional rights of plaintiffs.

U.S. District Judge Freda L. Wolfson granted the state’s motion for summary judgment, finding no constitutional violation (see 981 F. Supp. 2d 296), and the plaintiffs fared no better before the U.S. Court of Appeals for the 3rd Circuit, based in Newark, which upheld Judge Wolfson’s ruling on September 11, 2014 (see 767 F. 3d 216).

Wolfson found the measure to be a regulation of professional conduct, only incidentally affecting speech.  As such, she held that the challenge should be rejected as long as the legislature had a rational basis for enacting the law.  She found that the legislative record about the inefficacy and harm of such therapy was sufficient to meet the test.

On appeal, the three-judge panel disagreed with Judge Wolfson to the extent of finding that the ban as applied to “talk therapy” is a content-based regulation of speech, not just a regulation of conduct with an incidental effect on speech.  But the appeals court unanimously rejected the plaintiffs’ argument that the statute was consequently subject to the strict scrutiny test, under which it would be presumed to be unconstitutional unless New Jersey could prove that it was narrowly tailored to achieve a compelling state interest.

Instead, wrote Circuit Judge D. Brooks Smith for the panel, the speech involved in providing conversion therapy is “professional speech,” subject to state regulation.  As such, the court ruled, the state could prevail under the less demanding “heightened scrutiny” test by showing that the ban substantially advanced an important state interest, and that the legislative record was sufficient to uphold the law.

Liberty Counsel petitioned the Supreme Court for review.  That petition was denied on May 4, 2015 (see 135 S. Ct. 2048).  The Supreme Court also denied a petition to review a similar decision by the San Francisco-based 9th Circuit Court of Appeals in a case brought by, among others, Dr. David Pickup, in which that court rejected a similar challenge to California’s ban on conversion therapy.  (Dr. Pickup is also a plaintiff in the case challenging a conversion therapy ban in Tampa, Florida, about which we blogged earlier.)  Judge Wolfson relied on the 9th Circuit’s ruling in finding that conversion therapy statutes can be upheld as within the traditional state power to regulate the conduct of licensed professionals.

More than a dozen jurisdictions have since passed such bans, and attempts to challenge them in the courts have similarly been unsuccessful.  But the Supreme Court may have upset this trend by its ruling on June 26, 2018, in National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361.  NIFLA challenged a California law that required licensed pregnancy-related clinics to inform their clients about the availability of publicly-funded family-planning services, including contraception and abortions, and non-licensed facilities to provide notices stating that they were not licensed by the state.  The Supreme Court agreed with NIFLA that the statute violated the 1st Amendment protection for freedom of speech by compelling the plaintiffs to speak the government’s message.

In defending the statute, California relied on the conversion therapy decisions from the 3rd and 9th Circuits.  This provoked Justice Clarence Thomas, writing for the 5-4 majority, to reject the idea that “professional speech” in the context of regulated, licensed professions was entitled to any lesser constitutional protection than other speech.  After summarizing these and other cases, Thomas wrote: “But this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’  This court has ‘been reluctant to mark of new categories of speech for diminished constitutional protection.’”

Thomas went on to write that there were only two circumstances in which the Supreme Court had provided lesser protection to “professional speech”: “First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’  Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.”

Thus, at least by implication, a majority of the Supreme Court ruled last June that states passing conversion therapy bans will have to meet the demanding strict scrutiny test when they are challenged under the 1st Amendment.  Unless, of course, they can show that this is really a regulation of professional conduct with incidental effect on speech, an approach that worked in the 9th Circuit.  Although Thomas’s comments in NIFLA suggest this may be a difficult task, it is not necessarily impossible.

Reacting to the Supreme Court’s NIFLA ruling, Liberty Counsel jumped into action to try to revive its challenge to the New Jersey law.  First, it filed a Motion with the 3rd Circuit Court of Appeals, demanding that it recall the Mandate it had issued to the District Court in 2014 to dismiss the challenge to the statute.  Liberty Counsel argued that the Supreme Court’s ruling had “abrogated” the 3rd Circuit’s decision, thus the 3rd Circuit should acknowledge that its 2014 ruling was erroneous and correct the situation by “recalling” its Mandate.  Although Liberty Counsel does not explicitly state what would come next, presumably this would mean reversing the District Court’s grant of summary judgment to the state and resetting the case for argument under the strict scrutiny test.  The 3rd Circuit denied this Motion without a hearing or a written opinion.

Undaunted, Liberty Counsel then sought rehearing en banc (by the full 3rd Circuit bench), which was also denied, on November 13, 2018.

Liberty Counsel petitioned the Supreme Court on February 11, arguing that the 3rd Circuit “abused its discretion” by refusing to take action based on the Supreme Court’s “abrogation” of the 3rd Circuit’s prior opinion.  Liberty Counsel cites numerous cases in which it claims federal courts of appeals have “recalled” their mandates from lower courts after a Supreme Court decision in a similar case has rejected the reasoning underlying their earlier decision.  Liberty Counsel argues that the current situation is particularly stark because the Supreme Court has not only rejected the reasoning of the earlier case, but has cited and quoted from the earlier decision while doing so.

On the other hand, Justice Thomas did not use the term “abrogate” and his opinion in NIFLA recognizes that there may be circumstances in which state regulation of professional speech may be constitutional.  The 9th Circuit’s reasoning in the Pickup case, focused on the regulation of professional conduct rather than speech, may be such an instance, and the 3rd Circuit’s case could be reconsidered under such a standard.  In this case, Liberty Counsel may be following the lead of West Publishing Company, which operates the Westlaw legal research system.  If one finds the 3rd Circuit’s decision in Westlaw, one sees, in bold red above the citation of the case, the phrase “Abrogated by National Institute of Family and Life Advocates v. Becerra, U.S., June 26, 2018” and the characterization “Severe Negative Treatment.”

Liberty Counsel’s petition, a bit disingenuously, assumes this means that the New Jersey law is unconstitutional, but all it really means is that the 3rd Circuit applied too lenient a standard in ruling on the case and should have applied the strict scrutiny test to be in line with the Supreme Court ruling in NIFLA.

In its argument to the Supreme Court, Liberty Counsel contends that failing to grant the petition and to require the 3rd Circuit to “recall” its mandate will have harmful rippling effects throughout the nation.  It points to the steady progression of new state and local laws that have been enacted in reliance on the “incorrect” decisions by the 3rd and 9th Circuits, which it asserts will “chill” the ability of conversion therapy practitioners to “offer” this “cure” to their patients.

In January, U.S. Magistrate Judge Amanda Arnold Sansone relied on the Supreme Court’s NIFLA decision in her report recommending that the U.S. District Court issue a preliminary injunction against the application of the Tampa, Florida, conversion therapy ban to practitioners who provide “talk therapy.”  The complaint filed in federal court in Brooklyn last month by Alliance Defending Freedom, challenging New York City’s ordinance, is devised to raise the same arguments.  And it is predictable that either ADF or Liberty Counsel will file suit in an attempt to block the new state law enacted last month in New York raising similar arguments.

Although Liberty Counsel couches its petition as an attempt to have the court settle a dispute among lower courts about the proper way to respond when one of their decisions is substantially undermined in its reasoning by a subsequent Supreme Court ruling in a similar case, it is at heart an attempt to relitigate the question whether conversion therapy practitioners have a 1st Amendment right to ply their trade free of government restrictions.  It is a blatant attempt to get the issue of conversion therapy back before the Supreme Court now that Trump’s appointments have solidified the conservative majority.  And, at that, it is a test of science against homophobia and transphobia.

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.

Alliance Defending Freedom Files Constitution Challenge to NYC Law Banning Conversion Therapy

Posted on: January 29th, 2019 by Art Leonard 3 Comments

Alliance Defending Freedom (ADF), the anti-gay Christian legal organization based in Scottsdale, Arizona, filed a lawsuit in U.S. District Court in Brooklyn on January 23, challenging the constitutionality of New York City’s Local Law 22 of 2018, which prohibits the practice of conversion therapy in the City. The law was a project of the City Council, which enacted it on November 30, 2017. It was returned to the Council unsigned by Mayor Bill De Blasio within thirty days, and became law without his approval on January 5, 2018.  The case is Schwartz v. The City of New York, Case 1:19-cv-00463 (N.Y. Dist. Ct., E.D. N.Y., filed Jan. 23, 2019).

The measure is probably the most broadly-sweeping legislative measure against conversion therapy to be enacted in the United States. State laws on the subject, including the one enacted in January in New York State, limit their bans to provision of such therapy to minors by licensed health care professionals, and designate the offense as professional misconduct that can subject the practitioner to discipline for unprofessional conduct. The City law, by contrast, applies to “any person” who provides such therapy for a fee to any individual, not just minors. The City law imposes civil penalties beginning with $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each subsequent violation, which can be imposed by the city’s Office of Administrative Trials and Hearings. Its enforcement has been assigned to the Department of Consumer Affairs.

For purposes of this law, “conversion therapy” is defined as “any services, offered or provided to consumers for a fee, that seek to change a person’s sexual orientation or seek to change a person’s gender identity to conform to the sex of such individual that was recorded at birth.” The measure does not contain any express exemption for religious counselors or clergy, but presumably if they do not charge a fee for their services they are not subject to this law.

Legal challenges to the various state laws, of which there are now more than a dozen, have so far been unsuccessful, but it is not clear that the sweeping New York City law will benefit from some of the legal doctrines that states have successfully marshalled to defend their laws. Most importantly, the state laws fall comfortably within the traditional state role of regulating the provision of health care by licensed practitioners, and by being restricted to minors, they rest within the state’s traditional function of parens patriae, caring for the welfare of minors, which can mean at times defending minors from the well-meaning but harmful actions of their parents, such as refusing blood transfusions or medication for serious illnesses.

ADF is asking the court to issue a declaration that the law is unconstitutional and to issue an injunction against its enforcement by the City. The law does not authorize individuals to file suit against conversion therapy practitioners, but instead leaves enforcement to an administrative process, triggered by complaints to the Consumer Affairs Department.

ADF has found a seemingly sympathetic plaintiff, Dr. David Schwartz, a “counselor and psychotherapist practicing in New York City who has a general practice but who has regularly had, and currently has, patients who desire counseling that the Counseling Censorship Law prohibits.” The Complaint also describes him as a “licensed clinical social worker” who “resides and practices in Brooklyn.” When this writer first read the Complaint, he was alarmed to think that the New York City Council would title a measure “Counseling Censorship Law,” but upon retrieving a copy of the Local Law 22, saw that the title was an invention of ADF for the purpose of framing its 1st Amendment challenge, as the word “censorship” appears nowhere in the legislation, which does not have an official title.

According to the Complaint, Dr. Schwartz is an Orthodox Jew whose patients come mainly from the Chabad Lubavitch ultra-orthodox community. He avows that he provides counseling and psychotherapy attuned to the needs and desires of that community, and cites the late Lubavitcher Rabbi, Menachem Mendel Schneerson, as an authority supporting the practice of conversion therapy. The description of his practice does not mention child patients, stating: “Dr. Schwartz works only with willing patients – patients who voluntarily walk into his office and talk with him because they want and value his counsel. And Dr. Schwartz does nothing to or with his patients other than listen to them and talk with them.”

Schwartz fears that the City law will be used against him, and the Complaint focuses on the $10,000 civil penalty like a sword of Damocles hanging over his head. ADF was smart to avoid mentioning minors, since it filed this lawsuit during the time between the state legislature’s approval of its conversion therapy ban and its signing into law on January 25 by Governor Cuomo. If Schwartz practices on minors as a licensed psychologist, he will be violating the state law, possibly setting up another lawsuit by ADF.

ADF has positioned this case primarily as a challenge to government censorship of free speech and free exercise of religion. The Complaint insists that the only therapy Schwartz provides is “talk therapy,” eschewing the bizarre and cruel practices that were describe in a New Jersey court a few years go in a case brought by emotionally damaged patients of JONAH, a Jewish conversion therapy organization that was found in that case to be in violation of the New Jersey consumer protection law. ADF has crafted the Schwartz Complaint to distinguish this case from the JONAH case, which involved Jewish parents effectively forcing their teenage children to subject themselves to bizarre “therapeutic” procedures to “change” their sexual orientation.

By contrast, without ever indicating the age range of his patients, the Schwartz Complaint says that he “does not view it as the psychotherapist’s role to rebuke patients or to tell them the direction they ‘ought’ to go.” The Complaint describes a practice in which patients come to Schwartz “with a very wide range of issues. However,” it continues, “his practice regularly includes a few individuals who experience undesired same-sex attractions. In some cases, patients come to Dr. Schwartz seeking his assistance in pursuing their personal goal of reducing their same-sex attractions and developing their sense of sexual attraction to the opposite sex.” Schwartz insists that he “does not attempt to increase opposite-sex attraction or change same-sex attraction in patients who do not desire his assistance in that direction. In working with patients who desire to decrease same-sex attraction or increase their attraction to the opposite sex, Dr. Schwartz never promises that these goals will be achieved.”

The Complaint also insists that “Dr. Schwartz engages in no actions other than talking with the patient, and offering ways of thinking about themselves and others that may help them make progress towards the change they desire. Dr. Schwartz does not use electro-shock therapy, he does not recommend that patients view heterosexual pornography or that they subject themselves to painful or other adverse stimulations in response to undesired sexual thoughts. Dr. Schwartz simply listens to what his patients share with him, and talks to them.” The Complaint concedes that some patients do not achieve the goal, and “some have chosen to stop pursuing it,” but claims that Schwartz has had success with an unspecified number of patients who have “over time” experienced “changes” that “have enabled Dr. Schwartz’s patients to enter into heterosexual marriage that they desired.”

The Complaint recites the traditional arguments put forward by conversion therapy proponents, about how patients who are “strongly motivated to change” can achieve their goal. Interestingly, the Complaint refers repeatedly to “reducing” same-sex attraction without ever asserting that Schwartz claims to have “eliminated” such attraction in his patients. And, of course, proponents shy away from any sort of formal documentation, insisting that patient confidentiality precludes providing concrete examples. It also cites no published scientific authorities supporting the efficacy of talk therapy in changing sexual orientation.

Several paragraphs are devoted to statements attributed to Rabbi Schneerson relating to this subject, without any citation of published sources.

ADF’s legal theory here is that the city’s “Counseling Censorship Law” is a content-based regulation of speech that is “aiming to suppress the dissemination of ideas and information about human sexuality and the human capacity for change in this area” and “does not adopt the least restrictive means to pursue a compelling government interest,” arguing that the government “has no cognizable interest at all – let alone a compelling interest – in preventing citizens from hearing ideas that those citizens with to hear in a counseling relationship.” The Complaint argues that the law both prohibits and compels speech, in the sense that it “effectively requires Dr. Schwartz to tell the patient that no change is possible, which Dr. Schwartz does not believe to be true.”

The Complaint also claims that the law is “unduly vague” in violation of the Due Process Clause, picking apart various phrases and terms and suggesting that their ambiguity make it difficult for a practitioner to know what he can or cannot say to a patient. The Complaint also argues that the law violates the 1st Amendment rights of patients who want to receive talk therapy to change their sexual orientation. And, of course, it focuses at the end on the Free Exercise Clause, arguing that Schwartz “has a right to use his professional skills to assist patients to live in accordance with their shared religious faith, including the religious mandates of the Torah and the teachings of the Lubavitcher Rebbe and other respected Orthodox Jewish authorities based on the Torah. The Counseling Censorship Law purports to be justified, in its legislative history, by a supposed finding that ‘changing’ sexual orientation is impossible. The Lubavitcher Rebbe, whose teachings inform the core of Dr. Schwartz’s religious convictions, taught exactly the opposite.”

The Complaint argues that because the Council enacted the law knowing that “it was hostile to and targeting practices particularly associated with persons and communities adhering to traditional religious beliefs,” it is “not a neutral law of general applicability,” even though it nowhere mentions religion. This is an attempt to establish that Schwartz’s 1st Amendment claim is not governed by the U.S. Supreme Court’s holding, in Employment Division v. Smith, that individuals do not have a right based on their religious beliefs to be exempted from “neutral” laws of “general applicability.”

Interestingly, all the attorneys listed on the complaint are staff attorneys of ADF based in Scottsdale, Arizona. No member of the New York bar is listed, although a footnote indicates that one of the attorneys, Jeana J. Hallock, will be applying for pro hac vice admission (admission for purposes of this case only) to the bar in the U.S. District Court for the Eastern District of New York. The lead attorney signing the Complaint is Roger G. Brooks. The defendants are The City of New York and Lorelei Salas, the Commissioner of Consumer Affairs, whose department has issued regulations on enforcement of the law, and who is sued only in her official capacity. The New York City Law Department will defend the City and Commissioner Salas in the case, which is likely to attract amicus briefs on both sides of the case.