14-3495 Opening Brief

CASE NO.
14-3495

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

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,

Appellants,

v.

GOVERNOR OF NEW JERSEY,

Appellee,

and

GARDEN STATE EQUALITY,

Intervenor-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
THE HONORABLE FREDA L. WOLFSON, DISTRICT JUDGE
CIVIL CASE. NO. 13-00662

PLAINTIFFS-APPELLANTS OPENING BRIEF

Mathew D. Staver (Lead Counsel) Daniel J. Schmid
Anita L. Staver Mary E. McAlister
LIBERTY COUNSEL LIBERTY COUNSEL
P.O. Box 540774 P.O. Box 11108
Orlando, FL 32854 Lynchburg, VA 24506
Phone: (800) 671-1776 Phone: (434) 592-7000
Email: court@LC.org Email: court@LC.org
Attorneys for Appellants Attorneys for Appellants

Case: 14-3495 Document: 003111754085 Page: 1 Date Filed: 10/01/2014
ii

DISCLOSURE STATEMENT

Pursuant to 3d Cir. R. 26.1.1, the undersigned hereby states that there are no
affiliate corporations or subsidiaries that have issued shares or debt securities to the
public, and there is no publicly held company that owns any part of the Appellants.

/s/ Daniel J. Schmid
Daniel J. Schmid

iii

TABLE OF CONTENTS

DISCLOSURE STATEMENT...ii

TABLE OF CONTENTS...iii

TABLE OF CITATIONSv

JURISDICTIONAL STATEMENT..1

STATEMENT OF THE ISSUES...1

STATEMENT OF THE CASE..2

STATEMENT OF RELATED CASES.4

STATEMENT OF FACTS.5

SUMMARY OF THE ARGUMENT...12

ARGUMENT.13

I. THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT
A3371 DOES NOT VIOLATE APPELLANTS FIRST
AMENDMENT FREE SPEECH RIGHTS.13

A. This Court Engages In De Novo Review For Both Orders Of
Dismissal And Orders Implicating The First Amendment...13

B. A3371 Violates The First Amendment Right To Free Speech
And Appellants Corollary Right To Receive Information..14

1. A3371 represents forbidden intrusion into Appellants
First Amendment right to receive information..14

2. A3371 constitutes impermissible viewpoint discrimination..19

3. A3371 is unconstitutional content-based discrimination...27

iv

a. A3371 is not justified by a compelling government
interest.30

b. A3371 is not narrowly tailored..34

4. A3371 fails intermediate scrutiny35

a. A3371 does not advance an important government
interest.36

b. A3371 restricts far more speech than necessary to
achieve any purported interest..38

II. THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT
A3371 DOES NOT VIOLATE APPELLANTS FIRST
AMENDMENT FREE EXERCISE RIGHTS..40

A. This Court Engages In De Novo Review When Reviewing
Orders Granting Motions To Dismiss And Orders
Implicating The Free Exercise Of Religion.40

B. A3371 Violates Appellants Right To Free Exercise of
Religion..41

1. A3371 is not neutral or generally applicable and is therefore
subject to strict scrutiny...45

2. A3371 cannot withstand strict scrutiny..52

interest.52

b. A3371 is not narrowly tailored..53

III. THE DISTRICT COURT ERRED WHEN IT CONCLUDED
THAT A3371 DOES NOT VIOLATE APPELLANTS
FUNDAMENTAL PARENTAL RIGHTS UNDER THE
FOURTEENTH AMENDMENT..54

A. This Court Reviews De Novo Orders of Dismissal.54
v

B. A3371 Represents A Gross Intrusion Into The
Jurisdiction And Sanctity Of The Family...54

1. Jack and Jane Doe have a fundamental right to make
mental health decisions for their child55

2. A3371 directly interferes with Appellants right to make
mental health decisions for their child57

CONCLUSION..59

CERTIFICATE OF BAR MEMBERSHIP.61

CERTIFICATE OF WORD COUNT COMPLIANCE.62

CERTIFICATE OF SERVICE AND VIRUS CHECK.63

CERTIFICATE OF IDENTICAL COMPLIANCE..64

TABLE OF CITATIONS

CASES

Bates v. State Bar of Ariz., 433 U.S. 350 (1977) 17

Bd. of Educ., Island Trees Union Free Sch. Dist.
No. 26 v. Pico, 457 U.S. 853 (1982) .14, 15

Bd. of Trustees of the State Univ. of N.Y. v. Fox,
492 U.S. 469 (1989) ...38

Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004)..47

Bowen v. Roy, 476 U.S. 693 (1986) 43

Brown v. Entmt Merchants Assn, 131 S. Ct. 2729 (2011)..27, 38

Central Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm. of N.Y., 447 U.S. 557 (1980) 35, 39
vi

Century Commcns Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987)31

Child Evangelism Fellowship of N.J., Inc. v. Stafford
Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004). 22

Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520 (1993) ..passim

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ...33

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) passim

Davenport v. Washington Educ. Assn, 551 U.S. 177 (2007).29

Empt Div., Dept of Human Res. v. Smith, 494 U.S. 872 (1990)...45

Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) passim

Foglia v. Renal Ventures Mgmt. Co.,
754 F.3d 153 (3d Cir. 2014) ...13, 40, 54

Fraternal Order of Police Newark Lodge No. 12 v.
City of Newark, 170 F.3d 359 (3d Cir. 1999) .47

Gillette v. United States, 401 U.S. 437 (1971) ...43

In re Custody of Smith, 969 P.2d 21 (Wash. 1998) (en banc) 56

Jordan v. Fox, Rothschild, OBrien & Frankel,
20 F.2d 1250 (3d Cir. 1994) .13, 40, 52, 54

King v. Christie, 981 F. Supp. 2d 296 (D.N.J. 2013) .49

King v. Governor of New Jersey, No. 13-4429,
2014 WL 4455009 (3d Cir. Sept. 11, 2014) passim

Kreimer v. Bureau of Police for Town of Morristown,
958 F.2d 1242 (3d Cir. 1992) .15

vii

Lambs Chapel v. Ctr. Moriches Union Free Sch.
Dist., 508 U.S. 384 (1993) ..20

Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) ..25

Lighthouse Institute for Evangelism, Inc. v.
City of Long Branch, 510 F.3d 253 (3d Cir. 2007) ..46, 47

Meyer v. Nebraska, 262 U.S. 390 (1923). ..54, 57, 58

NAACP v. Button, 371 U.S. 415 (1963) .39

Pierce v. Socy of the Sisters of the Holy Names
of Jesus and Mary, 268 U.S. 510 (1925) ..54, 58

Parham v. J.R., 442 U.S. 584 (1979) 55, 56

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), cert denied
No. 13-1281, 2014 WL 514711 (U.S. June 30, 2014) ..4

Pittsburgh League of Young Voters Educ. Fund v.
Port Auth. of Allegheny Cnty., 653 F.3d 290 (3d Cir. 2011).14, 20

Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985)31

Rappa v. New Castle Ctny., 18 F.3d 1043 (3d Cir. 1994). ...29, 30
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) 28, 29

Reagan v. Time, Inc., 468 U.S. 641 (1984) 27

Reno v. Flores, 507 U.S. 292 (1993)...35

Rosenberger v. Rector & Visitors of the
Univ. of Va., 515 U.S. 819 (1995). .20

Sable Commcns of Cal., Inc. v. FCC, 492 U.S 115 (1989)30, 34, 53

Sherbet v. Verner, 374 U.S. 398 (1963) ...41, 42

viii

Simon & Schuster, Inc. v. Members of N.Y. State
Crime Victims Bd., 502 U.S. 105 (1991) 27

Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) ...17, 20, 24

Sutton v. Rasheed, 323 F.3d 236 (3d Cir. 2003) ...48, 49

Tenafly Eruc Assn, Inc. v. Borough of Tenafly,
309 F.3d 144 (3d Cir. 2002) ...48

Troxel v. Granville, 530 U.S. 57 (2000) .54, 55, 56

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ..30, 31, 52

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) 30, 31

United States v. Alvarez, 132 S. Ct. 2537 (2012) ...28

United States v. Caronia, 703 F.3d 14 (2d Cir. 2012) 17

United States v. OBrien, 391 U.S. 367 (1968)...35

United States v. Playboy Entmt Grp., 529 U.S. 803 (2000) ..27, 31, 39

United States v. Richards, 755 F.3d 269 (5th Cir. 2014) ...28

Va. State Bd. of Pharm. v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748 (1976) .15, 16, 17

Washington v. Klem, 497 F.3d 272, 278 (3d Cir. 2007) .41

Whiteland Woods, L.P. v. Twp. of W. Whiteland,
193 F.3d 177 (3d Cir. 1999). ..15

Wisconsin v. Yoder, 406 U.S. 205 (1972)54, 55, 56

Witt v. U.S. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008)37

ix

STATUTES

28 U.S.C. 1291. ..4
28 U.S.C. 12924
28 U.S.C. 13311

42 U.S.C. 19831

Fed. R. App. P. 4(a)(1)(A). ...1
Fed. R. of Civ. P. 1213

N.J. Stat. Ann. 45:1-54 to 45:1-55..passim

N.J. Ct. R. 4:74-7A(c) .19

OTHER AUTHORITIES

Chris Christie Signs Ban on Gay Conversion Therapy,
Politico.com (Aug. 19, 2013), available at www.politico.com
/story/2013/08/chris-christie-gay-conversion-therapy-
new-jersey-95666.html57

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/gay-lawmaker-to-christians-well-
take-your-children .57

Merriam-Websters Dictionary Transition, available at
http://www.merriam-webster.com/dictionary/transition 50

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-not-unethical-column/2601159/...32
1

JURISDICTIONAL STATEMENT
The District Court had jurisdiction under 28 U.S.C. 1331 because Plaintiffs
raised questions under the United States Constitution and 42 U.S.C. 1983. The
order dismissing Plaintiffs claims is an appealable final decision under 28 U.S.C.
1291.
The District Courts order was issued on July 31, 2014, and the notice of
appeal was filed the same day. The appeal is timely under Fed. R. App. P.
4(a)(1)(A).
STATEMENT OF THE ISSUES
1. Whether a state law that prohibits licensed mental health counselors
who engage solely in counseling or talk therapy from presenting minor clients
and their parents, at their request and with their consent, with the viewpoint that
individuals can successfully reduce or eliminate their unwanted same-sex
attractions, behaviors, or identity (hereinafter SSA), while permitting the
viewpoint that SSA may be affirmed and should be accepted violates the First
Amendment rights of minors and parents to receive information and their right to
free exercise of religion. This issue was addressed by the district court at pp.
000012-000020 of the Appendix.
2. Whether a state law that prohibits licensed counselors who engage
solely in counseling or talk therapy from presenting minor clients and their
2

parents, at their request and with their consent, with the viewpoint that the clients
can reduce or eliminate their unwanted SSA, while permitting the viewpoint that
SSA may be affirmed and should be accepted violates the fundamental rights of
parents to direct the upbringing and education of their children. This issue was
address by the district court on pp. 000020-000024 of the Appendix.
STATEMENT OF THE CASE
Appellants ask this Court to reverse the erroneous decision of the district
court dismissing Appellants challenges to New Jersey Assembly Bill No. 3371
(A3371),
1
which represents an unprecedented intrusion into the sanctity of the
relationship between a minor client and his counselor and also between parents and
their children. A3371 prevents minors from receiving and counselors from
providing any counseling to reduce or eliminate unwanted SSA, regardless of the
minors sincere religious beliefs, or the parents desires to raise their children in
accordance with and aid their children in conforming their identity to their
sincerely held religious beliefs. Appellants no longer have the option of receiving
sexual orientation change efforts (SOCE) counseling from a licensed
professional in New Jersey regardless of how sincere their religious beliefs are or

1
Subsequent to Appellants challenge in the district court, A3371 was codified as
N.J. Stat. Ann. 45:1-54 to 45:1-55. Appellants will refer to the law
interchangeably as A3371 and the codified sections, citing the codified sections
when discussing specific provisions and A3371 when discussing the bill in general.
3

how intent they are on reducing or eliminating their unwanted SSA. A3371 also
deprives minors of their fundamental right to self-determination and prohibits
counseling from a licensed professional consistent with their religious and moral
values. A3371 is a gross intrusion into constitutionally protected zones of freedom
and autonomy.
On November 11, 2013, Appellants filed their Complaint seeking
declaratory judgment, preliminary and permanent injunctive relief, and nominal
damages. (App. 000035). Appellants brought their Complaint under 42 U.S.C.
1983 claiming that A3371 violates free speech, free exercise, and parental rights
guaranteed by the United States Constitution. (Id.). Concurrently with their
Complaint, Appellants filed a Motion for a Preliminary Injunction seeking to
enjoin enforcement of A3371 while this challenge proceeded. (App. 000211).
On November 18, 2013, Garden State Equality (GSE) filed its motion to
intervene under the discretionary permissive intervention rules. (App. 000030). On
December 6, 2013, without leave of court to intervene or file pleadings, GSE filed
numerous and voluminous documents including a Motion to Dismiss. (App.
000303). On December 6, 2013, the State submitted a combined Cross-Motion to
Dismiss/Opposition to Plaintiffs Motion for a Preliminary Injunction. (App.
000306).
4

Over three months after the Motion for Preliminary Injunction was fully
briefed, on March 28, 2014, the district court issued an order purporting to stay
the matter pending resolution of the Supreme Courts determination of a petition
for certiorari in a separate matter, Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014),
cert denied No. 13-1281, 2014 WL 514711 (U.S. June 30, 2014). (Dkt. 26, Letter
Order, App. 000032). The district courts order was a de facto denial of Plaintiffs
motion. On April 17, 2014, Appellants filed a Notice of Appeal to that Order under
28 U.S.C. 1292(a)(1). That case was docketed with this Court as Case No. 14-
1941.
On July 31, 2014, the district court issued its final order dismissing
Appellants case in its entirety. The district courts Order and Opinion are attached
hereto as Volume I of the Appendix. On the same day, Appellants filed their
Notice of Appeal. (App. 000001). On August 7, 2014, this Court issued an Order
consolidating the interlocutory appeal and the instant matter.
STATEMENT OF RELATED CASES
An appeal was previously filed in this case under 28 U.S.C. 1292(a)(1).
That case is John Doe, et al. v. Governor of New Jersey, Case No. 14-1941. While
that interlocutory appeal was pending, the district court terminated its purported
stay and issued final judgment dismissing Appellants case, giving rise to this
5

appeal. A related case was decided by this Court on September 11, 2014, King v.
Governor of New Jersey, No. 13-4429, 2014 WL 4455009 (3d Cir. Sept. 11, 2014).
STATEMENT OF FACTS
Following passage of A3371, Governor Christie signed A3371 on August 19,
2013, and the law went into effect immediately. (App. 000063). A3371 prohibits
licensed mental health counselors in New Jersey from engaging in SOCE with
minors. N.J. Stat. Ann. 45:1-55. 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.
Appellants desperately desire and seek SOCE counseling to help John Doe
achieve his goals of eliminating his unwanted SSA and resolving the confusion
6

over his gender identity. (John Doe Decl. 3, App. 000220; Jane Doe 15, App
000236). A3371 is preventing Appellants from obtaining that counseling from a
licensed New Jersey counselor. (John Doe Decl. 3, App. 000220). John Doe is a
fifteen-year-old minor seeking SOCE counseling from a licensed professional in
New Jersey. (Id.). Because he cannot obtain the counseling he desperately desires
from a licensed professional in New Jersey, Appellants filed suit to enjoin
enforcement of A3371, which prevents John Doe from living a life consistent with
his personal identity and religious convictions.
When he was nine years old, John Doe began experiencing confusion
concerning his gender identity. (John Doe Decl. 4, App. 000221). 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, App.
000227). 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. (Id.). Jack Doe did not understand the artistic side of his son, so
he sometimes neglected and ignored him for not behaving like a typical boy. (Jack
Doe Decl. 3-5, App. 000227-228). Sometimes he would verbalize his lack of
understanding, and this caused great pain and hurt on John Doe. (Id.).
7

Because of this family environment, John Doe developed a dislike of boys
and men, thought boys were stupid because of the harsh words his mother had
spoken towards his father, and felt like his father rejected him as a younger child.
(John Doe Decl. 4-6, App. 000221). When he was around ten years old, John Doe
began trying to behave like a girl, look like a girl, and tried to display female
mannerisms and expressions. (Id.). This caused him significant psychological
distress, and he started having frequent thoughts of suicide because of his severe
confusion about his gender identity. (Id. 3, 7, App. 000220-221).
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, App. 000221). At that same time, he began
struggling with 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, App. 000221). 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, App. 000221). John Does confusion and distress caused
him great anxiety, and his obsessive-compulsive traits became worse than they had
ever been. (Id. 7, App. 000221). During this period of early adolescence, John
Doe began having panic attacks during the day and was unable to sleep at night
8

due to his severe anxiety. (Id.). He began to think of killing himself every day,
and his depression was severely harming his emotional stability. (Id. 8, App.
000222).
The burdens and the stress over his gender confusion and unwanted same-
sex attractions eventually came to a tipping point and manifested in an actual
suicide attempt. On a family trip to the beach, John Doe tried to fling himself off of
the balcony of the Does hotel. (Jane Doe 10, App. 000234-235). It was after that
experience that John Doe realized he needed help with his emotional and
psychological distress, and he finally asked his parents for help. (John Doe. Decl.
9, App. 000222; Jane Doe Decl. 10-12, App. 000234-235). 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. (Jane Doe Decl.
11, App. 000235).
Jack and Jane Doe contacted a professional counselor recommended by the
National Association for the Research and Therapy of Homosexuality, which
specializes in helping boys reduce or eliminate their unwanted same-sex sexual
attractions, behaviors, expressions, mannerisms, and identity. (Id.; Pruden Decl. 7,
App. 000245). John Doe was struggling with nearly all of those things. (John Doe
Decl. 8, App. 000222). 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
9

trying to suppress any expressions of his masculinity and to display any female
mannerisms that he could. (Id.).
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, App. 000222-223). He wanted to live out
his religious values and did not want to act on same-sex attractions that violate his
religious beliefs. (Id.). 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.).
Jack and Jane Doe have sincerely held religious beliefs that homosexuality is
a sinful and harmful lifestyle. (Jane Doe Decl. 18, App. 000237). 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 the
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 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.).
10

John Doe started counseling in May of 2011, and he has experienced
tremendous benefits from it. (John Doe Decl. 10, App. 000223). 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 stopped shaving his body hair to try to look more feminine,
he displays fewer feminine characteristics, and he has stopped attempting to
exhibit female mannerisms. (Id.). Also, John Doe has significantly improved his
relationship with his father, and his confidence in his own masculinity is starting to
develop and improve. (Id.). As a result of his counseling, John Doe no longer
experiences thoughts of suicide or hopelessness. (Id. 11-13, App. 000223-224).
John Doe no longer has the tremendous psychological distress that he experienced
as a result of his unwanted SSA. (Id.).
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, App. 000223-224). John Does
discussions with his counselor are very helpful, and sometimes just talking about
his difficulties and concerns makes all the difference in the world to him. (Id.). His
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 disappear. (Id.).
11

Jack and Jane Doe have also noticed significant benefits from John Does
SOCE counseling. (Jack Doe Decl. 8-10, App. 000229-230; Jane Doe Decl.
13-14, App. 000235). They have noticed significant changes in their son and
have found that all of them are positive. (Jack Doe Decl. 8-10, App. 000229-230;
Jane Doe Decl. 13, App. 000235). 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, App. 000229; Jane Doe Decl. 13, App. 000235). 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, App.
000235). 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, 000230; Jane Doe Decl. 16-17, App. 000236-237).
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. (Jane Doe Decl. 15, App. 000236) Because his counseling is
more prospective thinking, John Does counselor informed the Does that their son
might benefit from additional SOCE counseling from a person who engages in
conversations dealing with root causes, background information, and other
12

introspective analysis. (Id.). Their 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. (Id. 15-
16, App. 000236).
Because of John Does counselors recommendation, the Does contacted Dr.
Ronald Newman, a licensed psychologist in New Jersey, to attempt to engage a
psychologist who provides the type of counseling recommended for their son.
(Jane Doe Decl. 15, App. 000236). Nevertheless, because of A3371, Dr. Newman
informed the Does that he could not provide such counseling, and that 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. (Id; Newman Decl. 6,
App. 000241).
SUMMARY OF THE ARGUMENT
The district court erred when it concluded that A3371 does not violate the
First Amendment rights of Appellants to receive information. Given that the
corollary to the First Amendment is the right to receive information, A3371 should
have been invalidated as a viewpoint and content-based restriction on free speech.
At minimum, however, A3371 should have been invalidated under an intermediate
or heightened standard of review.
13

The district court erred in not recognizing that A3371 represents a gross
intrusion into Appellants free exercise rights under the First Amendment. A3371
represents a substantial burden on the sincerely held religious beliefs of the Does,
is not neutral or generally applicable, and fails strict scrutiny.
The district court erred when it failed to recognize that A3371 violates
Appellants parental rights. A3371, and the district courts erroneous opinion
upholding it, simply cannot withstand review.
ARGUMENT
I. THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT
A3371 DOES NOT VIOLATE APPELLANTS FIRST AMENDMENT
FREE SPEECH RIGHTS.

A. This Court Engages In De Novo Review For Both Orders Of
Dismissal And Orders Implicating The First Amendment.

As this Court just recently reaffirmed, [w]e review de novo a district courts
grant of a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Foglia v. Renal Ventures Mgmt. Co., 754 F.3d 153, 154 n.1
(3d Cir. 2014). Under that standard, both this Court and the district court are
required to accept as true all allegations in the complaint and all reasonable
inferences that can be drawn from them after construing them in the light most
favorable to the nonmovant. Jordan v. Fox, Rothschild, OBrien & Frankel, 20
F.2d 1250, 1261 (3d Cir. 1994). Moreover, a case should not be dismissed for
failure to state a claim unless it clearly appears that no relief can be granted under
14

any set of facts that could be proved consistently with the plaintiffs allegations.
Id. The district courts slapdash treatment of Appellants claims was in error.
In the First Amendment context, an appellate court has an obligation to
make an independent examination of the whole record in order to make sure that
the judgment does not constitute forbidden intrusion on the field of free
expression. Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of
Allegheny Cnty., 653 F.3d 290, 295 (3d Cir. 2011).
B. A3371 Violates The First Amendment Right To Free Speech And
Appellants Corollary Right To Receive Information.

As this Court made abundantly clear in King, A3371 certainly intrudes into
the constitutionally protected realm of free speech. King v. Governor of State of
N.J., No. 13-4429, 2014 WL 4455009 *4 (3d Cir. Sept. 11, 2014) (We hold that
[SOCE] communications are speech for purposes of the First Amendment.). As
such, A3371 also represents an infringement on Appellants corollary
constitutional right to receive information and must satisfy the rigors of exacting
scrutiny, which it cannot pass.
1. A3371 represents forbidden intrusion into Appellants
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 against the
states. Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S.
15

853, 867 (1982); Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748, 770 (1976); Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193
F.3d 177, 180 (3d Cir. 1999). A3371 deprives Appellants of this right during
counseling because it prohibits licensed counselors from offering SOCE
counseling to minors. Such counseling has helped John Doe virtually eliminate the
emotional and psychological issues arising from his unwanted SSA. (John Doe
Decl. 10, 11, 13, App. 000234-235).
The government may not prevent citizens from receiving ideas or viewpoints
that the government 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. . . .); 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 of SOCE counseling from a licensed professional, which may be
beneficial to those minors who seek to reduce or eliminate their unwanted SSA.
This government-sanctioned restriction on information the government
16

disapproves of is 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. A3371 runs far afield of both of these constitutional principles.
A3371 prevents John Doe from receiving counseling that his counselor has
determined will be beneficial to his continued progress. John Does current
counselor, a licensed social worker in New York, does not provide the in-depth
retrospective analysis that is offered by many licensed counselors, as he prefers to
keep his counseling focused on the future. (John Doe Decl. 14, App. 000224; Jane
Doe Decl. 15, App. 000236). John Does counselor suggested he would benefit
from counseling that analyses root causes and background factors in greater depth.
The Does contacted Dr. Newman, a licensed psychologist in New Jersey, hoping
that they could receive the type of counseling that their counselor suggested. (Jane
Doe Decl. 15, App. 000236). A3371 has prevented the Does from receiving 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 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
17

governing licensed counselors here, already imposed high standards of care. Id. at
768-69. The Court determined that the advertisement ban was actually designed to
keep the public ignorant about drug prices, prevent consumers from following the
discount, and insulate ethical pharmacists from unethical ones who could operate
at lower costs. 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)); 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,
18

636 (9th Cir. 2002) (An integral component of the practice of medicine is the
communication between a doctor and patient.).
A3371 deprives John Doe of this right to receive critical information in a
counseling context. In Conant, the Ninth Circuit struck down a policy prohibiting
doctors from discussing or recommending medical marijuana to their patients.
Conant, 309 F.3d at 636-37. 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 in Conant. Specifically, only
discussions of SOCE counseling that seek to reduce or eliminate unwanted SSA
trigger A3371s prohibitions, and only discussions that SOCE counseling can
likely benefit a specific minor patient who seeks it is prohibited. A3371 prohibits
Appellants from receiving information vital to their mental health decisions, and it
should meet the same constitutional demise as the policy in Conant.
The irrationality of the States unconstitutional suppression of Appellants
rights is made further evident by other provisions regulating mental health
decisions of minors in New Jersey. [A]ny minor 14 years of age or over may
request admission to a psychiatric facility, special psychiatric hospital, or
19

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 to check himself into and out of psychiatric hospitals
where he can be given powerful psychotropic medications, but finds him incapable
of deciding to talk with a licensed counselor to reduce or eliminate unwanted SSA.
Logic more unreasonable and irrational than this is difficult to fathom.
2. A3371 constitutes impermissible viewpoint discrimination.

In King, this Court stated that A3371 did not constitute viewpoint
discrimination because it did not prohibit licensed counselors from expressing their
personal opinion of SOCE, but only prevented them from expressing it in a
specific way, namely in rendering professional services. See King, 2014
4455009 at *16. That analysis failed to adequately grasp how counselors speech
was infringed, i.e., counselors cannot counsel clients that unwanted SSA can be
reduced or eliminated, but can counsel that unwanted SSA should be encouraged.
It also misses the mark with regard to the infringement of Appellants rights. Given
that SOCE counselingi.e., professional servicesis clearly protected speech,
id. at *4, the government is not permitted to excise only one position on those
20

otherwise permissible professional services. 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. Rosenberger v. Rector & Visitors of
the Univ. of Va., 515 U.S. 819, 829 (1995). Once counselors are permitted to
engage in professional services on the topic of sexual orientation with minors, the
state is forbidden from prohibiting counselors from offering and Appellants from
receiving a particular viewpoint on the issue, i.e., that unwanted SSA can be
reduced or eliminated.
No viewpoint-based restriction on private speech has ever 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, 515 U.S. at 828. 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)); Pittsburgh League of Young
Voters, 653 F.3d at 296 (Viewpoint discrimination is an anathema to free
expression and is impermissible in both public and nonpublic fora.).
21

A3371 is a textbook example of viewpoint discrimination. Since this Court
has determined that the professional services provided to Appellants are speech,
King, 2014 WL 4455009 at *4, the viewpoint that minors SSA can be reduced or
eliminated cannot be prohibited merely because the government does not like the
clients goal in such counseling. A3371 explicitly prohibits licensed counselors
from providing, and therefore Appellants from receiving, any counseling directed
at helping a minor to reduce or eliminate his unwanted SSA. N.J. Stat. Ann.
45:1-55(a). On its face, A3371 permits licensed counselors to discuss the subject
of sexual orientation, but precludes discussion of the particular viewpoint that
unwanted SSA can be reduced or eliminated. A3371 specifically targets only
SOCE that seeks to eliminate or reduce sexual or romantic attractions or feelings
towards a person of the same gender. N.J. Stat. Ann. 45:1-55(b).
A3371 targets the particular viewpoint not because it has been definitively
proved harmful, but instead because it is unpopular. The Report of the American
Psychological Association Task Force on Appropriate Therapeutic Reponses to
Sexual Orientation (APA Report) concluded that with regard to adults, there was
some evidence that SOCE was beneficial, and some evidence that it was harmful.
(App. 000082-083, 000122, 000129-130, 000200). However, the APA Report
noted that there was almost no evidence whatsoever concerning the effects of
22

SOCE on children. (App. 000171). That is why the Report advised that more
research was required. (App. 000170).
Thus, A3371s blanket prohibition on SOCE was not based on any hard
scientific evidence, but rather on the disapproving opinions of several professional
organizations. (App. 000064-067). During oral arguments in the King case, the
members of this Court were even troubled by the blatant discrepancies between the
political summary of the APA Report and the actual findings in the Report, noting
that it was indicative of a political stance not supported by the actual report or
science. 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., Inc. v. Stafford Twp. Sch. Dist.,
386 F.3d 514, 527-28 (3d Cir. 2004).
The APA Reports statements also indicate biased analysis and that any
viewpoint contrary to the a priori assumption that SSA were good and normal
would be rejected. (App. 000082) (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 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
23

should seek to change such attractions, behaviors, or identity. (Nicolosi Decl. 15,
App. 000289).
The statute also permits a licensed professional to counsel a client seeking
to transition from one gender to another. N.J. Stat. Ann. 45:1-55(b). 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.
A3371 purportedly seeks to protect . . . lesbian, gay, bisexual, and
transgender youth. (App. 000067). By explicitly mentioning LGBT youth, A3371
clearly aims to ban only counseling 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 (homosexual or bisexual).
24

(App. 000064-067). 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 counseling
seeking to change heterosexual attractions. (Id.).
A3371s definitions further confirm that only SOCE counseling aimed at
change from non-heterosexual to heterosexual is precluded. SOCE counseling
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.

N.J. Stat. Ann. 45:1-55(b) (emphasis added).
Consequently, John Doe may receive information and counseling to
encourage SSA, to provide acceptance, support, and understanding, to transition
from one gender to another, or to remain neutral. However, John Doe has no
professional avenue to seek counseling concerning the possibility of changing
unwanted SSAeven if he desperately seeks it. (John Doe Decl. 14-17, App.
000224-225). A3371 prohibits licensed counselors from offering what John Doe
seeks, so he is prevented from receiving that information.
The Supreme Court and other courts have invalidated professional
regulations when those regulations would limit what a professional could say, and
thereby limit what information a client could receive. See Sorrell, 131 S. Ct. 2653
25

(2011); Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001); Conant v. Walters,
309 F.3d 629 (9th Cir. 2002). In these cases, the courts reaffirmed the black letter
law that the government is not permitted to impose its viewpoint on speakers or
prohibit individuals from receiving information on that viewpoint, even when that
viewpoint is being espoused as part of the rendering of professional services.
In Velazquez, the Court addressed a federal limitation on the legal profession
that operated in materially the same viewpoint-based manner as A3371. Velazquez,
531 U.S. at 537-38 That regulation prevented legal aid attorneys from receiving
federal funds if they challenged welfare laws, i.e., rendered professional services
espousing a viewpoint challenging welfare laws. Id. The effect of that 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 challenged a federal policy
that punished physicians for communicating with their patients about the benefits
or availability of medical marijuana. 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
26

the application of the common law doctor-patient privilege. Id. at 636. 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. Id. 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. Such condemnation
of particular views is especially troubling in the First Amendment context. Id.
That regulation, as does A3371 here, prohibited the expression of a viewpoint in
the same very specific way of limiting what professional services could be
offered, in that case, concerning medical marijuana. Contra King, 2014 WL
4455009 at *16. Yet, the Ninth Circuit did not hesitate to invalidate it on its face as
a viewpoint-based restriction on speech.
A3371 operates 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 patient during the physicians rendering of professional services,
so A3371 prohibits clients from receiving beneficial information during SOCE
counseling that might help them alleviate their psychological distress caused by
unwanted SSA. Both policies express governmental preference for the message it
27

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.
3. A3371 is unconstitutional content-based discrimination.
That A3371 is a content-based restriction on speech is now beyond cavil.
See King, 2014 WL 4455009 at *15 (we agree with Plaintiffs that A3371
discriminates on the basis of content). 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). Regulations that permit the Government to discriminate on
the basis of the content of the message cannot be tolerated under the First
Amendment. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,
502 U.S. 105, 116 (1991) (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) (emphasis added). The burden was on the State to prove it satisfies
strict scrutiny, and the state did not meet that burden. Id. at 813.
These fundamental principles of First Amendment law are equally
applicable here. While there have been some categories of content-based
28

regulations of speech warranting less than strict scrutiny, those categories are
inapposite here. United States v. Richards, 755 F.3d 269, 273-74 (5th Cir. 2014)
(listing those very limited categories as obscenity, defamation, fraud, incitement,
and speech integral to criminal activity). As such, this Courts treatment of
A3371s content-based discrimination on speech was improper. See King, 2014
WL 4455009 at *15 (citing R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)). The
full context of R.A.V. makes it abundantly clear that A3371 is a content-based
restriction not subject to lower scrutiny.
[T]hese areas of speech can, consistently with the First Amendment,
be regulated because of their constitutionally proscribable content
(obscenity, defamation, etc.)not that they are categories of speech
entirely invisible to the Constitution, so that they may be made the
vehicles for content discrimination unrelated to their distinctively
proscribable content. Thus, the government may proscribe libel; but it
may not make the further content discrimination of proscribing
only libel critical of the government.

Id. at 383-84 (bold emphasis added).
A3371 violates R.A.V.s mandate. First, A3371 does not fit into the
categories of speech allowing content-based restrictions. Those examples
(obscenity, defamation, etc.) are very limited, and the Supreme Court has certainly
cautioned against carving out any additional categories of such speech. United
States v. Alvarez, 132 S. Ct. 2537, 2547 (2012) (Before exempting a category of
speech from the normal prohibition on content-based restrictions, however, the
Court must be presented with persuasive evidence that a novel restriction on
29

content is part of a long . . . tradition of proscription.). No such evidence is
present here. Moreover, it is dangerous indeed to open up the possibility of other
categories of permissible content-based regulations because [a]llowing judges to
make a case by case determination that content discrimination is de minimis risks
allowing judges subconscious judgments about the worth of particular speech to
affect whether they deem a limitation on speech to be permissible. Rappa v. New
Castle Ctny., 18 F.3d 1043, 1064 (3d Cir. 1994).
Additionally, the exceptions R.A.V. described are totally proscribable
forms of speech, so it was reasonable to state that those limited forms could be
excepted from the prohibition against content-based restrictions. See Davenport v.
Washington Educ. Assn, 551 U.S. 177, 189 (2007) (We said in R.A.V. that, when
totally proscribable speech is at issue, content-based regulation is permissible so
long as there is no realistic possibility that official suppression of ideas is afoot.).
Here, professional speech is not totally proscribable, as this Court made clear in
King. Moreover, as previously demonstrated, it is more than evident that official
suppression of a particular viewpoint is afoot.
Second, A3371 cannot satisfy the R.A.V. exception. Using the Courts words,
the government may proscribe [counseling on sexual orientation]; but it may not
make the further content discrimination of proscribing only [counseling on
sexual orientation change]. R.A.V., 505 U.S. at 393-84 (emphasis added). Yet,
30

this is precisely what A3371 does. It permits counseling on sexual orientation
change, including changing towards SSA or even assisting in transitioning
(changing) from one gender to the other, but prohibits counseling aimed at
changing unwanted SSA. This is constitutionally impermissible. The rule against
content discrimination forces the government to limit all speechincluding speech
the government does not want to limitif it is going to restrict any speech at all.
Rappa, 18 F.3d at 1063. A3371 does not follow that mandate and is therefore
subject to strict scrutiny.
interest.

The Legislature claims that A3371 was enacted to meet a compelling interest
in protecting the physical and psychological well-being of minors. (App.
000067). Under certain circumstances, states may have a compelling interest in the
well-being and protection of children. See Sable Commcns of Cal., Inc. v. FCC,
492 U.S 115, 126 (1989). Nevertheless, to simply claim that A3371 is intended to
serve that broadly stated interest is insufficient to justify it. 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
determine whether the legislative conclusion was reasonable and supported by
substantial evidence in the record. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,
31

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 Does
fundamental right to receive information, it must present more than anecdote and
suspicion. Playboy Entmt, 529 U.S. at 822; Florida Bar v. Went For It, Inc., 515
U.S. 618, 626 (1995) (a substantial government interest is not satisfied by mere
speculation or conjecture). [S]peculative fears alone have never been held
sufficient to justify trenching on first amendment liberties. Century Commcns
Corp. v. FCC, 835 F.2d 292, 300 (D.C. Cir. 1987). A3371 fails this test.
The APA Report found some evidence of both alleged harm and benefits
produced by SOCE. (App. 000082-083, 000122, 000129-130, 000200). It noted
that sexual minority adolescents are underrepresented in research on evidence-
based approaches, and sexual orientation issues in children are virtually
unexamined. (App. 000171) (emphasis added). [T]here 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
32

outcomes . . . because no study to date of scientific rigor has been explicitly
designed to do so. (App. 000122).
Moreover, the insufficiency of the States justifications is evidenced by the
fact that many mental health professionals, including Dr. Nicholas Cummings, the
former President of the APA, acknowledge that many people successfully change
their unwanted SSA.
2
There are also numerous studies that establish or at least
suggest that people can and do successfully eliminate or reduce their unwanted
SSA. (Rosik Decl. 27-36, App. 000258-263); (Nicolosi Decl. 13-24, App.
000288-295). Indeed, several studies have reported that sexual identity, attraction,
and behavior have been shown to change substantially across adolescence and
young adulthood. (Rosik Decl. 27, App. 000258). 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, App. 000259).
The most troubling part of A3371 is that it prevents what some studies have shown
to be a natural progression unless interfered with by extraneous factors, such as the

2
Nicholas A. Cummings, Ph.D., Sexual Reorientation Therapy Not Unethical,
USAToday (July 30, 2013), available at
http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientation-therapy-
not-unethical-column/2601159/ (noting that he personally saw hundreds of patients
that successfully changed their unwanted SSA). Dr. Cummings noted, 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. Id.
33

government. (Id. 27, App. 000258). (It 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.) (emphasis added).
The governments alleged interest is also contradicted by the APA itself.
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 . . . 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, App. 000265). [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 (and likely more so for youth). (Id. 38, App. 000264).
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 providing SOCE to 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). 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
34

of the restriction is not compelling. Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 546-47 (1993). Here, the State has banned licensed
counselors, who have far greater expertise, training, experience, and qualifications
than unlicensed counselors, but have given unlicensed counselors free rein to
counsel minors however they deem fit. A3371 not only fails to satisfy strict
scrutiny, it also fails even to meet rational basis standards. It is, in a word,
irrational at its core.
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). It is insufficient to show
that the governments ends are compelling; the means must be carefully tailored to
achieve those ends. Id. In Sable, as here, the government argued that a total ban
was necessary to protect children from harm. Id. at 128. The government also
argued that the court should defer to Congresss findings that there are no less
restrictive alternatives. Id. The Court rejected the argument and added that
[d]eference to a legislative finding cannot limit judicial inquiry when First
Amendment rights are at stake. Id.
Informed consent and a clients right to self-determination, which are
touchstones of professional counseling, undercut any alleged interest of the State.
35

Mandating a particular type of informed consent for SOCE counseling would be a
less restrictive means to achieve the States alleged goal in preventing harm to
minors. When legislation identical to A3371 was being debated in California,
several mental health organizations recognized there that this type of legislation is
attempting to undertake an unprecedented restriction on psychotherapy. (App.
000069-072). These mental health organizations proposed informed consent
language that would have narrowed the unprecedented intrusion into the
relationship between counselor and client. (Id.). A complete ban on SOCE
counseling is not the least restrictive means.
4. A3371 fails intermediate scrutiny.
As Appellants have demonstrated, intermediate scrutiny should not apply.
Indeed, A3371 is content-based discrimination subject to strict scrutiny. A3371 is
not subject to intermediate scrutiny under OBrien because it is not an incidental
restriction on free speechbut a complete prohibition. United States v. OBrien,
391 U.S. 367, 377 (1968). Additionally, A3371 is not subject to intermediate
scrutiny under Central Hudson because A3371 extends far beyond mere
commercial transactions into purely private non-commercial transactions. See
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of N.Y., 447 U.S. 557,
563 (1980) (noting that intermediate scrutiny was appropriate because of the
commonsense distinction between speech proposing a commercial transaction and
36

other varieties of speech). Here, John Does free speech rights are not proposing
any commercial transaction. Moreover, A3371 bans much more that speech
proposing a commercial transaction and would prohibit John Doe from receiving
pro bono counseling from a licensed psychologist or from a free clinic provided by
licensed counselors at church. As such, the commercial speech justification for
applying intermediate scrutiny is inapposite here, and strict scrutiny should apply.
Nevertheless, even if this Court were to apply intermediate scrutiny, as it did
in King, A3371 fails that test. Under intermediate scrutiny, the government must
assert a substantial interest in support of its regulation, must demonstrate that the
restriction . . . directly and materially advances that interest, and must be
narrowly drawn. Florida Bar, 515 U.S. at 624. A3371 does not directly advance a
substantial government interest and is not narrowly drawn to achieve that interest.
It is unconstitutional on its face, and the district courts decision to the contrary
was in error. This Court should reverse.
a. A3371 does not advance an important government
interest.

First, A3371 does not advance an important government interest. A3371 is
grounded solely on political ideology. (App. 000064-067). 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. (App. 000122, 000171). Indeed,
37

the APA Report concluded that there was evidence to support benefits produced by
SOCE. (App. 000082-083, 000122, 000129-130, 000200). The APA Report also
acknowledged that sexual orientation issues in children are virtually unexamined.
(App. 000171). This record is utterly insufficient to support a ban on SOCE
generally, let alone a ban on SOCE to minors in particular. The most that can be
said of SOCE counseling is that it is politically unpopular to those who disagree
with the sincerely held religious beliefs of those individuals who seek to conform
their attractions and behaviors to their moral convictions. Any additional
justifications for A3371 are pure speculation based on opinion statements, not
science. This is insufficient as a matter of law.
The basis for supporting an important government interest cannot be
speculative or anecdotal. See Florida Bar, 515 U.S. at 626 (noting that the burden
of establishing a direct advancement of a substantial government interest is not
satisfied by mere speculation or conjecture; rather, a government body seeking to
sustain a restriction on commercial speech must demonstrate that the harms it
recites are real and that its restriction will in fact alleviate them to a material
degree); Playboy Entmt, 529 U.S. at 822 (the government must present more
than anecdote and suspicion); 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). No doubt a State possesses legitimate
38

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).
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 on the expressive
communications that the Does 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.
b. A3371 restricts far more speech than necessary to
achieve any purported interest.

The government must demonstrate that the means it has chosen to
accomplish its purported interest in protecting the mental health of children in New
Jersey is not more extensive than necessary and that it is narrowly drawn. What
our decisions require . . . is a fit between the legislatures ends and the means
chosen to accomplish those ends. Florida Bar, 515 U.S. at 632 (quoting Bd. of
Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). That fit
need not be the single best disposition but one whose scope is in proportion to
the interest served, that employs not necessarily the least restrictive means, but a
39

means narrowly tailored to achieve the desired interest. Id. (emphasis added).
Indeed, the state cannot completely suppress information when narrower
restrictions on expression would serve its interest as well. Central Hudson, 447
U.S. at 565.
A3371 burdens far more speech than necessary to achieve its purported
interest, and its total prohibition on SOCE counseling desired by Appellants is
grossly out of proportion to the interest served. 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).
A3371, however, has placed a chokehold on minors in New Jersey. Indeed, A3371
creates a prohibition of alarming breadth that sweeps within its reach virtually all
aspects of the counseling the Does desperately seek.
A licensed counselor will face disciplinary action if the counselor provides
counseling to a minor who wants to exercise his First Amendment right to receive
information and counseling to reduce or eliminate SSA, mannerisms, or speech,
even if the minor pleads for the counseling. A3371 prohibits a minor and his
parents from seeking help from a licensed professional even if the minors
confusion, anxiety, and unwanted SSA arise from sexual abuse experienced earlier
in life. A3371 prohibits a minor and his parents from seeking help from a licensed
professional regardless of the motive or circumstance and despite the fact that
40

those parties would enter that therapeutic alliance with full knowledge of what
such counseling entails. A3371 prohibits a minor and his parents from seeking help
from a licensed counselor regardless of whether the minor seeks to receive such
counseling to conform his behaviors and attractions to his sincerely held religious
beliefs. In short, A3371 is a breathtakingly broad prohibition on counseling that
even the evidence relied upon by the legislature revealed is helpful to many people.
Such an irrational and sweeping prohibition is simply not narrowly tailored to
achieve the purported interest in protecting minors.
II. THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT
A3371 DOES NOT VIOLATE APPELLANTS FIRST AMENDMENT
FREE EXERCISE RIGHTS.

A. This Court Engages In De Novo Review When Reviewing Orders
Granting Motions To Dismiss And Orders Implicating The Free
Exercise Of Religion.

We review de novo a district courts grant of a motion to dismiss for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6). Foglia v. Renal
Ventures Mgmt. Co., 754 F.3d 153, 154 n.1 (3d Cir. 2014). Under that standard,
both this Court and the district court are required to accept as true all allegations
in the complaint and all reasonable inferences that can be drawn from them after
construing them in the light most favorable to the nonmovant. Jordan v. Fox,
Rothschild, OBrien & Frankel, 20 F.2d 1250, 1261 (3d Cir. 1994). Moreover, a
case should not be dismissed for failure to state a claim unless it clearly appears
41

that no relief can be granted under any set of facts that could be proved
consistently with the plaintiffs allegations. Id. The district courts rejection of
Appellants free exercise challenge was in error and should be reversed.
B. A3371 Violates Appellants Right To Free Exercise Of Religion.
A3371 unconstitutionally infringes on the First Amendment rights of
Appellants to seek counseling consistent with their sincerely held religious beliefs
that change is possible and desirable. John Doe is prohibited from receiving and
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 the Does because they have no
options in seeking SOCE counseling from those licensed professionals who are
best able and most experienced at providing such counseling.
Instead, John Doe is forced to elevate what the State has determined is an
appropriate ideology over his own sincerely held religious beliefs about something
as fundamental as his 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
42

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 imposes a substantial burden on John Doe because of its improper intrusion
into his fundamental right to self-determination.
The Does 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, App. 000222) (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, App.
000237) (my husband and I also have sincerely held religious beliefs that
homosexuality is a sinful and harmful lifestyle). Additionally, A3371 infringes on
Jack and Jane Does sincerely held religious beliefs concerning the education of
their child and their responsibility to raise their child consistent with the
fundamental tenets of their faith. (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.
43

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). The district court focused solely on whether the terms of the statute alone
represented a targeted suppression of religious belief. (App. 000018-019). The
district courts failure to scratch below the surface plainly ignores the fact that
facial neutrality is not always sufficient. In some circumstances, [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
44

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 enacting A3371.
The APA Report observed that conservative Christian men predominated in
the recent research on SOCE, and that religious beliefs that consider
homosexuality sinful or unacceptable was a frequent factor leading clients to
choose to seek SOCE. (App. 000125-126). 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. (App. 000126-127).
The response of the APA Report 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, App. 000247). 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 SSA in a manner respectful of the clients faith, A3371
precludes any attempts to conform a minors sexual attractions to his faith.
45

Thus, there is abundant evidence that A3371 is targeted specifically at those
individuals who believe change is possible and whose sincerely held religious
views inform them that change is possible, even if that suppression is intentionally
covert. A3371 is not neutral. Neither is it generally applicable, as A3371s
exclusions for counseling that encourages SSA or a change of gender identity
make abundantly clear. The carving out of these exceptions to the ban on SOCE
counseling reveals that A3371 is not generally applicable. Lukumi, 508 U.S. at 543.
While neutral laws of general applicability receive deferential treatment,
Empt Div., Dept of Human Res. 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). A3371 is not one of those rare instances.
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. N.J.
Stat. Ann. 45:1-55(b). The desire for this kind of counseling is most often
founded upon sincerely held religious beliefs such as those of the Does. As such,
the law disproportionately affects those motivated by religious belief. The Does
46

desire to seek and receive of SOCE counseling from a licensed mental health
professional is religiously motivated. (John Doe Decl. 9, App. 000222; Jane Doe
Decl. 9, App. 000234).
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, and (3) that facilitates exploration and
development of same-sex attractions, behaviors, or identity. N.J. Stat. Ann. 45:1-
55(b). 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. A3371 unconstitutionally imposes
such a gerrymander.
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 this Court teaches that the relevant
comparison for purposes of a Free Exercise challenge to a regulation is between its
47

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).
In Blackhawk, this Court applied strict scrutiny because the law 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; Fraternal Order of Police Newark Lodge No. 12 v. City of
Newark, 170 F.3d 359, 366 (3d Cir. 1999) (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).
In King, this Court said that none of the exemptions merited strict scrutiny.
King, 2014 WL 4455009 at *20-21. The Courts analysis there, however, failed to
recognize that some change counselingi.e., counseling to transition from one
gender to the other, which is not religiously motivatedis exempt from A3371s
ban, while change counseling aimed at conforming ones attractions and gender
identity to their biological realitywhich is almost always religiously motivated
is not exempt. (App. 000125-126).
48

This case is similar to the situation at issue in Tenafly Eruc Assn, Inc. v.
Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002). There, this Court noted that an
ordinance violates an individuals right to free exercise when it tacitly and
expressly granted exemptions from the ordinances unyielding language. Id. at
167. Indeed, this Court must look beyond the text of the ordinance and examine
whether the [government] enforces it in a religion-neutral basis, as the effect of
the law in its real operation is strong evidence of its object. Id. at 167 (quoting
Lukumi, 508 U.S. at 535) (emphasis added). Here, the effect of the law in its real
operation is to discriminate against religiously motivated conduct, but permit
those individuals who seek change counseling not motivated by religious beliefs.
Additionally,
the principle of Lukumi and Fraternal Order of Policethat
government cannot discriminate between religiously motivated
conduct and comparable secularly motivated conduct is a manner that
devalues religious reasons for actingapplies not only when a
coercive law or regulation prohibits religious conduct, but also when
government denies religious adherents access to publicly available
money or property.

Id. at 169.
Here, comparably, Appellants are merely seeking access to a form of change
counseling permitted in other contexts for nonreligious adherents. Access to this
type of information is critical to adhering to their religious values and exercising
their religion and is therefore protected by the First Amendment. See Sutton v.
49

Rasheed, 323 F.3d 236, 256-57 (3d Cir. 2003) (noting that access to the
information and texts implicate an individuals ability to practice their faith). Yet,
the States application of A3371 cuts off the supply of that vital religious
information from those most qualified to provide it to John Doe.
Indeed, A3371 prohibits counseling to change behaviors, gender identity,
or gender expressions when that counseling helps a person to live consistently
with their biological reality, but permits such counseling when aimed at helping a
person transition from one gender to the other. N.J. Stat. Ann. 45:1-55(b). The
only differences between the two forms of counseling are the religious motivations
of the client and the end goal of the client in seeking the change counseling. A3371
is not neutral.
Counseling for individuals seeking to transition from one gender to another
is certainly a significant change in sexual orientation or identity, especially for a
minor. In its review of A3371 in King, the district court ignored this significant
exemption from the law and made a plainly irrational justification for why it is not
an exemption at all. There, the district court stated that this exemption was no
exemption at all because it was not related to changing sexual orientation or
gender identity, but toward assisting someone seeking to live consistently with his
or her gender identity. King v. Christie, 981 F. Supp. 2d 296, 332 (D.N.J. 2013).
Under that rationale, a person seeking to transition is not seeking to change. This
50

defies logic, common sense, and the dictionary. If a minor is seeking to transition
from one gender to the other, then that minor is seeking to change from one gender
to another.
3
As such, this exemption certainly exempts counseling for a minor
seeking to change gender identity.
If change of sexual orientation or gender identity is harmful, then the
premise should hold true regardless of the direction of the desired change. 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. Despite the district courts
irrational attempt at distinguishing this counseling, A3371 is undercut by the
exemptions. A3371 completely prohibits SOCE counseling for those who, like
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 religious beliefs. (John
Doe Decl. 9, App. 000222) (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 permits SOCE counseling for individuals who seek to change sexual
orientation towards homosexuality or bisexuality. Not one legislative finding in

3
See Merriam-Websters Dictionary Transition, available at
http://www.merriam-webster.com/dictionary/transition (defining transition as to
make a change from one state to another) (last visited Sept. 27, 2014).
51

A3371 opposes counsel seeking to change heterosexual sexual orientation. (App.
000064-067). If seeking to change sexual orientation is harmful to minors, then it
should be harmful regardless of the direction of the change, and the State has not
offered any evidence to support its conclusion that a change in one direction is
harmful while a change in the other direction is not. This leads to the inescapable
conclusion that the States underlying premise that change is harmful is flawed.
That is borne out by the labyrinthine language of A3371.
SOCE aimed at eliminating or reducing sexual or romantic attractions or
feelings towards a person of the same gender is prohibited and therefore,
assumedly, harmful. However, counseling that affirms or facilitates exploration or
development of SSA, i.e., reduces sexual or romantic feelings towards a person of
the opposite sex is permitted, and therefore, assumedly, not harmful. N.J. Stat. Ann.
45:1-55(b) (emphasis added). Nothing offered by the State substantiates the its
underlying premise that children are only harmed if they are required to change
from being attracted to the same sex. Absent such evidence, the stated purpose of
A3371, i.e., preventing harm to children, must be rejected.
More importantly, the district court improperly ignored the allegations in the
Does Complaint that A3371 was not intended to prevent harmful counseling, but
was rather an ideological position aimed at silencing any contrary viewpoint. In
deciding a motion to dismiss, the district court was required to accept as true all
52

allegations in the complaint and all reasonable inferences that can be drawn from
them after construing them in the light most favorable to the nonmovant. Jordan v.
Fox, Rothschild, OBrien & Frankel, 20 F.2d 1250, 1261 (3d Cir. 1994). The
district court flouted its responsibility by ignoring Appellants evidence of benefits.
2. A3371 cannot withstand strict scrutiny.
A3371 is not neutral or generally applicable and infringes on Appellants
free exercise rights, so it must satisfy strict scrutiny. Lukumi, 508 U.S. at 531-32.
interest.

As the previous discussion demonstrates, A3371 is not justified by a
compelling government interest.
4
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. FCC, 512 U.S. 622, 664 (1994). Yet, even the APA concedes that sexual
orientation issues in children are virtually unexamined. (App. 000171).
Moreover, any purported evidence of harm is based on mere anecdotes from
individuals who self report. For this reason, the APA Report conceded that its
conclusions were limited because there is a dearth of scientifically sound research
on the safety of SOCE. (App. 000121) Such unsupported and anecdotal reports of

4
See supra Section I.B.3.a.
53

harm are insufficient as a matter of law to establish a compelling government
interest. The exemptions also undermine any such purported government 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 John Does 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 emphasizedthere is no research
on minors. (App. 000083, 000122, 000129, 000133).
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, Appellants have testified that they have experienced significant benefits
and no harm from the SOCE counseling that they have engaged in with a licensed
counselor. (Jane Doe Decl. 13, App. 000235) (we have noticed significant
changes in our son, and all of them are positive); (id. 17, App. 000237) (The
54

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 have
not seen any harm resulting from the counseling. He appears much happier and
less withdrawn and depressed since he began counseling.) (emphasis added).
III. THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT
A3371 DOES NOT VIOLATE APPELLANTS FUNDAMENTAL
PARENTAL RIGHTS UNDER THE FOURTEENTH AMENDMENT.

A. This Court Reviews De Novo Orders of Dismissal.
We review de novo a district courts grant of a motion to dismiss for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6). Foglia v. Renal
Ventures Mgmt. Co., 754 F.3d 153, 154 n.1 (3d Cir. 2014). Under that standard,
both this Court and the district court are required to accept as true all allegations
in the complaint and all reasonable inferences that can be drawn from them after
construing them in the light most favorable to the nonmovant. Jordan v. Fox,
Rothschild, OBrien & Frankel, 20 F.2d 1250, 1261 (3d Cir. 1994).
B. A3371 Represents A Gross Intrusion Into The Jurisdiction And
Sanctity Of The Family.

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
55

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). The district court erred by failing to
even address the appropriate level of scrutiny and erred in concluding that A3371
does not even implicate parental rights. (App. 000024). Additionally, this Courts
decision in King does not implicate Jack and Jane Does parental rights. A3371s
gross intrusion into the oldest fundamental liberty recognized by the Constitution
represents an independent reason to strike down A3371 as unconstitutional. The
district courts decision ignoring the Appellants rights here was in error and
should be reversed.
1. 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 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 fundamental discretion to bring up their children as they see fit.
56

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 counseling, 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). The district court failed to consider this. (App. 000022-024).
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
603-04. Contravening this right, the main sponsor of A3371 asserted that SOCE is
an invidious form of child abuse and that the State should take children away
from parents who allow their children to seek SOCE counseling for their
57

psychological distress.
5
There is no proof of any harm befalling children engaging
in SOCE counseling, and therefore not a modicum of evidence to support the
sponsors statement or the irreparable harm the Legislature has intentionally visited
upon parents. In fact, the Does testimony reveals that John Doe has experienced
significant benefit from his SOCE counseling. (John Doe. Decl. 13, App.
000223) (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, App. 000235) (we have
noticed significant changes in our son, and all of them are positive) (emphasis
added).
2. A3371 directly interferes with Appellants 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.

5
See Chris Christie Signs Ban on Gay Conversion Therapy, Politico.com (Aug.
19, 2013), available at www.politico.com/story/2013/08/chris-christie-gay-
conversion-therapy-new-jersey-95666.html; 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/gay-lawmaker-to-
christians-well-take-your-children (quoting New Jersey Assemblyman Tim
Eustace).
58

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. 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.
A3371 operates in an unconstitutional manner because it prevents Jack and
Jane Doe from choosing a beneficial form of counselingSOCE counseling aimed
at assisting John Doe achieve his goalsfor their son by muzzling every licensed
59

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.
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 Appellants 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. The district courts decision was in error.
CONCLUSION
The district court erred when it concluded that A3371 survives First
Amendment scrutiny under merely a rational basis standard, erred when it
concluded that A3371 did not target religious beliefs, and erred when it concluded
that A3371 did not violate Jack and Jane Does parental rights. Appellants
respectfully request this Court to reverse that decision.

60

Respectfully submitted,
Dated: October 1, 2014
Mathew D. Staver (Lead Counsel) /s/ Daniel J. Schmid
Anita L. Staver Daniel J. Schmid
LIBERTY COUNSEL Mary E. McAlister
1055 Maitland Ctr. Cmmns 2d Floor LIBERTY COUNSEL
Maitland, FL 32751-7214 P.O. Box 11108
Tel. (800) 671-1776 Lynchburg, VA 24506
Email court@LC.org Tel: (434) 592-7000
Attorneys for Appellants Email: court@LC.org
Attorneys for Appellants

61

CERTIFICATION OF BAR MEMBERSHIP

Pursuant to Local Rule 28.3(d) and 46.1(e), the undersigned counsel certifies
that he is a member of the bar of this Court.

Daniel J. Schmid

62

CERTIFICATE OF WORD COUNT COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned certifies this Brief
complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B).
1. Exclusive of the sections exempted by Fed. R. App. P. 32(a)(7)(B)(iii)
, the Brief contains 13,977 words, according to the word count feature of the
software (Microsoft Word 2007) used to prepare the Brief.
2. The Brief has been prepared in proportionately spaced typeface using
Times New Roman 14 point.

Daniel J. Schmid

63

CERTIFICATE OF SERVICE AND VIRUS CHECK

I hereby certify that on this 1st day of October, 2014: (1) I caused
Appellants Opening 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 Client
Security.
Daniel J. Schmid

64

CERTIFICATE OF IDENTICAL COMPLIANCE

I hereby certify that the electronically filed version of Appellants Opening
Brief is identical to the paper copies provided to the Court on October 3, 2014.

Daniel J. Schmid

CASE NO. 14-3495

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

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,

Appellants,

v.

GOVERNOR OF NEW JERSEY,

Appellee,

and

GARDEN STATE EQUALITY,

Intervenor-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
THE HONORABLE FREDA L. WOLFSON, DISTRICT JUDGE
CIVIL CASE. NO. 13-00662

PLAINTIFFS-APPELLANTS APPENDIX VOLUME I (000001-000027)

Mathew D. Staver (Lead Counsel) Daniel J. Schmid
Anita L. Staver Mary E. McAlister
LIBERTY COUNSEL LIBERTY COUNSEL
P.O. Box 540774 P.O. Box 11108
Orlando, FL 32854 Lynchburg, VA 24506
Phone: (800) 671-1776 Phone: (434) 592-7000
Email: court@LC.org Email: court@LC.org
Attorneys for Appellants Attorneys for Appellants
TABLE OF CONTENTS

VOLUME I (000001 000027)

Plaintiffs Notice of Appeal.....000001

Opinion....000003

Order000026

VOLUME II (000028 000210)

District Court Docket Sheet.000028

Complaint for Declaratory and Injunctive Relief and Damages ... ....... 000035

Complaint Exhibit A Assembly Bill No. 3371.000063

Complaint Exhibit B CAMFT Letter to Senator Lieu..000069

Complaint Exhibit C Report of the American Psychological
Association Task Force on Appropriate Therapeutic Responses
to Sexual Orientation...000073

VOLUME III (000211 000309)

Plaintiffs Motion for Preliminary Injunction.000211

Declaration of John Doe..000220

Declaration of Jack Doe..000227

Declaration of Jane Doe..000232

Declaration of Ronald Newman, Ph.D000239

Declaration of David Pruden...000243

Declaration of Christopher Rosik, Ph.D..000246

Declaration of Joseph Nicolosi, Ph.D..000285

Garden State Equality Notice of Motion
to Intervene as Party Defendant.......................................................................000303

Certification of Troy Stevenson..........000305

VOLUME IV - (000308 -000464)

Proposed Intervenor-Defendant Garden State
Equalitys Notice of Motion to Dismiss and/or
for Judgment on the Pleadings.000308

Declaration of Douglas Halderman, Ph.D., in
Support of Proposed Defendant-Intervenor Garden
State Equalitys Opposition to Plaintiffs Motion
for a Preliminary Injunction...... .........000311

Declaration of Gregory Herek, Ph.D. in
for a Preliminary Injunction.. .............000360

Declaration of Laura Davies, Ph.D., in
for a Preliminary Injunction. ..............000419

Affirmation of Andrew Bayer, Esq.....000433

States Notice of Cross-Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6), In Lieu
of an Answer. ..............000463
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TRENTON 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. 13-cv-6629 (FLW) (LHG)
Plaintiffs, )
v. )
)
CHRISTOPHER J. CHRISTIE, )
Governor of the State of New Jersey, in )
his official capacity, )
)
Defendants. )

PLAINTIFFS NOTICE OF APPEAL

Pursuant to Fed. R. App. P. 3, Third Circuit Rule 3.1, and 28 U.S.C. 1291, Plaintiffs,
JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on
behalf of his son JOHN DOE, and JANE DOE, individually and on behalf of her son JOHN
DOE hereby notice their appeal to the United States Court of Appeals for the Third Circuit from
the July 31, 2014 Order dismissing Plaintiffs claims in their entirety.
Respectfully submitted,
/s/ Demetrios Stratis
Demetrios Stratis
New Jersey Bar No. 022391991
Mathew D. Staver*
Daniel J. Schmid*
Liberty Counsel
P.O. Box 11108
Lynchburg, VA 24502
Tel. 434-592-7000
Fax: 434-592-7700
court@LC.org
*Admitted Pro Hac Vice
Attorneys for Plaintiffs
Case 3:13-cv-06629-FLW-LHG Document 33 Filed 07/31/14 Page 1 of 2 PageID: 1092
APPENDIX (VOL. I) - PAGE 000001
2

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was filed electronically with
the court on July 31, 2014. 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

*FOR PUBLICATION


The Honorable Freda L. Wolfson, U.S.D.J.

___________________________________
:
JOHN DOE, et al., Civil Action No. 13-6629
:

Plaintiffs, :
OPINION
:
vs.
:

:
CHRISTOPHER J . CHRISTIE,
Governor of New Jersey, :

Defendant. :

_______________________________________ :

Appearances:

Counsel for Plaintiffs Counsel for Proposed Intervenor

Demetrios K. Stratis, Esq. Andrew Bayer, Esq.
Law Office of Demetrios K. Stratis, LLC Gluck Walrath, LLP
10-04 River Road 428 Riverview Plaza
Fair Lawn, NJ 07410 Trenton, NJ 08611

Counsel for Defendant

Susan Marie Scott, Esq.
Eric S. Pasternack, Esq.
Robert T. Lougy, Esq.
Office of the NJ Attorney General
R.J. Hughes Justice Complex
PO Box 112
Trenton, NJ 08625
Plaintiffs John Doe, a minor child by and through his parents Jack
and Jane Doe, as well as Jack and Jane Doe, individually (collectively,
Plaintiffs), filed this lawsuit against Defendant New Jersey Governor
Christopher J. Christie (Defendant or Governor Christie), challenging
the constitutionality of Assembly Bill Number A3371 (A3371) (codified at
N.J.S.A. 45:1-54, -55),
1
which prohibits New Jersey state licensed
practitioners, who provide professional counseling services, from treating
minors using methods of Sexual Orientation Change Efforts (SOCE),
more commonly known as gay conversion therapy. Plaintiff John Doe
seeks to engage in SOCE, and his parents Jack and Jane Doe wish the same
for him, but Plaintiffs are precluded from obtaining SOCE in New Jersey
under the prohibition set forth in A3371, and thus they have filed the instant
action seeking a declaration that the statute is unconstitutional, and
enjoining the operation thereof. Plaintiffs core challenge to A3371 focuses
on whether, by prohibiting the practice of SOCE, New Jersey has
impermissibly infringed upon Plaintiffs First Amendment rightsi.e.,
freedom of speech and religious expressionas well as Plaintiffs Jack and
Jane Does constitutional right to care for their child and direct his
upbringing. In line with this Courts previous decision in a similar lawsuit,
brought by therapists challenging the constitutionality of A3371, see King v.
1
At the time Plaintiffs brought this suit, Assembly Bill A3371 had not
been codified as a statute, and thus, the parties refer in their papers to the
now-codified statute as A3371. In this Opinion, the Court will
interchangeably use A3371 or N.J.S.A. 45:1-54. -55.

2

Christie, 981 F. Supp. 2d 296 (D.N.J. 2013), as well as the law applicable to
Plaintiffs specific claims, I conclude that A3371 passes constitutional
muster. Accordingly, Defendants moti0n to dismiss is GRANTED in its
entirety; and Plaintiffs motion for preliminary injunction is DENIED.
Additionally, Garden State Equality (Garden State) has filed a motion to
intervene under F.R.C.P. 24(b), which is GRANTED.
BACKGROUND & PROCEDURAL HISTORY
On August 19, 2013, Governor Christie signed into law A3371,
prohibiting New Jersey state-licensed practitioners, who provide
professional counseling services, from treating minors using methods of
SOCE, i.e., gay conversion therapy; A3371 became effective on the same
date. Following the signing of A3371 into law by Defendant, a lawsuit
challenging the constitutionality of the statute was filed in this Court by
Tara King Ed.D. and Ronald Newman, Ph.D., who are licensed therapists,
as well as the National Association for Research and Therapy of
Homosexuality (NARTH) and the American Association of Christian
Counselors (AACC) (hereinafter referred to collectively as the therapist-
plaintiffs). On November 8, 2013, this Court rendered a decision
upholding the constitutionality of A3371 as to the therapist-plaintiffs, and
accordingly, denied their preliminary injunction. See King v. Christie, 981
F. Supp. 2d 296. However, before that decision had been issued, Plaintiffs
filed their own Complaint, raising similar challenges to A3371 but from the
standpoint of potential recipients, rather than providers, of SOCE, and
seeking to enjoin the operation of the statute. Nevertheless, despite the
3

change in parties, Plaintiffs in this case are represented by the same counsel
as are the therapist-plaintiffs in the King v. Christie case.
After the Court issued its decision in King, and during the course of
the parties briefing in the present matter, the Court inquired of Plaintiffs
how they wished to proceed with their litigation, given the substantial
overlap between King and the instant matter, including whether Plaintiffs
wanted to supply additional argument addressing King. Declining to
directly challenge the reasoning of my previous decision, Plaintiffs indicated
they would rely on their initial briefing and substantially the same law and
arguments raised in King, but as applied instead to individuals like
Plaintiffsi.e., minor individuals and their parents who seek out SOCE, but
are precluded from obtaining it in New Jersey by virtue of A3371. In light
of the posture of the instant matter, and Plaintiffs decision to rely on similar
arguments and reasoning as the therapist-plaintiffs in King, in this Opinion
I recite only those facts and law directly applicable to Plaintiffs claims;
further background on the issues of SOCE underlying the enactment of
A3371, as well as the challenge to the California statute upon which A3371
is modeled, can be found in King.
Assembly Bill A3371 precludes persons licensed to practice in certain
counseling professions from engaging in the practice of seeking to change
a [minors] sexual orientation. 2(b). The statute has two sections;
Section 1 provides legislative findings and declarations, while Section 2
defines SOCE and establishes the scope of the legislative prohibition on
such conduct. Simply put, A3371 prohibits licensed professionals in New
4

Jersey from engaging in SOCE, deeming it of questionable benefit, and even
potentially harmful, to minors.
In King, by opinion dated November 8, 2014, I determined that
A3371 (i) does not violate the therapist-plaintiffs First Amendment right to
free speech because the statute regulates conduct, not speech, and does not
have an incidental effect on speech, (ii) is rationally related to the states
interest in protecting minors from professional counselling deemed
harmful, (iii) is neither unconstitutionally overbroad nor vague, and (iv)
does not violate the Free Exercise Clause of the First Amendment. I further
rejected the therapist-plaintiffs attempt to assert a claim on behalf of minor
children who desired to engage in SOCE, finding that the therapist-plaintiffs
lacked third-party standing to bring such a claim. Finally, I addressed a
motion to intervene under F.R.C.P. 24(b) by Garden Stateself-described
as the largest civil rights organization in the State of New Jersey and a
leading advocate for New Jerseys lesbian, gay, bisexual, and transgender
residents. Garden State Interve. Br., 1. Rejecting the therapist-plaintiffs
arguments I determined that Garden State did not require Article III
standing to permissively intervene in the case, and, after finding that the
requirements of Rule 24(b) were satisfied, granted Garden State leave to
intervene. See generally King v. Christie, 918 F. Supp 2d. 296.
A week before I rendered my decision in King, Plaintiffs here filed
their Complaint and motion for a preliminary injunction. Plaintiffs did not
indicate that their case was related to the King case, and so their Complaint
was initially assigned to another district judge. On November 4, 2013,
5

Plaintiffs Complaint was transferred to me, and on November 14, 2013, I
held a telephonic conference call with the parties, the primary purpose of
which was to determine how Plaintiffs wished to proceed with their
Complaint in light of my decision in King.
2
At that time, Plaintiffs indicated
they would continue to rely on the briefing submitted with their preliminary
injunction motion, and counsel for Defendant indicated that she would be
filing a combined opposition to Plaintiffs motion and a cross-motion to
dismiss under Rule 12(b)(6), to which Plaintiffs filed a reply. Garden State
also filed a motion to dismiss under Rule 12(b)(6), raising arguments
substantially identical to those of Defendant.
On March 28, 2014, following the completion of briefing, the Court
issued a Letter Order, staying the matter and administratively terminating
the parties motions due to a pending petition for certiorari before the
United States Supreme Court from the Ninth Circuits decision in Pickup v.
Brown, 740 F.3d 1208, 1235 (9th Cir. 2014) cert. denied, 13-1281, 2014 WL
1669209 (U.S. June 30, 2014) and cert. denied, 13-949, 2014 WL 514711
(U.S. June 30, 2014). In the Letter Order, I explained that because of the
identity of the issues between Pickup and the instant matterincluding
both (i) my reliance on Pickup as persuasive authority supporting my
decision in King and (ii) the fact that Pickup addressed the same claims
related to parental rights that Plaintiffs here assertthe posture of the
Pickup case made it prudent, and in the interest of judicial economy, to stay
2
As noted, counsel for all parties are the same in both King and the
instant matter.
6

Plaintiffs matter pending a decision by the Supreme Court on the Pickup
certiorari petition. See Dkt. No. 26 (Letter Order), 2-3. Last month, the
Supreme Court denied the Pickup petition, leaving the Ninth Circuits
decision intact. Accordingly, given that Pickup remains good law, and that
the Third Circuit has yet to issue any decision on the appeal from my
opinion in King, I find it appropriate to lift the stay of the instant matter
and reinstate Plaintiffs motion for a preliminary injunction, Defendants
cross-motion to dismiss under Rule 12(b)(6), and Garden States motion to
intervene and motion to dismiss.
DISCUSSION
I. Standard of ReviewMotion to Dismiss
3

In reviewing a motion to dismiss on the pleadings, the court
accept[s] all factual allegations as true, construe[s] the complaint in the
light most favorable to the plaintiff, and determine[s] whether, under any
reasonable reading of the complaint, the plaintiff may be entitled to relief.
3
Rather than conduct separate analyses for Plaintiffs motion for a
preliminary injunction, and Defendants cross-motion and Garden States
motion to dismiss under Rule 12(b)(6), I resolve Plaintiffs claims by
determining, under Rule 12(b)(6), if they state a claim upon which relief can
be granted. If Plaintiffs claims cannot survive Defendants or Garden
States motions to dismiss, Plaintiffs would necessarily be unable to make a
showing of likelihood of success on the merits in support of their
preliminary injunction. See Conestoga Wood Specialties Corp. v. Secy of
the U.S. Health and Serv., 724 F.3d 377, 382 (3d Cir. 2013) (setting forth
likelihood of success on merits a prerequisite for granting preliminary
injunction); see also NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151,
153 (3d Cir. 1999) (A plaintiffs failure to establish any element in its favor
renders a preliminary injunction inappropriate. (Emphasis added.)).
Additionally, because Garden States arguments essentially track
Defendants arguments, I refer simply to Defendants arguments in the
ensuing analysis.
7

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (citation and
quotations omitted). As such, a motion to dismiss for failure to state a claim
upon which relief can be granted does not attack the merits of the action but
merely tests the legal sufficiency of the complaint. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (internal quotations omitted);
see also Fed. R. Civ. P. 8(a)(2) ([a] pleading that states a claim for relief . . .
must contain a short and plain statement of the claim showing the pleader
is entitled to relief). In other words, to survive a Fed R. Civ. P. 12(b)(6)
motion to dismiss for failure to state a claim, a complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is
plausible on its face. Id. (quoting Twombly, 550 U.S. at 570).
However, the tenet that a court must accept as true all the
allegations contained in the complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id. (citing Twombly, 550 U.S. at
555). Plaintiff must show that there is more than a sheer possibility that
the defendant has act unlawfully. Id. (citing Twombly, 550 U.S. at 556).
This plausibility determination is a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In other words, for the plaintiff
to prevail, the complaint must do more than allege the plaintiff's
entitlement to relief; it must show such an entitlement with its facts.
Fowler, 578 F.3d at 211 (citing Phillips, 515 F.3d at 23435).
8

The Third Circuit cautioned, however, that Twombly and Iqbal do
not provide a panacea for defendants, rather, they merely require that
plaintiff raise a plausible claim for relief. Covington v. Intl Assn of
Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (quoting
Iqbal, 556 U.S. at 679). Thus, factual allegations must be more than
speculative, but the pleading standard is not akin to a probability
requirement. Id. (quoting Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
556).
II. Motion to Intervene by Garden State
As in King, Garden State has filed a motion to intervene that
Plaintiffs oppose. The only difference in this case between Garden States
motion and Plaintiffs opposition, as compared to King, is the change in
named plaintiffs. In King, Garden State sought to permissively intervene
under Fed. R. Civ. P. 24(b),
4
which the therapist-plaintiffs opposed on the
grounds that Garden State (i) lacked standing, and (ii) did not otherwise
satisfy the requirements of Rule 24(b). I rejected the therapist-plaintiffs
arguments, finding that Garden State did not require Article III standing
to permissively intervene under Rule 24(b), and further determining that
4
Permissive intervention under Rule 24 requires (1) the motion to be
timely; (2) an applicants claim or defense and the main action have a
question of law or fact in common; and (3) the intervention may not cause
undue delay or prejudice to the original parties rights. See Fed. R. Civ. P.
24(b); see also N.C.A.A. v. Governor of N.J., 520 F. Appx 61, 63 (3d Cir.
2013); Appleton v. Commr, 430 F. Appx 135, 137-38 (3d Cir. 2011). So long
as these threshold requirements are met, whether to allow a party to
permissively intervene is left to the sound discretion of the court. See
N.C.A.A., 520 F. Appx at 63.
9

Garden State satisfied the requirements for permissive intervention.
Accordingly, I granted Garden States motion.
Here, Plaintiffs raise identical arguments that Garden State lacks
standing and fails to satisfy Rule 24(b). Again, other than the names of the
Plaintiffs and the precise nature of their constitutional claims, nothing else
has changed between King and this case. These two differences do not
affect my reasoning that Garden State (i) need not show Article III standing
to permissively intervene, and (ii) otherwise satisfies the requirements of
Rule 24(b). Indeed, I found in King that Garden State provide[s] a
helpful, alternative viewpoint from the vantage of some persons who have
undergone SOCE treatment or are potential patients of treatment that will
aid the court in resolving plaintiffs claims fully and fairly. King v.
Christie, 981 F. Supp. 2d at 310 (emphasis added; internal quotation marks
omitted). This viewpoint will be equally beneficial in the present matter,
in which Plaintiffs are a potential patient of SOCE and his parents. Thus,
for the same reasons as stated at length in King, and for the additional
reasons stated above, I find that Garden State satisfies the Rule 24(b)
factors in this case, and is thereby given leave to intervene.
III. First AmendmentFreedom of Speech
Plaintiffs first challenge the constitutionality of A3371 on the ground
that it violates their First Amendment right to free speech, specifically, the
fundamental right of Plaintiffs to receive information. Compl., 125.
Plaintiffs argue that the First Amendment protects the right to receive
information as a corollary of the right to speak and A3371 deprives
10

Plaintiffs of this right during counseling sessions because it prohibits
licensed counselors from offering SOCE counseling to minors. Pl. Prelim.
Inj. Br., 3. On that basis, Plaintiffs contend that, as a regulation of Plaintiffs
first amendment right to receive information, A3371 cannot survive the
applicable standard of review, i.e., strict scrutiny. As before, Defendant
rejects Plaintiffs interpretation of A3371, and, in particular, that the statute
regulates, or implicates, speech in any form, let alone Plaintiffs right to
receive information. Rather, Defendant claims that the statute merely
restricts a licensed professional from engaging in practicing SOCE
counseling, and accordingly is a rational exercise of the states long-
recognized power to reasonably regulate the counseling professions. In that
connection, Defendant asserts that A3371 targets conduct only, not speech.
Accordingly, Defendant argues that the statute does not implicate any
fundamental constitutional right and withstands rational basis review.
In King, after reviewing the plain language of A3371 and relevant
case law, and noting that the therapist-plaintiffs failed to provide any
contrary law, I found that that A3371 does not directly regulate or target
speech on its face, and, further, that the mere fact that counseling may be
carried out through talk therapy does not alter my finding that A3371
regulates conduct and not speech. King v. Christie, 981 F. Supp. 2d at 314,
317; see also Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S.
833, 884 (1992) (All that is left of petitioners argument is an asserted First
Amendment right of a physician not to provide information about the risks
of abortion, and childbirth, in a manner mandated by the State. To be sure,
11

the physicians First Amendment rights not to speak are implicated . . . but
only as part of the practice of medicine, subject to reasonable licensing and
regulation by the State . . . . We see no constitutional infirmity in the
requirement that the physician provide the information mandated by the
State here. (Citations omitted.)). As noted earlier, Plaintiffs have advanced
no new argument or law in support of their contention that A3371 regulates
speech that I did not already consider in King.
5

Furthermore, I concluded in King that A3371 does not implicate
speech, but rather governs conduct. King, 981 F. Supp. 2d at 317. Under
the reasoning set forth in King, A3371 regulates mental health treatment
albeit in the form for talk therapynot any particular speech of counselors
or therapists involving certain views. This distinction is significant because,
as I have delineated in King, states are permitted to regulate medical and
mental health treatment providers under a reasonable licensing scheme.
Because I found that SOCE is a form of mental health counseling, i.e.,
conduct not speech, Plaintiffs cannot assert that prohibiting counselors to
5
Instead, Plaintiffs merely ask this Court to revisit its previous
positions on A3371. Pl. Prelim. Inj. Reply Br., 2. Plaintiffs do not provide
any new or additional argument that would support this Court revisiting its
previous interpretation A3371, or point to any mistake or fact that this Court
overlooked in King. Cf. L. Civ. R. 7.1(i) (governing reconsiderations of
previous decisions); Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)
(explaining that reconsideration is only appropriate upon either (1) an
intervening change in controlling law; (2) the availability of new evidence;
or (3) the need to correct [a] clear error of law or prevent manifest
injustice). Indeed, when this Court inquired of Plaintiffs counsel whether
they wished to submit supplemental briefing on the impact of my decision
in King, counsel declined, effectively conceding that I had considered all the
law applicable to analyzing the constitutionality of A3371. Accordingly, I
reject Plaintiffs request to alter or amend my previous decision on A3371.
12

engage in SOCE implicates Plaintiffs right to receive information from
counselors.
6

It is clear, both from Plaintiffs argument and the relevant law, that
Plaintiffs right to receive information is a corollary to Plaintiffs right to free
speech. See Pl. Prelim. Inj. Br., 3; see also Bd. of Educ., Island Trees Union
Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982) ([T]he right to
receive ideas follows ineluctably from the senders First Amendment right
to send them . . . .). Thus, Plaintiffs right to receive information claim is
premised on free speech principles. But, Plaintiffs conflate information
regarding SOCE with SOCE practices engaged in by therapists; the latter is
considered conduct, reasonably and legitimately prohibited by A3371, the
former is not. Indeed, it is clear from my analysis in King that A3371 does
not prevent the dissemination of information regarding SOCEit only
6
Indeed, I reasoned that the therapist-plaintiffs could not cloak
themselves with the First Amendment in order to fend off reasonable
regulation by the state of the mental health treatment they provide.
Accepting the therapist-plaintiffs argument that New Jersey could not
prohibit SOCE because it is carried out through talk-therapywhich the
therapist-plaintiffs contended is a form a speechwould effectively
immunize therapists or counselors from any regulation of their profession
by the state. Thus, I rejected the therapist-plaintiffs position, finding that
such a result runs counter to the long recognized authority of the states to
legitimately regulate the medical professions. King v. Christie, 918 F. Supp.
2d at 319 (collecting cases); see also Wollschlaeger v. Governor of Florida,
Civ No. 12-14009, __ F.3d __, __, 2014 WL 3695296, at *19 n. 17 (11th Cir.
2014) (recognizing that a state mayjust as it routinely does in state court
malpractice and tort actionsimpose discipline on a physician for activities
that the state deems bad medicine even when those activities involve the
physician speaking, and that when a state does so the First Amendment
generally does not provide the physician with a shield).
13

prevents counselors from engaging in SOCE under the auspices of mental
health treatment:
Nothing in the plain language of A3371 prevents licensed
professionals from voicing their opinions on the
appropriateness or efficacy of SOCE, either in public or
private settings. Indeed, A3371 does not prevent a licensed
professional from, for example, lecturing about SOCE at a
conference or providing literature to a client on SOCE; the
statute only prohibits a licensed professional from engaging
in counseling for the purpose of actually practicing SOCE.

King v. Christie, 981 F. Supp. 2d at 314. The corollary to this finding is that
an individual seeking information regarding SOCE, such as Plaintiff John
Doe, is not prevented from receiving literature on SOCE, or attending
lectures on SOCE.
In sum, A3371 does not implicate Plaintiffs free speech rights
because the statute (i) does not regulate speech, directly or indirectly, but
rather only regulates a mental health procedure performed by licensed
counselors or therapists, and (ii) does not prevent the receipt of information
regarding SOCE outside the counseling or therapy setting. Accordingly,
Plaintiffs claim that the statute violates their right to receive information is
without merit.
Further in line with this determination, I discern no basis on which
to disturb my previous conclusion that A3371 is subject to rational basis
review. King v. Christie, 981 F. Supp. 2d at 326. Indeed, much of Plaintiffs
argument in that regard focuses on the reasonableness of the legislatures
findings supporting A3371 as failing to bear out the conclusion that SOCE
is harmful to minors. As to that contention, I found in King that rationale
14

basis is a low standard, and that the evidence upon which a legislature relies
in enacting laws subject to review under that standard need not be shown
to a mathematical certaintythe law is clear that a state need not provide
any justification or rationale for its legislative decision. Id. at 325-26. Thus,
in light of my finding that A3371 targets only licensed professionals who
engage in professional counseling of minors, and restricts them from
performing the specific type of conductSOCE counselingthat the
legislature deemed harmful, I concluded that this nexus is more than
adequate to satisfy rational basis review. Furthermore, even accepting
Plaintiffs argument that, at most, the evidence relied on by the legislature
in enacting A3371 demonstrates that SOCE is inefficaciousbut not
harmfulI would still reach the same conclusion that A3371 withstands
rational basis review. Surely it is undisputed that a state has the power to
regulate not only medical and mental health treatments deemed harmful,
but also those that are ineffective or that are based not on medical or
scientific principles but, instead, on pseudo-science. See, e.g., Washington
v. Glucksberg, 521 U.S. 702, 731 (1997) (The State also has an interest in
protecting the integrity and ethics of the medical profession.);
Wollschlaeger v. Governor of Florida, Civ. No. 12-14009, __ F.3d __, __,
2014 WL 3695296, at *17 (11th Cir. 2014) ([A] states legitimate concern
for maintaining high standards of professional conduct extends beyond
initial licensing. (Quoting Barsky v. Bd. of Regents, 347 U.S. 442, 451
(1954).))). Thus, regardless of whether the legislatures findings show that
SOCE is harmful or merely ineffective, I find that the enactment of A3371
15

prohibiting SOCE on minors is a rational and legitimate exercise of New
Jerseys power to reasonably regulate licensed medical and mental health
professionals. See King, 981 F. Supp. 2d at 319.
For these reasons, Plaintiffs cannot state a claim for violation of their
First Amendment right to receive information. Accordingly, Count I of the
Complaint is dismissed.
IV. First AmendmentFree Exercise of Religion
Plaintiffs maintain that in addition to their speech being unlawfully
constrained, A3371 infringes on their First Amendment right to exercise
their sincerely held religious beliefs that changing same-sex attraction or
behavior is possible. Therefore, Plaintiffs reason, A3371 imposes a
substantial burden on those religious beliefs because it prohibits Plaintiff
John Doe from obtaining spiritual advice
7
and assistance on the subject
matter of same-sex attractions. Plaintiffs argument is unavailing.
In King, the therapist-plaintiffs raised an identical argument except
from the perspective that A3371 imposed a substantial burden on their own
religious beliefs because it prohibited them from providing SOCE. In that
regard, I determined that A3371 did not violate the Free Exercise Clause
because the statute (i) is facially neutral with respect to religion, and (ii) is
7
As I stated in King, nothing in A3371 prohibits religious figures from
providing spiritual guidance on the issue of sexual orientation, and,
therefore, does not prevent Plaintiffs from obtaining that guidance; the
statute only prohibits the use of SOCE practices by those individuals who
are state-licensed therapists and counselors. King v. Christie, 981 F. Supp.
2d at 328 (Nothing in A3371 prevents . . . SOCE treatment by another
unlicensed person such as a religious figure . . . .).
16

one of generally applicability, and therefore, only subject to a rational basis
test, which, as already noted, it readily passes. Specifically, I found that
[b]ecause of the statutes neutrality, even if A3371 disproportionately
affects those motivated by religious belief, this fact does not raise any Free
Exercise concerns. King v. Christie, 981 F. Supp. 2d at 332 (citing Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 581
(1993)). Similarly, I determined that the statute is also generally applicable
because A3371 does not suppress, target, or single out the practice of any
religion because of religious conduct. Id.
Plaintiffs in this case raise virtually identical arguments, and rely on
the same case law and reasoning in support thereof.
8
Indeed, the only
difference is that in this case, Plaintiffs contend their Free Exercise right is
violated because they cannot receive SOCE, whereas in King the therapist-
plaintiffs based their alleged Free Exercise right violation on the prohibition
of providing SOCE. This distinction does not alter the Free Exercise
analysis; it is of no moment that Plaintiffs are objecting to the prohibition
of receiving SOCE because the focus of my analysis is on whether A3371s
overall prohibition of SOCEfrom either the therapists or patients
perspectiveis facially neutral and generally applicable. I conclude that it
is for the same reasons as set forth in King. Thus, Plaintiffs cannot state a
claim for violation of the Free Exercise Clause.
8
Again, as with Plaintiffs freedom of speech arguments, Plaintiffs do
not set forth any basis for this Court to revisit its previous decision in King
regarding A3371s constitutionality under the Free Exercise clause. See
supra, Footnote 5.
17

Accordingly, Count II of Plaintiffs Complaint is dismissed.
V. Fourteenth AmendmentParental Right To Direct The
Upbringing Of Children

Plaintiffs only claim that substantially differs from the type of claims
brought in King is their contention that A3371 violates Plaintiffs Jack and
Jane Does due process rights to care for the mental health of their child as
they see fit.
9
Specifically, Plaintiffs contend that parents are vested with the
care, custody, and control of their children, which decisions are guaranteed
through the Fourteenth Amendment. In that regard, Plaintiffs contend that
this right gives parents constitutionally-protected authority to select
medical procedures and otherwise decide what is best for their child,
without interference by the state or federal government. In response,
Defendant argues that, regardless of the scope of parental rights protected
9
In the Complaint under Count III, Plaintiffs heading refers to
Plaintiffs hybrid First and Fourteenth Amendment parental rights; in
Count IV, Plaintiffs heading refers to Plaintiffs Jack and Jane Does
fundamental parental rights. In King, I summarily rejected the therapist-
plaintiffs invitation to apply the hybrid rights doctrine, finding that the
Third Circuit has declined to apply this theory of constitutional claim. King
v. Christie, 981 F. Supp. 2d at 333 (citing Brown v. City of Pittsburgh, 586
F.3d 263, 284 n.24 (3d Cir. 2009)). Plaintiffs here have offered nothing
additional in support of such a claim.
Moreover, review of Plaintiffs legal argument as well as the specific
allegations of the Complaint reveal that in both Counts III and Count IV,
Plaintiffs are effectively asserting a Fourteenth Amendment parental rights
claim, and accordingly, I will analyze it as such. To the extent that Plaintiffs
are asserting in Count III of the Complaint a separate First Amendment free
speech and/or Free Exercise claim on behalf of Plaintiffs Jack and Jane Doe
in their capacity as parents of John Doe, that claim is duplicative of their
First Amendment claims asserted in Counts I and II, and will be dismissed
on that basis as well.
18

by the Fourteenth Amendment, parents do not have a right to select a
medical treatment for their child that the state has deemed harmful.
It is well established that the Constitution protects parents decisions
regarding the care, custody, and control of their children; however, this
protection is not without qualification. Pickup v. Brown, 740 F.3d at 1235
(quoting Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1204 (9th Cir. 2005)
(noting that states may pass laws regarding compulsory school attendance,
mandatory school uniforms, and imposing curfew on minors only)); see
also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (holding that
compulsory vaccination of children is constitutionally permissible under
most circumstances). More particularly, a state is not without
constitutional control over parental discretion in dealing with children
when their physical or mental health is jeopardized. Parham v. J.R., 442
U.S. 584, 603 (1979). [N]either rights of religion nor rights of parenthood
are beyond limitation. Acting to guard the general interest in youths well
being, the state[s] . . . authority is not nullified merely because the parent
grounds his claim to control the childs course of conduct on religion or
conscience. Prince, 321 U.S. at 166; cf. Wisconsin v. Yoder, 406 U.S. 205,
220 (1972)([A]ctivities of individuals, even when religiously based, are
often subject to regulation by the States in the exercise of their undoubted
power to promote the health, safety, and general welfare, or the Federal
Government in the exercise of its delegated powers.); Troxel v. Granville,
530 U.S. 57, 88 (2000) (Stevens, J., dissenting) (A parents rights with
respect to her child have thus never been regarded as absolute . . . [and] a
19

parents interests in a child must be balanced against the State's long-
recognized interests as parens patriae.); Sweaney v. Ada Cnty., Idaho, 119
F.3d 1385, 1391 (9th Cir. 1997) (Parents have no more of an unlimited right
to inflict corporal punishment on their children under the Fourth and
Fourteenth Amendments than they do under the Free Exercise Clause.).
It is further without dispute that the state has a compelling interest
in protecting children, and has broad authority to do so. Croft v.
Westmoreland Co. Children and Youth Serv., 103 F.3d 1123, 1125 (3d Cir.
1997); see also Prince v. Massachusetts, 321 U.S. at 167 ([T]he state has a
wide range of power for limiting parental freedom and authority in things
affecting the childs welfare.); id. at 168 (The states authority over
childrens activities is broader than over like actions of adults.); cf.
Hodgson v. Minnesota, 497 U.S. 417, 471 (1990) ([W]here parental
involvement threatens to harm the child, the parents authority must
yield.).
Here, Plaintiffs Jack and Jane Doe contend that their fundamental
right to care for their son, John Doe, is infringed by A3371 because it
prevents them from making decisions concerning their childs mental,
emotional, and physical health in the area of SOCE counseling. Put
differently, Plaintiffs argue that their rights as parents are being violated
because they are prohibited from obtaining a specific form of mental health
counseling for their child in the state of New Jerseynot because the State
is affirmatively imposing a type of care for John Doe.
20

Plaintiffs provide no case law or other authority in support of the
proposition that Jack and Jane Does fundamental parental rights
encompass the right to choose for their son any medical treatment they
desire. The cases Plaintiffs cite all concern situations in which the state has
positively interjected itself into parental decision making or the family
structure; absent is any case in which a court has affirmatively found that
parents are constitutionally entitled to select a specific type of medical care
for their child that the state has reasonably deemed harmful or ineffective.
Indeed, to the contrary, the Ninth Circuitin one of the few decisions that
speaks directly to this issuehas concluded that the fundamental rights of
parents do not include the right to choose a specific type of provider for a
specific medical or mental health treatment that the state has reasonably
deemed harmful. Pickup v. Brown, 740 F.3d at 1236 (emphasis added).
10

And while the Third Circuit has not expressly ruled on the issue, numerous
other courts have reached the same conclusion. E.g., Natl Assn for
Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d
1043, 1050 (9th Cir. 2000) (holding that substantive due process rights do
not extend to the choice of type of treatment or of a particular health care
provider and that there is no fundamental right to choose a mental health
professional with specific training); Mitchell v. Clayton, 995 F.2d 772, 775
(7th Cir. 1993) ([A] patient does not have a constitutional right to obtain a
10
Given that (i) the original Pickup panel decision was affirmed en
banc by the Ninth Circuit, (ii) the Supreme Court denied the Pickup petition
for certiorari; and (iii) the lack of any authority in support of Plaintiffs
position, I find Pickup to be particularly persuasive on this issue.
21

particular type of treatment or to obtain treatment from a particular
provider if the government has reasonably prohibited that type of treatment
or provider.); see also Carnohan v. United States, 616 F.2d 1120, 1122 (9th
Cir. 1980) (per curiam) (holding that there is no substantive due process
right to obtain drugs that the FDA has not approved); Rutherford v. United
States, 616 F.2d 455, 457 (10th Cir. 1980) ([T]he decision by the patient
whether to have a treatment or not is a protected right, but his selection of
a particular treatment, or at least a medication, is within the area of
governmental interest in protecting public health.).
Thus, I reject Plaintiffs argument that parents have an unqualified
right to select medical procedures, e.g., mental health treatment practices,
for their children. Surely, the fundamental rights of parents do not include
the right to choose a specific medical or mental health treatment that the
state has reasonably deemed harmful or ineffective. To find otherwise
would create unimaginable and unintentional consequences. For the
reasons stated above, as well as in King, I conclude that A3371 does not
infringe on any recognized parental right.
Accordingly, Counts III and IV of Plaintiffs Complaint are dismissed.
VI. CONCLUSION
For the reasons set forth above, the Court dissolves the stay on this
matter and reinstates the parties motions, subject to the following rulings:
Garden States motion for permissive intervention is GRANTED;
Plaintiffs motion for a preliminary injunction is DENIED; and
Defendants cross-motion to dismiss and Garden States motion to dismiss
22

are both GRANTED in their entireties. Accordingly, all of Plaintiffs claims
against Defendant are DISMISSED.

DATED: July 30, 2014 /s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge

23


___________________________________
:
JOHN DOE, et al., Civil Action No. 13-6629
:

Plaintiffs, :
ORDER
:
vs.
:

:
CHRISTOPHER CHRISTIE,
Governor of New Jersey, :

Defendant. :

_______________________________________ :

THIS MATTER having been opened to the Court by Demetrios K.
Stratis, Esq., counsel for Plaintiffs John Doe, a minor child by and through
his parents Jack and Jane Doe, as well as Jack and Jane Doe, individually
(collectively, Plaintiffs), on a motion for a preliminary injunction, and by
Susan Marie Scott, Esq., counsel for Defendant, Governor Christie
(Defendant), on a cross-motion to dismiss under Fed. R. Civ. P. 12(b)(6);
it appearing that Proposed Intervenor Garden State Equality (Garden
State), through its counsel, Andrew Bayer, Esq., moved for permissive
intervention as a defendant under Rule 24(b), and moved to dismiss under
Rule 12(b)(6); it appearing that Plaintiffs oppose intervention by Garden
State and oppose Defendants and Garden States motions to dismiss; the
Court having considered the parties submissions in connection with the
motions, pursuant to Fed. R. Civ. P. 78, for the reasons set forth in the
Opinion filed on even date, and for good cause shown,
IT IS on this 30
th
day of July, 2014,
ORDERED that the stay on this matter is dissolved;
ORDERED that the following motions be reinstated: Plaintiffs
motion for a preliminary injunction, Garden States motion to
intervene, Garden States motion to dismiss, and Defendants cross-
motion to dismiss;
ORDERED that Garden States motion to intervene is GRANTED;
ORDERED that Plaintiffs motion for preliminary injunction is
DENIED;
ORDERED that Defendants cross-motion to dismiss is
GRANTED;
ORDERED that Garden States cross-motion to dismiss is
GRANTED; and it is further
ORDERED that this case shall be marked as CLOSED.

/s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge
2


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