A unanimous three-judge panel of the Philadelphia-based U.S. 3rd Circuit Court of Appeals decisively rejected a constitutional challenge to a New Jersey law that prohibits licensed therapists from performing “sexual orientation change efforts” (SOCE) — sometimes called “conversion therapy” — on persons under 18 years of age. The court rejected arguments that the law violates the freedom of speech and free exercise of religion of the therapist, in a September 11 opinion by Circuit Judge D. Brooks Smith, who was appointed by George W. Bush. The other judges on the panel were Thomas Vanaskie, appointed by Barack Obama, and Dolores Sloviter, a senior judge appointed by Jimmy Carter. The case is King v. Governor of the State of New Jersey, 2014 U.S. App. LEXIS 17545.
The measure was signed into law last year by Governor Chris Christie. It provides that a person who is licensed to provide professional counseling “shall not engage in sexual orientation change efforts with a person under 18 years of age,” such efforts including any attempt to “change a person’s sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.”
The law is not intended to forbid counseling to assist people in determining whether they should undergo gender reassignment, or counseling intended to assist a person in adjusting to their sexual orientation or gender identity or seeking to avoid unlawful conduct or unsafe sexual practices. The law does not impose any specific penalties, but by expressing public policy against SOCE may provide the basis for professional sanctions, loss of professional license, or perhaps liability towards people harmed by SOCE. The law does not prohibit licensed counselors from expressing their views about such therapy; they are just prohibited from providing the actual therapy.
This is one of several lawsuits on the issue of SOCE pending in New Jersey. This case was brought by therapists and organizations supporting their right to perform such therapy, another case was brought by some patients and their parents, and a third, pending in the state court, was brought by some people whose parents signed them up for SOCE and who are seeking damages from the therapists under New Jersey’s consumer protection laws, claiming that the practitioners fraudulently claimed to be able to change their sexual orientation and subjected them to therapy that caused mental and emotional harm.
The New Jersey law was modeled on a California statute that had also been unsuccessfully challenged by some therapists. Last year, the U.S. Court of Appeals for the 9th Circuit ruled, in a case called Pickup v. Brown, that the California law did not violate the 1st Amendment rights of the therapists. U.S. District Judge Freda Wolfson, following the reasoning of the 9th Circuit decision, ruled similarly in this New Jersey case. The appeals court agreed with Judge Wolfson’s conclusion, but adopted a different analysis of the 1st Amendment free speech issues.
Like the 9th Circuit, Judge Wolfson concluded that the statute regulates conduct, not speech, and did not have enough of an “incidental effect” on speech to require any more than a rational basis in order to be upheld. Judge Wolfson’s ruling was premised on the longstanding authority of the government to regulate the provision of health-care through the licensing of health care professionals. She also rejected the therapists’ claim that the law violated their right to free exercise of religion, finding that it was a “neutral law” that never referred to religion or religious beliefs and thus the therapists could not claim a religious exemption, even if there was some incidental burden. As for rationality, Judge Wolfson found that New Jersey had a legitimate interest in protecting minors from harm, and that the legislature considered sufficient evidence about harm.
Judge Smith rejected Wolfson’s conclusion that the law only regulates conduct. His analysis was premised on an agreement by all parties that “modern-day SOCE therapy, and that practiced by Plaintiffs in this case, is ‘talk therapy’ that is administered wholly through verbal communication.” In a footnote, he explained that “prior forms of SOCE therapy” had included non-verbal “aversion treatments,” including induced nausea and vomiting or paralysis, electric shocks, or “having the individual snap an elastic band around the wrist when the individual became aroused to same-sex erotic images or thoughts,” but he reported that the plaintiffs considered such techniques “unethical” and had asserted that no ethical licensed professional had used them “in decades.” This was an interesting contention, inasmuch as a recent opinion in the state consumer protection case details plaintiffs’ allegations about some non-verbal therapies that are still used by at least some SOCE practitioners in New Jersey, including the elastic band technique.
Be that as it may, the restriction of the plaintiffs’ brand of SOCE to ‘talk therapy’ led the court to conclude that the state was not just regulating conduct. To the court, this appears to be content-based regulation of speech, thus requiring a higher level of judicial review than the deferential rational basis approach. Smith’s opinion devoted several pages of analysis to determining exactly how such speech regulation should be evaluated, before concluding that it should received the same level of protection that is afforded to commercial speech.
Political speech enjoys the highest level of protection, and cannot be restricted unless the government show a carefully-tailored rule designed to achieve a compelling interest, usually involving national security or the prevention of imminent criminal acts. Commercial speech, by contrast, can be restricted to advance important governmental interests, such as consumer protection or public health. For example, the government can forbid false advertising or advertising of dangerous products, such as cigarettes or alcoholic beverages. Commercial speech is subject to heightened scrutiny, the standard that the court decided should be applied to the “professional speech” at issue in this case. Judge Smith ultimately concluded that the legislature’s findings, based on testimony and resolutions by reputable professional organizations, provided sufficient justification for the law to survive the heightened scrutiny standard.
“We conclude that New Jersey has satisfied this burden,” wrote Smith. “The legislative record demonstrates that over the last few decades a number of well-known, reputable professional and scientific organizations have publicly condemned the practice of SOCE, expressing serious concerns about its potential to inflict harm. Among others, the American Psychological Association, the American Psychiatric Association, and the Pan American Health Organization have warned of the ‘great’ or ‘serious’ health risks accompanying SOCE counseling, including depression, anxiety, self-destructive behavior, and suicidality. Many such organizations have also concluded that there is no credible evidence that SOCE counseling is effective.”
Smith observed that legislatures are “entitled to rely on the empirical judgments of independent professional organizations that possess specialized knowledge and experience concerning the professional practice under review, particularly when this community has spoken with such urgency and solidarity on the subject.” He rejected the plaintiffs’ contention that there was not “conclusive empirical evidence regarding the effect of SOCE counseling on minors,” finding that the legislature “is not constitutionally required to wait for conclusive scientific evidence before acting to protect its citizens from serious threats of harm.”
The court rejected the plaintiffs’ argument that the state could adequately deal with any problem by imposing an “informed consent” procedure. Finding that minors are an “especially vulnerable population” who might feel pressured to consent to SOCE by their families “despite fear of being harmed,” the court concluded that the state could properly have found that such a consent requirement was not adequate to deal with the problem. The court also rejected the plaintiffs’ rather odd argument that the statute was unduly vague, pointing out that the individual and organizational plaintiffs had use the terms in the statute many times to describe their activities and had no doubt what the statute was prohibiting.
As to the religious freedom argument, the court agreed with Judge Wolfson that this law is neutral on its face regarding religion, and the court rejected the plaintiff’s argument that despite this surface neutrality it was somehow targeted at licensed professionals who held particular religious views. There was no “covert targeting” of religion in this law, even if many of the SOCE practitioners are religiously motivated in providing the therapy.
The court also upheld Judge Wolfson’s conclusion that the therapists were not entitled to represented the interests of their patients in this case. Patients could represent their own interests, as they have done in filing another case challenging the law which has thus far been unsuccessful. The court also approved Judge Wolfson’s decision to allow Garden State Equality, a New Jersey state-wide gay rights organization, to intervene as a defendant in the case.
The appeal by the plaintiffs was argued by Matt Staver, Dean of Liberty University Law School and a prominent anti-gay activist on behalf of Liberty Counsel. Susan M. Scott of the New Jersey Attorney General’s office defended the statute, together with David S. Flugmann representing Garden State Equality in collaboration with the National Center for Lesbian Rights. The court received numerous amicus briefs on both sides of the case, including from Alliance Defending Freedom, the anti-gay religious litigation organization, supporting plaintiffs, and Lambda Legal, supporting the constitutionality of the statute.
Given the nature of this litigation, it is likely that the plaintiffs will seek en banc review in the 3rd Circuit and/or petition the Supreme Court to review the case. The lengthy discussion of the freedom of speech issue by Judge Smith made clear that there is not a consensus among the circuit courts of appeals about how to deal with state regulation of professional speech, and the Supreme Court has not spoken with perfect clarity on the issue. Now that anti-SOCE statutes have survived judicial review in two circuits and similar bills are pending in many state legislatures (including New York’s), the Supreme Court might be persuaded that a national precedent would be appropriate.