Case: 13-4429

Document: 003111481274

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Date Filed: 12/12/2013

CASE NO. 13-4429 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT TARA KING, ED.D., individually and on behalf of her patients, RONALD NEWMAN, PH.D., individually and on behalf of his patients, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs/Appellants, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, ERIC T. KANEFSKY, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, in his official capacity, MILAGROS COLLAZO, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, in her official capacity, J. MICHAEL WALKER, Executive Director of the New Jersey Board of Psychological Examiners, in his official capacity; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants/Appellees. And GARDEN STATE EQUALITY, Intervenor-Defendant/Appellee APPELLANTS REPLY IN SUPPORT OF MOTION FOR INJUNCTION PENDING APPEAL Mathew D. Staver (Lead Counsel) Anita L. Staver LIBERTY COUNSEL 1055 Maitland Ctr. Cmmns 2d Floor Maitland, FL 32751-7214 Tel. (800) 671-1776 Email court@lc.org Attorneys for Appellants Stephen M. Crampton Mary E. McAlister Daniel J. Schmid LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants

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INTRODUCTION The New Jersey Legislature has extended the long arm of the law into the sanctity of the counseling room to control the message counselors offer to vulnerable minor clients struggling with unwanted same-sex attractions, behaviors, or identity. A3371 proscribes the message that the unwanted attractions can be reduced or eliminated, even if that is the message that the counselor and client agree is in the best interest of the clients health, safety, and welfare. Counselors are permitted to express the state-approved message that unwanted same-sex attractions, behaviors, or identity are to be approved, supported, and understood, but cannot, in keeping with their professional obligations, provide beneficial and consensual counseling aimed at reducing or eliminating the unwanted same-sex attractions, behaviors, or identity. N.J. Stat. Ann. 45:1-55(b). Construing the statute in accordance with this Courts and Supreme Court precedent demonstrates that it exceeds the boundaries of professional regulation to encroach upon the First Amendment rights of counselors, including Appellants, and their minor clients. Lowe v. SEC, 472 U.S. 181, 230 (1985); Scheidermann v. I.N.S., 83 F.3d 1517, 1524 (3d Cir. 1996); Agency for Intl Dev. v. Alliance for Open Socy Intl, Inc., 133 S. Ct. 2321, 2327 (2013) (AID); Sorrell v. IMS Health, 131 S. Ct. 2653, 2667 (2011); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547-48 (2001); Bartnicki v. Vopper, 200 F.3d 109, 121 (3d Cir. 1999). Only 1

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by misconstruing the language of the statute and binding precedent, and disregarding the evidence that A3371, chills speech could the District Court reach the conclusion that A3371 regulates only conduct and so need only be rationally related to a legitimate state interest. The District Courts acceptance of legislative legerdemain notwithstanding, A3371 has muzzled the speech of Appellants and other licensed counselors, placed them on a collision course with other professional obligations, and detrimentally affected the health and welfare of their minor clients. (Decl. of Tara King, 3-5; Decl. of Ronald Newman, 3-6). Since the District Courts conclusion clearly conflicts with established precedent and is causing immediate and irreparable injury to Appellants and their clients, it should be enjoined pending this Courts review. ARGUMENT I. APPELLANTS ARE ENTITLED TO AN INJUNCTION. A. There Is a Substantial Likelihood That Appellants Will Prevail In Their Appeal.

In reviewing a motion for an injunction pending appeal, this Court does not focus upon the underlying merits of Appellants challenge to A3371, but upon whether it is likely that Appellants will prevail on the merits of the appeal. United States v. Fiumara, 605 F.2d 116, 117 (3d Cir. 1979) (emphasis added). Consequently, the critical inquiry for purposes of this motion is not the likelihood 2

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that Appellants can demonstrate that A3371 violates the Constitution, but the likelihood that the District Court abused its discretion when it dismissed Appellants Complaint. Holding the District Courts decision up to the standards set by this Court and the Supreme Court demonstrates that it is highly likely that Appellants will prevail in showing that the District Courts decision was in error. Lowe, 472 U.S. at 230; Bartnicki, 200 F.3d at 121. The cornerstone of the District Courts decision, and its fundamental error, is the determination that A3371 regulates only conduct, not speech. (Decision, p. 35). The court builds upon that error with the further error that A3371 does not have even an incidental effect on speech so as to implicate the First Amendment. (Decision, pp. 40, 46). Based upon those errors, the court then determined that A3371 need only satisfy rational basis review. (Decision, p. 46). Demonstrating that any one of the courts conclusions are erroneous would be sufficient to prevail on this appeal, and the congruence of all of them in a single decision leaves little doubt that the court abused its discretion. The District Court based its conclusion that A3371 regulates only conduct and not speech upon a carefully truncated analysis of selected portions of New Jersey law regulating mental health professionals. (Decision, pp. 30-31). New Jersey defines the rendering of psychological services as the application of psychological principles and procedures in the assessment, counseling or 3

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psychotherapy of individuals. N.J. Stat. Ann. 45:14B-2. (emphasis added). This Court has established that we must construe a statute so as to give effect to every word. Scheidermann, 83 F.3d at 1524; see also, Lowe, 472 U.S. at 207 n.53 (we must give effect to every word that Congress used in the statute). Giving effect to every word in Section 45:14B-2 means that psychological services are defined as the application of psychological principles and procedures in at least three discrete activities, i.e., assessment of individuals, psychotherapy of individuals, or counseling of individuals. The regulations governing mental health professionals reinforce this interpretation. New Jersey Administrative Code 13:42-1.1(a)(4) provides that psychological services includes psychological interviews, counseling,

psychotherapy, hypnotherapy, biofeedback, and psychological assessments, evidencing a distinction between activities in which the professional is engaging in speech, e.g., counseling, and those in which he is engaging in conduct, e.g., assessment. (Newman Decl., 9). Acting contrary to statutory language and binding precedent, the District Court gleaned the phrase application of psychological principles and procedures from Section 45:14B-2 and jettisoned the remainder of the language to conclude that all activities engaged in by licensed mental health professionals, are ipso facto treatment or conduct and cannot be analyzed as speech. (Decision, pp. 30-31). The court went so far as to conclude 4

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that the means through which counseling is carried out by a psychologisti.e., whether through talk therapy or actionsis immaterial. (Id.) (emphasis added). The courts mischaracterization of counseling as conduct wholly outside of First Amendment protection led it to erroneously conclude that A3371 did not cross the line between permissible professional regulation and impermissible speech restriction. Lowe, 472 U.S. at 229-30 (White, J., concurring). It also disregarded binding precedent, which categorized laws substantially similar to A3371 as impermissible speech restrictions. Agency for Intl Dev. v. Alliance for Open Socy Intl, Inc., 133 S. Ct. 2321, 2327 (2013) (AID); Sorrell v. IMS Health, 131 S. Ct. 2653, 2667 (2011); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547-48 (2001). In so doing, the court also contradicted binding precedent, including this Courts decision in Bartnicki, 200 F.3d at 121, and Supreme Court precedents in AID, 133 S. Ct. at 2327 and Velazquez, 531 U.S. at 547-49, which require that such speech restrictions -- even in the commercial context -- must survive strict scrutiny analysis if they are content- or viewpoint-based. As was true with the regulations in AID and Velazquez, A3371 restricts speech based upon the content, and more particularly, the viewpoint of what they say to their clients. A counselor is permitted to say that a clients same-sex attractions, behaviors, or identity are to be accepted and understood, but not that unwanted same-sex attractions can be reduced or eliminated. N.J. Stat. Ann. 45:1-55(b). If, as is true 5

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with A3371, it is not possible to determine whether particular speech is prohibited without referring to the substantive import of the expression, then the regulation is content-based and must be subjected to strict scrutiny. Bartnicki, 200 F.3d at 121. Even if a regulation of speech is content-neutral, it must be analyzed using at least the intermediate scrutiny standard described in United States v. OBrien, 391 U.S. 367 (1968), not the rational basis test. Bartnicki, 200 F.3d at 119-20. Intermediate scrutiny is applicable even when a statute regulates professional conduct that incidentally affects speech. Conchata Inc. v. Miller, 458 F.3d 258, 267 (3d Cir. 2006); see also, Gentile v. State Bar of Nev., 501 U.S. 1030, 1075 (1991) (applying intermediate scrutiny to criminal lawyers comments to the press). The District Court far exceeded its discretion when it abandoned established precedent and analyzed A3371 using only rational basis. When grouped with the courts other errors, it is substantially likely that Appellants will prevail in their appeal. B. Appellants Are Suffering Irreparable Injury.

A3371 is chilling Appellants and their clients First Amendment rights and imposing upon Appellants a Hobsons choice that is infringing upon their fundamental constitutional rights. (King Decl. 3; Newman Decl. 3-6). Appellants cannot present and clients cannot receive the message that unwanted same-sex attractions can be reduced or eliminated without violating A3371. (Id). 6

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But Appellants cannot remain silent about the possibility of reducing or eliminating unwanted same-sex attractions without running afoul of professional licensing standards that require comprehensive informed consent and respect for client self-determination. (King Decl. 3; Newman Decl. 4; Pruden Decl. 3; Scalise Decl. 3). Since A3371 went into effect immediately, it is presently imposing a Hobsons choice upon Appellants and infringing upon their clients fundamental rights, and will continue to do so during the pendency of this appeal. (Id.). Such deprivations, even for a minimal period of time, constitute irreparable injury. Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)). Particularly in light of the likelihood that the District Courts ruling will be reversed, it is critical that Appellants not continue to suffer the deprivation of their cherished constitutional rights while this case proceeds. C. An Injunction Pending Appeal Will Not Harm Appellees.

While Appellants have shown irreparable harm to their and their clients constitutional rights arising from A3371s prohibitions, Appellees have not presented empirical evidence of harm attributable to the counseling in which Appellants engage. Instead, Appellees relied upon position papers, anecdotal studies, and an APA report that stated (1)We cannot conclude how likely it is that harm will occur from SOCE; (2) Given the limited amount of methodologically 7

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sound research, we cannot draw a conclusion regarding whether recent forms of SOCE are or are not effective; and (3) There are no scientifically rigorous studies of recent SOCE that would enable us make a definitive statement about whether recent SOCE is safe or harmful and for whom. (Newman Decl., pp. 1011, citing APA Report at 42, 43, 67, 83, 100). Without evidence that SOCE has caused harm prior to the enactment of A3371, there cannot be any evidence that enjoining A3371 pending appeal will harm any interests the State purports to have. D. The Public Interest Favors An Injunction Pending Appeal.

Absent evidence of harm posed by continuing SOCE counseling and given that A3371 infringes upon the constitutional rights of Appellants and their clients, the public interest favors granting an injunction pending appeal. By enjoining A3371 pending appeal and permitting Appellants to continue presenting the message that unwanted same-sex attractions, behaviors, or identity can be reduced or eliminated, this Court will avoid a serious deprivation of rights lying at the foundation of free government of free men. Schneider v. New Jersey, 308 U.S. 147, 151 (1939). II. APPELLANTS HAVE SATISFIED FRAP 8. The District Court ruled that Appellants claims should be dismissed on the merits because A3371 does not affect speech, is not vague or overbroad, and does not violate religious freedom. (Decision, pp. 40-65). Implicit in the courts opinion is a determination that Appellants cannot succeed on the merits of their claims, are 8

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not suffering irreparable injury, and that the balance of harms weighs in favor of the government. In seeking an injunction pending appeal, Appellants demonstrate that (1) there is a likelihood that they will prevail on the merits; (2) they will suffer irreparable injury unless an injunction is granted; (3) there will not be substantial harm to other interested parties; and (4) the public interest favors an injunction. United States v. Fiumara, 605 F.2d 116, 117 (3d Cir. 1979). The District Court determined that Appellants would not prevail on the merits of their claim, which ipso facto means that the court found that Appellants will not prevail on appeal. Likewise, by immediately denying any injunctive relief1 and then dismissing Appellants claims altogether, the District Court determined that Appellants do not suffer irreparable injury. The court adopted the States argument that A3371 is necessary to protect minors from perceived threats posed by SOCE counseling, which ipso facto means that the court concluded that the States interests, and, consequently, the publics interest, would be harmed if A3371 were enjoined. Since the court has already determined that Appellants claims should be dismissed on the merits, it would be futile to again ask the court for an injunction while the appeal proceeds. Indeed, given the District Courts Appellants Complaint sought a temporary restraining order and preliminary injunction prohibiting enforcement of A3371, but the District Court immediately denied such relief on a conference call with both Appellants and Appellees counsel. Only after the District Court summarily rejected Appellants initial request for emergency injunctive relief did Appellants agree to convert the proceedings to a determination on the merits under Fed. R. Civ. P. 56. 9
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determination that Appellants claims should be dismissed as meritless, it is beyond peradventure that the District Court would deny the requested relief. Under the District Courts opinion, Appellants could never satisfy the requirement of showing a likelihood of success on the merits because the court already ruled that Appellants cannot succeed on the merits. Since it would be not only impracticable, but futile, to seek an injunction from the District Court that just decided Appellants claims on the same issues are without merit and dismissed them, Appellants were entitled to file for injunctive relief with this Court without first filing in the District Court under Fed. R. App. P. 8(a)(2). The congruence between the issues and relief sought in the District Court and this Court unquestionably reveal that this case is wholly dissimilar from the case relied upon by Appellees and Intervenor-Appellee. See Torres v. Davis, 506 F. Appx 98, 102 (3d Cir. 2012), cert. denied, 134 S. Ct. 84 (2013). In Torres, the plaintiff had sought damages in the district court, and during the course of the appeal asked this Court to issue a mandatory injunction against government officials. Id. This Court denied the requested relief under Rule 8 since the request for a mandatory injunction was not considered by the district court. Id. Since the issues presented here are identical to those presented to the District Court, Torres does not support a conclusion that Appellants failed to comply with Rule 8.

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CONCLUSION The District Courts significant departure from established precedent points to a substantial likelihood that Appellants will prevail on the merits of the appeal. A3371 is causing irreparable injury. Appellees will not be harmed by enjoining A3371 pending appeal. Granting an injunction to preserve First Amendment rights is in the public interest. For these reasons, Appellants respectfully request that this Court issue an injunction pending appeal. Dated: December 12, 2013. Mathew D. Staver (Lead Counsel) Anita L. Staver LIBERTY COUNSEL 1055 Maitland Ctr. Cmmns 2d Floor Maitland, FL 32751-7214 Tel. (800) 671-1776 Email court@lc.org Attorneys for Appellants /s/ Mary E. McAlister Stephen M. Crampton Mary E. McAlister Daniel J. Schmid LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants

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CERTIFICATION OF BAR MEMBERSHIP Pursuant to Local Rule 28.3(d) and 46.1(e), the undersigned counsel certifies that she is a member of the bar of this Court. /s/ Mary E. McAlister Mary E. McAlister LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants

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CERTIFICATE OF SERVICE AND ECF COMPLIANCE I hereby certify that on this 12th day of December, 2013: (1) I caused the Reply In Support of Plaintiffs-Appellants Motion to Expedite Appeal (the Brief) to be filed electronically via the Courts CM/ECF system and to be served upon all counsel of record via Notice of Docket Activity through the Courts electronic filing system and that all counsel of record are electronic filing users; and (2) a virus check was performed on the Brief, no viruses were found, and that the antivirus software used was Microsoft Forefront ***. /s/ Mary E. McAlister Mary E. McAlister LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants

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