3:13-cv-06629 #4

Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 1 of 9 PageID: 205
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE, ) ) ) ) ) Case No. _______________ ) Plaintiffs, ) v. ) ) CHRISTOPHER J. CHRISTIE, ) Governor of the State of New Jersey, in ) his official capacity, ) ) Defendants. ) PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION COME NOW Plaintiffs, JOHN DOE, by and through JACK and JANE DOE, JACK DOE, individually and on behalf of JOHN DOE, JANE DOE, individually and on behalf of JOHN DOE (collectively Plaintiffs), by and through the undersigned counsel, and pursuant to Rule 65 of the Federal Rules of Civil Procedure and Local Rule 7.1, move this Court to issue a Preliminary Injunction. In support thereof, Plaintiffs state: 1. Following the New Jersey Legislatures passage of A3371, Defendant Governor Christie
signed A3371 on Monday, August 19, 2013, which amended Title 45 of the Revised Statutes of New Jersey, and the law went into effect immediately. (See Compl. Ex. A). 2. A3371 prohibits licensed mental health counselors in New Jersey from engaging in
sexual orientation change efforts (SOCE) with minors. (Id.). 3. Section 2(a) of A3371 states that a person licensed to provide mental health counseling
shall not engage in sexual orientation change efforts with a person under 18 years of age. (Id.). SOCE is defined as:
the practice of seeking to change a persons 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; except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another, or counseling that: (1) provides acceptance, support, and understanding of a person or facilitates a persons coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (2) does not seek to change sexual orientation. (Id.). 4. Plaintiffs are seeking SOCE counseling to help John Doe achieve his goals of eliminating
his unwanted same-sex attractions and resolving the confusion over his gender identity. (John Doe Decl. 3; Jane Doe 15). A3371 is preventing them from obtaining that counseling from a licensed New Jersey counselor. (John Doe Decl. 3; Jack Doe 11; Jane Doe 15). 5. Plaintiff John Doe is a fifteen-year old minor who is seeking SOCE counseling from a
licensed mental health professional in New Jersey. (John Doe Decl. 3; Jack Doe Decl. 3; Jane Doe Decl. 3). John Doe began experiencing confusion concerning his gender identity was when he was approximately nine years old. (John Doe Decl. 4). 6. Jack and Jane Doe would have frequently hostile arguments early in their marriage, and
they would have them in front of John Doe. Jack Doe had a difficult time conveying his love and support outwardly or expressing it verbally. (Jack Doe Decl. 3-4; Jane Doe Decl. 3-4). He generally spent all of his time focusing on being the provider of the home that he sometimes neglected his other duties, which caused a lot of problems and hurt his son. Jack Doe did not understand the artistic side of his son, so he neglected and ignored him sometimes for not behaving like a typical boy. (Jack Doe Decl. 3; Jane Doe Decl. 4). Sometimes he would
Plaintiffs Motion for a Preliminary Injunction - 2
verbalize his lack of understanding, and this caused great pain and hurt on John Doe. (Jack Doe Decl. 5; Jane Doe Decl. 5). 7. Because of this family environment, John Doe developed a dislike of boys and men,
thought that boys were stupid because of the harsh words his mother had spoken towards his father, and did not feel like his father accepted him as a younger child. (John Doe Decl. 4). When he was around ten years old, John Doe began trying to behave like a woman, look like a woman, and affirmatively tried to display female mannerisms and expressions. (Id. 5). This caused significant psychological distress for John Doe, and he started having frequent thoughts of suicide because of his severe confusion about his gender identity. (John Doe Decl. 3, 7). 8. When John Doe was approximately twelve or thirteen, he began to experience same-sex
attractions and have substantial anxiety, distress, and confusion over those feelings. (Id. 6). At that time, he began having thoughts of hopelessness and despair. (Id.). He was experiencing significant psychological distress over those feelings, and his thoughts of suicide became nearly a constant. (Id. 7). John Doe compared himself to other males that he thought were masculine and displayed the typical characteristics of a male, and he did not think that he would ever measure up to that standard. (Id. 5, 6). 9. John Does confusion and distress caused him great anxiety, and his obsessive-
compulsive traits became worse than they had ever been. (Id. 7). John Doe began having panic attacks during the day and was unable to sleep at night due to his severe anxiety. (Id.). At this point, he began to think of killing himself every day, and his depression was severely harming his emotional stability. (Id. 8). 10. On a family trip to the beach, John Doe tried to fling himself off of the balcony of the
Does hotel. (Jack Doe 7; Jane Doe 10). At that point, John Doe finally reached out to his
parents for help, and Jack and Jane Doe knew they had to help their son with the severe psychological distress that his unwanted same-sex attractions and gender confusion were causing. (Jack Doe Decl. 8; Jane Doe Decl. 11). Jack and Jane Doe contacted a professional counselor recommended by the National Association for the Research and Therapy of Homosexuality, which specializes in helping men and boys reduce or eliminate their unwanted same-sex sexual attractions, behaviors, expressions, mannerisms, and identity. (John Doe Decl. 8; Jack Doe Decl. 8; Jane Doe Decl. 11; Pruden Decl. 7). 11. John Doe was struggling with nearly all of those things. (John Doe Decl. 8). He was
having unwanted same-sex attractions. (Id.). He had not engaged in same-sex behaviors, but it had crossed his mind. (Id.). He was trying to suppress any expressions of his masculinity and to display any female mannerisms that he could. (Id.). 12. One of the main reasons John Doe was having such significant psychological distress
over his gender identity confusion and unwanted same-sex attractions was because he has sincerely held religious beliefs that such feelings are unnatural, unhealthy, and sinful. (Id.. 9). He wanted to live out his religious values and did not want to act out on same-sex attractions that violate his religious beliefs. (Id.). 13. One of John Does main goals in seeking SOCE counseling was to resolve his sexual
attractions so that he can act consistently with his religious beliefs. (Id.). His same-sex attractions were causing a great internal conflict with his value system, and he wanted to do something about it. (Id.). 14. Jack and Jane Doe also have sincerely-held religious beliefs that homosexuality is a
sinful and harmful lifestyle. (Jane Doe 18). They also have sincerely held religious beliefs that parents are required to provide their son with the necessary education to understand Sacred
Scripture and the teachings of their Catholic Church. (Id.). Jack and Jane Doe believe that assisting their son in receiving the counseling that will help him live consistently with and prioritize his religious beliefs and values above his gender confusion and unwanted same-sex attractions is one aspect of educating him to be able to live virtuously through the fundamental tenets of their faith. (Id.). 15. John Doe started counseling in May of 2011, and he has experienced tremendous benefits
from it. (John Doe Decl. 10). He now speaks with his normal voice and does not try to suppress the male sound of it, as he had done before. (Id.). He has stopped shaving his body hair to try to look more feminine, and he displays less feminine characteristics, and he has stopped attempting to exhibit female mannerisms. (Id.). Also, John Doe has significantly improved the relationship with his father, and his confidence in his own masculinity is starting to develop and improve. (Id.). 16. As a result of his counseling, John Doe no longer experiences thoughts of suicide or
hopelessness. (Id. 11-13). John Doe no longer has the tremendous psychological distress that he experienced as a result of his unwanted same-sex attractions. (Id.). 17. John Doe has made significant progress toward his goal of eliminating his unwanted
same-sex attractions, but there is still more work to do with his counselor and other counselors. (Id. 13). John Does discussions with his counselor are very helpful, and sometimes just talking about his difficulties makes all the difference in the world to him. (Id.). John Does counseling sessions involve simply talking about his feelings, anxieties, and confusion that resulted from the unwanted same-sex attractions that he was struggling with and wanted to resolve. (Id.). Talking with his counselor has made his feelings of anxiety and hopelessness go away. (Id.).
18.
Jack and Jane Doe have also noticed significant benefits from John Does SOCE
counseling. (Jack Doe Decl. 8-10; Jane Doe Decl. 13-14). They have noticed significant changes in their son, and have found that all of them are positive. (Jack Doe Decl. 8-10; Jane Doe Decl. 13). They have noticed that their son no longer appears to struggle with the distress and anxiety over his gender confusion, and has made significant progress in eliminating his unwanted same-sex attractions. (Jack Doe Decl. 8; Jane Doe Decl. 13). Most importantly, John Doe has not expressed suicidal thoughts to them anymore or threatened to kill himself as he had done prior to his counseling. (Jane Doe Decl. 13). Based on Jack and Jane Does observations, they know that these benefits are the result of their sons beneficial discussions with the counselor. (Jack Doe Decl. 10; Jane Doe Decl. 16-17). 19. John Does current counselor is a licensed clinical social worker in New York, but his
counseling does not involve much analysis and discussion of the underlying causes and background information that many licensed psychologists have in this area. (John Doe Decl. 14; Jack Doe Decl. 11; Jane Doe Decl. 15) Because his counseling is more prospective thinking, John Does counselor informed the Does that their son might benefit from the additional SOCE counseling of a person who engages in conversations dealing with root causes, background information, and other introspective analysis involved in other licensed professionals counseling. (John Doe Decl. 14; Jack Doe Decl. 11; Jane Doe Decl. 15). The counselor made that recommendation based on some of the recent discussions he has had with John Doe, and the Does want to continue to be able to make sure their son receives the best counseling from the best counselors on all aspects of those problems that cause him distress. (Jack Doe Decl. 11; Jane Doe Decl. 15-16).
20.
Because of John Does counselors recommendation, the Does contacted Dr. Ronald
Newman, a licensed psychologist in New Jersey, to attempt to engage one of them for their son. (Jack Doe Decl. 11-12; Jane Doe Decl. 15). Nevertheless, because of A3371, Dr. Newman informed the Does that he could not help them, and in fact there are now no licensed mental health professionals in New Jersey that can help John Doe with the counseling that he so desperately desires and seeks. (Jack Doe Decl. 13; Jane Doe Decl. 15; Newman Dec. 6). This is causing Plaintiffs significant, immediate, and irreparable injury. 21. A3371 violates Plaintiffs First and Fourteenth Amendment rights to receive information
and to the free exercise of religion, as well as Plaintiff parents rights to oversee and direct the education and upbringing of their son without undue influence from the government. 22. The balance of harms between Plaintiffs and Defendant Christie tips in Plaintiffs favor,
and entry of a preliminary injunction is in the publics interests. 23. The reasons for granting Plaintiffs Motion for a Preliminary Injunction are more fully set
forth in their Memorandum filed simultaneously herewith. WHEREFORE, Plaintiffs move the Court for entry of a preliminary injunction prohibiting Defendant from enforcing A3371 pending a full trial on this matter, and for such other and further relief to which they may be entitled.
Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. !""#$%$$% Mathew D. Staver* Stephen M. Crampton* Daniel J. Schmid* Liberty Counsel Attorneys for Plaintiffs P.O. Box 11108 Lynchburg, VA 24502 Tel. 434-592-7000 Fax: 434-592-7700 court@LC.org * Application to appear Pro Hac Vice pending
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on November 1, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel of record.
/s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991
Case 3:13-cv-06629-FLW-LHG Document 4-1 Filed 11/01/13 Page 1 of 2 PageID: 214
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE, ) ) ) ) ) Case No. _________________ ) Plaintiffs, ) v. ) ) CHRISTOPHER J. CHRISTIE, ) Governor of the State of New Jersey, in ) his official capacity, ) ) Defendants. ) PLAINTIFFS NOTICE OF MOTION FOR PRELIMINARY INJUNCTION HONORABLE JUDGE: PLEASE TAKE NOTICE that on November 1, 2013, Plaintiff will move for this Court to issue a preliminary injunction enjoining Defendant Governor Christie and all New Jersey officials from enforcing New Jersey Assembly Bill No. 3371, which prohibits licensed mental health counselors from engaging in what it terms sexual orientation change efforts counseling with minors under the age of eighteen.
Plaintiffs Notice of Motion for Preliminary Injunction - 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE
Plaintiffs,
v.
) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No.- - - - --
CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity,
Defendants.
DECLARATION OF JOHN DOE

I, John Doe, hereby declare as follows: 1. I am under the age of 18 and am a resident of New Jersey. The statements in this
Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration in support of Plaintiffs' Motion for a preliminary
injunction. 3. I am 15 years old, and I began to see a counselor for romantic feelings I was having
toward other boys and men, among other things, which I understand are now prohibited under New Jersey's law, A3371, at least if! get the counseling from a licensed counselor. When I was 13 years old, I began to struggle with and suffer distress because of feeling I was or wanted to be a girl, which I did not fully understand. I was struggling with those thoughts, behaving like a girl and dressing like a girl, and having various girl-like mannerisms. I began to have unwanted
same-sex attractions and became really frustrated, angry, disappointed, and confused about those feelings as well. At that time, I began to see a counselor for these issues. 4. The first time I remember having confusion about my gender identity was when I was
nine years old. I remember disliking boys and men, thinking that boys were stupid because my mother said bad things to my father. I also did not feel like my father accepted me because I was very artistic and not like the boys he had grown up with. 5. When I was 10, I started feeling like I wanted to commit suicide because I did not like
myself. I thought I would like myself much better if I were a girl. I began to secretly shave my armpits and pubic hair, so I could look more feminine. When my voice began to change, I tried to make it higher because I could not stand how low it was becoming. I hated everything masculine about myself. I thought I would be happy if I could be feminine, so I also took on various female mannerisms and expressions. 6. I began having unwanted same-sex attractions when I was 12 or 13. I remember having
"crushes" on celebrity guys I saw in magazines. It was also at this time that I began having thoughts of hopelessness and despair. I did not understand these feelings, and I began to think that killing myself was the only option to get out of this hopelessness and confusion. 7. I hated myself because I did not feel like I was as good as the guys I saw in the
magazines. These guys were muscular and athletic, and I was not. It was also at this point that my identity and gender confusion were at their worst. I thought that if I were a girl, I would not have to compete with these masculine and athletic boys that I saw in the magazines anymore. I knew I would never be good enough if I remained a boy. My hatred for myself made me feel panicky and caused great anxiety, and my obsessive-compulsive traits became worse than they had ever been. I was having panic attacks during the day, and I had trouble sleeping at night. My
Declaration of John Doe - 2
life was spinning out of control, and I was so depressed. At that point, I was thinking about killing myself nearly all day, every day. My parents knew that I was suicidal, so after an extreme outburst and when they found the pornographic pictures of guys under my mattress, they took me to a new counselor. 8. At that time, my suicidal thoughts were all-consuming. I could not stand having to live
with these conflicting feelings, so I asked my parents if they could help me. My parents agreed to seek help from a professional counselor recommended by the National Association for the Research and Therapy of Homosexuality, which specializes in helping men and boys reduce or eliminate their unwanted same-sex sexual attractions, behaviors, expressions, mannerisms, and identity. Unfortunately for me, I was struggling with nearly all of those things. I was having unwanted same-sex attractions; I had not engaged in same-sex behaviors, but it had crossed my mind; I was trying to suppress expressions of my masculinity and to display female mannerisms instead; and I was in despair and hopelessness over the confusion I was experiencing over my gender identity. 9. After my parents contacted the counselor, we talked to him about his type of counseling
and the various conversations that we would engage in with each other during the counseling. He explained to us his theory of why I was experiencing unwanted same-sex attractions. I have a sincerely held religious belief and conviction that homosexuality is wrong. I wanted to address that value conflict because my same-sex attractions and gender confusion are contrary to the religious values that I hold. I want to live out my religious values and do not want to act out on same-sex attractions that violate my religious beliefs. I want to resolve my sexual attractions so that I act consistently with my religious beliefs. Because of this, and because I did not want to
experience these same-sex attractions, I wanted my counselor to help me. My parents agreed to permit me to participate in reparative therapy/change therapy with him. 10. I started the counseling in May of 2011, and I can say that I really believe I am
improving. I now speak with my normal voice and do not try to suppress the male sound of it. I have stopped shaving my body hair to try to look more feminine, and I display less feminine characteristics. Also, I definitely have a better relationship with my father, and my own confidence in my masculinity is starting to develop and improve. The best part about the counseling is that I no longer have the feelings of hopelessness that I once had, and I never have thoughts of suicide anymore. 11. I really hope to be able to continue counseling sessions so that I can move further toward
overcoming my same sex attractions and reduce and resolve the confusion that I once had over my gender identity. I would also say that my same-sex attractions have really started to go away, and on a scale of one to ten, I would say they are to the point where they are only three out of ten when it used to be eight out of ten. Every day gets a little better with counseling. I do not experience my unwanted same-sex sexual attractions as frequently as I did before I started my counseling sessions. These counseling sessions have really helped me. 12. I feel like I have hope that someday I might be able to get to the point where I am living
a happy single life. I might even be able to get to the point when I can live a happy married life, when I am old enough. Before the counseling, I did not ever think any of this was possible and was not sure that I would let myself live long enough to find out. 13. I want to be able to continue to get counseling. I have made progress, but I think there is
still a lot I want to talk about with my counselor to help me reach my goal of eliminating my unwanted same-sex attractions and resolving the underlying issues that once caused my
confusion over my gender identity. The discussions that my counselor and I engage in during counseling sessions are really helpful, and sometimes just talking about it makes all the difference in the world to me. The only thing we ever did in my counseling sessions was talk about my feelings, anxieties, and confusion that resulted from the unwanted same-sex attractions that I was struggling with and wanted to resolve. Talking with my counselor has really made my feelings of anxiety and hopelessness go away. 14. The counselor I go to now is great, but he told my parents and me that his counseling
does not include some of the therapy that he says could really help me out with my goals. My counselor talks about how I am feeling about things from day to day and how I am continuing to get rid of my unwanted same-sex attractions. My counselor told me that there are also licensed psychologists who do counseling very similar to his, but will also talk with me about some of the things that bothered me when I was younger. My counselor says that the conversations with him have really helped me, but that licensed psychologists know more about other types of counseling and that I will probably like talking to them as much as I like talking to him. I really like my counselor, but I also want to have all of the conversations and counseling necessary to help me achieve my goal of getting rid of my same-sex attractions. I was disappointed when my parents told me that the counselors in New Jersey are not allowed to talk to me about these things anymore. 15. I am very concerned that if I am not able to get all of the different types of counseling
that I really want and need, then I might lose much of the progress that I have made so far in treatment. I believe that if I cannot continue to receive counseling, then I will begin to experience the same feelings of confusion and awkwardness that we have worked so hard to reduce and eliminate, and may even begin to have thoughts of suicide again. I am also afraid that if I cannot
continue to discuss my confusions and anxieties with a counselor and spend time talking about what struggles I had between sessions concerning my unwanted same-sex attractions, then I will begin to experience my unwanted same-sex attractions more often than I do and that I will have a harder time dealing with them and with the conflict between those attractions and my religious beliefs. 16. The conversations that I have had in counseling have helped me improve the relationship
between my parents and me. My counselor and I have had many conversations where we talked about my relationship with my parents, and those conversations have helped me restore and repair the problems that I initially had with my mom and dad. I think having additional conversations with a counselor will only strengthen the relationship I have with my mom and dad. 17. I do not understand why my parents and I are not allowed to go to a licensed counselor
here in New Jersey and talk to him about what is causing my anxiety and confusion. Why would anyone tell me I do not have the right to talk to the counselor of my choice about my unwanted same-sex attractions and gender confusion, especially when those feelings gave me such hopelessness that I was constantly thinking about killing myself? Why does it matter to others whether I want to get rid of my unwanted same-sex attractions? Everyone else who has a mental problem that is causing them hopelessness and despair is allowed to talk to their counselor about what is making them think suicide is the only answer, so why do people not want me to be able to do the same thing just because they do not think I should have the religious beliefs that I have? I think everyone should be able to discuss what is bothering them with a licensed counselor, especially when it is something as serious as a problem causing a person to think about killing themselves. My conversations with my counselor prevented me from thinking about killing
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE
Plaintiffs,
) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. - - - - - -
v.
CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity,
Defendants.
DECLARATION OF JACK DOE

I, Jack Doe, hereby declare as follows:
1.
I am over the age of 18, a resident of the State of New Jersey, and am affected by A3371,
the legislation that is the subject of this action. The statements in this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration in support of Plaintiffs' Motion for a Preliminary
Injunction. 3. I am the father of my 15 year old son, John Doe. Early in my marriage, my wife and I had
many arguments in front of our infant son. I had a difficult time conveying my love and support outwardly or expressing it verbally. I was so focused on being the provider of the home that sometimes I neglected my other duties, and that caused a lot of problems. 4. Wfien 000 Doe was very young and as e grew older, my wife and I would have raging
arguments for hours and well into the night. I hurt her enormously, and she would in tum berate
me in front of our son. I observed that these arguments had a negative impact on our son's upbringing. 5. In his elementary school years (grades K through 4), our son started playing with dolls.
We thought it was atypical, but did nothing about it. He also tried playing baseball and soccer during these years. He quit soccer after a few weeks, but stuck with baseball for two years, after much prodding from my wife and me. It was readily apparent to us that he did not feel comfortable around other boys, or in playing these sports. He was particularly bad at baseball. When they put him into right field, he would tend to "skip" out to his position and his at-bats were very weak. He also tried Cub Scouts, which did not work out very well, either. He did not have any interest in "boy" activities and could not relate to the other Scouts. Instead of sports and Scouts, which were my interests as a boy, my son spent hours honing his artistic gifts. While he was drawing once I asked, "Why can't you be like all the normal boys and go outside to play sports?" It was very insensitive on my part. I was hung up on "real men" playing typical sports and did not appreciate his wonderful gifts. As a result, there was distance and discord between us, and he moved emotionally closer and closer to his mother. 6. Once our son entered junior high school (grades 5 - 7), we hoped things would get better.
He entered a new school, got involved in the drama club, started swimming on the local swim team, and entered karate tournaments. Even though we thought he was doing better publicly, we observed that privately he was doing worse. He started cutting himself and entertaining thoughts of suicide. Whatever activity he got involved in, he could not relate to other boys and did not perform to his potential. At his core, it appeared to me that our son was in a battle with himself. He felt inadequate as a young man, he was emotionally distanced from me, and he was attracted
Declaration of Jack Doe - 2
to boys and men who apparently embodied what he thought a boy/man should be. At a particularly low point, he said that he wished God had made him a girl. 7. At age 12, our son's voice began to change with adolescence. It seemed that the deeper
his voice became, the more he tried to make his voice artificially higher, and by the time he turned 13, he began to speak in an obviously artificially high, falsetto voice. At this point, our son began to spiral downward very quickly. We took a trip to Myrtle Beach, and our son shaved his armpits, flushed his underwear down the toilet, and tried to fling himself over the balcony of our hotel room. Then, we returned home to find various pornographic pictures and illustrations of men in various positions under his mattress. 8. This time, we reached out to a good priest friend of ours who introduced us to National
Association for the Research and Therapy of Homosexuality ("NARTH"). Through NARTH, we found a counselor, who happened to be an Orthodox Jew. With our counselor, we began counseling that involved discussions centered around repairing the broken relationship between my son and me as well as helping my son to realize that he is a wonderful young man and much more well-rounded than he gives himself credit for being. We have learned together that there is no such thing as the "perfect man." I have observed that my son, through this journey with his counselor, is moving toward establishing healthy friendships with other teen boys and towards becoming more comfortable and self-confident in his own masculinity. 9. Our son began counseling in May of 2011, which was the spring of his 7th grade year.
Because of that counseling, I have seen our son grow closer to me, begin to embrace his masculinity, and no longer speak of suicide, cutting himself, or wanting to be a girl. He has become actively involved in martial arts and swimming while still pursuing his artistic interests. Our son was voted "Best Team Spirit" two years in a row by his swim team coaches, won
matches in karate tournaments, had a lead role in his 8th grade play, and earned a scholarship to his Catholic High School. Before he had an opportunity to have discussions with a counselor, he would only draw women, but now our son draws both genders well. 10. In my opinion, based on lengthy first-hand observations, my son has greatly benefited
from his discussions with his counselor, and he has expressed to my wife and I on numerous occasions that there is a lot he still wants to be able to discuss with a counselor. My observations of his dramatic improvement lead me to conclude that he is correct in saying that there is much more that can be gained by further counseling. His conversations with a counselor have been tremendously helpful so far, but he wants, and in my opinion, needs to be able to continue to engage in further counseling. I have observed that my son has improved visibly after discussions with his counselor, and sometimes his simply talking to a counselor has calmed his anxieties, feelings, and confusions regarding his unwanted same-sex attractions. 11. My wife and I have contacted licensed mental health counselors in New Jersey but
because of A3371, there is no one who can engage in this type of counseling with my son. Our current counselor is a licensed clinical social worker in New York, but his counseling does not involve the in-depth analysis and discussion of the underlying causes and background information that many licensed psychologists do in this area. Because his counseling is more prospective thinking, our counselor informed us that our son might benefit from the additional counseling of a person who engages in conversations dealing with root causes, background information, and other introspective analysis offered in other licensed professional counseling. Our counselor made such a recommendation based on some of the recent discussions he has had with our son, and we want to continue to be able to make sure our son receives the best counseling from the best counselors on all aspects of those problems that cause him distress.
I
Because of that recommendation, we contacted licensed mental health counselors in New Jersey to attempt to engage one of them for our son. Because of A3371, however, there is not anyone who is able to provide such licensed counseling anywhere in our state. 12. Because my wife and I had a negative experience with an unlicensed counselor in the
past, we believe it is crucial that John Doe receive this type of counseling from someone who is licensed, trained, and experienced in this type of work. The unlicensed counselor did not have a proper understanding of the underlying theories behind SOCE counseling, did not know how to properly engage in the discussions that take place during such counseling, and was unable to help my son with his gender confusion and unwanted same-sex attractions. It was not that he was a bad counselor, in my view. but that he did not have the proper understanding and training to effectively engage in SOCE counseling. 13. A3371 forces minors and their families into an even worse situation because it requires
that anyone seeking this type of counseling pursue it with an unlicensed counselor rather than a licensed professional trained in providing such counseling. As we have personally experienced, this ban will cause more hann to minors than allowing them to simpJy pursue conversations and communications with their licensed mental health . counselors about those things that cause them distress and anxiety. 14. I declare under penalty of perjury under the laws of the United States and the State of
New Jersey that the foregoing statements are true and accurate.
Executed this 28th day of October, 2013.
JkDOe
Declaration of Jack Doe 5
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE, Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. _________________
DECLARATION OF RONALD NEWMAN, PH.D. I, Dr. Ron Newman, hereby declare as follows: 1. I am over the age of 18 and am a licensed psychologist in New Jersey. The statements in
this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration in support of Plaintiffs Motion for Preliminary
Injunction. 3. I received a Doctor of Philosophy degree in Psychoeducational Processes from Temple
University in 1990. I received a Master of Arts degree in Counseling Psychology from Trinity Evangelical Divinity School in 1980, a Bachelors Degree in Psychology from West Virginia University in 1976, and an Associates of Arts degree in Practical Theology from Christ for the Nations Institute in 1978. I have over 33 years of experience as a mental health professional and have been a Licensed Psychologist (NJ Lic. # 03257) in the State of New Jersey, since 1995. I
am a Board Certified Professional Christian Counselor through the American Association of Christian Counselors. My Resume is attached to this declaration as Attachment A. 4. I am currently a member of the American Psychological Association (APA), the New
Jersey Psychological Association (NJPA), the Christian Association for Psychological Studies (CAPS), the National Association for Research and Therapy of Homosexuality (NARTH), and the American Association of Christian Counselors (AACC). My practice is located at two offices in Hammonton, New Jersey and Linwood, New Jersey. Many of my clients come to me because of my Christian identity and their trust that their Christian values and beliefs will be respected in treatment. My practice is comprised of approximately 35 - 40 clients per week. Some of my clients actually travel considerable distances to receive the type of counseling that I offer, including some who drive over an hour and a half one way to attend counseling sessions from the perspective that I offer and the expertise I incorporate into their counseling. I counsel individuals and families concerning stress, panic and anxiety, depression, post-traumatic stress disorder, grief, couples/marital counseling, and many other mental health issues that cause people distress, including individuals with unwanted same-sex attractions. I have a Biblical worldview, and for those clients who seek counseling from a Christian perspective and desire to conform their counseling goals with their sincerely held religious beliefs, I focus on Biblical integration in the counseling relationships which I form with them. 5. Part of my practice involves what is often called sexual orientation change efforts
(SOCE) counseling, sometimes with minors. As is true with much of my practice, the individuals who seek SOCE counseling from me do so because they have a desire to conform their attractions, behavior, and identity to their sincerely held religious beliefs. Many of these individuals seek to reduce or eliminate their unwanted same-sex attractions because their
Declaration of Dr. Ronald Newman - 2
religious beliefs inform them that change is possible. I also believe that change is possible and have personally counseled individuals who have successfully reduced or eliminated their unwanted same-sex attractions, behaviors, or identity. 6. I have been contacted recently by the Plaintiffs in this action seeking to engage a licensed
mental health counselor in New Jersey who can provide SOCE counseling to their son. The Does said that they were seeking a licensed psychologist to assist their son, John Doe, with some of his psychological distress that was rooted in some childhood needs that went unfulfilled and that their current counselor had suggested they contact a licensed counselor who explores and discussed the root causes and symptoms of unwanted same-sex attractions. Because of A3371, I was forced to inform the Does that neither I nor any licensed mental health counselor in New Jersey could engage in SOCE counseling with their son. 7. My first step in the process of counseling for my patients, including those minor clients
with unwanted same-sex attractions, behaviors, or identity is to discover what the patient and the parents are hoping to achieve with the counseling and to establish a clients goals. Mental health counseling should be client centered, and the clients goals and objectives must control the counseling relationship. 8. Prior to A3371, when both the minor client and the parents wanted SOCE counseling,
then I explained to them the nature of such counseling. I also explained to the client that if at any point in the course of the clients therapy the client decides he no longer wants to continue counseling for same-sex attractions, behaviors, or identity, then he should inform me immediately because the clients counseling should always be based on the goals and objectives of the client. I explained that SOCE counseling has been effective for some people with unwanted same-sex attractions, behavior, or identity, but that the counseling can sometimes
invoke stress or anxiety about past events or root causes. I have counseled a number of individuals for whom SOCE has been effective and successful, but I have also counseled individuals who determined that their same-sex attractions, behaviors, or identities were no longer unwanted. Many of the individuals I counseled that decided to stop the SOCE counseling still benefited from the counseling sessions. I declare under penalty of perjury under the laws of the United States and the State of New Jersey that the foregoing statements are true and accurate.
Executed this 27th day of October, 2013.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. ________________
DECLARATION OF JOSEPH NICOLOSI, PH.D. I, Joseph Nicolosi, hereby declare as follows: 1. I am over the age of 18 and am submitting this Declaration as expert testimony on behalf
of NARTH members and the NARTH Board of Directors. The statements in this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration in support of Plaintiffs Motion for a Preliminary
Injunction. BACKGROUND 3. I have been a licensed psychologist in California since 1980. I have a Bachelor of Arts
Degree in Psychology from Long Island University. I received my Masters of Arts degree in Psychology from the New School for Social Research and my Doctor of Philosophy in Clinical Psychology from the California School of Professional Psychology. I am the Founder and Clinical Director of Thomas Aquinas Psychological Clinic in Encino, California, which is a clinic providing mental health counseling currently to 135 clients. Ninety percent of those clients
are individuals struggling with unwanted same-sex attractions, behaviors, and identity, and sixty percent are teenagers. While the Clinic specializes in helping people with unwanted same-sex attractions, behaviors, and identity, the four mental health professionals providing service at the clinic do counsel on any issue for which the client is seeking help. 4. I am one of the three founding members and a former president of the NARTH, which is
a professional, scientific organization that offers hope to those who struggle with same sex attractions by providing information, counseling, research, and referrals. I have published numerous books, articles, and other scholarly works on the topic of homosexuality and the course of treatment for those individuals who seek to reduce or eliminate their unwanted samesex attractions. In my practice, I specialize in the treatment and counseling of males who struggle with unwanted same-sex attractions. 5. In addition to the numerous books and scholarly articles that I have written and the
extensive education I have received in the United States, I have also participated in numerous international training seminars occurring all over the world in places including Germany, Italy, England, Mexico, and Poland. 6. My background and experience in the field of clinical psychology and a list of my
published articles, books, and book chapters are described in my curriculum vitae, which is attached to this Declaration as Exhibit A. DESCRIPTION OF PRACTICE AND INFORMED CONSENT 7. Prior to engaging in SOCE counseling with patients, I and most NARTH members
provide clients with a consent form that outlines the nature of the treatment, the potential benefits and risks, including the fact that some psychotherapists believe that sexual orientation cannot or should not be changed, and informs the client that success in any method of psychotherapy is not
Declaration of Joseph Nicolosi, Ph.D. - 2
guaranteed and could potentially be harmful. In my consent form, I explicitly state that I do not, nor does anyone at my clinic, provide gay-affirming treatment and that clients should seek an alternative therapist to help them if that is their stated objective. 8. I and most NARTH members also explain that if at any point in the course of the clients
therapy, the client decides that he no longer wants therapy for unwanted same-sex attractions, behaviors, or identity, then he should inform the counselor immediately because a clients course of treatment should always be based on his objectives. Related to this, I explain that if the client decides during the course of SOCE counseling that he wants therapy that affirms his same-sex attractions, behaviors, or identity, then it would be best for the client to seek an alternative therapist. 9. I and most NARTH members explain to our clients that the nature of SOCE counseling is
such that many people report benefits from the counseling, but that it can invoke initial feelings of stress and anxiety; that many experience a reduction in same-sex attractions, behaviors, or identity; and that often a person will continue to experience some level same-sex attractions, behaviors, or identity even after therapy. I explain that as with other issues people face in their lives, many people report that their recognition of their heterosexual potential and identity is a lifelong process that continues with them after therapy. 10. My SOCE counseling consists of discussions with the client concerning the nature and
cause of their unwanted same-sex sexual attractions, behaviors, or identity; the extent of these attractions, behaviors, or identity; assistance in understanding traditional, gender-appropriate behaviors and characteristics; and assistance in fostering and developing those genderappropriate behaviors and characteristics.
11.
Most of the patients with unwanted same-sex sexual attractions, behaviors, or identity
who seek SOCE do so to develop and foster healthy, heterosexual relationships and seek the elimination or reduction of their unwanted same-sex sexual attractions, behaviors, or identity. I have had many clients who, through SOCE counseling, have been able to succeed in reducing their unwanted same-sex attractions, behaviors, or identity and have reported a marked increase in their recognition of their heterosexual potential. 12. I have also had clients who decided that they wanted to remain in the homosexual
lifestyle, but report that SOCE counseling helped them to understand the nature of their homosexual identity and, as a result, were able to better cope with that identity after SOCE counseling. These same clients who decide to remain in the homosexual lifestyle have reported that they experienced no harm as a result of SOCE counseling. THE A3371 SOCE BAN IS NOT SUPPORTED BY THE REPORT OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION TASK FORCE ON APPROPRIATE THERAPEUTIC RESPONSES TO SEXUAL ORIENTATION 13. The underlying foundation for a ban on SOCE as set forth in A3371 is the unfounded
reliance by A3371 proponents upon the Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (the APA Report). 14. The APA Report, however, has countless methodological flaws and reaches erroneous
conclusions because of the ideological persuasion of the Task Force members who drafted it. The first evidence of the flaws in the methodology behind the APA Report is that it included no practitioners of sexual orientation change efforts (SOCE) counseling. In fact, the APA rejected every practitioner of SOCE counseling that applied for membership on the Task Force. All of the applicants that the APA rejected were prominent scholars in the field of same-sex attractions,
behaviors, and identity, and SOCE counseling, including A. Dean Byrd, Ph.D., George Rekers, Ph.D., Stanton Jones, Ph.D., Mark Yarhouse, Ph.D., and me. 15. The APA violated long-established scientific principles by intentionally rejecting all
practitioners of SOCE and prohibiting the participation of individuals with differing views, values, and practice. Indeed, the a priori assumptions of the APA Report reveal that it was designed to reach a preordained verdict, which would accept homosexuality as a normal variant of human sexuality and that people should embrace and accept it. Specifically, the APA Report stated that it was accepting as a beginning principle that [s]ame-sex sexual attractions, behavior, and orientations per se are normal and positive variants of human sexuality. APA Report at 2. This clearly indicates that the Report was ideologically opposed to and would not even consider any evidence of non-normative causes of homosexuality and would reject any notion that people should seek to change such attractions, behaviors, or identity The scientific methodology used by the Task Force is flawed because the only voices included in the APA Report are well known for their disapproval of any efforts by homosexual individuals to seek change, even when those individuals seek such change in order to live in accordance with their sincerely-held religious or moral beliefs. Even the proponents of anti-SOCE legislation like A3371 attest to the need for objective and unbiased opinion when conducting a study of this nature. 16. The scientific bias of the APA Report is evidenced by four specific factors. First, the
APA Report failed to review the well-documented psychological and medical health risks associated with homosexual and bisexual behavior. Neil E. Whitehead, Homosexuality and CoMorbidity: Research and Therapeutic Implications, The Journal of Human Sexuality II, 156 (2010) (recent studies have found essentially the same suicide rates for same-sex attracted people in the US as other countries with decades of acceptance of people with same-sex
attractions, behaviors, or identity) Second, the APA Report failed to consider the factors associated with the development of homosexual attractions and merely assumed that homosexuality is as developmentally normal as heterosexuality. Yet, the APA Report would concede that the causes of homosexuality are unknown. Third, the APA Report did not study individuals who reported success from SOCE counseling, apparently because it considered change unnecessary and undesirable. Fourth, the APA Report elevated the standard for success in treatment for unwanted same-sex attractions, behaviors, or identity, and this standard is far higher than the standard for success applicable to any other course of psychological treatment. Many other courses of treatment also have notorious reputations for resistance to success, specifically courses of treatment for narcissism, borderline personality disorder, and alcohol and drug abuse, but there is no debate about the usefulness of these courses of treatment. The Task Force also criticized SOCE studies on the grounds that the studies had high dropout rates. However, many treatment cohorts have high dropout rates; take, for example, a drug and alcohol treatment program (Polich, Armor, & Baker, 1981). James E. Phelan, et al., A Critical Evaluation of the Report of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation, Resolutions, and Press Release, The Journal of Human Sexuality IV, 46 (2012) Nevertheless, the APA Report ignored any potential comparison to these treatment options and also ignored the fact that psychologists continue to engage in these courses of treatment despite their uncertain outcomes. Additionally, these courses of treatment all continue with the blessing of the APA and all of the other professional organizations that criticize SOCE counseling. 17. Proponents of A3371 seek to increase the burden on SOCE counselors by defining
success in any course of treatment as requiring that it must achieve its intended goals all or most of the time. If this standard applied to other forms of psychological treatment, then many widely-
used and noncontroversial courses of treatment would not qualify as effective. As mentioned in the previous paragraph, there are a number of courses of treatment that have reputations for resistance to success, and no one seeks to apply this heightened standard of near perfection to these courses of treatment. That the APA Report singled out SOCE alone for this absurd standard is itself strong evidence of the bias of its members. Indeed, there would be no effective psychological courses of treatment if all courses of therapy were subjected to the standard espoused by the APA Report. 18. The APA Report flatly contradicts many points that specifically refute the assertions
made by proponents of A3371. On page two, the APA Report states that none of the recent research, which are all studies from 1999-2007, meet the methodological standards for determining the efficacy, safety, or dangers of SOCE counseling. This undermines the assertions of proponents of A3371 that SOCE counseling is harmful to minors. Just as the research allegedly fails to prove SOCEs efficacy, the APA Report concedes it fails to prove any concrete harm. See Journal of Human Sexuality IV at 57-58. Furthermore, on page 25, the APA Report concedes that there needs to be more research and analysis of the potential benefits or dangers of SOCE counseling. In fact, on page 42, the APA Report specifically found that there was a dearth of information based on sound scientific research concerning the safety of SOCE counseling. The dearth of scientific study prevents blanket assertions by proponents of A3371 that SOCE counseling is in fact harmful to minors and should therefore be prohibited. This is reinforced on page 44 of the APA Report, which states that [b]ecause of the lack of empirical research in this area, the conclusions must be viewed as tentative. Indeed, on page 11, the APA Report admitted that recent research cannot provide conclusions regarding efficacy or safety.
19.
On page 18, the APA Report implies that by striving to live a life consistent with their
religious values, people with same-sex attractions, behaviors, or identity must deny their true sexual selves. This further implies that individuals with sincerely-held religious beliefs that lead them to seek a reduction or elimination of their unwanted same-sex attractions, behaviors, or identity will not experience organismic wholeness, self-awareness, and mature development of their personal identity. Those religious individuals who seek to live in conformity to their religious values are assumed to experience a constriction of their true selves because of a religiously imposed behavioral control. This false distinction, created by the APA Report, ignores the desire of many clients to live in congruence with the fundamental tenets of their sincerely-held religious and moral beliefs. For these individuals, the values they hold because of their religious beliefs are viewed as guideposts and sources of inspiration that help guide them on their pursuit of wholeness, and wholeness for these people can only be achieved by living in congruence with their religious beliefs. 20. The APA Report seeks to diminish the beliefs of these individuals by suggesting that
religious beliefs should be reconstructed to align with their unwanted same-sex attractions, behaviors, or identity rather than working to conform their sexual attractions, behaviors, or identity to their religious beliefs. On pages 72-73, the APA Report recognizes that many clients seek SOCE counseling because of their religious beliefs. On page 58, the APA Report then states that therapy is a process of uncovering and deconstructing dominant worldviews and assumptions with conflicted clients that enable them to redefine their attitudes toward their spirituality and sexuality. The APA Report ignores the fact that many people desire to elevate their religious beliefs above any unwanted same-sex attractions, behaviors, or identity and that they seek counseling to assist them with this goal. The APA Report states that counseling for
individuals in this category should focus on refram[ing] the religious beliefs to focus on aspec ts of faith that encourage love and acceptance of their child rather than on a religions prohibitions. 21. The APA Reports position is based on the unproven assumption that homosexuality is
inborn and immutable. See Journal of Human Sexuality IV at 57 (noting that the APA Report based its conclusions on an a priori assumption that homosexuality is inborn and therefore immutable which is unsupported by the APAs own statements). The APAs position dates back to the 1970s when on the basis of emerging scientific evidence and encouraged by the social movement for ending sexual orientation discrimination, the American Psychological Association and other professional organizations affirmed that homosexuality per se is not a mental disorder. See APA Report at 11. This undermines the basis for A3371 and the APA Reports conclusions because it reveals that the APAs change in position and its assumptions that homosexuality is immutable were based on political and social pressure, not concrete scientific evidence. 22. On page 30, the APA Report defines sexual orientation as an individuals patterns of
sexual, romantic, and affectional arousal and desire for other persons based on those persons gender and sexual characteristics. The APA Report does not define sexual orientation as enduring, which reveals that these definitions are not based on any universally recognized or consistently applied scientific standard. Additionally, on page two, the APA Report recognized that [s]ame-sex sexual attractions and behavior occur in the context of a variety of sexual orientations and sexual orientation identities, and for some, sexual orientation identity (i.e., individual or group membership and affiliation, self-labeling) is fluid or has an indefinite outcome. Given the mental health professions inability to provide a concrete definition of
sexual orientation, there is potentially no limit to what could fall into its definition. The vagueness in the understanding itself of what is encompassed by sexual orientation results in a variety of understandings of its meaning, and includes pederasty, which is a homosexual relationship between a young man and a pubescent boy outside his immediate family, or pedophilia, or a host of other paraphilias or fetishes. This presents a difficult problem for a licensed counselor tasked with complying with A3371 when the definition of sexual orientation is fluid and vague. In any event, A3371 provides no definition of sexual orientation, leaving counselors to guess as to the meaning intended by the statute. 23. Focusing on reframing an individuals religious beliefs is beyond the purview of
psychological counseling, and it ignores the most fundamental principle of the profession namely, that the client has the right to self-determination. A3371 explicitly states that it is relying on the conclusions of the APA Report and the proponents and drafters of A3371 focus solely on the conclusions of it and other studies that are methodologically flawed. This reveals the flaws of A3371 and specifically shows that it is aimed at reframing an individuals religious perspectives deemed antiquated or discriminatory and imposing an ideology on those individuals that do not wish to live in conformity with the view espoused by A3371 and the APA. The APA Report also states on page 19 that prejudices directed at individuals because of their religious beliefs and prejudice derived or justified by religion are harmful to individuals, society, and international relations. (emphasis added). This further reveals that the APA Report and A3371 attempt to elevate sexual orientation above a persons sincere religious beliefs, and shows that A3371 specifically targets those individuals that have religious beliefs opposed to homosexuality.
24.
The assertions of A3371 proponents are based on the unsubstantiated belief that same-sex
attractions, behaviors, or identity are the result of biology. The general position of A3371 proponents that sexual orientation is tied to physiological drives and biological systems that are beyond the conscious choice contradicts the APAs own public-disseminated information regarding sexual orientation and etiology, which says: There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles. (APA, 2008b, p.2) 25. IMMEDIATE AND IRREPARABLE HARM CAUSED BY A3371 A3371 will cause immediate and irreparable harm to New Jersey licensed counselors and
clinics that focus on SOCE counseling, in that A3371 will prohibit them from continuing beneficial and successful courses of treatment with minor clients and force licensed counselors to stop speaking about SOCE treatment or risk losing their licenses. This law will immediately and directly harm the counselors right to speak to and counsel clients in accordance with not only the counselors religious and moral values, but with the clients religious and moral values. The law will also immediately and directly infringe upon their clients right to receive information. 26. Moreover, A3371s operative commencement will be a shocking disturbance to minor
clients who are now in counseling. This counseling, which runs afoul of the prohibitions contained in A3371, consists solely of verbal discussion between the counselors and the clients as individuals, exploring the clients feelings and helping them align their feelings with their religious and moral beliefs. After August 19, 2013, a minor client must be informed that all that has been attempted is now illegal and unethical. There can be no further discussion regarding the clients own therapeutic goals and the therapeutic relationship upon which those goals were
based to reduce or eliminate same-sex sexual attractions, behavior, or identity. The therapeutic alliance between the clients and counselors - established at the cost of great time, monetary expense, and trust - will be destroyed. 27. When New Jersey licensed counselors are forced to terminate their SOCE counseling
with minor patients, many of the minors will regress and will suffer adverse health consequences stemming from an inability to address their goal of recognizing their heterosexual potential. 28. Some clients and their parents will have to seek out counselors who are not licensed and
therefore not subject to the dictates of A3371. They might continue to receive the SOCE counseling they desire, but it will be administered by unlicensed professionals. 29. As a clinical psychologist, my experience and opinion inform me that it is important for
SOCE counseling to be engaged in by those therapists who have studied it and understand the benefits and potential risks. 30. The practice of giving detailed information to minor clients and their parents satisfies the
ethical requirements that a counselor provide all of the information that is reasonable for the client to make an informed decision concerning their individual course of treatment and that facilitates the autonomous client decision-making process. A3371 will cause New Jersey counselors to violate Section 3.10 of the American Psychological Associations Ethics Code (APA Code) because they will be prohibited from even discussing a course of treatment, SOCE, that is part of the information that they are ethically required to provide to their clients. Counselors would also be prohibited from even referring a client who wants to discuss SOCE therapy to a professional who can provide it. 31. Compliance with A3371 will force New Jersey counselors to violate the informed
consent mandates of Section 3.10 of the APA Code and probably also infringe ethical
requirement outlined in General Principle E of the APA Code that a counselor allow the patient complete freedom to make a self-determined choice concerning his therapy. However, providing clients with unwanted same-sex attractions, behaviors, or identity with the treatment they desire automatically constitutes and ethical violation under A3371. 32. Because of this impossible Catch-22, A3371 is certain to cause irreparable harm to the
practice of New Jersey counselors by putting their professional license in jeopardy no matter how they proceed, and with no guidelines on how to resolve the conflict between A3371 and the ethical codes. 33. A3371 will also cause New Jersey counselors to violate Section 3.06 of the APA Code by
causing them to enter into a relationship where their objectivity is called into question because A3371 mandates that only one ideologyi.e., the States ideology condemning SOCEbe shared in the counselors office. 34. A3371 also presents a significant problem for another element of SOCE practice and
provides no guidance on whether it prohibitions apply to it. Specifically, regarding any YouTube and other videos on a counselors website and on other websites that specificall y address the issue of SOCE counseling. These videos have the potential to reach every minor in New Jersey. A3371s language prohibits all efforts that seek to reduce or eliminate same-sex attractions, behaviors, and identity, and it would seem that having videos on the Internet that advocate for SOCE counseling and provide information about where an individual can receive it might be perceived as an effort that seeks to reduce or eliminate same-sex attractions, behaviors, or identity. Counselors do not know whether A3371 requires them to remove all of these videos from their websites, and request that they be removed from others. Also, it is virtually impossible to ensure that all such videos are removed, so if A3371 is found to apply to them, then a
counselor could inadvertently be subject to disciplinary proceedings because of the viewing of a video that he or she thought had been removed from the Internet. Pamphlets and informative brochures on the websites would likewise pose the same problems. 35. Additionally, it is completely uncertain about whether a simple referral would constitute
an effort seeking to reduce or eliminate same-sex attractions, behaviors, or identity that would violate A3371. Informing someone that such SOCE counseling is available at another location by another individual not subject to A3371 seems like it could be a violation, but A3371 provides no guidance on this matter, so a counselor is again faced with a dilemma of how to exercise his or her professional judgment. In short, A3371 provides no guidance on the seemingly innumerable applications of its prohibitions, which places counselors at constant risk of unknowingly being subject to losing their professional licenses. Their clients will suffer as well, since the counselors will not be able to confidentially counsel them on available options for their undesired same-sex attractions, behaviors, or identity. VAGUENESS OF A3371 AND ERRONEOUS ASSUMPTIONS OF PROPONENTS 33. The APA Report concluded that [s]ame-sex sexual attractions occur in the context of a
variety of sexual orientations and sexual orientation identities, and for some, sexual orientation identity (i.e., individual or group membership and affiliation, self-labeling) is fluid or has an indefinite outcome. A3371 prohibits anyone from under any circumstances engaging in any practice that seeks to reduce or eliminate same-sex sexual attractions, behaviors, or identity or attempts to change sexual orientation. This prohibition is virtually impossible to comply with because it is well understood in the mental health profession, and conceded by the APA Report, that sexual orientation is difficult to define and encompasses a number of factors, including behavior, practices, identity, and attractions. Given that this prohibition specifically deals with a
concept the APA Report concluded was fluid, counselors will ultimately be required to guess at what practices would be prohibited under this bill. Since sexual orientation includes pederasty and pedophilia, for example, a counselor counseling a client who has unwanted samesex sexual attractions toward other younger minors or acts on such attractions (behavior), will be prohibited from a course of counseling designed to reduce or eliminate such attractions, behavior, or identity. Furthermore, a counselor may not counsel a minor victim of an adult pederast or pedophile that it is wrong to engage in sexual behavior with an adult of the same-sex. 34. There are multiple meanings of sexual orientation among licensed mental health
professionals. But how is one to define the gay adolescent? We might reasonably assume that the best way to determine if a teen is gay is by what the teen says about himself. Proponents of A3371 would agree that if a teen says he is gay, he is gay. But are we to believe him? What is the credibility of a teenager who, according to the new law, cannot be believed if he says his homosexual feelings do not represent his deepest sense of self, and he wants to change? How are we to define a teenager who has same-sex attractions, behaviors, or identity but does not believe his sexual behavior makes him gay? He believes that deep down he is a heterosexual, but has same-sex attractions, behaviors, or identity. Is it behavior or identity that defines his gayness? Counselors look more deeply into the teenagers motivations and recognize that any self -label may represent a variety of motivations that do not necessarily define his true sexual identity. A3371 would prohibit this inquiry, if the counselors intent is to effect change in sexual orientation, whatever that may be. Moreover, same-sex sexual attractions, behaviors, and identity among minors often diminish or disappear spontaneously. It would be unethical for a licensed counselor to tell the client who is experiencing temporary unwanted same-sex sexual attractions, behaviors, or identity that such attractions, behavior, or identity is something the
client should embrace. In not helping the client eliminate or reduce such attractions, behavior, or identity, the counselor might be pushing the client toward homosexuality, when in fact the client is heterosexual and merely experiencing a temporary period of homosexual attractions. 35. Furthermore, A3371 permits education and information on SOCE but not the
practice of SOCE. When does education and information on SOCE not become the practice of it? For example, a therapist may spend six months educating and informing the client of SOCE and how it might apply to the client. Session after session the therapist may give examples of how the clients behavior and feelings are explained by SOCE. What the client says about himself may prompt the counselor to respond: Well, SOCE would explain your behavior as, but ultimately, the counselor will have to guess as to whether the State of New Jersey would consider such counsel a violation of A3371. At any rate, no matter what the counselor says, the matter will be determined by how the client perceives what the counselor says. A counselor educating about SOCE could likely be perceived as counseling to reduce or eliminate same-sex sexual attractions, behaviors, or identity and thus be in violation of A3371. 36. Despite this lack of clarity in the law itself, proponents of A3371 have previously
attempted to establish an arbitrary and unrealistic distinction between practices of SOCE, versus a counselors speech. In actual practice of psychotherapy, it is impossible to distinguish practice of SOCE from speech. Psychotherapy is speech. The therapeutic relationship is talking and communication; verbal and non-verbal communication is the essential element of the therapeutic process. Thus, licensed counselors will ultimately be required to guess at whether practice or speech would be prohibited under this law. 37. A3371 is not just about discussions of sexual orientation, but also about discussions
about a persons behavior that is incongruent with a persons religious or moral values. Licensed
counselors need the freedom to talk about a clients behavior in a manner that incorporates discussions of the clients religious faith or values. Counselors will be forced to guess at whether a discussion of behavior incongruent with ones beliefs and values is an effort to reduce or eliminate unwanted same-sex attractions, behaviors, or identity, which could include mannerisms or speech under A3371. If a female client wanted to display more assertive male behavior or speech inconsistent with her gender, counselors would be prohibited from encouraging such behavior. The same is true when clients plead with a counselor to help them not to identify with a particular sexual orientation. If counselors are prohibited from such discussions, then their clients will face irreparable harm. OTHER ERRONEOUS FACTUAL ASSUMPTIONS BY PROPONENTS OF A3371 38. Proponents of A3371 continually repeat the shibboleth that the mental health associations
no longer consider homosexuality a mental illness or disorder. That fact is irrelevant since it is the clients distress with same-sex attractions, behaviors, or identity and their right to seek treatment to reduce that distress which is the issue. Counseling does not depend on the client having a mental illness. Much of counseling involves stress that is not related to a mental illness. Counseling a client does not send a message or presume that a client has a mental illness. 39. Proponents of A3371 assert that minors face family rejection based on their sexual
orientation, thereby creating especially serious health risks. Family rejection is not a necessary outcome of SOCE. Rather, I and my colleagues who practice SOCE attempt to have parents accept their teen irrespective of their sexual orientation outcome. 40. Proponents of A3371 have made assertions to the effect that there exists no empirical
evidence that providing any type of therapy in childhood can alter adult same-sex orientation. This is irrelevant and not true.
I declare under penalty of perjury of the laws of the United States and New Jersey that the foregoing statements are true and correct. Executed this 29th day of October, 2013
Case No. _______________
PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
TABLE OF CONTENTS TABLE OF CONTENTS..............................................................................................................i TABLE OF AUTHORITIES.......................................................................................................ii INTRODUCTION.........................................................................................................................1 STATEMENT OF FACTS ...........................................................................................................2 ARGUMENT..................................................................................................................................2 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS................................2 A. B. C. A3371 Violates Plaintiffs First Amendment Right to Receive Information....3 A3371 Constitutes Impermissible Viewpoint Discrimination...........................8 A3371 in Unconstitutional Content-Based Discrimination..............................15 1. 2. D. A3371 is not justified by a compelling government interest................16 A3371 is not narrowly tailored...............................................................20
A3371 Also Fails Intermediate Scrutiny under OBrien..................................22 1. 2. 3. Even if A3371 were a restriction on conduct, it regulates expressive conduct and intermediate scrutiny applies............................................23 A3371 does not advance an important government interest................25 A3371 is targeted at the suppression of the message of SOCE............26
E.
A3371 Violates Plaintiffs First Amendment Right to Free Exercise of Religion.............................................................................................................27 1. 2. 3. A3371 is not neutral or generally applicable and is therefore subject to strict scrutiny..........................................................................31 A3371 is subject to strict scrutiny as a violation of Plaintiffs hybrid rights.............................................................................................34 A3371 cannot withstand strict scrutiny.................................................35 a. A3371 is not justified by a compelling government interest....35
b. F.
A3371 is not narrowly tailored...................................................36
A3371 Violates Plaintiffs Jack and Jane Does Fundamental Right to Direct the Upbringing of their Minor Child......................................................37 1. 2. Plaintiffs Jack and Jane Doe have a fundamental right to make mental health care decisions for their child..........................................37 A3371 directly interferes with Plaintiff Jack and Jane Does right to make mental health decisions for their child....................................39
II. III. IV.
PLAINTIFFS ARE SUFFERING IMMEDIATE AND IRREPARABLE INJURY............................................................................................................................41 THE BALANCE OF THE EQUITIES TIPS IN PLAINTIFFS FAVOR...................42 AN INJUNCTION IS IN THE PUBLIC INTEREST..................................................43
CONCLUSION............................................................................................................................44 TABLE OF AUTHORITIES ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003)2, 43 Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 (1987)...42 Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ...22 Bartnicki v. Vopper, 220 F.3d 109 (3d Cir. 1999) 24 Bates v., State Bar of Ariz., 433 U.S. 350 (1977) ...5 Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982).3 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004). ...32 Brown v. Entmt Merchants Assn, 131 S. Ct. 2729 (2011) ....15, 16, 25, 26 Bowen v. Roy, 476 U.S. 693 (1986) ..29 Century Commcns Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987) ..17 Child Evangelism Fellowship of N.J., Inc. v. Stafford Tp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004) ..9, 10
ii
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) passim City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) .9 City of Ladue v. Gilleo, 512 U.S. 43 (1994) .19 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) ..passim Conchata Inc. v. Miller, 458 F.3d 258 (3d Cir. 2006) ..24 Dj vu of Nashville, Inc. v. Metro. Govt of Nashville & Davidson Cnty., 274 F.3d 377 (6th Cir. 2001) 43 Elrod v. Burns, 427 U.S. 347 (1976) ..41, 43 Empt Div., Dept of Human Res. of Or. v. Smith, 494 U.S. 872 (1990) ....30, 35 Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) .14 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) ..32 Gillette v. United States, 401 U.S. 437 (1971) ..29 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) .22, 28 In re Custody of Smith, 969 P.2d 21 (Wash. 1998) (en banc) .38 Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242 (3d Cir. 1992) .3, 4 Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) ..8 Legal Servs. Corp. v. Valazquez, 531 U.S. 533 (2001) ...13, 14 Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007) 31, 32 Martin v. City of Struthers, 319 U.S. 141 (1943) ...3 Meyer v. Nebraska, 262 U.S. 390 (1923) .3, 37, 39, 40 NAACP v. Button, 371 U.S. 415 (1963) 20 Parham v. J.R., 442 U.S. 584 (1979). ...38
Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013), pet. for rehg and rehg en banc pending....6, 13, 25
iii
Pierce v. Socy of Sisters, 268 U.S. 510 (1925) 37, 38, 40 Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290 (3d Cir. 2011) 9 Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985) ..16 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) 20 Reagan v. Time, Inc., 468 U.S. 641 (1984) ...15 Reno v. Flores, 507 U.S. 292(1993). 37 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). ...8, 9 Sable Commcns of Cal., Inc. v. F.C.C., 492 U.S 115 (1989). ...16, 20, 21, 36 Schneider v. New Jersey, 308 U.S. 147(1939). ...41, 43 Sherbet v. Verner, 374 U.S. 398 (1963) 28 Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991). .15 Sorrell v. IMS Health, 131 S. Ct. 2653 (2011) ...5, 8, 13, 42 Spence v. Washington, 418 U.S. 405 (1974) 24 Stanley v. Georgia, 394 U.S. 557 (1969) 3 Stilp v. Contino, 743 F. Supp. 2d 460 (M.D. Penn. 2010) ....43 Swartwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002) ..41, 43 Texas v. Johnson, 491 U.S. 397 (1989) ..23, 24 Tenafly Eruv Assn, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002) ..34, 35 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) 9, 10 Troxel v. Granville, 530 U.S. 57 (2000) .37, 38 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ..16, 35 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) .16 iv
United States v. Caronia, 703 F.3d 149 (2d Cir. 2012) ..5 United States v. OBrien, 391 U.S. 367 (1968) ..23, 24, 25, 27 United States v. Playboy Entmt Grp., 529 U.S. 803 (2000). ...16, 17, 25 Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) 3, 4, 5, 6, 7 Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) ...28 Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012) .13 Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177 (3d Cir. 1999). 3 Wisconsin v. Yoder, 406 U.S. 205 (1972) .37, 38, 39 Witt v. U.S. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) .25 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) 40
STATUTES
N.J. Ct. R. 4:74-7A(c) ..8, 27 OTHER SOURCES Chris Christie Sings Ban on Gay Conversion Therapy, Politico.com (Aug. 19, 2013), available at www.politico.com/story/2013/08/chris-christie-gay-conversion-therapy-new-jersey95666.html. .38, 39 Matt Barber, Gay Lawmaker to Christians, Well Take Your Children, OneNewsNow (Aug. 26, 2013), available at www.onenewsnow.com/perspectives/matt-barber/2013/08/26/gaylawmaker-to-christians-well-take-your-children...39
Nicholas A. Cummings, Ph.D., Sexual Reorientation Therapy Not Unethical, USA Today (July 30, 2013), available at http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientation-therapy-notunethical-column/2601159/...17 Press Release, Gov. Christie Signs Bill Banning Gay Conversion Therapy On Minors, (Aug. 19, 2013) (available at http://nj.gov/governor/news/news/552013/approved/20130819a.html (last accessed 10/22/13)
19
Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. (hereinafter APA Report) passim
PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION COME NOW Plaintiffs, JOHN DOE, by and through JACK and JANE DOE, JACK DOE, individually and on behalf of JOHN DOE, and JANE DOE, individually and on behalf of JOHN DOE (collectively Plaintiffs), by and through counsel and file this Memorandum in Support of their Motion for a Preliminary Injunction. INTRODUCTION Defendant Governor Christie signed A3371 on Monday, August 19, 2013. It went into effect immediately. A3371 is an unprecedented and unconstitutional intrusion into the sacrosanct relationship between psychotherapists and their patients. It infringes on the long-standing right of mental health professionals to offer and Plaintiffs to receive counseling consistent with their sincerely held religious beliefs. It prohibits licensed mental health providers, under threat of loss of their professional licenses, under any circumstances, from offering any counsel to a minor to reduce or eliminate unwanted same-sex sexual attractions, behavior, or identity (which A3371 calls sexual orientation change efforts or SOCE), regardless of whether Plaintiffs desperately seek such counseling and regardless whether a mental health professional believes that the counseling will be beneficial to the client. Plaintiffs are currently suffering imminent and irreparable injury and will continue to suffer injury unless and until A3371 is enjoined. Licensed mental health professionals are prohibited by A3371 from offering beneficial and desired counseling to help Plaintiff John Doe and other minors in New Jersey overcome unwanted same-sex attractions, behaviors, or identity (SSA). Such restrictions violate Plaintiffs First Amendment right to receive information, their right to the free exercise of religion, and the parental rights of Jack and Jane Doe.
Plaintiffs no longer have the option of receiving SOCE counseling from a licensed professional in New Jersey regardless of how sincere their religious beliefs or how intent they are on reducing or eliminating their unwanted SSA. Plaintiffs are deprived of their right to selfdetermination and cannot receive counseling from a licensed professional consistent with their religious and moral values. The State cannot offer a compelling, or even a rational basis for its sweeping, intrusive legislation, save a politically driven agenda to normalize and even prioritize homosexuality regardless of its consequences or the harm it imposes on John Doe and other minors in New Jersey. STATEMENT OF FACTS Pursuant to Fed. R. Civ. P. 10(c), Plaintiffs hereby incorporate by reference the Statement of Facts set forth in their Motion for a Preliminary Injunction. ARGUMENT Injunctive relief is merited where, as here, Plaintiffs demonstrate a reasonable probability of success on the merits, irreparable injury in the absence of such relief, that the balance of the harms tips in their favor, and that the injunction is in the public interest. ACLU v. Ashcroft, 322 F.3d 240, 250 (3d Cir. 2003). Plaintiffs satisfy this standard, and the preliminary injunction should issue. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. Plaintiffs are likely to succeed on the merits because A3371 represents a gross intrusion into their constitutionally protected liberties. A3371 violates Plaintiffs First Amendment right to receive information, which is the corollary to the right to free speech. It also violates Plaintiffs First Amendment right to the free exercise of religion. Additionally, A3371 violates Plaintiffs Jack and Jane Does fundamental right to direct the upbringing and education of their child
guaranteed by the Fourteenth Amendment. Plaintiffs are therefore likely to succeed on the merits. A. A3371 Violates Plaintiffs First Amendment Right to Receive Information.
The First Amendment protects the right to receive information as a corollary of the right to speak. The Fourteenth Amendment guarantees this right, too, against the states. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982); Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Meyer v. Nebraska, 262 U.S. 390 (1923); see also Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 180 (3d Cir. 1999). A3371 deprives Plaintiffs of this right during counseling sessions because it prohibits licensed counselors from offering SOCE counseling to minors. Such counseling has helped Plaintiff John Doe reduce or eliminate his unwanted SSA. (John Doe Decl. 10, 11, 13). The government may not prevent citizens from receiving ideas or viewpoints that the government disagrees with or opposes. See Pico, 457 U.S. at 871-72 (plurality) (Our Constitution does not permit the official suppression of ideas.); id. at 880 (Blackmun, J., concurring) ([O]ur precedents command the conclusion that the State may not act to deny access to an idea simply because state officials disapprove of that idea. . . .). The Third Circuit has likewise recognized that the First Amendment forbids laws such as A3371 that prohibit individuals from receiving information they are actively seeking and desire to receive. See Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1252 (3d Cir. 1992) ([T]he First Amendment, like other constitutional guarantees, encompasses the penumbral right to receive information to ensure its fullest exercise.). A3371 prevents John Doe and all
minors in New Jersey from receiving the viewpoint that SOCE counseling from a licensed professional may be beneficial to those minors who seek to reduce or eliminate their unwanted SSA. A3371 also impermissibly expresses the States disapproval of such counseling. 1 This government-sanctioned restriction to information and counseling the government disapproves of is simply unconstitutional. [T]he First Amendment does not merely prohibit the government from enacting laws that censor information, but additionally encompasses the positive right of public access to information and ideas. Id. at 1255 (emphasis added). Here, A3371 runs far afield of both of these firmly entrenched constitutional principles. Plaintiffs are therefore likely to prevail on the merits. A3371 prevents Plaintiffs from receiving counseling that their counselor has determined will be beneficial to the continued progress of John Doe in reaching his goal of eliminating his unwanted SSA. Plaintiffs current counselor, a licensed social worker in New York, does not provide the in-depth retrospective analysis that is offered by many licensed counselors, and he prefers to keep his counseling focused on the future. (John Doe Decl. 14; Jane Doe Decl. 15; Jack Doe Decl. 11). Nevertheless, the counselor suggested that John Doe would likely benefit from some of the counseling that analyses root causes and background factors in greater depth. Plaintiffs have therefore contacted Dr. Ron Newman, a licensed psychologist in New Jersey, hoping that they could receive the type of counseling that their counselor suggested. (John Doe Decl. 14; Jane Doe Decl. 15; Jack Doe Decl. 11). A3371, however, has made it impossible for Plaintiffs to receive that counseling from any licensed professional in their state. In Virginia State Board of Pharmacy, Virginia banned pharmacists from advertising the prices of prescription drugs. Va. State Bd. of Pharm., 425 U.S. at 752. The stated rationale for the
1
A3371 would permit unlicensed counselors to offer SOCE counseling, however.
law was to uphold pharmaceutical professionalism against the negative effects of price competition, but the Court dismissed that justification because pharmacists professional rules, like the ethical rules governing licensed counselors here, already imposed a high standard of care. Id. at 768-69. The Court determined that the advertisement ban was actually designed to keep the public in ignorance of drug prices, prevent them from following the discount, and ultimately insulate ethical pharmacists from unethical ones who could operate at a lower cost. Id. at 769. The Court struck down the law, stating that the First Amendment commands the assumption that information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. Id. at 770. The rule articulated in Virginia State Board of Pharmacythat the First Amendment commands more information, not lessis most pronounced for the medical profession. See Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2664 (2011) (A consumers concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue . . . That reality has great relevance in the fields of medicine and public health, where information can save lives. (quoting Bates v., State Bar of Ariz., 433 U.S. 350, 364 (1977)); see also United States v. Caronia, 703 F.3d 149, 167 (2d Cir. 2012) (Moreover, in the fields of medicine and health, where information can save lives, it only furthers the public interest to ensure that decisions about [medical care] are intelligent and well-informed.) (quoting Sorrell, 131 S. Ct. at 2664.); Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002) (An integral component of the practice of medicine is the communication between a doctor and patient. Physicians must be able to speak frankly and openly to patients.). This rule in favor of more information rather than less applies with even greater force here, in the mental health profession,
where the treatment consists entirely in speech (talk therapy), as opposed to the medical profession, which involves a significant amount of conduct in the treatment itself. A3371 bears a striking resemblance to the speech restrictions at issue in Virginia State Board of Pharmacy. Va. State. Bd. of Pharm., 425 U.S. at 766-69. It also represents a significant restriction on the First Amendment rights of patients to receive information in a medical context. Conant, 309 F.3d at 637. In Conant, the Ninth Circuit struck down a policy prohibiting doctors from discussing or recommending medical marijuana to their patients. Id. Only doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy. Moreover, the policy does not merely prohibit discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient. Id. A3371 operates almost identically to the policy at issue in Conant. Specifically, only discussions of SOCE counseling that seek to reduce or eliminate unwanted SSA trigger the application of A3371, and only discussion that SOCE counseling can likely benefit a specific minor patient who seeks it is prohibited. A3371 prohibits Plaintiffs from receiving information vital to their mental health decisions, and it should meet the same fate as the policy in Conant.2 Like the advertising ban on prescription drug prices, A3371 assumes that SOCE counseling and related information are per se harmful and attempts to prevent Plaintiffs and others in New Jersey from receiving available counseling by completely closing the channel of counselor-client communication. Additionally, like the federal policy on medical marijuana at issue in Conant, A3371 diminishes a clients understanding of his or her own unwanted SSA, limits the availability of personal choices consistent with the fundamental right of all persons to self-determination, prohibits minors from receiving counseling assisting them in their desire to
2
But see Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013), pet. for rehg and rehg en banc pending (interpreting Conant to support broad regulations of the medical profession when aimed at the false distinction between treatment and speech in the mental health context).
conform their conduct and attractions to their sincerely held religious beliefs, and ultimately renders minors in New Jersey and their parents less able to participate in public debate and influence public policy regarding SOCE. Moreover, A3371 imposes the very harm the State claims it intends to prevent with this bill by forcing John Doe and other minors to seek out unlicensed and untrained counselors who are more likely to inflict irreversible emotional damage by providing counseling not subject to the requirements of mental health licensing boards in New Jersey. (Jane Doe Decl. 9) (Because this unlicensed counselor did not share the views as the experts in this area and because he was not sufficiently educated or trained in the specific types of discussions that SOCE counseling usually involves, I was disappointed but not surprised that this unlicensed counselor was not able to help my son with his significant gender confusion and distress about his unwanted same-sex attractions. In fact, my husband and I noticed that our son seemed only to have more distress and more confusion as a result of this unlicensed counselors sessions with him.) (emphasis original); (Jack Doe Decl. 12) (Because my wife and I had a negative experience with an unlicensed counselor in the past, we know that it is crucial that John Doe receive this type of counseling from someone who is licensed, trained, and educated in this type of work.) (emphasis original). Like the laws in Virginia State Board of Pharmacy and Conant, A3371 suppresses information that Plaintiffs have a right to hear. By so doing, A3371 also prevents Plaintiffs from receiving the information and counseling concerning the fact that SSA felt by a given individual may be harmful, may lead to unhappiness, or may not be the only way. It prevents them from receiving the highly qualified and experienced counseling of licensed professionals who are best
able to provide the information and expertise necessary to help them overcome unwanted SSA. Because A3371 suppresses those ideas, it is unconstitutional. The irrationality of the States unconstitutional suppression of Plaintiffs First Amendment rights is made further evident by other provisions regulating the mental health decisions of minors in New Jersey. [A]ny minor 14 years of age or over may request admiss ion to a psychiatric facility, special psychiatric hospital, or childrens crisis intervention service provided the court on a finding that the minors request is informed and voluntary enters an order approving the admission. N.J. Ct. R. 4:74-7A(c). Additionally, the minor may discharge himself or herself from the facility in the same manner as an adult who has voluntarily admitted himself or herself. Id. So, New Jersey finds it perfectly acceptable for John Doe and other minors over 14 years of age to check themselves into and out of psychiatric hospitals where they can be given powerful psychotropic medications, but finds them incapable of deciding to sit down and talk with a licensed mental health counselor to reduce or eliminate his or her unwanted SSA. New Jersey has effectively decreed such a decision per se harmful to that minor, regardless of the lack of concrete and substantial evidence to the contrary, and the State forever prohibits John Doe and all other minors from receiving such counsel from a licensed mental health professional. Logic more unreasonable and irrational as this is difficult to fathom. B. A3371 Constitutes Impermissible Viewpoint Discrimination.
A viewpoint-based restriction on private speech has never been upheld by the Supreme Court or any court. Indeed, a finding of viewpoint discrimination is dispositive. See Sorrell v. IMS Health, 131 S. Ct. 2653, 2667 (2011). It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). When the government targets not subject
matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Id. at 829. In fact, viewpoint-based regulations are always unconstitutional. See, e.g., Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others (quoting City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). The Third Circuit has likewise expressed disdain for a government regulation that imposes a restriction on speech based solely on its viewpoint. Viewpoint discrimination is an anathema to free expression and is impermissible in both public and nonpublic fora. Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290, 296 (3d Cir. 2011). Indeed, if the government allows speech on a certain subject, it must accept all viewpoints on the subject . . . even those that it disfavors or that are unpopular. Id. (citations omitted). Moreover, [t]o exclude a group simply because it is controversial or divisive is viewpoint discrimination and a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint is not enough to justify the suppression of speech. Child Evangelism Fellowship of N.J., Inc. v. Stafford Tp. Sch. Dist., 386 F.3d 514, 527-28 (3d Cir. 2004) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969)). A3371 is a textbook example of viewpoint discrimination. The legislation explicitly prohibits licensed counselors from providing, and therefore Plaintiffs from receiving, any information and counseling directing at helping a minor to reduce or eliminate his unwanted SSA. On its face, A3371 allows licensed counselors to discuss the subject of sexual orientation, but precludes a particular view on that subject, namely that SSA can be reduced or eliminated to the benefit of the client. A3371 specifically targets SOCE that seeks to
eliminate or reduce sexual or romantic attractions or feelings towards a person of the same gender. (Compl. Ex. A) (emphasis added). Moreover, A3371 targets the particular viewpoint in favor of SOCE not because it has been definitively proven to be harmful, but instead because it is unpopular. The APA Task Force Report3 concluded that with regard to adults, there was some evidence that SOCE was beneficial, and some evidence that it was harmful. See APA Report at 2-3, 42, 49-50, 120. With regard to children, though, the Task Force noted that there was almost no evidence whatsoever concerning the effects of SOCE on children. Id. at 91. That is why the Report advised that more research was required. Id. at 90. Thus, A3371s blanket ban on SOCE was not based on any hard scientific evidence, but rather on the disapproving opinions of several professional organizations, such as the APA itself. (Compl. Ex. A). That is precisely what the First Amendment forbids: the mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint. Child Evangelism Fellowship of N.J., 386 F.3d 514, 527-28 (quoting Tinker, 393 U.S. at 509). The authors of the primary evidence the State relied upon in enacting A3371, which was the APA Report, reveal that A3371 is aimed at suppressing the viewpoint that Plaintiffs desperately desire on SOCE counseling. Although many qualified conservative psychologists were nominated to serve on the task force, all of them were rejected. (Declaration of Christopher Rosik, Rosik Decl. 3). The reason they were excluded was because the leaders of that Task Force were ideologically opposed to their viewpoint. One of the leaders stated, [w]e cannot take into account what are fundamentally negative religious perceptions in homosexualitythey dont fit into our world view. (Id.) (emphasis added). Thus, from the
3
Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. (hereinafter APA Report)
10
outset of the task force, it was predetermined that conservative religious viewpoints would only be acceptable when they fit within their pre-existing worldview. (Id.). Moreover, the APA Reports own statements indicate that it was not going to be objective in its analysis and that any viewpoint contrary to the a priori assumption that same-sex attractions were good and normal would not be accepted. See APA Report at 2 (framing the entire analysis of the Report with the assumption that [s]ame-sex sexual attractions, behavior, and orientations per se are normal and positive variants of human sexuality.). Beginning with this assumption obviously reveals that the APA Report would not lend any credence to evidence of non-normative causes of homosexuality and would reject any notion that people should seek to change such attractions, behaviors, or identity. (Declaration of Joseph Nicolosi, Nicolosi Decl. 15) The State merely adopted the viewpoint of those ideologically opposed to SOCE counseling, and impermissibly discriminated against Plaintiffs right to receive information on SOCE counseling. A3371 should therefore be enjoined. In addition, the statute permits a licensed professional to counsel a client to transition from one gender to another. But, if the clients gender identity, mannerisms, or expression differ from the clients biological sex and the clients feelings are unwanted meaning he does not want to transition from a male identity to a female identity but instead the client wants to change his female gender identity, mannerisms, or expression to conform to his biological sex, then the counseling is forbidden. Similarly, the statute permits the counseling of a client to affirm homosexual attractions, but prohibits counseling a minor to change unwanted SSA. Under no circumstances may a licensed counselor counsel a minor client to change unwanted SSA. Nor may the counselor counsel the minor client to change unwanted opposite sex mannerisms, expressions, or identity, even when the client wants to change them.
11
A3371 purportedly seeks to protect ... lesbian, gay, bisexual, and transgender youth. (Id.). By explicitly mentioning LGBT youth, A3371 clearly aims to ban only counsel that seeks to change SSA. That this is the actual meaning of A3371 is beyond peradventure, because it includes no less than thirteen legislative findings and/or declarations, eleven of which expressly decry efforts to change non-heterosexual sexual orientations (i.e. homosexual or bisexual). (Id. at 2-5). Despite the States adamant assertions that attempting to change a minors sexual attractions, behavior, expressions, mannerisms, or gender identity is harmful, not one legislative finding explicitly opposes counsel seeking to change heterosexual attractions. (Id.). A3371s definitions further confirm that only non-heterosexual SOCE counseling is precluded, as SOCE does not include counseling that: (1) provides acceptance, support, and understanding of clients or facilitation of persons coping, social support, and identity exploration and development, including sexual orientation-neutral intervention to prevent or address unlawful conduct or unsafe sexual practices, and (B) do not seek to change sexual orientation. (Id. at 5) (emphasis added). Consequently, Plaintiffs and other minors may receive information and counseling directing them toward or encouraging SSA, to provide acceptance, support, and understanding, to counsel minors to transition from one gender to another, or to remain neutral. Nevertheless, they have no professional avenue to seek concerning the possibility of changing unwanted SSA even when that is precisely what that minor desperately seeks. (Id.). The viewpoint of those licensed counselors whose professional judgment leads them to believe that homosexual desires or behavior are destructive to some of their minor clients with unwanted SSA or that their clients might be better served by choosing SOCE is silenced and censored, and therefore prohibits Plaintiffs from receiving this viewpoint.
12
Last year, an Eastern District of California court considered a law virtually identical to A3371 and enjoined its enforcement as a viewpoint-based regulation of speech. Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012), revd, Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013), pet. for rehg and rehg en banc pending. There, the court noted that a law banning only one particular viewpoint in otherwise permissible talk therapy is impermissible because [r]egardless of the breathing room [the law] may leave for speech about SOCE, when applied to SOCE performed through talk therapy, [the law] will give rise to disciplinary action solely on the basis of what the mental health provider says or the message he or she conveys. Id. (emphasis added). Indeed, when the entire course of counseling is guided by the counselors or clients views on homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality. Id. at 1116 (emphasis added). Moreover, [t]hat messages about homosexuality can be inextricably intertwined with SOCE renders it likely that, along with SOCE treatment, [the law] bans a mental health provider from expressing his or her viewpoints about homosexuality as part of SOCE treatment. Id. at 1117. While that decision was reversed, the rationale of the Ninth Circuits decision was flawed and is being considered for a rehearing or rehearing en banc.4 The Supreme Court and several other courts have invalidated professional regulations when those regulations would limit what a professional could say, and thereby limit what information a client or patient could receive. See Sorrell, 131 S. Ct. 2653 (2011); Legal Servs. Corp. v. Valazquez, 531 U.S. 533 (2001); Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). In
Pickup v. Brown, No. 12-17681, Dkt. 121 (9th Cir. 2013) (ordering responses on Petition for Rehearing and Rehearing En Banc). 13
these cases, the courts recognized the axiomatic truth that the government is not permitted to impose its viewpoint on speakers or prohibit individuals from receiving information. In Velazquez, the High Court addressed a federal limitation on the legal profession that operated in materially the same viewpoint-based manner as does A3371. The regulation in Velazquez prevented legal aid attorneys from receiving federal funds if they challenged welfare laws. Velazquez, 531 U.S. at 537-38. The effect of this funding condition was to prohibit advice or argumentation that existing welfare laws are unconstitutional or unlawful, and thereby exclude certain vital theories and ideas from the lawyers representation. Id. at 547-48. The Court invalidated the regulation on its face. Id. at 549. In Conant, several physicians and their patients brought a First Amendment challenge to a federal policy that punished physicians for communicating with their patients about the benefits or options of marijuana as a potential treatment. Conant, 309 F.3d at 633. The Ninth Circuit noted that [a]n integral component of the practice of medicine is the communication between a doctor and a patient. Physicians must be able to speak frankly and openly to patients. That need has been recognized by courts through the application of the common law doctor-patient privilege. Id. at 636 (emphasis added). Indeed, physicians must have this ability to allow patients to receive all of the information relevant to their choice. Far from being a First Amendment orphan, the court noted that such professional speech may be entitled to the strongest protection our Constitution has to offer. Conant, 309 F.3d at 637 (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995)).The court held that the ban impermissibly regulated physician speech based on viewpoint because the policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient . Id. at 637-38
14
(emphasis added). Such condemnation of particular views is especially troubling in the First Amendment context, especially when they limit a patients access to critical information. Id. A3371 operates almost identically to the federal policy enjoined in Conant. Just as the policy in Conant prohibited physicians from speaking about the benefits of marijuana to a suffering patient, so A3371 prohibits clients from receiving beneficial information in SOCE counseling that might help them alleviate their psychological distress caused by unwanted SSA or gender confusion. Both policies express governmental preference for the message it wanted individuals to receive over the information that a medical professional thought beneficial or that a client desperately sought. Both should suffer the same constitutional demise. C. A3371 Is Unconstitutional Content-Based Discrimination.
Even if A3371 were not viewpoint-based, which it is, but only a content-based restriction on what information Plaintiffs are able to receive, it still could not withstand strict scrutiny. A3371 unquestionably restricts the content of speech regarding SOCE counseling. As such, A3371 is presumptively invalid and can only be upheld if New Jersey can demonstrate that it passes strict scrutinythat is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2738 (2011). Indeed, the notion that a content-based restriction on speech is presumptively unconstitutional is so engrained in our First Amendment jurisprudence that last term we found it so obvious as to not require explanation. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115-16 (1991). Regulations that permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment. Id. at 116 (quoting Reagan v. Time, Inc., 468 U.S. 641, 648-49 (1984)).
15
Furthermore, [i]t is rare that a regulation restricting speech because of its content will ever be permissible. United States v. Playboy Entmt Grp., 529 U.S. 803, 818 (2000). The burden is on the State to prove it satisfies strict scrutiny, but the State cannot meet that burden here. Id. at 813. 1. A3371 is not justified by a compelling government interest.
The Legislature claims that A3371 was enacted to meet a compelling interest in protecting the physical and psychological well-being of minors. (Compl. Ex. A, 1(m)). Under certain circumstances, states may have a compelling interest in the well-being and protection of children. See Sable Commcns of Cal., Inc. v. F.C.C., 492 U.S 115, 126 (1989). Nevertheless, to simply claim the Act is intended to serve that broadly stated interest is not alone sufficient to justify A3371 and its prohibition on the information Plaintiffs are entitled to receive in the counselors office, and the government must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (Turner I). This Court must answer the question [of] whether the legislative conclusion was reasonable and supported by substantial evidence in the record. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 211 (1997) (citing Turner I, 512 U.S. at 665-66). When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured. Turner I, 512 U.S. at 664 (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). The State must specifically identify an actual problem in need of solving. Brown, 131 S. Ct. at 2736. Additionally, when the government seeks to infringe on the fundamental rights of Plaintiffs to receive information, it must present more than anecdote and suspicion. Playboy Entmt, 529 U.S. at 822. [S]peculative fears alone have never been held sufficient to justify
16
trenching on first amendment liberties. Century Commcns Corp. v. FCC, 835 F.2d 292, 300 (D.C. Cir. 1987) (holding that government claims that are not based on substantial evidence are more speculative than real). A3371 cannot satisfy this rigid standard, as the evidence that SOCE counseling is harmful to minors in all circumstances is insufficient as a matter of law. As shown above, the American Psychological Associations Task Force on SOCE found some evidence of both alleged harm and benefits produced by SOCE. See APA Report at 2-3, 42, 49-50, 120. It noted that sexual minority adolescents are underrepresented in research on evidence-based approaches, and sexual orientation issues in children are virtually unexamined. Id. at 91. (emphasis added). The Report concluded that there is a dearth of scientifically sound research on the safety of SOCE. Early and recent research studies provide no clear indication of the prevalence of harmful outcomes . . . because no study to date of scientific rigor has been explicitly designed to do so. Id. at 42 (emphasis added). Anecdotes and suspicions simply will not suffice to justify A3371s content-based discrimination. Playboy Entmt, 529 U.S. at 822. The insufficiency of Defendants justifications is evidenced by the fact that many mental health professionals, including Dr. Nicholas Cummings, the former President of the American Psychological Association, acknowledge that many people successfully change their unwanted SSA.5
5
Nicholas A. Cummings, Ph.D., Sexual Reorientation Therapy Not Unethical, USA Today (July 30, 2013), available at http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientation-therapy-notunethical-column/2601159/ (noting that he personally saw hundreds of patients that successfully changed their unwanted SSA and that thousands of patients who decided to stay a homosexual improved their lives as a result of his counseling). Dr. Nicholas went on to state: Contending that all same-sex attraction is immutable is a distortion of reality. Attempting to characterize all sexual reorientation therapy as unethical violates patient choice and gives an outside party a veto over patients goals for their own treatment. A political agenda shouldnt prevent gays and lesbians who desire to change from making their own decisions. ... [A]ccusing professionals from across the country who provide treatment for fully informed persons seeking to change their sexual orientation of perpetrating a fraud serves only to stigmatize the professional and shame the patient. Id.
17
There are numerous studies that establish or at least suggest that people can and do successfully change their sexual orientation and eliminate or reduce their unwanted SSA. (Rosik Dec. 27-36); (Nicolosi Decl. 13-24). As summarized by Ott et al. (2013), reported sexual identity, attraction, and behavior have been shown to change substantially across adolescence and young adulthood. (Rosik Decl. 27) (emphasis added). Also, [o]ne major findings of Laumann, Gagnon, et al. study, which even surprised the authors, was that homosexuality as a fixed trait scarcely seemed to exist. (Id. 28) (emphasis added). The most troubling part of A3371 is that it prevents what some studies have shown to progress naturally unless interfered with by extraneous factors, in this case New Jerseys legislature. (Id. 27). Indeed, [i]t appears the most common natural course for a young person who develops a non-heterosexual sexual identity is for it to spontaneously disappear unless that process is discouraged or interfered with by extraneous factors. (Id.) (emphasis added). A3371, far from actually furthering a compelling government interest to protect minor is in fact harmful to minors. (Nicolosi Decl. 25-35). The governments alleged interest here is contradicted by the APA itself, which is one of the organizations cited as supporting the alleged consensus. The APA has conceded: There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influence on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles. (Id. 40) (emphasis added). [E]vidence of fluidity and change in sexual orientation strongly suggests that change in the dimensions of sexual orientation does take place for some people
18
(and likely more so for youth) and this change is best conceptualized as occurring on a continuum and not as an all-or-nothing experience. (Id. 38) (emphasis added). Contrary to the States contentions and the Governors personal belief that homosexuals are born that way,6 sexual orientation is by no means comparable to a characteristic such as race or biological sex which are thoroughly immutable. (Id. 43). Same-sex attractions and behaviors are not strictly or primarily determined by biology or genetics and are naturalistically subject to significant change, particularly in youth and early adulthood. ( Id.). Indeed, the APA Report concedes that sexual orientation is not a fixed trait and explicitly stated that sexual orientation is fluid and often has an indefinite outcome. APA Report at vii (emphasis added). The continued availability of SOCE counseling by unlicensed counselors further reveals that A3371 is not supported by a compelling interest. A3371 prohibits licensed counselors from SOCE with minors, but the same counselor can counsel adults. Unlicensed counselors can offer SOCE to minors and adults. At a minimum, A3371 is underinclusive. City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994) (holding that exemptions permitting the same harm as that alleged in the prohibited speech can show a regulation is impermissibly underinclusive and designed to suppress only particular content or viewpoint). At worst, it proves the States interest is not compelling. If the government fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993). [A] law cannot be regarded as protecting an interest of the highest
6
See Press Release, Gov. Christie Signs Bill Banning Gay Conversion Therapy On Minors , (Aug. 19, 2013) (available at http://nj.gov/governor/news/news/552013/approved/20130819a.html (last accessed 10/22/13).
19
order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited. Id. at 547. Here, the State has banned licensed counselors, who have far greater expertise by training, experience, and qualifications than unlicensed counselors, but have given unlicensed counselors, who have significantly less expertise, free rein to counsel minors however they deem fit. A3371 not only fails to satisfy strict scrutiny, it also fails even to meet minimal rational basis standards. It is, in a word, irrational at its core. 2. A3371 is not narrowly tailored.
Even if Defendants could articulate a compelling interest for A3371s total prohibition on Plaintiffs right to receive information on change counseling, which they cannot, A3371 would still fail strict scrutiny because it is not narrowly tailored. It is not enough to show that the Governments ends are compelling; the means must be carefully tailored to achieve those ends. Sable Commcns, 492 U.S. at 126. Even if the State could ban an entire mode of therapysuch as SOCE counselingfrom the field of counseling, it could not do so simply to suppress a particular idea. R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (The government may not regulate a [mode of speech] based on hostilityor favoritismtowards the underlying message expressed.). As shown above, A3371 was based on such favoritism, and there are other content-neutral alternatives to the regulation. See id. at 395 (The existence of adequate contentneutral alternatives thus undercut[s] significantly any defense of such a statute, casting considerable doubt on the governments protestations that the asserted justification is in fact an accurate description of the purpose and effect of the law.) (citations omitted). Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. NAACP v. Button, 371 U.S. 415, 433 (1963). Narrow tailoring requires
20
that a regulation achieve the governments interest without unnecessarily interfering with First Amendment freedoms. Sable Commcns, 492 U.S. at 126. A3371 is not necessary to prevent harm because all of the ethical codes of the professions engaging in this form of counseling which apply only to licensed counselors -- already prohibit practices that actually harm patients. Specifically, Section 3.04 of the APA Code, Avoiding Harm, requires that [p]sychologists take reasonable steps to avoid harming their clients/patients . . . and to minimize harm where it is foreseeable and unavoidable. (Pruden Decl. 5). Section A.4.a of the ACA Code states: Counselors act to avoid harming their clients. (Id.). Section 1(c) of the American Psychiatric Association Guidelines states that [a] psychiatrist shall strive to provide beneficial treatment . . . . (Id.). Violations of these ethical codes are treated as unprofessional conduct and subject licensed professionals to discipline by their respective licensing boards. Principle 1 of the American Association of Marriage and Family Therapys Ethics Code states that [m]arriage and family therapists advance the welfare of families and individuals. (Id.). Certainly, the mandate that marriage and family therapists advance the welfare of their clients would be violated by a counselor who engages in a course of counseling that is harmful to the client. A3371, however, is not an attempt to prevent harm, but is in truth a politically motivated attempt to harm one group of professionals who hold a particular viewpoint regarding counseling, particularly SOCE counseling, and an effort to prohibit those counselors from providing any information or counseling on the fact that SOCE can and does help people reduce or eliminate their unwanted SSA. The fact that children are already protected from harmful and dangerous therapies at least from licensed counselors (these ethical rules do not apply to unlicensed counselors, whom A3371 leave unregulated, and to whom A3371 drives minors who
21
desire to receive SOCE) reveals that Defendants underlying goal is not about protecting minors. They are already protected by these ethical rules. Instead, the asserted state interest is merely the guise under which Defendants are attempting to discriminate against, and silence, the viewpoint of those professionals who believe that SOCE is helpful and prevent minors from receiving information and counseling espousing that viewpoint. Informed consent, which is the touchstone of professional counseling, and a clients right to self-determination, undercuts any alleged interest of the State because mandating informed consent would be a less restrictive means to achieve the States alleged goal in preventing harm to clients. When legislation virtually identical to A3371 was being debated in California, several mental health organization recognized there that this type of legislation is attempting to undertake an unprecedented restriction on psychotherapy. (See Compl. Ex. B, Letter to California Legislature from California mental health organizations, at 1). These mental health organizations proposed informed consent language that would have been much more narrowly tailored than the unprecedented intrusion into the relationship between counselor and client, but it was rejected. (Id.). A complete ban on SOCE counseling or a viewpoint regarding SSA is not the least restrictive means to achieve any governmental interest. Total prohibitions on constitutionally protected speech are hardly an exercise of narrow tailoring. Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). Such extreme measures are invalid and should be enjoined. D. A3371 Also Fails Intermediate Scrutiny under OBrien.
The government may not prohibit pure speech under the guise of calling it conduct. In Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010), the Supreme Court addressed the constitutionality of a federal law that forbade giving training or expert advice or assistance
22
to foreign terrorists. Id. at 2715. The government there, as the State does here, argued that the prohibition was permissible because it pertained only to conduct, not speech. Id. at 2723. The Supreme Court unanimously and emphatically rejected that argument, holding that the law was a content-based regulation on speech and therefore subject to strict scrutiny: [The prohibition] regulates speech on the basis of its content. Plaintiffs want to speak to [designated terrorist organizations], and whether they may do so under [the law] depends on what they say. Id.(emphasis added).7 In the same way, here Plaintiffs want to receive information from licensed mental health professionals, and whether they may do so depends on what those professionals say. As such, A3371 is a content-based regulation on speech, and subject to strict scrutiny. Even if this Court were to categorize SOCE as conduct, however (which it should not), it is nonetheless at a minimum expressive conduct subject to intermediate scrutiny under United States v. OBrien. Under that standard, A3371 cannot withstand scrutiny because it is not supported by a substantial government interest, it is directly related to the suppression of the speech Plaintiffs are seeking to receive, and it imposes a far greater restriction than necessary. 1. Even if A3371 were a restriction on conduct, it regulates expressive conduct and intermediate scrutiny applies.
The Supreme Court has recognized that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments. Texas v. Johnson, 491 U.S. 397, 404 (1989). In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether an intent to convey a particular message was present, and [whether] the likelihood was
Although only six justices joined the majority opinion in Holder, all nine justices agreed that, as applied to the plaintiffs, the prohibition was a restriction on speech, not conduct. See id. at 272324; id. at 2734 (Breyer, J., dissenting).
23
great that the message would be understood by those who viewed it. Id. at 406-07 (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)). It is beyond peradventure that Plaintiffs are seeking this counseling because they know that the SOCE counselors intend to convey the message that minors struggling with unwanted SSA can eliminate or reduce them. Mental health counselors would not engage in this type of counsel if they did not intend to communicate the message that change is possible. In fact, their clients seek them out precisely because of that message. (Newman Decl. 8). Additionally, it is certain that Plaintiffs understand the message, as the message is their sole reason for seeking SOCE counseling. If this Court were to find that A3371 regulates primarily conduct, then it is at least expressive conduct, which must satisfy the heightened standard of intermediate scrutiny. [W]hen speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. United States v. OBrien, 391 U.S. 367, 376 (1968).8 [C]onduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative is symbolic expression, otherwise known as expressive conduct. Bartnicki v. Vopper, 220 F.3d 109, 120 (3d Cir. 1999). Where. . . a regulation burdens expression but is content-neutral, we apply the intermediate scrutiny standard enunciated by the Supreme Court in United States v. OBrien. Conchata Inc. v. Miller, 458 F.3d 258, 267 (3d Cir. 2006). Because the communication involved in SOCE is obviously expressive, A3371 can survive only if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater
A3371 imposes more than an incidental restriction on constitutionally protected speech. It imposes a complete prohibition on protected speech.
24
than is essential to the furtherance of that interest. OBrien, 391 U.S. at 377. The State cannot satisfy this burden. 2. A3371 does not advance an important government interest.
First, A3371 does not advance an important government interest. A3371 is grounded solely on political ideology. (Compl. Ex. A). A3371 was also based on the APA Report (which was itself politically and ideologically biased), which found that insufficient evidence existed to conclude SOCE was harmful to adults, and that there was no evidence regarding minors. APA Report at 42, 91. Indeed, the APA Report concluded that there was evidence to support benefits produced by SOCE. Id. at 2-3, 42, 49-50, 120. The APA Report also acknowledged that sexual orientation issues in children are virtually unexamined. Id. at 91. This record is utterly insufficient to support a ban on SOCE generally, let alone a ban on SOCE to minors in particular. The basis for supporting an important government interest cannot be speculative or anecdotal. See Witt v. U.S. Dept of Air Force, 527 F.3d 806, 819 (9th Cir. 2008) (hypothetical, post-hoc rationalizations are insufficient to establish an important government interest); Playboy Entmt, 529 U.S. at 822 (the government must present more than anecdote and suspicion). No doubt a State possesses legitimate power to protect children from harm . . . but that does not include a free floating power to restrict ideas to which children may be exposed. Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2736 (2011) (citations omitted) (emphasis added). The States alleged interest in protecting children is unsupported by evidence of harm. Mere disagreement with the viewpoint that unwanted SSA can be changed even disagreement by several professional organizations -- is insufficient as a matter of law to justify a complete ban
9
Tellingly, in the decisions that have upheld bans on SOCE counseling, the courts have wrongly applied only rational basis review. See, e.g., Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013).
25
on the expressive communications that Plaintiffs seek to receive and licensed counselors in New Jersey seek to provide. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images the legislative body thinks unsuitable for them. Id. A political objection to a certain message the legislature and the homosexual lobby finds disagreeable cannot suffice as an important government interest, especially when such legislative animus is unsupported by the evidence. 3. A3371 is targeted at the suppression of the message of SOCE.
The prohibition of speech is not an incidental part of A3371. It is the very heart of A3371. SOCE has never been a violation of any of the long-standing ethical standards governing the mental health profession, and the same organizations purporting to represent the consensus that it is per se harmful fail to ban it anywhere in their ethical codes. Indeed, there are no instances of ethical violations by any practitioners of SOCE, and not one of the leading mental health organizations has ever expressed anything more than an ideological opposition to this type of counseling. (Compl. Ex. A). No counseling association bans SOCE. Even the most comprehensive review of SOCE found only that it may cause some harm, but those reports of harm were counterbalanced by reports of benefits. APA Report at 2-3, 42, 49-50. This sparse record will not suffice for such a harsh and overbroad ban prohibiting Plaintiffs from receiving the counseling they so desperately seek. By explicitly singling out SSA, transitioning from one gender to another, and LGBT youth, A3371 clearly aims to ban only the message that seeks to change non-heterosexual sexual orientations. (Compl. Ex. A). That this is the actual intent of A3371 cannot be seriously doubted. A3371 is targeted at any counsel to a minor under any circumstance that seeks to change SSA regardless of the clients goals and objective in the therapeutic alliance with his or
26
her counselor. As the language of the bill makes clear, A3371s sole aim is the suppression of the message communicated in SOCE counseling with minors seeking to reduce or eliminate unwanted SSA. That A3371 is intended to suppress that particular message is made even more evident by the timing of its passage. SOCE practitioners have provided SOCE for decades without any attempt to prohibit them from doing so. Many of the ideological position statements referenced in A3371 and the APA Report upon which it is based have also been around for years (See A3371 at 1(d)(g) (1994 statement of AMA), 1(d)(h) (1997 statement of NASW), 1(d)(i) (1999 statement of American Counseling Association), yet only in the last few months have there been any attempts to ban SOCE. If the alleged harm occasioned by this counseling has been clear for years, as the State claims, then it is curious why there have never been any findings of ethical violations, lawsuits against the practitioners of SOCE by injured clients, or any efforts to ban the practice until now. And the New Jersey Legislature had previously determined that minors 14 years and older could consent to any counsel without the parents consent, and that included SOCE, at least until the passage of A3371. N.J. Ct. R. 4:74-&A(c). So, now minors can consent to any counsel they choose, whether or not their parents object, except SOCE -- even with the consent of their parents. This is patently absurd. The restriction on speech occasioned by A3371 is more than incidental, and thus the OBrien intermediate test should not apply. A3371 is viewpoint-based and ipso facto unconstitutional. But even if the regulation were merely incidental to the alleged conduct and OBrien did apply, A3371 does not and cannot survive intermediate scrutiny. It should therefore be enjoined. E. A3371 Violates Plaintiffs First Amendment Right to Free Exercise of Religion. 27
A3371 unconstitutionally infringes on the First Amendment rights of Plaintiffs to seek counseling consistent with their sincerely held religious beliefs that change is possible and desirable. Plaintiff John Doe is prohibited from receiving and Plaintiffs Jack and Jane Doe are prohibited from assisting their son with receiving counseling consistent with their sincerely held religious beliefs and from directing the upbringing of their children in accordance with those beliefs. A3371 imposes a substantial burden on the religious beliefs of Plaintiffs because Plaintiffs have no options in seeking SOCE counseling from those licensed professionals who are best able and most experienced at providing such counseling. Instead, Plaintiffs are forced to elevate what the State has determined is an appropriate ideology over their own sincerely held religious beliefs about something as fundamental as their personal identity. This is the very essence of a substantial burden on religion. Sherbet v. Verner, 374 U.S. 398, 404 (1963); Washington v. Klem, 497 F.3d 272, 278 (3d Cir. 2007) (the Supreme Court has stated in its Free Exercise Clause jurisprudence that a substantial burden exists when a follower is forced to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand) (quoting Sherbert, U.S. at 404). A3371 also impose a substantial burden on Plaintiffs because of its improper intrusion into their fundamental right to self-determination. Plaintiffs have sincerely held religious beliefs that homosexuality is a harmful and sinful lifestyle and against the fundamental tenets of their faith. (John Doe Decl. 9) (I have a sincerely held religious belief and conviction that homosexuality is wrong . . . I want to resolve my sexual attractions so that I act consistently with my religious beliefs.); (Jane Doe Decl. 18) (my husband and I also have sincerely held religious beliefs that homosexuality is a sinful and harmful lifestyle). Additionally, A3371 infringes on Plaintiffs Jack and J ane Does sincerely 28
held religious beliefs concerning the education of their child and their fundamental rights to direct the upbringing and education of their child. (Id.) (My husband and I also have sincerely held religious beliefs that we should provide our son with the necessary education to understand Sacred Scripture, as well as the teachings of our Catholic Church. We believe that assisting him in receiving the counseling . . . is one aspect of educating him to be able to live virtuously through the fundamental tenets of our faith.). A3371 infringes upon those religious beliefs. The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 523 (1993). Although a law targeting religious beliefs as such is never permissible . . . if the object of the law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral. Id. at 533 (citations omitted). Facial neutrality is not always sufficient. In some instances, [f]acial neutrality is not determinative. The Free Exercise Clause . . . extends beyond facial discrimination. The Clause forbids subtle departures from neutrality, . . . and covert suppression of particular religious beliefs. Id. at 534 (quoting Gillette v. United States, 401 U.S. 437, 452 (1971) and Bowen v. Roy, 476 U.S. 693 (1986)). Moreover, [t]he Free Exercise Clause protects against government hostility which is masked, as well as overt. Id. A3371 displays outright hostility towards religious views of those who seek SOCE counseling to elevate their sincerely held religious beliefs above their sexual attractions. Relevant evidence of neutrality includes, inter alia, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history. Lukumi, 508 U.S. at 543. All of these considerations point to the APA Report, which the State used as its chief source of evidence for
29
enacting A3371. The APA Report observed that conservative Christian men predominated in the recent research on SOCE, APA Report at 45, and that religious beliefs that consider homosexuality sinful or unacceptable was a frequent factor leading clients to choose to undergo SOCE. Id. at 46. Indeed, the APA Report found that the conflicts between faith and same-sex sexual attraction appear to involve significant stress due to the struggle to live life congruently with their religious beliefs, and sometimes leads to a crisis of faith. Id. at 46-47. The response of the Task Force to the very real and intense emotional stress occasioned by this conflict between faith and sexual desire is revealing. One of the leaders of the Task Force stated, [w]e cannot take into account what are fundamentally negative religious perceptions of homosexualitythey dont fit into our world view. (Rosik Decl. 3). It appears that the APA operated with a litmus test when considering task force membershipthe only views of homosexuality that were targeted are those that uniformly endorsed same-sex behavior as a moral good. (Id.). Rather than facilitate the resolution of the conflict between faith and sexual desire in a manner respectful of the clients faith, A3371 precludes any attempts to reorder ones sexual attractions in alignment with his faith and instead requires that ones beliefs be changed to align with his unwanted SSA. Thus, there is a strong inference that the A3371 is targeted specifically at those individuals who believe change in possible and whose sincerely held religious views inform them that change is possible. Although neutral laws of general applicability receive deferential treatment, Empt Div., Dept of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990), [a] law failing to satisfy these requirements must be justified by a compelling government interest and must be narrowly tailored to advance that interest. Lukumi, 508 U.S. at 531-32. A3371 is not neutral or generally
30
applicable and must undergo the most rigorous of scrutiny. Id. at 546. Such a law will survive strict scrutiny only in rare cases. Id. (emphasis added). A3371 fails strict scrutiny. 1. A3371 is not neutral or generally applicable and is therefore subject to strict scrutiny.
A3371 is directed only at counseling that offers to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender. (Compl. Ex. A). The desire for this kind of counseling is most often founded upon sincerely held religious beliefs such as those of Plaintiffs, as shown above. As such, the law disproportionately affects those motivated by religious belief. Plaintiffs desire to seek and receive of SOCE counseling from a licensed mental health professional is religiously motivated. A3371 exempts counseling (1) for minors seeking to transition from one gender to another, (2) for minors struggling with or confused about heterosexual attractions, behaviors, or identity, (3) that facilitates exploration and development of same-sex attractions, behaviors, or identity, (4) for individuals over the age of 18 who are seeking to reduce or eliminate same-sex attractions, behaviors, or identity, and (5) provided by unlicensed counselors. These individualized exemptions subject A3371 to heightened scrutiny. The allowance of individualized or categorical exemptions from the general prohibitions of the statute demonstrates that A3371 is not neutral or generally applicable. See Lukumi, 508 U.S. at 536-38. Laws that target substantially similar conduct but unevenly proscribe the conduct purporting to cause the harm constitute an impermissible religious gerrymander. Id. unconstitutionally imposes such a gerrymander on Plaintiffs free exercise rights. The unequal treatment of equally detrimental behaviors [causes] the violation of the Free Exercise Clause. Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 265 (3d Cir. 2007). [T]he Free Exercise jurisprudence of the Supreme Court and of 31 A3371
this Court teaches that the relevant comparison for purposes of a Free Exercise challenge to a regulation is between its treatment of certain religious conduct and the analogous secular conduct that has a similar impact on the regulations aims. Id. at 265 (emphasis original). A law fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated. Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004) (Alito, J.) (emphasis added). In Blackhawk, the Third Circuit found heightened scrutiny proper because the statutes at issue created individualized and categorical exemptions, just as A3371 does here, that undermined the States asserted interest in prohibiting certain conduct. Blackhawk, 381 F.3d at 211-12; see also Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999) (Alito, J.) (noting that when the government makes value judgments that exempt certain individuals for secular reasons but not for religious reasons, the regulation is subject to strict scrutiny). A3371 permits SOCE counseling for individuals who seek to change sexual orientation towards homosexuality or bisexuality. (Compl. Ex. A). Not one legislative finding in A3371 opposes counsel seeking to change heterosexual sexual orientations. (Id.). In fact, A3371 specifically targets those individuals who seek SOCE to eliminate or reduce sexual or romantic attractions or feelings towards a person of the same gender. (Id.). (emphasis added). A3371 exempts counseling that affirms homosexual attractions while preventing Plaintiffs from seeking counsel from a licensed mental health professional that is aimed at helping those minors who desire to change homosexual attractions. A3371 also exempts counseling that facilitates exploration or development of same-sex attractions, behaviors, or identity. The law exempts
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counsel that seeks to change away from heterosexuality towards homosexuality but bans counsel that seeks to change away from homosexuality towards heterosexuality. A3371 also permits counseling for individuals seeking to transition from one gender to another. (Id.). This is certainly a significant change in sexual orientation or identity, especially for a minor, yet A3371 exempts it and indeed encourages it. ( Id.). The law has therefore made a value judgment that change in one direction (towards homosexuality) is fine but change in another direction (towards heterosexuality) is harmful. If change of sexual orientation or gender identity is harmful, then the premise should hold true no matter which direction the change is directed. The fact that change in one direction is permitted but change in the other direction is banned reveals that the law does not serve its alleged purpose; it is undercut by the exemptions. A3371 completely prohibits SOCE counseling for those who, like Plaintiff John Doe, seek to reduce or eliminate their unwanted SSA, even when they seek such counseling out of their sincerely held religious beliefs and fundamental desire to conform their attractions, behaviors, and identity to their sincerely held religious beliefs. (John Doe Decl. 9) (I want to live out my religious values and do not want to act out on same-sex attractions that violate my religious beliefs. I want to resolve my sexual attractions so that I act consistently with my religious beliefs.). A3371 also continues to allow minors to receive SOCE counseling from unlicensed counselors, which also undermines the States purported interest in preventing SOCEs alleged harm. If SOCE is harmful if offered by a licensed therapist, then it is harmful if offered by an unlicensed therapist who likely has little or no training in the area. And if it is harmful for a 17 year old minor, it is harmful for an 18-year old who has reached majority. The State cannot ban
33
what it erroneously deems is harmful in one setting while allowing the same alleged harm to go unregulated in a slightly different setting. Moreover, the State is actually creating harm where none exists by forcing minors to get counsel from those who lack expertise. Indeed, Plaintiffs experience with unlicensed counselors reveals that the State has actually created more harm for those minors seeking SOCE counseling. (Jack Doe Decl. 12) (The unlicensed counselor did not have a proper understanding of the underlying theories behind SOCE counseling, did not know how to properly engage in the discussions that take place during such counseling, and was unable to help my son with his gender confusion and unwanted same-sex attractions.); (id. 13) (A3371 forces minors and their families into an even worse situation because it requires that anyone seeking this type of counseling pursue it with an unlicensed counselor rather than a licensed professional trained in providing such counseling. As we have personally experienced, this ban will cause more harm to minors than allowing them to simply pursue conversations and communications with their licensed mental health counselors about those things that cause them distress and anxiety.) (emphasis original). A3371 is not neutral or generally applicable and is therefore subject to the most exacting constitutional scrutiny. 2. A3371 is subject to strict scrutiny as a violation of Plaintiffs hybrid rights.
Even laws that are neutral and generally applicable are subject to strict scrutiny when they implicate more than one constitutional right. Strict scrutiny may also apply when a neutral, generally applicable law incidentally burdens rights protected by the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the rights of parents to direct the education of their children. Tenafly Eruv Assn, Inc. v.
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Borough of Tenafly, 309 F.3d 144, 165 n.26 (3d Cir. 2002) (quoting Empt Div., 494 U.S. at 881). Here, there are undeniable bases upon which to find hybrid-rights violations. A3371 violates Plaintiffs First Amendment rights by restricting the availability of counseling options that are consistent with Plaintiffs sincerely held religious beliefs and information that Plaintiffs are constitutionally entitled to receive. (John Doe Decl. 9); (Jane Doe Decl. 18). Additionally, A3371 infringes on Plaintiffs Jack and Jane Does fundamental rights to direct the upbringing and education of their child. (Jane Doe Decl. 18); (Compl. 126-33). When combined with Plaintiffs free exercise claims, these constitutional violations subject A3371 to strict scrutiny under the hybrid rights claim. See Empt Div., 494 U.S. at 881. 3. A3371 Cannot Withstand Strict Scrutiny.
A3371 is not neutral or generally applicable and infringes on Plaintiffs free exercise and hybrid rights, so it must by justified by a compelling government interest and narrowly tailored. Lukumi, 508 U.S. at 531-32. A3371 fails that test. a. A3371 is not justified by a compelling government interest.
As the above discussion demonstrates, A3371 is not justified by a compelling government interest.10 Here, the government must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994) (emphasis added). Yet, sexual orientation issues in children are virtually unexamined. APA Report at 91. Moreover, the evidence of harm is based on mere anecdotes from individuals who self report. For this reason, the APA Report noted that its conclusions were quite limited due to the
10
See supra Section I.C.1.
35
fact that there is a dearth of scientifically sound research on the safety of SOCE. Id. at 41. Such unsupported and anecdotal reports of harm are insufficient to establish a compelling government interest justifying infringement on Plaintiffs rights to the free exercise of religion. The exemptions noted above also undermine any alleged governmental interest. b. A3371 is not narrowly tailored.
A narrowly tailored regulation is one that achieves the governments interest without unnecessarily interfering with First Amendment freedoms. Sable Commcns of Cal., Inc. v. FCC, 492 U.S 115, 126 (1989) (emphasis added). A complete prohibition on Plaintiffs right to seek SOCE counseling from a licensed professional under any circumstances is not the least restrictive means. A complete ban can hardly meet the least restrictive means test, especially when the main source relied upon by the State (the APA Report) acknowledges there is evidence that SOCE is beneficial to some who seek such counsel and the only evidence of alleged harm is at best anecdotal, and it must be underscoredthere is no research on minors. See, e.g., APA Report at 3, 42, 49, 53. Certainly, if there is evidence of benefit from such counseling, then especially for minors who seek such counseling to align their sexual identity to their sincerely held religious beliefs, a complete prohibition on such counseling is unwarranted. Indeed, Plaintiffs have experienced significant benefits from the SOCE counseling that they have engaged in with a licensed counselor and testify that there has been no harm from such counseling. (Jane Doe Decl. 13 (we have noticed significant changes in our son, and all of them are positive) (emphasis added); (id. 17) (The relationship between our son and the two of us has significantly improved since he started counseling. . . . We have seen the counseling benefit our son, and we
36
have not seen any harm resulting from the counseling. He appears much happier and less withdrawn and depressed since he began counseling.) (emphasis added). Informed consent, not a total ban, is a less restrictive and better means to protect the interest of the state and the Plaintiffs. Informed consent is the cornerstone of good counseling. If the client is fully informed and seeks change counsel to align his or her stress with religious values, then the client should have that right. (See Compl. Ex. B). A total ban collides with the Plaintiffs free exercise of religion, and therefore Plaintiffs are likely to succeed on the merits. F. A3371 Violates Plaintiffs Jack and Jane Does Fundamental Right to Direct the Upbringing of their Minor Child.
Parents are vested with the care, custody, and control of their children. That guarantee is enforceable against the states through the Fourteenth Amendment. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972); Pierce v. Socy of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). A3371 tramples upon this most basic right by preventing parents from caring for the mental health of their children as they see fit. Because A3371 intrudes upon a fundamental right, strict scrutiny applies. See Reno v. Flores, 507 U.S. 292, 301-02 (1993). Because the State cannot satisfy this high burden, Plaintiffs are likely to succeed on the merits of their case 1. Plaintiffs Jack and Jane Doe have a fundamental right to make mental health decisions for their child.
The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court. Troxel, 530 U.S. at 65 (discussing nine seminal cases dealing with this parental liberty interest). The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. Yoder, 406 U.S. at 232. American jurisprudence historically has
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reflected Western . . . concepts of the family as a unit with broad parental authority over minor children. Parham v. J.R., 442 U.S. 584, 602 (1979). It cannot be questioned that parents enjoy a fundamental discretion to bring up their children as they see fit. Troxel, 530 U.S. at 66. This primary role of the parents . . . is now established beyond debate as an enduring American tradition. Yoder, 406 U.S. at 232. The words care, custody, and control encompass decisions relating to the mental health of the child, for parents have a high duty to recognize symptoms of illness and to seek and follow medical advice. Parham, 442 U.S. at 602. Parents direct the destiny of their children and inculcate moral standards in them. Yoder, 406 U.S. at 233; Pierce, 268 U.S. at 535. Certainly, these responsibilities include selecting a course of therapy, for it is parents . . . [who] choose whether to expose their children to certain people or ideas. In re Custody of Smith, 969 P.2d 21, 31 (Wash. 1998) (en banc), affd sub nom. Troxel v. Granville, 530 U.S. 57, 63 (2000). Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the [S]tate. Parham, 442 U.S. at 603 (emphasis added). Rather, parents have authority to select medical procedures and otherwise decide what is best for their child, and [n]either state officials nor federal courts are equipped to review such parental decisions. Id. at 603-604. A3371 deliberately and explicitly infringes upon this right. Yet, the main sponsor of A3371 thinks that SOCE is an invidious form of child abuse, and stated that the State should take children away from parents who allow their children to seek SOCE counseling for their psychological distress. See Chris Christie Sings Ban on Gay Conversion Therapy, Politico.com (Aug. 19, 2013), available at www.politico.com/story/2013/08/chris-
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christie-gay-conversion-therapy-new-jersey-95666.html.
11
There is no proof of any harm
befalling children engaging in SOCE therapy, and therefore not a modicum of evidence to support the irreparable harm the Legislature has intentionally visited upon parents. In fact, Plaintiffs testimony reveals just the opposite, which is that John Doe has experienced significant benefit from his SOCE counseling. (John Doe. Decl. 13) (The discussions that my counselor and I engage in during counseling sessions are really helpful, and sometimes just talking about it makes all the difference in the world to me.); (Jane Doe Decl. 13 (we have noticed significant changes in our son, and all of them are positive) (emphasis added). 2. A3371 directly interferes with Plaintiffs Jack and Jane Does right to make mental health decisions for their child.
The Supreme Court has not hesitated to uphold the right to direct the upbringing of ones child over state laws that would deprive parents of that right. This has been true even in the context of public education, which is at the very apex of the function of the State. Yoder, 406 U.S. at 213. In Meyer v. Nebraska, the Court upheld the power of parents to control the education of their own. Meyer, 262 U.S. at 401. At issue there was a Nebraska statute that made it illegal to teach languages, other than the English language . . . [ until] the pupil . . . passed the Eighth grade. Id. at 397. The statute effectively prevented parents from hiring a teacher to instruct their children in German and penalized teachers who did so. Id. at 396. The Court facially voided the law, holding that the states intrusion on parental rights could not be justified: No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to
11
Matt Barber, Gay Lawmaker to Christians, Well Take Your Children, OneNewsNow (Aug. 26, 2013), available at www.onenewsnow.com/perspectives/matt-barber/2013/08/26/gaylawmaker-to-christians-well-take-your-children (quoting New Jersey Assemblyman Tim Eustace). 39
conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state. Id. at 403. The Supreme Court similarly held that an Oregon law that required every parent . . . of a child between 8 and 16 years to send him to a public school was an invalid effort to homogenize the states youth with a government-preferred form of education. See Pierce v. Socy of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 535 (1925). [W]e think it entirely plain that the [law] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. Id. at 535 (emphasis added). A3371 operates in an unconstitutional manner because it prevents Plaintiffs Jack and Jane Doe from choosing a specific form of counselingSOCE counselingfor their son by muzzling every licensed mental health professional in New Jersey. Indeed, the prohibition is comprehensive, as it applies to all licensed mental health professionals who are the most qualified and experienced to provide this type of counseling to those parents and minors who seek it. (Jack Doe Decl. 11) (Because of A3371, however, there is not anyone who is able to provide such licensed counseling anywhere in our state.) (emphasis original); (John Doe Decl. 14) (I was disappointed though because my parents told me that the counselors in New Jersey are not allowed to talk to me about these things anymore.). The breadth of A3371 reveals that New Jersey is doing nothing more than attempting to prescribe what shall be orthodox, W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), by ensuring that Plaintiffs may only
40
receive help from licensed professionals that affirms non-heterosexual sexual orientations. The Constitution does not give New Jersey that power. Just as Nebraska and Oregon foreclosed the opportunity of parents to choose professional foreign language training or private education for their children, so too has New Jersey foreclosed the opportunity of Plaintiffs and other parents in New Jersey to choose SOCE counseling for their children from a licensed professional qualified to provide it to those who seek it. If the former intrusions into parental rights are unconstitutional in the public school context, where the States interest is at its apex, then A3371s intrusions are certainly impermissible in the context of private counseling sessions chosen by parents to benefit their children. Plaintiffs are substantially likely to prevail on the merits, and A3371 should be enjoined. II. PLAINTIFFS ARE SUFFERING IMMEDIATE AND IRREPARABLE INJURY. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Swartwelder v. McNeilly, 297 F.3d 228, 241-42 (3d Cir. 2002) (same). A citizen who exercises the right to free speech exercises a right that lies at the foundation of free government. Schneider v. New Jersey, 308 U.S. 147, 165 (1939). Viewpoint-based infringements on that fundamental liberty, such as A3371 here, therefore unquestionably constitute irreparable harm to Plaintiffs. A3371 prohibits Plaintiff John Doe from receiving information and counseling for his unwanted SSA and gender identity confusion, but it would permit him to receive the opposite form of counseling pushing him towards such feelings and confusion. This unquestionably constitutes viewpoint discrimination in the right to receive information. A3371 silences licensed
41
counselors who wish to engage in a course of counseling with consenting minor clients that aligns with the clients sincerely held religious beliefs. Such a prohibition constitutes a deprivation of those minors First Amendment rights and imposes immediate and irreparable harm on Plaintiffs and their clients. Plaintiffs have lost their First Amendment right to receive medical information. As discussed above, this constitutional right takes on special importance in the patient-client context because patients cut off from professional advice are left to make critical medical decisions on their own. Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs. Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2667 (2011). Censoring facts and available options for assisting a client with his unwanted feelings of distress about a particular issue, whether it be unwanted SSA or some other cause of distress, is particularly troubling in the medical context where information can save lives. Id. at 2664. A3371 prohibits Plaintiffs from receiving the counseling they deem most effective in assisting them to align their sexual attractions, behaviors, and identity with their sincerely held religious beliefs. As such, it is currently causing them immediate and irreparable injury. Plaintiffs therefore satisfy the second prong of the preliminary injunction analysis. III. THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS FAVOR. In analyzing the third Winter element, the court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). Plaintiffs are currently suffering immediate and irreparable injury and loss of constitutional rights and will continue to suffer such injury so long as A3371 prohibits receiving SOCE counseling. An injunction in this case will protect the very rights that the Supreme Court has characterized as lying at the
42
foundation of free government of free men. Schneider v. New Jersey, 308 U.S. 147, 151 (1939). The loss of such fundamental freedoms outweighs any interest Defendants might have in halting SOCE counseling, especially given the fact that the basis for the ban is merely anecdotal evidence unsubstantiated by any scientific facts. By contrast, the State has suffered no injury. See Dj vu of Nashville, Inc. v. Metro. Govt of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001) (if a plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment). The Third Circuit has recognized that while injunctions can impinge on a governments interest, the balance favors Plaintiffs because the government remains free to attempt to enact new regulations that are better tailored to serve [their] interests. Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). The same is true here, and the injunction should issue. IV. AN INJUNCTION IS IN THE PUBLIC INTEREST. The public interest will be served by granting the injunction. The protection of constitutional rights is of the highest public interest. Elrod v. Burns, 427 U.S. 347, 373 (1976). Indeed, the public interest is best served by eliminating unconstitutional restrictions. Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). Additionally, there is simply no interest in the protection or enforcement of unconstitutional laws. See ACLU v. Ashcroft, 322 F.3d 244, 250 n.11 (3d Cir. 2003). [I]t is incontrovertible that curtailing constitutionally protected speech will not advance the public interest. Stilp v. Contino, 743 F. Supp. 2d 460, 470 (M.D. Penn. 2010) (quoting ACLU v. Reno, 217 F.3d 162, 180 (3d Cir. 2000)). Here, because A3371 is unconstitutional viewpoint discrimination, violates Plaintiffs free exercise and parental rights, and unconstitutionally chills the rights of Plaintiffs receive counseling consistent with their religious beliefs, there is no public interest in maintaining or enforcing its prohibitions.
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CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant their Motion for a Preliminary Injunction. Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. !""#$%$$% Mathew D. Staver* Stephen M. Crampton* Daniel J. Schmid* Liberty Counsel Attorneys for Plaintiffs P.O. Box 11108 Lynchburg, VA 24502 Tel. 434-592-7000 Fax: 434-592-7700 court@LC.org * Application to appear Pro Hac Vice pending
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45
Case No. _________________
PLAINTIFFS MOTION FOR LEAVE TO FILE EXCESS PAGES COME NOW, Plaintiffs, by and through counsel and file this Motion for Leave to File Excess Pages. Plaintiffs are a minor child and the parents of that minor child who are bringing constitutional challenges to New Jersey Assembly Bill No. 3371 (A3371), which prohibits licensed mental health counselors from providing sexual orientation change efforts counseling that Plaintiffs are seeking and have the right to obtain. In support hereof, Plaintiffs show the Court as follows: 1. This is complex litigation involving substantial First and Fourteenth Amendment
questions concerning free speech, free exercise, and parental rights. 2. A3371 represents an unprecedented and breathtakingly broad expansion of government
control into the fundamental relationship between mental health counselors and their clients, and the voluminous and complex nature of the issues presented in challenging this law are such that this Courts current restriction on a partys opening brief is inadequate to sufficiently address Plaintiffs injuries.
3.
Plaintiffs are mindful of the Courts time and resources and have attempted to address the
numerous issues as efficiently as possible.
Plaintiffs Motion to File Excess Pages - 2
Plaintiffs Motion to File Excess Pages - 3
Case No. _________________
PLAINTIFFS PROPOSED ORDER THIS MATTER is before the Court on a motion for preliminary injunction filed by Plaintiffs, Jack and Jane Doe and their minor son John Doe. The Court held oral argument on the motion on ____, 2013. The Court considered the record, including the motion, the complaint, the sworn declarations of the parties, and the memorandum of law in support of the motion. It also considered argument from both Plaintiff and Defense counsel. After due consideration, the Court is of the opinion that unless a preliminary injunction is issued, Plaintiffs will continue to suffer serious and irreparable injury for which there is no adequate remedy at law. For the reasons stated in this opinion and order, Plaintiffs motion for preliminary injunction is GRANTED. I. FINDINGS OF FACT
Following the New Jersey Legislatures passage of A3371, Defendant, Governor Christie, signed it into law on August 19, 2013. The law went into effect immediately upon being signed. Section 2(a) of A3371 states:
A person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the persons professional training for any of these professions, shall not engage in sexual orientation change efforts with a person under 18 years of age. Section 2(b) states: As used in this section, sexual orientation change efforts means the practice of seeking to change a persons 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; except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another, or counseling that: (1) provides acceptance, support, and understanding of a person or facilitates a persons coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (2) does not seek to change sexual orientation. The law prohibits New Jersey mental health providers from providing any therapy aimed at changing non-heterosexual sexual orientations, including any attempts to eliminate unwanted same-sex attraction, behavior, identity, or sexual orientation (hereinafter sexual orientation change efforts or SOCE). The law fundamentally alters the therapist-client relationship by creating trumping fundamental rights of clients and client protections in the ethical codes of multiple mental health licensing agencies in New Jersey, including but not limited to the following: General Principle E of the American Psychological Associations Ethical Principles of Psychologists and Code of Conduct (APA Code) includes the following: Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and self-determination. A3371 interferes with the selfdetermination of minors seeking SOCE therapy. Section 1(a) of the American Psychiatric Association Guidelines for Ethical Treatment (APA Guidelines) states, A psychiatrist shall not withhold information that the patient needs or reasonably could use to make informed treatment decisions, including options for treatment not provided by the psychiatrist. A3371 prevent patients from receiving
Order Granting Preliminary Injunction - 2
the fundamental information regarding SOCE therapy that they reasonably could use to make informed treatment decisions. Opinion 10.01(2) of the American Medical Association Code of Ethics (AMA Code) states, The patient has the right to make decisions regarding the health care that is recommended by his or her physician. Accordingly, patients may accept or refuse any recommended medical treatment. A3371 prevents Plaintiffs from receiving information necessary to make any decision regarding the availability and benefits of SOCE treatment. A3371 prohibits patients from being able to accept or reject SOCE treatment from licensed professionals most qualified to provide it, even though the fundamental elements of the patient-physician relationship require that the patient have the full range of options. Opinion 10.016 of the AMA Code states, Medical decision-making for pediatric patients should be based on the childs best interest, which is determined by weighing many factors, including effectiveness of appropriate medical therapies, the patients psychological and emotional welfare, and the family situation. When there is legitimate inability to reach consensus about what is in the best interest of the child, the wishes of the parents should generally receive preference. A3371 removes SOCE therapies from consideration by the physician and the parents regarding the best interest of the child, despite evidence regarding the effectiveness of SOCE. Section A.2.d of the American Counselors Association Code of Ethics (ACA Code) states, When counseling minors or persons unable to give voluntary consent, counselors seek the assent of clients to services, and include them in decision-making as appropriate. Counselors recognize the need to balance the ethical rights of clients to make choices, their capacity to give consent or assent to receive services, and parental or familial legal rights and responsibilities to protect those clients and make decisions on their behalf. A3371 prohibits Plaintiffs and other minors seeking SOCE from having their rights and interests respected by their counselor merely because of the course of counseling they desire to receive. Section B.5.b of the ACA Code states, Counselors are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians over the welfare of their children. A3371 prevents Plaintiffs and other minors in New Jersey seeking SOCE counseling from having their value and cultural interests respected and it deprives Plaintiff parents of their inherent responsibility and right to direct the upbringing of their minor child, including their choice of counseling for their son. Principle 1.2 of the American Association of Marriage and Family Therapists Code of Ethics (AAMFT Code) provides that all licensed marriage and family therapists obtain informed consent from their patients/clients, which generally requires that the patient/client has been adequately informed of significant information concerning treatment processes and procedures. A3371 prohibits licensed marriage and family therapists from informing their minor patients/clients about an entire course of
treatmentSOCE counselingthat might benefit them and help them achieve their goals of eliminating or reducing their unwanted same-sex attractions. Principle 1.8 of the AAMFT Code provides that licensed marriage and family therapists respect the rights of clients to make decisions. A3371 Plaintiffs and other minors seeking SOCE counseling in New Jersey from having their counselor respect their fundamental rights to make the decisions concerning their desired course of counseling, because the State already made the decision for the patient/clienti.e., no one under the age of eighteen can receive SOCE counseling. Section 1.02 of the National Association of Social Workers Code (NASW Code) provides that the patients/clients shall have the right to self-determination and that a social worker should only seek to assist the patient/client in achieving their goals. A3371 prohibits New Jerseys social workers from respecting the rights of the patient/client to self-determination by imposing the States determination on the course of their therapy and mandating that only those efforts that seek to affirm same-sex attractions are permissible in the social workers office. Section 1.03 of the NASW Code provides that social workers must provide sufficient information for the patient/client to make an informed decision about their course of care and specifically states that such informed consent must include a discussion of reasonable alternatives. A3371 prevents Plaintiffs from receiving the information necessary and pertinent to their mental health counseling decisions by imposing a gag order on licensed social workers concerning the viewpoint that unwanted same-sex attractions, behaviors, or identity can change. . These fundamental alterations to the therapist-client relationship caused by A3371 cannot be justified on the basis of needing to protect children from harm, because all the relevant licensing authorities already prohibit harming children. Moreover, the State has not proved that SOCE is harmful to minors; however, there is ample evidence that A3371 is currently causing immediate and irreparable harm to Plaintiffs and to their clients. Plaintiff John Doe is a fifteen-year old minor who is seeking SOCE counseling from a licensed mental health professional in New Jersey. John Doe began experiencing confusion concerning his gender identity was when he was approximately nine years old. Because of a difficult family environment involving frequent arguments between his parents and his mothers treatment and statements about men, John Doe developed a dislike of boys and men. He thought
that boys were stupid because of the harsh words his mother had spoken towards his father, and did not feel like his father accepted him as a younger child. When he was around ten years old, John Doe began trying to behave like a woman, look like a woman, and affirmatively tried to display female mannerisms and expressions. This caused significant psychological distress for John Doe, and he started having frequent thoughts of suicide because of his severe confusion about his gender identity. When John Doe was approximately twelve or thirteen, he began to experience same-sex attractions and have substantial anxiety, distress, and confusion over those feelings. At that time, he began having thoughts of hopelessness and despair. He was experiencing significant psychological distress over those feelings, and his thoughts of suicide became nearly a constant. John Doe compared himself to other males that he thought were masculine and displayed the typical characteristics of a male, and he had trouble thinking that he would ever measure up to the standard that he thought other boys met. John Does confusion and distress caused him great anxiety, and his obsessive-compulsive traits became worse than they had ever been. He began having panic attacks during the day and was unable to sleep at night due to his severe anxiety. At this point, he began to think of killing himself every day, and his depression was severely harming his emotional stability. John Does psychological distress and thoughts of suicide hit a peak on a family trip to the beach, where he tried to fling himself off of the balcony of the Does hotel. At that point, John Doe finally reached out to his parents for help, and Jack and Jane Doe knew they had to help their son with the severe psychological distress that his unwanted same-sex attractions and gender confusion were causing. Jack and Jane Doe contacted a professional counselor recommended by the National Association for the Research and Therapy of Homosexuality,
which specializes in helping men and boys reduce or eliminate their unwanted same-sex sexual attractions, behaviors, expressions, mannerisms, and identity. One of the main reasons John Doe was having such significant psychological distress over his gender identity confusion and unwanted same-sex attractions was because he has sincerely held religious beliefs that such feelings are unnatural, unhealthy, and sinful. He desires to live out his religious values and does not want to act out on same-sex attractions that violate his religious beliefs. One of John Does main goals in seeking SOCE counseling was to resolve his sexual attractions so that he can act consistently with his religious beliefs. His same-sex attractions were causing a great internal conflict with his value system, and he wanted to do something about it. Jack and Jane Doe also have sincerely-held religious beliefs that homosexuality is a sinful and harmful lifestyle, and their sincerely held religious beliefs inform them that parents are required to train up a child in the ways of Holy Bible and the teachings of their church. Jack and Jane Doe believe that assisting their son in receiving the counseling that will help him live consistently with and prioritize his religious beliefs and values above his gender confusion and unwanted same-sex attractions is one aspect of training him up in the way he should go and educating him in the fundamental tenets of their faith. John Doe started counseling in May of 2011, and he has experienced tremendous benefits from it. He now speaks with his normal voice and does not try to suppress the male sound of it, as he had done before. He has stopped shaving his body hair to try to look more feminine and display more feminine characteristics, and he has stopped attempting to exhibit female mannerisms. Also, John Doe has significantly improved the relationship with his father, and his confidence in his own masculinity is starting to develop and improve. As a result of his counseling, John Doe no longer experiences thoughts of suicide or hopelessness. John Doe no
longer has the tremendous psychological distress that he experienced as a result of his unwanted same-sex attractions. John Doe has made significant progress toward his goal of eliminating his unwanted same-sex attractions, but he desire to continue to work with his counselor on his issues. As is true of much therapy for people, John Does discussions with his counselor are very helpful. Indeed, he recognizes that sometimes just talking about his difficulties makes all the difference in the world to him. John Does counseling sessions involve simply talking about his feelings, anxieties, and confusion that resulted from the unwanted same-sex attractions that he was struggling with and wanted to resolve. Jack and Jane Doe have also noticed significant benefits from John Does SOCE counseling. They have noticed significant changes in their son, and have found that all of them are positive. They have noticed that their son no longer appears to struggle with the distress and anxiety over his gender confusion, and has made significant progress in eliminating his unwanted same-sex attractions. Most significant among the changes that the Does have noticed with their son is that John Doe never expresses suicidal thoughts to them anymore or threatens to kill himself as he had done frequently prior to his counseling. John Does current counselor is a licensed clinical social worker in New York, but his counseling does not involve much analysis and discussion of the underlying causes and background information that many licensed psychologists do in this area. Because his counseling is more prospective thinking, John Does counselor informed the Does that their son might benefit from the additional SOCE counseling of a person who engages in conversations dealing with root causes, background information, and other introspective analysis involved in other licensed professionals counseling. The counselor made that recommendation based on some of the recent discussions he has had with John Doe, and the Does want to continue to be able to
make sure their son receives the best counseling from the best counselors on all aspects of those problems that cause him distress. Because of John Does counselors recommendation, the Does contacted Dr. Ronald Newman, a licensed psychologist in New Jersey, to attempt to engage one of them for their son. Nevertheless, because of A3371, Dr. Newman informed the Does that he could not help them, and in fact there are now no licensed mental health professionals in New Jersey that can help John Doe with the counseling that he so desperately desires and seeks. II. CONCLUSIONS OF LAW As a threshold matter, parties are entitled to emergency relief if they can establish that they are likely to succeed on the merits, they are likely to suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in their favor, and that the injunction is in the public interest. ACLU v. Ashcroft, 322 F.3d 240, 250 (3d Cir. 2003). After having considered all the parties submissions and governing precedent, this Court is satisfied that Plaintiffs have established the required factors for emergency relief in the form of a Preliminary Injunction. For the reasons discussed herein, this court GRANTS Plaintiffs Motion for a Preliminary Injunction. A. Likelihood of Success on the Merits.
Plaintiffs are likely to succeed on the merits because A3371 violates Plaintiffs First Amendment right to receive information, which is the corollary to the right to free speech. It also violates Plaintiffs First Amendment right to free exercise of religion. Additionally, A3371 violates Plaintiffs Jack and Jane Does fundamental right to direct the upbringing and education of their child guaranteed by the Fourteenth Amendment. Plaintiffs are therefore likely to succeed on the merits. 1. A3371 Violates Plaintiffs Right to Receive Information.
The First Amendment protects the right to receive information as a corollary of the right to speak. The Fourteenth Amendment guarantees this right, too, against the states. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982); Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); see also Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 180 (3d Cir. 1999). A3371 deprives Plaintiffs of this right during counseling sessions because it prohibits licensed counselors from offering SOCE counseling to minors that has helped Plaintiff John Doe reduce or eliminate his unwanted SSA. The government may not prevent citizens from receiving ideas or viewpoints that the government disagrees with or opposes. See Pico, 457 U.S. at 871-72 (plurality) (Our Constitution does not permit the official suppression of ideas.). The Third Circuit has likewise recognized that the First Amendment forbids laws, such as A3371, which prohibit individuals from receiving information they are actively seeking and desire to receive. See Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1252 (3d Cir. 1992) ([T]he First Amendment, like other constitutional guarantees, encompasses the penumbral right to receive information to ensure its fullest exercise.). A3371 prevents John Doe and all minors in New Jersey from receiving the viewpoint that SOCE counseling from a licensed professional may be beneficial to those minors who seek to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity. A3371 also impermissibly expresses the States disapproval of such counseling. This government-sanctioned restriction to information and counseling the government disapproves of is simply unconstitutional. [T]he First Amen dment does not merely prohibit the government from enacting laws that censor information, but additionally encompasses the positive right of public access to information and ideas . Id. at 1255
(emphasis added). Here, A3371 runs far afield of both of these firmly entrenched constitutional principles. Plaintiffs are therefore likely to prevail on the merits. A3371 impermissibly prevents Plaintiffs from receiving counseling that their counselor has determined will be beneficial to the continued progress of John Doe in reaching his goal of eliminating his unwanted same-sex attractions and gender confusion. Plaintiffs current counselor, a licensed social worker in New York, does not provide the in-depth retrospective analysis that is offered by many licensed counselors, and he prefers to keep his counseling focused on the future. Because their counselor suggested that John Doe might benefit from some of the counseling that analyses root causes and background factors in greater depth, Plaintiffs contacted Dr. Ron Newman, a licensed psychologists in New Jersey, hoping that they could receive the type of counseling that their counselor suggested. A3371, however, has made it impossible for Plaintiffs to receive that counseling from any licensed professional in their state. This result is contrary to the demands of the Constitution, and therefore unconstitutionally infringes on Plaintiffs First Amendment right to receive information. 2. A3371 is Unconstitutional Viewpoint Discrimination.
A viewpoint-based restriction on private speech has never been upheld by the Supreme Court or any court. Indeed, a finding of viewpoint discrimination is dispositive. See Sorrell v. IMS Health, 131 S. Ct. 2653, 2667 (2011). It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Id. at 829. In fact, viewpoint-based regulations are always unconstitutional. See, e.g., Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384,
394 (1993) (the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others (quoting City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). Because the First Amendment protects the right to receive information as a corollary to the right to speak, A3371s restrictions on speech may not be based on the viewpoint espoused in the information sought to be received. A3371 blatantly violates this principle. A3371 is a textbook example of viewpoint discrimination. The legislation explicitly prohibits licensed counselors from providing, and therefore Plaintiffs from receiving, any information and counseling directing at helping a minor to reduce or eliminate his unwanted same-sex attractions, behaviors, or identity. A3371 allows licensed counselors to discuss the subject of sexual orientation, but precludes a particular view on that subject, namely that same-sex attractions, behaviors, or identity can be reduced or eliminated to the benefit of the client. A3371 specifically targets SOCE that seeks to eliminate or reduce sexual or romantic attractions or feelings towards a person of the same gender. Moreover, the statute permits a licensed professional to counsel a client to transition from one gender to another. But, if the clients gender identity, mannerisms, or expression differ from the clients biological sex and the clients feelings are unwanted meaning he does not want to transition from a male identity to a female identity but instead the client wants to change his female gender identity, mannerisms, or expression to conform to his biological sex, then the counseling is forbidden. Similarly, the statute permits the counseling of a client to affirm homosexual attractions, but prohibits counseling a minor to change unwanted same-sex attractions, behaviors, or identity. Under no circumstances may a licensed counselor counsel a minor client to change unwanted same-sex attractions, behaviors, or identity. Nor may the
counselor counsel the minor client to change unwanted opposite sex mannerisms, expressions, or identity, even when the client wants to change them. A3371s definitions further confirm that only non-heterosexual SOCE counseling is precluded, as SOCE does not include counseling that: (1) provides acceptance, support, and understanding of clients or facilitation of persons coping, social support, and identity exploration and development, including sexual orientation-neutral intervention to prevent or address unlawful conduct or unsafe sexual practices, and (B) do not seek to change sexual orientation. Consequently, Plaintiffs and other minors may receive information and counseling directing them toward or encouraging same-sex attractions, behaviors, or identity, to provide acceptance, support, and understanding, to counsel minors to transition from one gender to another, or to remain neutral. Nevertheless, they have no professional avenue to seek concerning the possibility of changing unwanted same-sex attractions, behaviors, or identity even when that is precisely what that minor desperately seeks. (Id.). The viewpoint of those licensed counselors whose professional judgment leads them to believe that homosexual desires or behavior are destructive to some of their minor clients with unwanted same-sex attractions or that their clients might be better served by choosing SOCE is silenced and censored, and therefore prohibits Plaintiffs from receiving this viewpoint. These prohibitions are explicitly viewpoint based simply cannot withstand constitutional scrutiny. A3371 impermissibly infringes on counselors right to speak and therefore a minors right to receive information, and does so based solely on the viewpoint that same-sex attractions, behaviors, or identity can be changed. The Constitution forbids such a restriction. 3. A3371 is an Unconstitutional Content-Based Restriction.
Even if A3371 were merely content and not viewpoint-based, Defendant still would be unable to satisfy the exacting scrutiny required by the First Amendment for content-based restrictions. United States v. Playboy Entmt Grp., 529 U.S. 803, 813 (2000). To survive such scrutiny, Defendant would have to show that A3371 is narrowly tailored to achieve a compelling government interest and is the least restrictive means of achieving that interest. Id. The general rule is that the right of expression prevails, even where no less restrictive alternative exists. Id. Under certain circumstances, states may have a compelling interest in the well-being and protection of children. See Sable Commcns of Cal., Inc. v. F.C.C., 492 U.S 115, 126 (1989). When the government seeks to restrict speech [i]t must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994)) (emphasis added). Indeed, the notion that a content-based restriction on speech is presumptively unconstitutional is so engrained in our First Amendment jurisprudence that last term we found it so obvious as to not require explanation. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115-16 (1991). Regulations that permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment. Id. at 116 (quoting Reagan v. Time, Inc., 468 U.S. 641, 648-49 (1984)). Furthermore, [i]t is rare that a regulation restricting speech because of its content will ever be permissible. United States v. Playboy Entmt Grp., 529 U.S. 803, 818 (2000). A3371 relies principally on a 2009 report issued by the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (Task Force), but this report focused on adultsnot minors. Moreover the authors found some
evidence of both harm and benefits produced by SOCE. See Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009) at 2-4, 42, 49-50 (emphasis added), available at
http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (last visited October 1, 2012). Ultimately, the Report was inconclusive regarding harm: [R]esearch on SOCE (psychotherapy, mutual self-help groups, religious techniques) has not answered basic questions of whether it is safe or effective and for whom. . . . [R]esearch into harm and safety is essential. Id. at 90 (emphasis added). The only evidence of harm the Task Force discovered was some anecdotal testimony of some individuals [who] reported being harmed by SOCE. Id. at 120. Such evidence is insufficient for A3371s far-reaching prohibitions. Indeed, the government must present more than anecdote and supposition to support its burden of proof. Playboy, 529 U.S. at 822. Defendant failed to meet that burden, and A3371 must fall because of that failure. Even if the State could show a compelling interest in banning an entire mode of therapysuch as SOCEfrom the field of counseling, it could not do so simply to suppress a particular idea. R.A.V., 505 U.S. at 386 (The government may not regulate a [mode of speech] based on hostilityor favoritismtowards the underlying message expressed.). Such a discriminatory motive is revealed where there are other content-neutral substitutes to the regulation. See id.at 395. A3371 is not necessary to prevent harm because all of the ethical codes of the professions engaging in this form of counseling already prohibit practices that actually harm patients. Specifically, Section 3.04 of the APA Code, Avoiding Harm, requires that [p]sychologists take reasonable steps to avoid harming their clients/patients . . . and to minimize harm where it is foreseeable and unavoidable. Section A.4.a of the ACA Code states: Counselors act to avoid harming their clients . . . . Section 1(c) of the American Psychiatric Association Guidelines Order Granting Preliminary Injunction - 14
states that [a] psychiatrist shall strive to provide beneficial treatment . . . . Violations of these ethical codes are treated as unprofessional conduct and subject licensed professionals to discipline by their respective licensing boards. Principle 1 of the American Association of Marriage and Family Therapys Ethics Code states that [m]arriage and family therapists advance the welfare of families and individuals. Certainly, the mandate that marriage and family therapists advance the welfare of their clients would be violated by a counselor who engages in a course of counseling that is harmful to the client. A3371, however, is not an attempt to prevent harm, but is in truth a politically motivated attempt to harm one group of professionals who hold a particular viewpoint regarding counseling, particularly SOCE counseling, and an effort to prohibit those counselors from providing any information or counseling on the fact that SOCE can and does help people reduce or eliminate their unwanted same-sex attractions, behaviors, or identity. The fact that children are already protected from harmful and dangerous therapies reveals that the States underlying goal is not about protecting minors. They are already protected by these ethical rules. Instead, the asserted state interest is merely the guise under which A3371 attempts to discriminate against, and silence, the viewpoint of those professionals who believe that SOCE is helpful and prevent minors from receiving information and counseling espousing that viewpoint. Informed consent, which is the touchstone of professional counselors, and a clients right to self-determination, undercuts any alleged interest of the State because mandating informed consent would be a less restrictive means to achieve the States alleged goal in preventing harm to clients. A complete ban on SOCE counseling or a viewpoint regarding same-sex attractions, behaviors, or identity is not the least restrictive means to achieve any governmental interest. Total prohibitions on constitutionally protected speech are hardly an exercise of narrow
tailoring. Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). Such extreme measures as A3371 simply cannot survive the demands of the First Amendment. 4. A3371 Violates Plaintiff Jack and Jane Does Parental Rights.
Parents are vested with the care, custody, and control of their children. That guarantee is enforceable against the states through the Fourteenth Amendment. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972); Pierce v. Socy of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). SB 1172 infringes upon this basic right by preventing parents from caring for the mental health of their children as they see fit. Parham v. J.R., 442 U.S. 584, 602 (1979) (The words care, custody, and control include the high duty to recognize symptoms of illness and to seek and follow medical advice. SB 1172s sponsor, Senator Ted Lieu concedes as much: The attack on parental rights is exactly the whole point of the bill because we dont want to let parents harm their children. See Kim Reyes, Controversy Follows Effort to Ban Gay Conversion Therapy, Orange Cnty. Reg., July 27, 2012, at 2. Because the Bill intrudes upon a fundamental right, strict scrutiny applies. See Reno v. Flores, 507 U.S. 292, 301-02 (1993); Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1208 (9th Cir. 2005) (Governmental actions that infringe upon a fundamental right receive strict scrutiny.) Defendants cannot satisfy this high burden. The Supreme Court has not hesitated to uphold the right to direct the upbringing of ones child over state laws that would deprive parents of that right. This has been true even in the context of public education, which is at the very apex of the function of the State. Yoder, 406 U.S. at 213. In Meyer, the Court facially voided a Nebraska statute that outlawed teaching languages, other than the English language because the statute prevented parents from hiring a teacher to instruct their children in German. Id. at 396-97. Two years later, the Court held that an
Oregon law requiring children to attend public school violated the parents constitutional rights to direct the upbringing and education of their children. See Pierce, 268 U.S. at 535. A3371 operates in the same unconstitutional manner because it prevents parents from choosing a specific form of counselingSOCE therapyfor their children by muzzling every mental health professional in the state. Just as Nebraska and Oregon foreclose[ed] the opportunity of parents to choose professional foreign language training or private education for their children, so too has New Jersey foreclosed the opportunity of its parentsand in particular, Plaintiffs Jack and Jane Doeto choose professional SOCE therapy for their children. If the former intrusions into parental rights are unconstitutional in the public school context, where the states interest is at its apex, then the latter intrusions are certainly impermissible in the context of private counseling sessions chosen by parents to benefit their children. 5. A3371 Violates Plaintiffs Right to Free Exercise of Religion.
A3371 unconstitutionally infringes on the First Amendment rights of Plaintiffs to seek counseling consistent with their sincerely held religious beliefs that change is possible and desirable. Plaintiff John Doe is prohibited from receiving and Plaintiffs Jack and Jane Doe are prohibited from assisting their son with receiving counseling consistent with their sincerely held religious beliefs and from directing the upbringing of their children in accordance with those beliefs. A3371 imposes a substantial burden on the religious beliefs of Plaintiffs because Plaintiffs have no options in seeking SOCE counseling from those licensed professionals who are best able and most experienced at providing such counseling. Instead, Plaintiffs are forced to elevate what the State has determined is an appropriate ideology over their own sincerely held religious beliefs about something as fundamental as their personal identity. This is the very essence of a substantial burden on religion. Sherbet v. Verner, 374 U.S. 398, 404 (1963);
Washington v. Klem, 497 F.3d 272, 278 (3d Cir. 2007) (the Supreme Court has stated in its Free Exercise Clause jurisprudence that a substantial burden exists when a follower is forced to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand) (quoting Sherbert, U.S. at 404). A3371 also impose a substantial burden on Plaintiffs because of its improper intrusion into their fundamental right to self-determination. Plaintiffs have sincerely held religious beliefs that homosexuality is a harmful and sinful lifestyle and against the fundamental tenets of their faith. Plaintiff parents also have sincerely held religious beliefs that they are to train up our child in the way he should go according to the Holy Bible and the teachings of our church. A3371 infringes upon those religious beliefs. The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 523 (1993). Although a law targeting religious beliefs as such is never permissible . . . if the object of the law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral. Id. at 533 (citations omitted). Facial neutrality is not always sufficient. In some instances, [f]acial neutrality is not determinative. The Free Exercise Clause . . . extends beyond facial discrimination. The Clause forbids subtle departures from neutrality, . . . and covert suppression of particular religious beliefs. Id. at 534 (quoting Gillette v. United States, 401 U.S. 437, 452 (1971) and Bowen v. Roy, 476 U.S. 693 (1986)). Moreover, [t]he Free Exercise Clause protects against government hostility which is masked, as well as overt. Id. A3371 displays outright hostility towards religious views of those who seek SOCE counseling to elevate their sincerely held religious beliefs above their sexual attractions. For
considerations of the motivation behind those enacting A3371, this Court looks to the the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history. Lukumi, 508 U.S. at 543. Those consideration are found in the APA Report, which the State used as its chief source of evidence for enacting A3371. The APA Report observed that conservative Christian men predominated in the recent research on SOCE, APA Report at 45, and that religious beliefs that consider homosexuality sinful or unacceptable was a frequent factor leading clients to choose to undergo SOCE. Id. at 46. Indeed, the APA Report found that the conflicts between faith and same-sex sexual attraction appear to involve significant stress due to the struggle to live life congruently with their religious beliefs, and sometimes leads to a crisis of faith. Id. at 46-47. There were also accounts on behalf of the members of the Task Force that religious conceptions of SOCE counseling could not and should not be taken into account when studying its efficacy. Indeed, some of those members seemed to mandate an outright acceptance of homosexuality as a moral good as a precondition to acceptances of the Task Force. These indication clearly evidence an overt hostility towards any religious beliefs to the contrary. Although neutral laws of general applicability receive deferential treatment, Empt Div., Dept of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990), [a] law failing to satisfy these requirements must be justified by a compelling government interest and must be narrowly tailored to advance that interest. Lukumi, 508 U.S. at 531-32. A3371 is not neutral or generally applicable and must undergo the most rigorous of scrutiny. Id. at 546. Such a law will survive strict scrutiny only in rare cases. Id. (emphasis added). As demonstrated above, A3371 fails strict scrutiny. 6. A3371 Also Violates Plaintiffs Hybrid Rights Under the First Amendment.
Even laws that are neutral and generally applicable are subject to strict scrutiny when they implicate more than one constitutional right. Strict scrutiny may also apply when a neutral, generally applicable law incidentally burdens rights protected by the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the rights of parents to direct the education of their children. Tenafly Eruv Assn, Inc. v. Borough of Tenafly, 309 F.3d 144, 165 n.26 (3d Cir. 2002) (quoting Empt Div., 494 U.S. at 881). Here, there are undeniable bases upon which to find hybrid-rights violations. A3371 violates Plaintiffs First Amendment rights by restricting the availability of counseling options that are consistent with Plaintiffs sincerely held religious beliefs and information that Plaintiffs are constitutionally entitled to receive. Additionally, A3371 infringes on Plaintiffs Jack and Jane Does fundamental rights to direct the upbringing and education of their child. When combined with Plaintiffs free exercise claims, these constitutional violations subject A3371 to strict scrutiny under the hybrid rights claim. See Empt Div., 494 U.S. at 881. As demonstrated above, A3371 cannot withstand such scrutiny, as it is neither supported by a compelling interest nor narrowly tailored. B. Plaintiffs Are Suffering Immediate and Irreparable Injury.
The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Swartwelder v. McNeilly, 297 F.3d 228, 241-42 (3d Cir. 2002) (same). A citizen who exercises the right to free speech exercises a right that lies at the foundation of free government. Schneider v. New Jersey, 308 U.S. 147, 165 (1939). Viewpoint-based infringements on that fundamental liberty, such as A3371 here, therefore unquestionably constitute irreparable harm to Plaintiffs.
A3371 prohibits Plaintiff John Doe from receiving information and counseling for his unwanted same-sex attractions and gender identity confusion, but it would permit him to receive the opposite form of counseling pushing him towards such feelings and confusion. This unquestionably constitutes viewpoint discrimination in the right to receive information. A3371 silences licensed counselors who wish to engage in a course of counseling with consenting minor clients that aligns with the clients sincerely held religious beliefs. Such a prohibition constitutes a deprivation of those minors First Amendment rights and imposes immediate and irreparable harm on Plaintiffs and their clients. Plaintiffs have lost their First Amendment right to receive medical information. As discussed above, this constitutional right takes on special importance in the patient-client context because patients cut off from professional advice are left to make critical medical decisions on their own. Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs. Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2667 (2011). Censoring facts and available options for assisting a client with his unwanted feelings of distress about a particular issue, whether it be unwanted same-sex attractions, behaviors, or identity or some other cause of distress, is particularly troubling in the medical context where information can save lives. Id. at 2664. A3371 prohibits Plaintiffs from receiving the counseling they deem most effective in assisting them to align their sexual attractions, behaviors, and identity with their sincerely held religious beliefs. As such, it is currently causing them immediate and irreparable injury. Plaintiffs therefore satisfy the second prong of the preliminary injunction analysis. C. The Balance of the Equities Favors the Injunction.
In analyzing the third Winter element, the court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). Plaintiffs are currently suffering immediate and irreparable injury and loss of constitutional rights and will continue to suffer such injury so long as A3371 prohibits receiving SOCE counseling. An injunction in this case will protect the very rights that the Supreme Court has characterized as lying at the foundation of free government of free men. Schneider v. New Jersey, 308 U.S. 147, 151 (1939). The loss of such fundamental freedoms outweighs any interest Defendants might have in halting SOCE counseling, especially given the fact that the basis for the ban is merely anecdotal evidence unsubstantiated by any scientific facts. By contrast, the State has suffered no injury. See Dj vu of Nashville, Inc. v. Metro. Govt of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001) (if a plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment). The Third Circuit has recognized that while injunctions can impinge on a governments interest, the balance favors Plaintiffs in these matters because the government remains free to attempt to enact new regulations that are better tailored to serve [their] interests. Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). The same is true here, and the injunction should issue. D. The Injunction Will Serve the Public Interest.
The public interest will be served by granting the injunction. The protection of constitutional rights is of the highest public interest. Elrod v. Burns, 427 U.S. 347, 373 (1976). Indeed, the public interest is best served by eliminating unconstitutional restrictions. Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). Additionally, there is simply no interest in the protection or enforcement of unconstitutional laws. See ACLU v. Ashcroft, 322
F.3d 244, 250 n.11 (3d Cir. 2003). [I]t is incontrovertible that curtailing constitutionally protected speech will not advance the public interest. Stilp v. Contino, 743 F. Supp. 2d 460, 470 (M.D. Penn. 2010) (quoting ACLU v. Reno, 217 F.3d 162, 180 (3d Cir. 2000)). Here, because A3371 is unconstitutional viewpoint discrimination, violates Plaintiffs free exercise and parental rights, and unconstitutionally chills the rights of Plaintiffs receive counseling consistent with their religious beliefs, there is no public interest in maintaining or enforcing its prohibitions. III. CONCLUSION For the foregoing reasons, the Plaintiffs Motion for a Preliminary Injunction prohibiting Defendants from enforcing A3371 is hereby GRANTED.
________________________________________ UNITED STATES DISTRICT COURT JUDGE

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Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 1 of 9 PageID: 205

Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 2 of 9 PageID: 206

Plaintiffs Motion for a Preliminary Injunction - 2

Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 3 of 9 PageID: 207

Plaintiffs Motion for a Preliminary Injunction - 3

Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 4 of 9 PageID: 208

Plaintiffs Motion for a Preliminary Injunction - 4

Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 5 of 9 PageID: 209

Plaintiffs Motion for a Preliminary Injunction - 5

Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 6 of 9 PageID: 210

Plaintiffs Motion for a Preliminary Injunction - 6

Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 7 of 9 PageID: 211

Plaintiffs Motion for a Preliminary Injunction - 7

Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 8 of 9 PageID: 212

Plaintiffs Motion for a Preliminary Injunction - 8

Case 3:13-cv-06629-FLW-LHG Document 4 Filed 11/01/13 Page 9 of 9 PageID: 213

Plaintiffs Motion for a Preliminary Injunction - 9

Case 3:13-cv-06629-FLW-LHG Document 4-1 Filed 11/01/13 Page 1 of 2 PageID: 214

Case 3:13-cv-06629-FLW-LHG Document 4-1 Filed 11/01/13 Page 2 of 2 PageID: 215

Plaintiffs Notice of Motion for Preliminary Injunction - 2

Case 3:13-cv-06629-FLW-LHG Document 4-2 Filed 11/01/13 Page 1 of 7 PageID: 216

DECLARATION OF JOHN DOE

Case 3:13-cv-06629-FLW-LHG Document 4-2 Filed 11/01/13 Page 2 of 7 PageID: 217

Declaration of John Doe - 2

Case 3:13-cv-06629-FLW-LHG Document 4-2 Filed 11/01/13 Page 3 of 7 PageID: 218

Declaration of John Doe - 3

Case 3:13-cv-06629-FLW-LHG Document 4-2 Filed 11/01/13 Page 4 of 7 PageID: 219

Declaration of John Doe - 4

Case 3:13-cv-06629-FLW-LHG Document 4-2 Filed 11/01/13 Page 5 of 7 PageID: 220

Declaration of John Doe - 5

Case 3:13-cv-06629-FLW-LHG Document 4-2 Filed 11/01/13 Page 6 of 7 PageID: 221

Declaration of John Doe - 6

Case 3:13-cv-06629-FLW-LHG Document 4-2 Filed 11/01/13 Page 7 of 7 PageID: 222

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Case 3:13-cv-06629-FLW-LHG Document 4-3 Filed 11/01/13 Page 1 of 5 PageID: 223

DECLARATION OF JACK DOE

Case 3:13-cv-06629-FLW-LHG Document 4-3 Filed 11/01/13 Page 2 of 5 PageID: 224

Declaration of Jack Doe - 2

Case 3:13-cv-06629-FLW-LHG Document 4-3 Filed 11/01/13 Page 3 of 5 PageID: 225

Declaration of Jack Doe - 3

Case 3:13-cv-06629-FLW-LHG Document 4-3 Filed 11/01/13 Page 4 of 5 PageID: 226

Declaration of Jack Doe - 4

Case 3:13-cv-06629-FLW-LHG Document 4-3 Filed 11/01/13 Page 5 of 5 PageID: 227

Executed this 28th day of October, 2013.

Case 3:13-cv-06629-FLW-LHG Document 4-4 Filed 11/01/13 Page 1 of 7 PageID: 228

Case 3:13-cv-06629-FLW-LHG Document 4-4 Filed 11/01/13 Page 2 of 7 PageID: 229

Case 3:13-cv-06629-FLW-LHG Document 4-4 Filed 11/01/13 Page 3 of 7 PageID: 230

Case 3:13-cv-06629-FLW-LHG Document 4-4 Filed 11/01/13 Page 4 of 7 PageID: 231

Case 3:13-cv-06629-FLW-LHG Document 4-4 Filed 11/01/13 Page 5 of 7 PageID: 232

Case 3:13-cv-06629-FLW-LHG Document 4-4 Filed 11/01/13 Page 6 of 7 PageID: 233

Case 3:13-cv-06629-FLW-LHG Document 4-4 Filed 11/01/13 Page 7 of 7 PageID: 234

Case 3:13-cv-06629-FLW-LHG Document 4-5 Filed 11/01/13 Page 1 of 4 PageID: 235

Case No. _________________

Injunction. 3. I received a Doctor of Philosophy degree in Psychoeducational Processes from Temple

Case 3:13-cv-06629-FLW-LHG Document 4-5 Filed 11/01/13 Page 2 of 4 PageID: 236

Declaration of Dr. Ronald Newman - 2

Case 3:13-cv-06629-FLW-LHG Document 4-5 Filed 11/01/13 Page 3 of 4 PageID: 237

Declaration of Dr. Ronald Newman - 3

Case 3:13-cv-06629-FLW-LHG Document 4-5 Filed 11/01/13 Page 4 of 4 PageID: 238

Executed this 27th day of October, 2013.