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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.

District Court Rejects Constitutional Challenge to Washington State’s Conversion Therapy Ban

Posted on: September 2nd, 2021 by Art Leonard No Comments

Senior U.S. District Judge Robert J. Bryan has dismissed constitutional challenges to Washington State’s Conversion Therapy ban (codified in Wash. Rev. Code Sections 18.130.20 and 18.130.180) brought by Brian Tingley, a licensed Marriage and Family Therapist, who asserted a violation of his free speech and free exercise of religion rights, as well as alleging a violation of due process.  Tingley v. Ferguson, 2021 WL 3861657, 2021 U.S. Dist. LEXIS 164063 (W.D. Wash., Aug. 30, 2021).  Equal Rights Washington had intervened to help named defendants, Washington Attorney General Robert W. Ferguson and others, in defending the law.  After Alliance Defending Freedom (ADF) filed suit on Tingley’s behalf, it sought a preliminary injunction against enforcement of the law, while defendants filed a motion to dismiss the case.  Judge Bryan granted defendants’ dismissal motion, and denied intervenors’ dismissal motion and Tingley’s motion for preliminary injunction as moot.  Judge Bryan’s ruling sets up the case for ADF to appeal, based on its argument that 9th Circuit decisions rejecting similar challenges to California’s Conversion Therapy ban are no longer “good law” in light of the Supreme Court’s ruling in NIFLA v. Becerra, 138 S. Ct. 2361 (2018).

Tingley alleged that he has violated the Washington law by providing therapy sought by minors who were unhappy about their same-sex attractions or discomfort with their biological gender.  Although his religious beliefs underly his opinions about sexual orientation and gender identity, he does not identify as a religious counselor who would be expressly exempted under the law.  The court determined that Tingley had individual standing to bring his challenge, but not representative standing for his clients.

To cut to the quick, Judge Bryan held that the 9th Circuit’s opinions in Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) and subsequent cases concerning the California law, are binding precedent in this case.  The essence of ADF’s free speech argument is that the Supreme Court’s rejection of a distinct category of “professional speech” subject to a lesser standard of 1st Amendment expression than other forms of speech in NIFLA v. Becerra had essentially overruled Pickup, and pressed home this point by citation to Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, 961 F.3d 1062 (9th Cir. 2020), in which that court noted in a citation that NIFLA had “abrogated” Pickup.  Not mentioned in Judge Bryan’s opinion is that Justice Clarence Thomas’s opinion for the Supreme Court in NIFLA spoke disparagingly about the treatment of “professional speech” in two conversion therapy cases, Pickup and King v. Governor of New Jersey, 767 F.3d 216 (3rd Cir. 2014), a similar ruling upholding New Jersey’s conversion therapy law.  Judge Bryan rejected this argument, finding that the basis of the Pickup ruling was a determination that the California law regulated professional conduct, the provision of a “therapy,” which incidentally involved speech, but the law was focused on the conduct, not the speech.

Bryan noted as well that the plaintiffs in Pickup and the New Jersey case had petitioned the Supreme Court after the NIFLA ruling to order the 9th and 3rd Circuits to recall their decisions concerning conversion therapy bans, but the Supreme Court rejected those petitions.  See Pickup v. Newsom, 139 S. Ct. 2622 (petition denied, May 20, 2019); King v. Murphy, 139 S. Ct. 1567 (petition denied, April 15, 2019).

Conceptualized as a regulation of licensed professional conduct, wrote Bryan, “the Washington Conversion Law is subject to rational basis review, it is rationally related to the State’s asserted interest ‘in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harm caused by conversion therapy.’”  Thus, the court found no violation of Tingley’s free speech rights.

On the Due Process claim, Bryan rejected Tingley’s assertion that the law was impermissibly vague, noting that the 9th Circuit had rejected this argument in Pickup regarding the similarly-worded California statute and finding that a “reasonable person” could figure out that what was outlawed was therapy intended to “alter a minor patient’s sexual orientation” or gender identity.  The 9th Circuit did not find either of those terms to be vague, finding ample definitions in dictionaries as well as the definitional provisions of the statutes.

As to the Free Exercise argument, Judge Bryan found that the 9th Circuit had rejected a similar argument in Welch v. Brown, 834 F. 3d 1041 (9th Cir. 2016), a companion case decided by the 9th Circuit together with Pickup.  The law does not target religion.  “Like in Welch,” wrote Bryan, “the object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.  Its object is to ‘protect the physical and psychological well-being of minors. . .  The Conversion Law does not, either in practice or intent, regulate the way in which Plaintiff or anyone else practices their religion.  Instead, it ‘regulates conduct only within the confines of the counselor-client relationship,’” citing Welch.  “Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.”

Bryan also rejected ADF’s argument that because both speech and free exercise were implicated, under a “hybrid rights” doctrine the law was subject to a higher level of judicial scrutiny.  “It is not clear that the hybrid rights exception ‘truly exists,’” he wrote, quoting the 9th Circuit’s opinion in Parents for Privacy v. Barr, 949 F. 3d 1210 (2020), but even assuming that it does, “the doctrine would compel a higher level of scrutiny for claims that implicated multiple constitutional rights, in this case free exercise and free speech.  Because the Court already established that Plaintiff’s claim does not implicate free speech, the hybrid rights exception does not apply and does not undermine the holding of Welch.”

ADF will certainly appeal this ruling to press the argument that NIFLA has “abrogated” Pickup and Welch and compels a ruling for their client on the free speech claim.  Striking down Conversion Therapy bans is a major item on ADF’s anti-LGBTQ agenda.

Intervenor Equal Rights Washington is represented by National Center for Lesbian Rights and pro bono counsel Raegen Nicole Rasnic of Skellenger Bender, PS, Seattle.  The court also received a brief on behalf of The Trevor Project, the Foundation for Suicide Prevention, and the American Association of Suicidology, identified as “Interested Partys.”

Judge Bryan was appointed to the court by President Ronald W. Reagan.

Federal Court Dismisses Challenge to Maryland Law Against Conversion Therapy for Minors

Posted on: September 24th, 2019 by Art Leonard No Comments

On September 20, U.S. District Judge Deborah K. Chasanow of the federal district court in Maryland granted that state’s motion to dismiss a lawsuit brought by Liberty Counsel on behalf of a conversion therapy practitioner who was challenging the state’s recently enacted law that provides that “a mental health or child care practitioner may not engage in conversion therapy with an individual who is a minor.” The ban is enforceable  through the professional licensing process enforced by the Department of Health and Mental Hygiene.  The named defendants are Governor Larry Hogan and Attorney General Brian Frosh.  The case is Doyle v. Hogan, 2019 WL 4573382, 2019 U.S. Dist. LEXIS 160709 (D. Md., Sept. 20, 2019).

The plaintiff, Christopher Doyle, argued that the law violates his right to freedom of speech and free exercise of religion, seeking a preliminary injunction against the operation of the law while the litigation proceeds.  Having decided to dismiss the case, however, Judge Chasanow also denied the motion for preliminary relief as moot.  Liberty Counsel immediately announced an appeal to the U.S. Court of Appeals for the 4th Circuit, which has yet to rule on a constitutional challenge against a conversion therapy ban.

Several U.S. Circuit courts have rejected similar challenges.  The New Jersey statute, signed into law by Governor Chris Christie, was upheld by the 3rd Circuit Court of Appeals, which ruled that the state has the power to regulate “professional speech” as long as there was a rational basis for the regulation.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014). The California statute, signed into law by Governor Jerry Brown, was upheld by the 9th Circuit, which characterized it is a regulation of professional conduct with only an incidental effect on speech, and thus not subject to heightened scrutiny by the court.  Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2015).  Liberty Counsel is also appealing a similar ruling by a federal court in Florida to the 11th Circuit.

The task of protecting statutory bans on conversion therapy against such constitutional challenges was complicated in June 2018 when U.S. Supreme Court Justice Clarence Thomas, writing for the Court in a 5-4 decision involving a California law imposing certain notice requirements on licensed and unlicensed pregnancy-related clinics, wrote disparagingly of the 3rd and 9th Circuit conversion therapy opinions.  National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). The California statute required the clinics to post notices advising customers about pregnancy-related services, including family planning and abortion, that are available from the state, and also required non-licensed clinics to post notices stating that they were not licensed by the State of California.  The clinics protested that the statute imposed a content-based compelled speech obligation that violated their free speech rights and was subject to “strict scrutiny.” Such speech regulations rarely survive a strict scrutiny constitutional challenge.

The Supreme Court voted 5-4 to reverse a decision by the 9th Circuit, which had ruled that the notices constituted “professional speech” that was not subject to “strict scrutiny.”  In so doing, Justice Thomas rejected the idea that there is a separate category of “professional speech” that the government is free to regulate.  He asserted that “this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’”

“Some Court of Appeals have recognized ‘professional speech’ as a separate category of speech that is subject to different rules,” Thomas observed, citing among examples the 3rd Circuit and 9th Circuit conversion therapy cases.  “These courts define ‘professionals’ as individuals who provide personalized services to clients and who are subject to ‘a generally applicable licensing and regulatory regime.’ ‘Professional speech’ is then defined as any speech by these individuals that is based on ‘[their] expert knowledge and judgment,’ or that is ‘within the confines of [the] professional relationship,’” this time quoting from the 3rd Circuit and 9th Circuit opinions.  “So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny,” again citing the 3rd and 9th Circuit cases.

After reiterating that the Supreme Court has not recognized a category of “professional speech,” Thomas does concede that there are some circumstances where the court has applied “more deferential review” to “some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech,” and that “States may regulate professional conduct, even though that conduct incidentally involves speech.”  But, the Court concluded, neither of those exceptions applied to the clinic notice statute.

As a result of Justice Thomas’s comments about the 3rd and 9th Circuit cases, when those opinions are examined on legal research databases such as Westlaw or Lexis, there is an editorial indication that they were “abrogated” by the Supreme Court.  Based on that characterization, Liberty Counsel sought to get the 3rd Circuit to “reopen” the New Jersey case, but it refused to do so, and the Supreme Court declined Liberty Counsel’s request to review that decision.

Liberty Counsel and other opponents of bans on conversion therapy have now run with this language from Justice Thomas’s opinion, trying to convince courts in new challenges to conversion therapy bans that when the practitioner claims that the therapy is provided solely through speech, it is subject to strict scrutiny and likely to be held unconstitutional.  The likelihood that a law will be held unconstitutional is a significant factor in whether a court will deny a motion to dismiss a legal challenge or to grant a preliminary injunction against its enforcement.

Liberty Counsel used this argument to attack conversion therapy ordinances passed by the city of Boca Raton and Palm Beach County, both in Florida, but U.S. District Judge Robin Rosenberg rejected the attempt in a ruling issued on February 13, holding that despite Justice Thomas’s comments, the ordinances were not subject to strict scrutiny and were unlikely to be found unconstitutional. She found that they were covered under the second category that Justice Thomas recognized as being subject to regulation: where the ordinance regulated conduct that had an incidental effect on speech.  Otto v. City of Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019).

Liberty Counsel argued against that interpretation in its more recent challenge to the Maryland law.  It argued in its brief, “The government cannot simply relabel the speech of health professionals as ‘conduct’ in order to restrain it with less scrutiny,” and that because Dr. Doyle “primarily uses speech to provide counseling to his minor clients, the act of counseling must be construed as speech for purposes of First Amendment review.”

The problem is drawing a line between speech and conduct, especially where the conduct consists “primarily” of speech.  Judge Chasanow noted that the 4th Circuit has explained, “When a professional asserts that the professional’s First Amendment rights ‘are at stake, the stringency of review slides ‘along a continuum’ from ‘public dialogue’ on one end to ‘regulation of professional conduct’ on the other,” continuing: “Because the state has a strong interest in supervising the ethics and competence of those professions to which it lends its imprimatur, this sliding-scale review applies to traditional occupations, such as medicine or accounting, which are subject to comprehensive state licensing, accreditation, or disciplinary schemes.  More generally, the doctrine may apply where ‘the speaker is providing personalized advice in a private setting to a paying client.’”

And, quoting particularly from the 3rd Circuit New Jersey decision, “Thus, Plaintiff’s free speech claim turns on ‘whether verbal communications become ‘conduct’ when they are used as a vehicle for mental health treatment.”

Judge Chasanow found that the Maryland statute “obviously regulates professionals,” and although it prohibits particular speech “in the process of conducting conversion therapy on minor clients,” it “does not prevent licensed therapists from expressing their views about conversion therapy to the public and to their [clients.]”  That is, they can talk about it, but they can’t do it!  “They remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients.”  But, the statute is a regulation of treatment, not of the expression of opinions.  And that is where the conduct/speech line is drawn.

She found “unpersuasive” Liberty Counsel’s arguments that “conversion therapy cannot be characterized as conduct” by comparing it to aversive therapy, which goes beyond speech and clearly involves conduct, usually involving an attempt to condition the client’s sexual response by inducing pain or nausea at the thought of homosexuality.  She pointed out that “conduct is not confined merely to physical action.” The judge focused on the goal of the treatment, reasoning that if the client presents with a goal to change their sexual orientation, Dr. Doyle would “presumably adopt the goal of his client and provide therapeutic services that are inherently not expressive because the speech involved does not seek to communicate [Doyle’s] views.”

She found that under 4th Circuit precedents, the appropriate level of judicial review is “heightened scrutiny,” not “strict scrutiny,” and that the ordinance easily survives heightened scrutiny, because the government’s important interest in protection minors against harmful treatment comes into play, and the legislative record shows plenty of data on the harmful effects of conversion therapy practiced on minors.  She notes references to findings by the American Psychological Association Task Force, the American Psychiatric Association’s official statement on conversion therapy, a position paper from the American School Counselor Association, and articles from the American Academy of Child and Adolescent Psychiatry and the American Association of Sexuality Educations, Counselor, and Therapists.  Such a rich legislative record provides strong support to meet the test of showing that the state has an important interest that is substantially advanced by banning the practice of conversion therapy on minors.

Having reached this conclusion, the judge rejected Liberty Counsel’s argument that the ban was not the least restrictive way of achieving the legislative goal, or that it could be attacked as unduly vague.  It was clear to any conversion therapy practitioner what was being outlawed by the statute, she concluded.

Turning to the religious freedom argument, she found that the statute is “facially neutral” regarding religion.  It prohibits all licensed therapists from providing this therapy “without mention of or regard for their religion,” and Liberty Counsel’s Complaint “failed to provide facts indicating that the ‘object of the statute was to burden practices because of their religious motivation.’”  She concluded that Doyle’s “bare conclusion” that the law “displays hostility toward his religious convictions is not enough, acting alone, to state a claim” that the law violates his free exercise rights.  She also rejected the argument that this was not a generally applicable law because it was aimed only at licensed practitioners.  Like most of the laws that have been passed banning conversion therapy, the Maryland law does not apply to religious counselors who are not licensed health care practitioners.  Because the law is enacted as part of the regulation of the profession of health care, its application to those within the profession is logical and has nothing to do with religion.  As a result, the free exercise claim falls away under the Supreme Court’s long-standing precedent that there is no free exercise exemption from complying with religiously-neutral state laws.

Having dismissed the First Amendment claims, Judge Chasanow declined to address Liberty Counsel’s claims under the Maryland Constitution, since there is no independent basis under the court’s jurisdiction to decide questions of state law.

Joining the Office of the Maryland Attorney General in defending the statute were FreeState Justice, Maryland’s LGBT rights organization, with attorneys from the National Center for Lesbian Rights and Lambda Legal.  Also, the law firm of Gibson Dunn & Crutcher of Washington, D.C., submitted an amicus brief on behalf of The Trevor Project, which is concerned with bolstering the mental health of LGBT youth.

Senior District Judge Chasanow was appointed to the court by President Bill Clinton in 1993.

 

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.

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.

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.