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New Jersey Trial Judge Finds Conversion Therapy Outfit Violated Consumer Fraud Law

Posted on: February 17th, 2015 by Art Leonard No Comments

A New Jersey trial judge issued two rulings in February in a pending consumer fraud case against JONAH (Jews Offering New Alternatives for Healing), an organization that provides so-called “conversion therapy” seeking to “assist individuals to purge unwanted same-sex attractions,” finding that certain representations made by JONAH to potential clients violate the state’s law against consumer fraud.  The judge, Peter  F. Bariso, Jr., of the Superior Court in Hudson County, also ruled that most of the expert witnesses proposed by JONAH should be barred from testifying, because their opinions were premised on discredited views about homosexuality.  Ferguson v. JONAH, 2015 N.J. Super. Unpub. LEXIS 236 (Feb. 5) (ruling on expert witnesses); Ferguson v. JONAH, Docket No. L-5473-12 (Feb. 10) (ruling on summary judgment motions).

Six individuals represented by the Southern Poverty Law Center and attorneys from Clearly Gottlieb Steen & Hamilton (NY) and Lite DePalma Greenberg (NJ) filed the lawsuit in November 2014, claiming that they had been defrauded by JONAH and demanding reimbursement of the fees they had paid and compensation for the costs of therapy they had to undergo to undo the damage caused by JONAH’s ministrations.  Both sides had filed motions seeking to disqualify expert witnesses listed to testify by their opponents, and both parties filed motions seeking to have the court decide certain key issues in the case as a matter of law, without the need to submit disputed facts to the jury.  Judge Bariso issued his opinion on the expert witnesses on February 5, and his opinion on the summary judgment motions on February 10.

Common to both rulings was the question whether it is fraudulent for somebody to market a conversion therapy program by representing homosexuality as a mental illness, disease or disorder that can be “changed” by treatment, whether it was deceptive to make statements that would lead a prospective client to believe that they would be able to change their sexual orientation as opposed to merely being conditioned not to engage in same-sex activity, and whether it was fraudulent to include specific “success” statistics when there is no factual basis for calculating such statistics.  Judge Bariso made clear in his decisions that the plaintiffs were not mounting a general attack on the practice of sexual orientation change efforts (SOCE) by mental health professionals, a practice that was recently made unlawful by a New Jersey statute that has withstood constitutional attack in federal court.  Rather, this consumer fraud suit is more narrowly focused on the question whether JONAH has defrauded and harmed these plaintiffs by the representations it made about its services.

“In the area of scientific evidence,” wrote Judge Bariso, “expert testimony will be deemed acceptable only if the technique or mode of analysis used has ‘a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth,'” quoting from a 2005 New Jersey Supreme Court decision, State v. Torres.  “The reliability requirement applies to all scientific fields, including the social and psychological sciences.  In New Jersey, reliability of a scientific technique can be proven in most cases by showing its ‘general acceptance in the particular field in which it belongs,'” quoting a leading case on the criteria for expert testimony, Frye v. United States.  In other words, if a proposed expert is going to express views on scientific topics that lie outside the “general acceptance” of the relevant profession, are not supported by “authoritative scientific and legal writing indicating that the scientific community accepts the premises underlying the proffered testimony;” or do not  have the support of relevant judicial opinions finding general acceptance, then such testimony should be excluded.

Using this standard, Judge Bariso found that the proposed scientific experts, all affiliated in some way with organizations supporting conversion therapy, were not qualified to testify.  “The overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal,” he found.  “The universal acceptance of that scientific conclusion — save for outliers such as JONAH — requires that any expert opinions to the contrary must be barred.”  The judge focused on the 1973 vote by members of the American Psychiatric Association to remove “homosexuality” from its official listing of mental disorders, the Diagnostic and Statistical Manual (DSM), which was soon followed by other professional and public health organizations both domestically and internationally.

“JONAH’s suggestion that the court should ignore the DSM misapprehends basic New Jersey law,” he wrote.  “Under the general acceptance standard, the DSM is unquestionably authoritative in the mental health field; courts repeatedly have concluded this to be the case.”  JONAH contended, as some critics have argued, that the APA’s vote was “a politically motivated decision to de-stigmatize homosexuality, and was not based on science.”  But, countered the judge, it is not up to a trial court to “substitute its judgment for that of the relevant scientific community.”  The court does not sit in judgment of whether the APA’s decision was correct, “and no proper basis has been advanced on which a court may reassess the scientific accuracy of the psychiatric characterization of homosexuality.”  After reciting the long list of prestigious organizations that followed the APA’s lead, Bariso commented, “JONAH can hardly argue that all of these organizations — including a federal appellate court [rejecting the challenge to New Jersey’s ban on SOCE therapy] — were the victims of manipulation by ‘gay lobbying’ groups.”

JONAH had pointed to the National Association for Research and Therapy of Homosexuality (NARTH), a small organization co-founded by one of the proposed expert witnesses, Dr. Joseph Nicolosi, a fervent proponent of conversion therapy, as an example of contrary scientific opinion by a professional organization, but the judge pointed out that there need not be unanimity of professional opinion, merely general acceptance.  “The existence of a minority of conversion therapy proponents does not and cannot negate the fact that the DSM and its exclusion of homosexuality are generally accepted in the mental health field,” wrote Bariso.  “Furthermore, a group of a few closely associated experts cannot incestuously validate one another as a means of establishing the reliability of their shared theories.”

Furthermore, he pointed out, “JONAH has not identified any case that provides a standard for the admission of obsolete and discredited scientific theories.  By definition, such theories are unreliable and can offer no assistance to the jury, but rather present only confusion and prejudice.”

Judge Bariso also ruled that two proposed experts should be denied because their testimony was not really relevant to the consumer fraud claims before the court.  Whether JONAH’s statements were consistent with Orthodox Judaism, for example, was irrelevant if the statements were misleading about homosexuality and the efficacy of the therapy offered by JONAH.  Similarly irrelevant was testimony about the health risks of engaging in homosexual conduct.

The findings about homosexuality in the court’s February 5 ruling were incorporated by reference into the February 10 ruling on the summary judgment motions.  Judge Bariso denied all of JONAH’s motions, and granted several of the plaintiffs’ motions.  Specifically, he ruled that “it is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services, to describe homosexuality, not as being a normal variation of human sexuality, but as being a mental illness, disease, disorder, or equivalent thereof” and that “it is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services, to include specific ‘success’ statistics when there is no factual basis for calculating such statistics, e.g., when client outcomes are not tracked and no records of client outcomes are maintained.”  However, the judge concluded that it should be up to a jury to decide whether a person would be misled by JONAH’s description of the “change” its therapy sought to achieve with clients.  The court also struck out several affirmative defenses advanced by JONAH, including claims that its representations were constitutionally protected speech or free exercise of religion.

While these pretrial rulings do not end the case, they sharply increase the likelihood that JONAH will be found at trial to be liable to the plaintiffs for damages.  It will be up to the plaintiffs to prove that JONAH made the unlawful representations, that its statements about the “change” it sought to achieve through therapy were similarly misleading, and that as a result the plaintiffs were defrauded and are entitled to a refund of fees (in some cases as much as $10,000 for a year of treatment) as well as compensation for the treatment they subsequently sought because of the psychological injury they claim to have suffered as a result of the therapy.  The burden at trial to prove these injuries is placed on the plaintiffs.

Although New Jersey Superior Court decisions are not routinely published, the legal database LEXIS has published Judge Bariso’s February 5 ruling, which includes a detailed report of the plaintiffs’ allegations about some of the treatment methods used by JONAH’s counselors.  To this reader, these techniques appear on their face to be simplistic, misguided, and potentially damaging to the mental health of the clients, as the plaintiffs claim.  They also sound, in some cases, strangely homoerotic as well, and thus potentially quite troubling to clients who were desperate to purge themselves of homosexual attractions.

3rd Circuit Rejects Constitutional Challenge to New Jersey’s Ban on “Conversion Therapy” for Gay Minors

Posted on: September 12th, 2014 by Art Leonard No Comments

A unanimous three-judge panel of the Philadelphia-based U.S. 3rd Circuit Court of Appeals decisively rejected a constitutional challenge to a New Jersey law that prohibits licensed therapists from performing “sexual orientation change efforts” (SOCE) — sometimes called “conversion therapy” — on persons under 18 years of age.  The court rejected arguments that the law violates the freedom of speech and free exercise of religion of the therapist, in a September 11 opinion by Circuit Judge D. Brooks Smith, who was appointed by George W. Bush. The other judges on the panel were Thomas Vanaskie, appointed by Barack Obama, and Dolores Sloviter, a senior judge appointed by Jimmy Carter.  The case is King v. Governor of the State of New Jersey, 2014 U.S. App. LEXIS 17545.

The measure was signed into law last year by Governor Chris Christie.  It provides that a person who is licensed to provide professional counseling “shall not engage in sexual orientation change efforts with a person under 18 years of age,” such efforts including any attempt to “change a person’s sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.”

The law is not intended to forbid counseling to assist people in determining whether they should undergo gender reassignment, or counseling intended to assist a person in adjusting to their sexual orientation or gender identity or seeking to avoid unlawful conduct or unsafe sexual practices.  The law does not impose any specific penalties, but by expressing public policy against SOCE may provide the basis for professional sanctions, loss of professional license, or perhaps liability towards people harmed by SOCE.  The law does not prohibit licensed counselors from expressing their views about such therapy; they are just prohibited from providing the actual therapy.

This is one of several lawsuits on the issue of SOCE pending in New Jersey.  This case was brought by therapists and organizations supporting their right to perform such therapy, another case was brought by some patients and their parents, and a third, pending in the state court, was brought by some people whose parents signed them up for SOCE and who are seeking damages from the therapists under New Jersey’s consumer protection laws, claiming that the practitioners fraudulently claimed to be able to change their sexual orientation and subjected them to therapy that caused mental and emotional harm.

The New Jersey law was modeled on a California statute that had also been unsuccessfully challenged by some therapists.   Last year, the U.S. Court of Appeals for the 9th Circuit ruled, in a case called Pickup v. Brown, that the California law did not violate the 1st Amendment rights of the therapists.  U.S. District Judge Freda Wolfson, following the reasoning of the 9th Circuit decision, ruled similarly in this New Jersey case.  The appeals court agreed with Judge Wolfson’s conclusion, but adopted a different analysis of the 1st Amendment free speech issues.

Like the 9th Circuit, Judge Wolfson concluded that the statute regulates conduct, not speech, and did not have enough of an “incidental effect” on speech to require any more than a rational basis in order to be upheld.  Judge Wolfson’s ruling was premised on the longstanding authority of the government to regulate the provision of health-care through the licensing of health care professionals.  She also rejected the therapists’ claim that the law violated their right to free exercise of religion, finding that it was a “neutral law” that never referred to religion or religious beliefs and thus the therapists could not claim a religious exemption, even if there was some incidental burden.  As for rationality, Judge Wolfson found that New Jersey had a legitimate interest in protecting minors from harm, and that the legislature considered sufficient evidence about harm.

Judge Smith rejected Wolfson’s conclusion that the law only regulates conduct.  His analysis was premised on an agreement by all parties that “modern-day SOCE therapy, and that practiced by Plaintiffs in this case, is ‘talk therapy’ that is administered wholly through verbal communication.”  In a footnote, he explained that “prior forms of SOCE therapy” had included non-verbal “aversion treatments,” including induced nausea and vomiting or paralysis, electric shocks, or “having the individual snap an elastic band around the wrist when the individual became aroused to same-sex erotic images or thoughts,” but he reported that the plaintiffs considered such techniques “unethical” and had asserted that no ethical licensed professional had used them “in decades.”  This was an interesting contention, inasmuch as a recent opinion in the state consumer protection case details plaintiffs’ allegations about some non-verbal therapies that are still used by at least some SOCE practitioners in New Jersey, including the elastic band technique.

Be that as it may, the restriction of the plaintiffs’ brand of SOCE to ‘talk therapy’ led the court to conclude that the state was not just regulating conduct.  To the court, this appears to be content-based regulation of speech, thus requiring a higher level of judicial review than the deferential rational basis approach.  Smith’s opinion devoted several pages of analysis to determining exactly how such speech regulation should be evaluated, before concluding that it should received the same level of protection that is afforded to commercial speech.

Political speech enjoys the highest level of protection, and cannot be restricted unless the government show a carefully-tailored rule designed to achieve a compelling interest, usually involving national security or the prevention of imminent criminal acts.  Commercial speech, by contrast, can be restricted to advance important governmental interests, such as consumer protection or public health.  For example, the government can forbid false advertising or advertising of dangerous products, such as cigarettes or alcoholic beverages.  Commercial speech is subject to heightened scrutiny, the standard that the court decided should be applied to the “professional speech” at issue in this case.  Judge Smith ultimately concluded that the legislature’s findings, based on testimony and resolutions by reputable professional organizations, provided sufficient justification for the law to survive the heightened scrutiny standard.

“We conclude that New Jersey has satisfied this burden,” wrote Smith.  “The legislative record demonstrates that over the last few decades a number of well-known, reputable professional and scientific organizations have publicly condemned the practice of SOCE, expressing serious concerns about its potential to inflict harm.  Among others, the American Psychological Association, the American Psychiatric Association, and the Pan American Health Organization have warned of the ‘great’ or ‘serious’ health risks accompanying SOCE counseling, including depression, anxiety, self-destructive behavior, and suicidality.  Many such organizations have also concluded that there is no credible evidence that SOCE counseling is effective.”

Smith observed that legislatures are “entitled to rely on the empirical judgments of independent professional organizations that possess specialized knowledge and experience concerning the professional practice under review, particularly when this community has spoken with such urgency and solidarity on the subject.”  He rejected the plaintiffs’ contention that there was not “conclusive empirical evidence regarding the effect of SOCE counseling on minors,” finding that the legislature “is not constitutionally required to wait for conclusive scientific evidence before acting to protect its citizens from serious threats of harm.”

The court rejected the plaintiffs’ argument that the state could adequately deal with any problem by imposing an “informed consent” procedure.  Finding that minors are an “especially vulnerable population” who might feel pressured to consent to SOCE by their families “despite fear of being harmed,” the court concluded that the state could properly have found that such a consent requirement was not adequate to deal with the problem.  The court also rejected the plaintiffs’ rather odd argument that the statute was unduly vague, pointing out that the individual and organizational plaintiffs had use the terms in the statute many times to describe their activities and had no doubt what the statute was prohibiting.

As to the religious freedom argument, the court agreed with Judge Wolfson that this law is neutral on its face regarding religion, and the court rejected the plaintiff’s argument that despite this surface neutrality it was somehow targeted at licensed professionals who held particular religious views.  There was no “covert targeting” of religion in this law, even if many of the SOCE practitioners are religiously motivated in providing the therapy.

The court also upheld Judge Wolfson’s conclusion that the therapists were not entitled to represented the interests of their patients in this case.  Patients could represent their own interests, as they have done in filing another case challenging the law which has thus far been unsuccessful.  The court also approved Judge Wolfson’s decision to allow Garden State Equality, a New Jersey state-wide gay rights organization, to intervene as a defendant in the case.

The appeal by the plaintiffs was argued by Matt Staver, Dean of Liberty University Law School and a prominent anti-gay activist on behalf of Liberty Counsel.  Susan M. Scott of the New Jersey Attorney General’s office defended the statute, together with David S. Flugmann representing Garden State Equality in collaboration with the National Center for Lesbian Rights.  The court received numerous amicus briefs on both sides of the case, including from Alliance Defending Freedom, the anti-gay religious litigation organization, supporting plaintiffs, and Lambda Legal, supporting the constitutionality of the statute.

Given the nature of this litigation, it is likely that the plaintiffs will seek en banc review in the 3rd Circuit and/or petition the Supreme Court to review the case.  The lengthy discussion of the freedom of speech issue by Judge Smith made clear that there is not a consensus among the circuit courts of appeals about how to deal with state regulation of professional speech, and the Supreme Court has not spoken with perfect clarity on the issue.  Now that anti-SOCE statutes have survived judicial review in two circuits and similar bills are pending in many state legislatures (including New York’s), the Supreme Court might be persuaded that a national precedent would be appropriate.

 

 

 

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

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

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

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

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

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

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

In rejecting the plaintiffs’ argument that the state was barred by the First Amendment from banning a particular form of therapy that is delivered through speech, Wolfson identified as a “fundamental problem” with the argument that “taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible.  Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.”

Thus, the law would be upheld if the legislature could rationally believe that it would serve a legitimate interest of the state.  As to this, the professional literature was sufficient grounds for legislators to believe that the law would advance a legitimate interest in protecting minors.  Wolfson wrote, “here, the State has determined that the potential harm to minors from SOCE, however slight, is sufficient to outweigh any potential benefits.  In that connection, I note that Plaintiffs themselves acknowledge that there is a dearth of non-anecdotal evidence to support the success rate, and benefits of SOCE. . .  Because there is no constitutional right to practice a particular type of medical or mental health treatment, A3371’s prohibition of a particular form of counseling in which counselors apply therapeutic principles and procedures similarly does not implicate fundamental constitutional rights.”

Judge Wolfson found that “A3371’s prohibition on the practice of SOCE counseling is rationally related to the harm the statute seeks to prevent.  A3371 targets only licensed professionals who engage in professional counseling of minors, and restricts them from performing the specific type of conduct — SOCE counseling — the legislature deemed harmful.  This nexus is more than adequate to satisfy rational basis review.”  She also rejected the Plaintiffs’ argument that the statute was vague or overbroad, rejecting the argument that its enactment left the plaintiffs in a quandary as to what was prohibited and what was permitted regarding SOCE.   She particularly noted that the legislature was careful to distinguish between counseling intended to “change” sexual orientation and counseling “including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices” which “does not seek to change sexual orientation.”  Included in permissible counseling, of course, is counseling to assist individuals making a gender transition.  “Even if, ‘at the margins,’ there is some conjectural uncertainty as to what the statute proscribes,” she wrote, “such uncertainty is insufficient to void the statute for vagueness because ‘it is clear what the statute proscribes in the vast majority of its intended applications,’ namely counseling intended to alter a minor patient’s sexual orientation.”  She also noted that many courts had rejected the contention that the term “sexual orientation” is vague when used in a statute.

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

Wolfson also rejected an alternative argument by the plaintiffs that the statute infringes on the free exercise of religion of counselors or their clients.  She noted that clergy are not restricted from pursuing SOCE, so long as they are not acting as licensed professional counselors.  “Here, A3371 makes no reference to any religious practice, conduct, or motivation,” she wrote.  “Therefore, on its face, the statute is neutral” with respect to religion.  “Plaintiffs argue that A3371 will disproportionately affect those motivated by religious belief because A3371 effectively engages in impermissible ‘religious gerrymandering’ by providing individualized exemptions from the general prohibitions” by allowing counseling for gender transition or to help minors to adjust to their perceived sexual orientation.  Rejecting this argument, Wolfson pointed out that the history of this law shows that the legislature did not act out of any motivation concerning religion.  “From its plain language,” she wrote, “the law does not seek to target or burden religious practices or beliefs.  Rather, A3371 bars all licensed mental health providers from engaging in SOCE with minors, regardless of whether that provider or the minor seeking SOCE is motivated by religion or motivated by any other purpose,” so it is plainly “neutral in nature.”  Because of that facial neutrality, under Supreme Court precedents, “even if A3371 disproportionately affects those motivated by religious belief, this fact does not raise any Free Exercise concerns.”

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

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