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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.

 

 

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.

 

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 2 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.

9th Circuit Rejects Religious Freedom Challenge to California Law Banning Conversion Therapy for Minors

Posted on: August 24th, 2016 by Art Leonard No Comments

California’s S.B. 1172, which prohibits state-licensed mental health providers from engaging in “sexual orientation change efforts” (commonly known as “conversion therapy”) with minors, withstood another 1st Amendment challenge in a new decision by the San Francisco-based U.S. Court of Appeals for the 9th Circuit in the case of Welch v. Brown, 2016 U.S. App. LEXIS 15444, 2016 WL 4437617, announced on August 23.

A unanimous three-judge panel of the court of appeals affirmed a ruling by U.S. District Judge William B. Shubb that the law does not violate the religious freedom rights of mental health providers who wish to provide such “therapy” to minors or of their potential patients.

In a previous ruling, the court had rejected the plaintiffs’ claim that the law violated their free speech rights. They had argued that such therapy mainly involves talking, making the law an impermissible abridgement of freedom of speech. The court had countered that this was a regulation of health care practice, which is within the traditional powers of the state.  As such, the court found that the state had a rational basis for imposing this regulation, in light of evidence in the legislative record of the harms that such therapy could do to minors.

In this case, the plaintiffs were arguing that their 1st Amendment religious freedom claim required the court to apply strict scrutiny to the law, putting the burden on the state to show that the law was narrowly-tailored to achieve a compelling state interest.  They contended that the law “excessively entangles the State with religion,” but the court, in an opinion by Circuit Judge Susan P. Graber, said that this argument “rests on a misconception of the scope of SB 1172,” rejecting the plaintiffs’ claims that the law would prohibit “certain prayers during religious services.”  Graber pointed out that the law “regulates conduct only within the confines of the counselor-client relationship” and doesn’t apply to clergy (even if they also happen to hold a state mental health practitioner license) when they are carrying out clerical functions.

“SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship,” she wrote, a conclusion that “flows primarily from the text of the law.” Under a well-established doctrine called “constitutional avoidance,” the court was required not to interpret the statute in the manner suggested by the plaintiffs.  This conclusion was bolstered by legislative history, ironically submitted by the plaintiffs, which showed the narrow application intended by the legislature.  Thus, “Plaintiffs are in no practical danger of enforcement outside the confines of the counselor-client relationship.”

Plaintiffs also advanced an Establishment Clause argument, contending that the measure has a principal or primary purpose of “inhibiting religion.” Graber countered with the legislature’s stated purpose to “protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and to protect its minors against exposure to serious harm cause by” this “therapy.”  The court found that the “operative provisions” of the statute are “fully consistent with that secular purpose.”  A law that has a secular purpose with a possible incidental effect on religious practice is not subject to strict scrutiny under Supreme Court precedents.  Again, the court pointed out, religious leaders acting in their capacity as clergy are not affected by this law.

The court also rejected the contention that a minor’s religiously-motivated intent in seeking such therapy would be thwarted by the law, thus impeding their free exercise of religion. The court pointed out that “minors who seek to change their sexual orientation – for religious or secular reasons – are free to do so on their own and with the help of friends, family, and religious leaders.  If they prefer to obtain such assistance from a state-licensed mental health provider acting within the confines of a counselor-client relationship, they can do so when they turn 18.”

The court acknowledged that a law “aimed only at persons with religious motivations” could raise constitutional concerns, but that was not this law. The court said that the evidence of legislative history “falls far short of demonstrating that the primary intended effect of SB 1172 was to inhibit religion,” since the legislative hearing record was replete with evidence from professional associations about the harmful effects of SOCE therapy, regardless of the motivation of minors in seeking it out.  Referring in particularly to an American Psychiatric Association Task Force Report, Judge Graber wrote, “Although the report concluded that those who seek SOCE ‘tend’ to have strong religious views, the report is replete with references to non-religious motivations, such as social stigma and the desire to live in accordance with ‘personal’ values.”  Thus, wrote the court, “an informed and reasonable observer would conclude that the ‘primary effect’ of SB 1172 is not the inhibition (or endorsement) of religion.”

The court also rejected the argument that the law failed the requirement that government be “neutral” concerning religion and religious controversies. It also rejected the argument that prohibiting this treatment violates the privacy or liberty interests of the practitioners or their potential patients, quoting from a prior 9th Circuit ruling: “We have held that ‘substantive due process rights do not extend to the choice of type of treatment or of a particular health care provider.’”

Attorneys from the Pacific Justice Institute, a conservative legal organization, represent the plaintiffs. The statute was defended by the office of California Attorney General Kamala D. Harris.  Attorneys from the National Center for Lesbian Rights, with pro bono assistance from attorneys at Munger, Tolles & Olson LLP, filed an amicus brief defending the statute on behalf of Equality California, a state-wide LGBT rights political organization.

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.

 

 

 

9th Circuit Refuses to Reconsider “Conversion Therapy” Case, Denying En Banc Review

Posted on: January 31st, 2014 by Art Leonard No Comments

The U.S. Court of Appeals for the 9th Circuit, based in San Francisco, has rejected a petition for it to reconsider a decision it issued in August 2013, which had rejected a constitutional challenge to a California law that prohibits licensed mental health professionals from engaging in “sexual orientation change efforts,” sometimes called “conversion therapy,” with patients under age 18.

The petition, filed by the losing parties, asked that the three-judge panel reconsider its ruling or that the Circuit grant an en banc hearing, which would involve 11 judges. The petition was circulated to all of the two dozen judges of the circuit, but failed to win a majority vote. Only three judges voted to grant en banc review.

Two district judges had issued conflicting decisions on the constitutionality challenge, and the circuit had affirmed the judge who found that the measure is constitutional. The 9th Circuit held that the measure, “as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners or minor patients, is neither vague nor overbroad, and does not violate the parents’ fundamental rights.”

Writing for himself and Judges Bea and Ikuta, Circuit Judge Diarmuid O’Scannlain released a substantial dissenting opinion, challenging the court’s conclusion that First Amendment problems with the ban could be avoided by characterizing it as a regulation of “conduct” or “medical practice” rather than a regulation of speech. He asserted that the panel decision “contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California’s prohibition – in the guise of a professional regulation – of politically unpopular expression.”

O’Scannlain pointed to Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), which challenged a federal statute forbidding “material support” to terrorist organizations. The challengers argued that the law was unconstitutional as applied to purely verbal communication. Wrote O’Scannlain, “the Court rejected the government’s argument that the statute only punished ‘conduct’; for, in this situation, the ‘conduct triggering coverage under the statute consists of communicating a message.’” O’Scannlain drew from this the conclusion that “the government’s ipse dixit cannot transform ‘speech’ into ‘conduct’ that it may more freely regulate,” and he rebutted the panel decision’s arguments seeking to distinguish that case. He also asserted that “federal courts have never recognized a freestanding exception to the First Amendment for state professional regulations” using a conduct/speech distinction.

The amended panel decision released on January 29 reiterates the earlier decision’s distinction between “therapeutic speech” and “expressive speech,” insisting that “it is well recognized that a state enjoys considerable latitude to regulate the conduct of its licensed health care professionals in administering treatment.” The panel distinguished the Humanitarian Law Project case as an attempt by Congress to regulate “political speech by ordinary citizens.”

The heat of the dissent underlines that this is a “culture wars” case, and the plaintiffs, ardent proponents of so-called “conversion therapy,” are likely to file a petition for certiorari with the Supreme Court. The plaintiffs challenging the statute were represented in the 9th Circuit by Dean Matt Staver of Liberty University Law School on behalf of Liberty Counsel, a right-wing litigation group associated with Liberty University, and by Kevin Snider for the conservative Pacific Justice Institute. Both of those organizations have a track-record of opposing gay rights measures in the courts.