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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.

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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