Professional Documents
Culture Documents
JOHN J. HOFFMAN Acting Attorney General of New Jersey R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendants By: Susan M. Scott Deputy Attorney General (609) 777-3410 susan.scott@dol.lps.state.nj.us
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ______________________________ : TARA KING, ED.D., et al., : HON. FREDA L. WOLFSON, U.S.D.J. : Plaintiffs, : Civil Action No. 13-05038 (FLW-LHG) : v. : : CHRISTOPHER J. CHRISTIE, : Governor of the State of New Jersey, : NOTICE OF CROSS-MOTION et al., : FOR SUMMARY JUDGMENT, : PURSUANT TO FED. R. CIV. P. 56 Defendants. : ______________________________ : To: Demetrios K. Stratis, Esquire Law Office of Demetrios K. Stratis, LLC 10-04 River Road Fair Lawn, NJ 07410 Counsel for Plaintiff Andrew Bayer, Esquire Gluck Walrath, LLP 428 Riverview Plaza Trenton, NJ 08611 Counsel for Movant-Intervenor
HONORABLE JUDGE: PLEASE TAKE NOTICE that on October 1, 2013, John J. Hoffman, Acting Attorney General of New Jersey, by Susan M. Scott, Deputy Attorney General, on behalf of Defendants, shall cross-move before the Honorable Freda L. Wolfson, U.S.D.J., in the United States Court House, Trenton, New Jersey, for an Order granting summary judgment in favor of Defendants, pursuant to Fed. R. Civ. P. 56. PLEASE TAKE NOTICE that the undersigned shall rely on the attached Brief, Statement of Material Facts and Declaration of Dr. Jack Drescher in support of the cross-motion. It is respectfully requested that the Court hold oral argument. A proposed form of Order is attached hereto. JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY By: s/Susan M. Scott Susan M. Scott Deputy Attorney General
TARA KING, ED.D., individually and on behalf of her patients, et al., Plaintiffs, v. CHRIS CHRISTIE, Governor of the State of New Jersey, in his official capacity, et al., Defendants.
Civil Action Hon. Freda L. Wolfson, U.S.D.J. Civil Action No. 3:13-cv-05038 (FLW) (LHG)
BRIEF IN SUPPORT OF DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT, PURSUANT TO FED. R .CIV. P. 56 JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street, P.O. Box 112 Trenton, New Jersey 08625-112 609-777-3410 (Phone) SUSAN.SCOTT@DOL.LPS.STATE.NJ.US Robert Lougy Kevin Jespersen Assistant Attorneys General Of Counsel Jodi Krugman Eric S. Pasternack Susan M. Scott Deputy Attorneys General On the Brief
TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ...............................................................................1 PROCEDURAL HISTORY.......................................................................................2 STATEMENT OF FACTS ........................................................................................3 STANDARD OF REVIEW .......................................................................................8 ARGUMENT .............................................................................................................9 POINT I ..............................................................................................................10 THE ELEVENTH AMENDMENT PROHIBITS PLAINTIFFS 1983 CLAIMS FOR DAMAGES AGAINST THE STATE DEFENDANTS AS WELL AS PLAINTIFFS STATE LAW CLAIMS IN THEIR ENTIRETY..................................................................10 POINT II .............................................................................................................11 THE COURT MUST DISMISS CLAIMS ON BEHALF OF MINORS AND THEIR PARENTS BECAUSE PLAINTIFFS LACK THIRD-PARTY STANDING TO RAISE SUCH CLAIMS. .......................11 POINT III ............................................................................................................13 THE STATUTE DOES NOT VIOLATE THE RIGHT TO FREE SPEECH BECAUSE IT REGULATES CONDUCT, SURVIVES RATIONAL BASIS REVIEW, IS NOT VAGUE OR OVERBROAD, AND AS A NEUTRAL AND GENERALLY APPLICABLE LAW IT DOES NOT VIOLATE THE FREE EXERCISE CLAUSE. ........................13 A. Plaintiffs Cannot Show Actual Success On the Merits Because the Challenged Provision Regulates Conduct, Survives Rational Basis Review, Only Effects Free Speech Incidentally, If At All, Is Not Vague Or Overbroad, and As a Neutral, Generally Applicable Law, It Does Not Implicate the Free Exercise Clause. .................................................................................................14 i
i. Because It Regulates Conduct and Only Affects Free Speech Incidentally, If at All the Challenged Legislation Is Subject to and Satisfies Rational Basis Review. .........................................15 ii. Plaintiffs Cannot Credibly Argue That the Statute Is Vague Where Plaintiffs Claim to Provide Sexual Orientation Change Efforts, One Plaintiff Is a Self-Proclaimed Success Story for Sexual Orientation Change Efforts and the Term Sexual Orientation Is Clear Enough to a Reasonable Person and Even More Apparent to Mental Health Providers.........................................................................................24 iii. The Statute Is Not Overbroad. .......................................................26 iv. The Challenged Provision Does Not Offend The Free Exercise Clause Because It Is Neutral And Generally Applicable. .....................................................................................27 B. Plaintiffs have not established any legal harm, let alone imminent irreparable harm. .................................................................35 C. The Hardship to Plaintiffs in the Absence of Relief Does Not Outweigh the Hardship to the Defendants and the Public. .................36 D. The Public Interest Does Not Favor the Requested Permanent Injunction.............................................................................................37 CONCLUSION ........................................................................................................39
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TABLE OF AUTHORITIES Page Cases Cited ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) .................................................................................14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...............................................................................................8 Applemans v. City of Phila., 826 F.2d 214 (3d Cir. 1987) ...................................................................................8 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004) .......................................................................... 28, 31 Borden v. School Dist., 523 F.3d 153 (3d Cir. 2008) .................................................................................24 Broadrick v. Oklahoma, 413 U.S. 601 (1973) .............................................................................................26 Brock v. Richland Shoe Co., 799 F.2d 80 (3d Cir. 1986) ...................................................................................21 Brooks v. Kyler, 204 F.3d 102 (3d Cir. 2000) ...................................................................................8 Cantwell v. Connecticut, 310 U.S. 296 (1940) .............................................................................................28 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...........................................................................................8, 9 Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) ...................................................................................... 29, 31 Combs v. Homer-Center School Dist., 540 F.3d 231 (3d Cir. 2008) .................................................................................31
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Conestgoa Wood Specialities Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa.), aff'd, 2013 U.S. App. LEXIS 15238 (3d Cir. July 26, 2013) ................................................................................... 29, 33 Conestoga Wood Specialties Corp. v. Sebelius, ___ F.3d ___, 2013 U.S. App. LEXIS 15238 (3d Cir. 2013) ..............................30 Employment Div. v. Smith, 494 U.S. 872 (1990) .............................................................................................28 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) .............................................................................................24 Figueroa v. City of Camden, 580 F. Supp. 2d 390 (D.N.J. 2008).......................................................................10 Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) .................................................................................29 Ginsberg v. New York, 390 U.S. 629 (1968) .............................................................................................23 Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334 (1933) .............................................................................................38 Heller v. Doe, 509 U.S. 312 (1993) .............................................................................................22 In re Diet Drugs, 369 F.3d 293 (3d Cir. 2004) .................................................................................35 Kowalski v. Tesmer, 543 U.S. 125 (2004). ............................................................................................11 Lambert v. Yellowley, 272 U.S. 581 (1926) ...................................................................................... 16, 32 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ...............................................................................................9 Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789 (1984) .............................................................................................27 iv
Mitchell v. Clayton, 995 F.2d 772 (7th Cir. 1993) ................................................................................13 National Assn for Advancement of Psychoanalysis v. Calif. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) (NAAP) .................................................... passim New York v. Ferber, 458 U.S. 747 (1982) .............................................................................................24 NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151 (3d Cir. 1999) .................................................................................36 Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978) ...................................................................................... 16, 19 Penn. Psychiatric Socy v. Green Springs Health Servs., Inc., 280 F.3d 278 (3d Cir. 2002) .................................................................................11 Pickup v. Brown, ___ F.3d ___, 2013 U.S. App. LEXIS 18068 (9th Cir. Aug. 29, 2013) .............................. passim Pickup v. Brown, 2012 U.S. Dist. LEXIS 172034 (E.D. Cal. Dec. 4, 2012) ....................................12 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) .............................................................................................16 Powers v. Ohio, 499 U.S. 400 (1991) .............................................................................................11 Precious Metals Assocs., Inc. v. Commodity Futures Trading Commission, 620 F.2d 900 (1st Cir. 1980) ................................................................................25 Prince v. Massachusetts, 321 U.S. 158 (1944) ...................................................................................... 32, 34 Quern v. Jordan, 440 U.S. 332 (1979) .............................................................................................10 Raygor v. Regents of University of Minnesota, 534 U.S. 533 (2002) .............................................................................................10 v
Reynolds v. United States, 98 U.S. 145 (1878) ........................................................................................ 30, 33 Ruiz v. New Garden Twp., 376 F.3d 203 (3d Cir. 2004) .................................................................................35 Salazar v. Buono, 130 S. Ct. 1803 (2010)..........................................................................................37 Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d 639 (3d Cir. 1995) ...................................................................................24 Shields v. Zuccarini, 254 F.3d 476 (3d Cir. 2001) .................................................................................14 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2012) ........................................................... 28, 30, 31, 33 Tenafly Eruv Assoc., Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002) .......................................................................... 28, 29 United States v. Knox, 977 F.2d 815 (3d Cir. 1992) .................................................................................27 United States v. Lee, 455 U.S. 252 (1982) .............................................................................................33 United States v. Williams, 553 U.S. 285 (2008) .............................................................................................26 Ward v. Rock Against Racism, 491 U.S. 78 (1989) ...............................................................................................25 Watson v. Maryland, 218 U.S. 173 (1910) ...................................................................................... 16, 32 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .............................................................................................14 Will v. Michigan Dept of State Police, 491 U.S. 58 (1989) ...............................................................................................10
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Statutes Cited N.J. Stat. Ann. 10:6-1............................................................................................10 N.J. Stat. Ann. 10:6-2............................................................................................10 N.J. Stat. Ann. 45:1-14............................................................................................3 N.J. Stat. Ann. 45:8B-1 ...........................................................................................3 N.J. Stat. Ann. 45:8B-34 .........................................................................................3 N.J. Stat. Ann. 45:8B-48 .........................................................................................4 N.J. Stat. Ann. 45:8B-8 ...........................................................................................4 N.J. Stat. Ann. 45:9-1..............................................................................................3 N.J. Stat. Ann. 45:9-21............................................................................................4 N.J. Stat. Ann. 45:14B-1 .........................................................................................3 N.J. Stat. Ann. 45:14B-46 .......................................................................................4 N.J. Stat. Ann. 45:14B-8 .........................................................................................4 N.J. Stat. Ann. 45:14BB-1 ......................................................................................3 N.J. Stat. Ann. 45:15BB-1 ......................................................................................3 N.J. Stat. Ann. 45:15BB-4 ......................................................................................4 N.J. Stat. Ann. 45:15BB-5 ......................................................................................4 Rules Cited Fed. R. Civ. P. 56 .......................................................................................................8 Constitutional Provisions Cited U.S. Const., amend. I ...............................................................................................28
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PRELIMINARY STATEMENT New Jerseys law prohibiting State licensed mental health providers from engaging in sexual orientation change efforts (SOCE), also known as conversion or reparative therapy, with minors is constitutional. The statute regulates conduct, not speech, and is rationally related to the governments legitimate interest in protecting minors from the harmful effects of SOCE, such as depression, selfdestructive and suicidality. Therefore, the statute does not violate the First Amendment right to free speech. In addition, as a neutral and generally applicable regulation, the statute does not implicate the Free Exercise clause. Moreover, the Eleventh Amendment bars Plaintiffs federal claims for damages against Defendants in their official capacities and Plaintiffs state constitutional claims , and Plaintiffs lack third-party standing to assert claims on behalf of their minor patients or the parents of their minor patients. Accordingly, Plaintiffs cannot show actual success on the merits of their claims and Defendants are entitled to summary judgment as a matter of law. Finally, Plaintiffs also fail to satisfy any of the three remaining considerations for injunctive relief. They will not suffer irreparable harm without the requested permanent injunction because the statute does not violate their constitutional rights. The balancing of the equities falls in favor of the State and the
public interest lies in protecting minors from the harmful effects of SOCE practiced by State licensed mental health providers. Therefore, the Court should grant Defendants Cross-Motion for Summary Judgment and dismiss Plaintiffs Complaint with prejudice. PROCEDURAL HISTORY On August 22, 2013, Plaintiffs filed a Complaint and Motion for a Temporary Restraining Order and Preliminary Injunction. On August 27, 2013, the Court declined to grant Plaintiffs telephonic application for immediate relief and set a briefing schedule for Plaintiffs Motion for a Temporary Restraining Order and Preliminary Injunction. Thereafter, all parties agreed the Court would treat Plaintiffs Motion for a Temporary Restraining Order and Preliminary Injunction as a Motion for Summary Judgment. This Cross-Motion for Summary Judgment on behalf of the Defendants now follows.1
Defendants file this cross-motion seeking summary judgment as a matter of law because this case presents a purely legal question. Defendants have obtained and submitted the Declaration of Jack Drescher, M.D., for the sole purpose of aiding the Court in understanding what the challenged statute prohibits and why. In that same vein, Defendants object to the declarations submitted by Plaintiffs to the extent that they offer the declarations as scientific opinion evidence on the efficacy or safety of sexual orientation change efforts generally, or on minors in particular, or on the nature and/or causes of homosexuality, bisexuality, or heterosexuality. 2
STATEMENT OF FACTS Plaintiffs challenge legislation that is but one component of a comprehensive regulatory framework governing the conduct of mental health professionals licensed to practice within the State. The practitioners in each of the professions covered in the new legislation practice under the oversight of a board or committee that is charged with protecting the public by setting standards for examination and licensing, and reviewing and approving applications for licensure. See N.J. Stat. Ann. 45:9-1 et seq. (physicians and surgeons, including psychiatrists); N.J. Stat. Ann. 45:8B-1 et seq. (marriage and family therapists); N.J. Stat. Ann. 45:8B-34 et seq. (professional counselors); N.J. Stat. Ann. 45:15BB-1 et seq. (social workers); N.J. Stat. Ann. 45:14B-1 et seq. (psychologists); N.J. Stat. Ann. 45:14BB-1 (state certified psychoanalysts). The Legislature granted each of these boards uniform investigative and enforcement authority and established uniform standards for license revocation, suspension and disciplinary proceedings for all of the licensees and registrants under their respective jurisdictions. See N.J. Stat. Ann. 45:1-14 et seq. By its terms, the challenged statute applies only to persons licensed by the State under Title 45. Clergy are not within that universe; in fact, all of the licensing laws contain some exemption language for clergy. The statutes establishing the Boards of Psychological Examiners and Marriage and Family Therapy expressly 3
state that the law does not apply to members of the clergy when acting within the scope of professional practice and training. See N.J. Stat. Ann. 45:14B-8; N.J. Stat. Ann. 45:8B-8. Similarly, the Board of Social Work Examiners and the Professional Counselor Examiners Committee exempt clergy when engaging in activities within the scope of the performance of the persons regular or specialized ministerial duties and the services are provided without charge, or when the duties are performed, with or without charge, under the auspices of a church, denomination or sect, and the person rendering services is accountable to that church, denomination or sect. N.J. Stat. Ann. 45:15BB-5(d); N.J. Stat. Ann. 45:8B-48(e); see also N.J. Stat. Ann. 45:9-21(f) (statutes prohibitions do not apply to those using prayer and spiritual means to treat the sick where no drug therapy is used). In all cases, the clergy cannot hold him or herself out to be a licensed or certified practitioner of one of the mental health professions. See, e.g., N.J. Stat. Ann. 45:8B-8; N.J. Stat. Ann. 45:14B-46; N.J. Stat. Ann. 45:15BB4(a). On August 19, 2013, Governor Christie signed Assembly Bill A3371, which precludes persons licensed to practice in certain professions from engaging in conduct that the Legislature concluded was harmful to minors. P.L. 2013, c. 150 (to be codified at N.J. Stat. Ann. 45:1-54, -55); (See Exhibit A to Plaintiffs Complaint for Declaratory Judgment, Injunctive Relief, and Nominal Damages.) 4
The law has two sections: Section 1 provides legislative findings and declarations; Section 2 defines SOCE and establishes the scope of the legislative prohibition on such conduct. In Section 1 of the statute, the Legislature included extensive findings, stating that [b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years. (1)(a). The Legislature cited many of the position statements and resolutions of those professional associations, including the American Psychiatric Association, the American Academy of Pediatrics and the American Psychological Association. Each of these professional associations, the Legislature recounts, has concluded that there is little or no evidence of the efficacy of SOCE, and that SOCE has the serious potential for harm, such as depression, guilt, anxiety and thoughts of suicide. 1(c)-(m). See also Declaration of Jack Drescher, 15, filed concurrently herewith (Drescher Decl.). The Legislature looked first to a task force established by the American Psychological Association. The Associations Task Force on Appropriate Therapeutic Responses to Sexual Orientation concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, 5
stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources. [ 1(b).] So, too, the American Psychiatric Association explained that the potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient. 1(d)(2); Drescher Decl. 15. These risks, and the lack of rigorous scientific research to substantiate their claims of cure, 1(d)(1), led the Association to oppose any psychiatric treatment such as reparative or conversion therapy which is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that a patient should change his or her sexu al orientation, 1(d)(3). See also Drescher Decl. 15. Moreover, the Legislature focused particularly on the potential for harm to minors because [m]inors who experience family rejection based on their sexual orientation face especially serious health risks. 1(m); Drescher Decl. 24. Drawing on research published in the Journal of the American Academy of Child and Adolescent Psychiatry, the Legislature explained that efforts to change sexual 6
orientation may encourage family rejection and undermine self -esteem, connectedness and caring, important protective factors against suicidal ideation and attempts. 1(k); see also Drescher Decl. 23-25 (discussing the harmful effects of SOCE with minors). Section 2 defines the prohibitions scope. First, it defines SOCE 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 . . . . 2(b). SOCE specifically does 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. 2(b); see Drescher Decl. 28. Second, it only applies to sexual orientation change efforts with a person under 18 years of age. 2(a). The statute also explains who is prohibited from engaging in SOCE. The statute applies only to persons licensed to provide professional counseling under Title 45 of the Revised Statutes. Id. Such licensed professionals include, by way of example, a psychiatrist, licensed practicing psychologist, certified social 7
worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the persons professional training for any of these professions. Id. STANDARD OF REVIEW Summary judgment is appropriate if all probative materials of record, viewed with all inferences in favor of the non-moving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). The same standards apply on cross-motions for summary judgment. Applemans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987). An issue is genuine only if a reasonable jury could possibly hold in the non -movants favor with regard to that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is material only if it influences the outcome under the applicable law. Id. at 248. The moving party bears the initial burden of demonstrating either (1) that there is no genuine issue of fact and that as a matter of law, the moving party must prevail, or (2) that the non-moving party has not shown facts relating to an essential element of the issue for which he bears the burden. Celotex Corp., 477 U.S. at 331. Once either showing is made, the burden shifts to the non-moving party, who must demonstrate facts which support each element for which he bears 8
the burden and establish the existence of genuine issues of material fact. Id. To satisfy this burden, the non-moving party may not rest upon the mere allegations or denials of his pleading. Fed. R. Civ. P. 56(e). Rather, he must produce sufficient evidence to support a jury verdict in his favor and not just create some metaphysical doubt as to material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Accordingly, Defendants cross-motion for summary judgment should be granted and this Court should dismiss Plaintiffs Complaint. ARGUMENT Defendants are entitled to summary judgment on Plaintiffs Complaint for declaratory judgment, injunctive relief and nominal damages. First, the Eleventh Amendment bars Plaintiffs claim for nominal damages. Second, Plaintiffs cannot establish third-party standing to assert claims on behalf of parents of minor children who seek SOCE and minors who desire SOCE, and those claims must be dismissed. Finally, Plaintiffs fail to make the requisite showing that they are entitled to summary judgment as a matter of law or a permanent injunction. Plaintiffs fail to satisfy the high bar appropriately set for the extraordinary relief they seek. Plaintiffs cannot succeed on the merits of their claims or show irreparable harm. Moreover, Plaintiffs do no better with public interest or a balancing of the equities. 9
POINT I THE ELEVENTH AMENDMENT PROHIBITS PLAINTIFFS 1983 CLAIMS FOR DAMAGES AGAINST THE STATE DEFENDANTS AS WELL AS PLAINTIFFS STATE LAW CLAIMS IN THEIR ENTIRETY. The Eleventh Amendment bars suits brought pursuant to 42 U.S.C. 1983 against state officials, in their official capacities, for damages. Will v. Michigan Dept of State Police, 491 U.S. 58, 64 (1989). Further, Congress has not abrogated immunity for actions brought pursuant to 1983. Quern v. Jordan, 440 U.S. 332, 341 (1979). Accordingly, Plaintiffs 1983 claims for damages against the State officials in their official capacity, must be dismissed. Defendants are likewise immune from the state constitutional claims. In Raygor v. Regents of the University of Minnesota, the Court concluded that the supplemental jurisdiction statute, 28 U.S.C. 1367, does not authorize district courts to exercise jurisdiction over claims against non-consenting States. 534 U.S. 533, 541 (2002). See also Figueroa v. City of Camden, 580 F. Supp. 2d 390, 405 (D.N.J. 2008) (acknowledging that Supreme Court has stated unequivocally that 1367(a) does not override States sovereign immunity). Thus, Plaintiffs state constitutional claims brought under the New Jersey Civil Rights Act, N.J. Stat. Ann. 10:6-1 to -2, must be dismissed. See Figueroa, 580 F. Supp. 2d at 403 (dismissing State law claims against State agency and State official).
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POINT II THE COURT MUST DISMISS CLAIMS ON BEHALF OF MINORS AND THEIR PARENTS BECAUSE PLAINTIFFS LACK THIRD-PARTY STANDING TO RAISE SUCH CLAIMS. Plaintiffs lack standing to raise claims based on the rights of minors or the parents of minors, who are not parties in this matter. Generally, a litigant may only assert his own constitutional rights or immunities. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). There may be, however, limited circumstances where a court will grant a third-party standing to assert the rights of another. Id. Third-party standing is granted only when three important criteria are satisfied: The litigant must have suffered an injury in fact, thus giving him or her a sufficiently concrete interest in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third partys ability to protect his or her own interests. Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (citations omitted); see also Penn. Psychiatric Socy v. Green Springs Health Servs., Inc., 280 F.3d 278, 288-89 (3d Cir. 2002). In Pennsylvania Psychiatric, the Third Circuit held that the psychiatrist-patient relationship satisfies close relationship prong for third-party standing and the stigma associated with receiving mental health services presents a considerable deterrent to litigation. 280 F.3d at 289-90.
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Here, as set forth in Point III, infra, Plaintiffs have not established an injury in fact. The challenged statute is a valid regulation of a licensed profession and as such regulates conduct, not speech. In addition, it is neutral and generally
applicable. Therefore, the statute is not subject to heightened scrutiny under the First Amendment and because it is rationally related to the legitimate state interest in protecting minors from the harmful effects of SOCE, it is constitutional. As such, Plaintiffs do not meet the first criteria for third-party standing. Moreover, parents of minor children who seek SOCE and minors who desire SOCE would not have independent standing to challenge the provision because it only regulates a licensed profession and prohibits only those professionals licensed under Title 45 from practicing SOCE. Simply put, the legislation does not prohibit discussions, recommendations, or expressions about SOCE. Nor does it prevent minors from seeking SOCE from unlicensed mental health providers in New Jersey or mental health providers in other states. Patients have no fundamental right to choose type of medical treatment or particular health care provider. Pickup v. Brown, ___ F.3d ___, 2013 U.S. App. LEXIS 18068, at *45 (9th Cir. Aug. 29, 2013) (citing National Assn for Advancement of Psychoanalysis v. Calif. Bd. of Psychology, 228 F.3d 1043, 1050 (9th Cir. 2000) (NAAP)); Pickup v. Brown, 2012 U.S. Dist. LEXIS 172034, at *235-36 (E.D. Cal. Dec. 4, 2012). The Ninth Circuit Court of Appeal specifically recognized that 12
there is no fundamental right to choose a mental health professional with specific training. NAAP, 228 F.3d at 1050 (citing Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993)). Finally, the parents of minor children who seek SOCE and minors who desire SOCE face no hindrance or obstacle to filing suit on their own behalf, and have done so in California. See Pickup, 2012 U.S. Dist. LEXIS 172034. Moreover, court rules and mechanisms in this jurisdiction, such as using the minors initials in all court filings and protective orders, can effectively protect the privacy and identities of minor plaintiffs. Therefore, Plaintiffs cannot make the requisite showing to warrant thirdparty standing in this matter and the claims raised on behalf of minors and their parents should be dismissed. POINT III THE STATUTE DOES NOT VIOLATE THE RIGHT TO FREE SPEECH BECAUSE IT REGULATES CONDUCT, SURVIVES RATIONAL BASIS REVIEW, IS NOT VAGUE OR OVERBROAD, AND AS A NEUTRAL AND GENERALLY APPLICABLE LAW IT DOES NOT VIOLATE THE FREE EXERCISE CLAUSE. Plaintiffs fail to prevail on any of the prongs necessary for injunctive relief, including actual success on the merits of their claims, and therefore, Defendants are entitled to summary judgment.
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A permanent injunction is an equitable remedy that should not issue as a matter of course. Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982) (citing Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 337-338 (1933)). In determining if a permanent injunction should issue, the court must consider whether: (1) the moving party has shown actual success on the merits; (2) the moving party will be irreparably injured by the denial of injunctive relief; (3) the permanent injunction will result in even greater harm to the defendant; and (4) the injunction would be in the public interest. [Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001) (citing ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 nn. 2-3 (3d Cir. 1996)).] These factors weigh in favor of the Defendants where Plaintiffs cannot show actual success on the merits, cannot establish irreparable harm, and the injunction would result in greater harm to the Defendants and offend the publics interest in protecting minors from the harms caused by SOCE. Therefore, permanent injunctive relief is not warranted and the Complaint should be dismissed. A. Plaintiffs Cannot Show Actual Success On the Merits Because the Challenged Provision Regulates Conduct, Survives Rational Basis Review, Only Effects Free Speech Incidentally, If At All, Is Not Vague Or Overbroad, and As a Neutral, Generally Applicable Law, It Does Not Implicate the Free Exercise Clause.
While the challenged provision limits the ability of Plaintiffs to engage in the practice of SOCE as a treatment for minors, it does not, given its limited reach, 14
implicate Plaintiffs' free speech rights. It does not prohibit Plaintiffs from discussing, recommending, or expressing their views on treatment options, such as SOCE. Because the provision only prohibits conduct, i.e. engaging in the practice of SOCE, it is only subject to rational basis review. And it easily withstands that scrutiny because it serves the legitimate governmental interest of protecting the health and well-being of minors by prohibiting licensed mental health providers from engaging in SOCE with minors. Moreover, the statute is not vague or overbroad, and Plaintiff's argument to the contrary strains credibility and is wholly without merit. Accordingly, the challenged statute does not violate Plaintiffs First Amendment right to free speech. Nor does it run afoul of Plaintiffs First Amendment right to the free exercise of religion where the statute is neutral and generally applicable. Therefore, Plaintiffs cannot show actual success on the merits of their claims and Defendants are entitled to summary judgment. i. Because It Regulates Conduct and Only Affects Free Speech Incidentally, If at All the Challenged Legislation Is Subject to and Satisfies Rational Basis Review.
Chapter 150 regulates conduct, not speech, and is therefore, subject to rational basis review. Because the legislation advances New Jersey's legitimate interest in protecting the health and well-being of minors, and because it only affects free speech incidentally, if at all, the statute is constitutional. 15
[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Ohralik v. Ohio State Bar Assn, 436 U.S. 447, 456 (1978) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)). Moreover, the State has a proper and pervasive role in regulating the medical profession. See, e.g., Watson v. Maryland, 218 U.S. 173, 176 (1910) (There is perhaps no profession more properly open to such regulation than that which embraces the practitioners of medicine.); Lambert v. Yellowley, 272 U.S. 581, 597 (1926) (High medical authority being in conflict as to the medicinal value of spirituous and vinous liquors taken as a beverage, it would, indeed, be strange if Congress lacked the power to determine that the necessities of the liquor problem require a limitation of permissible prescriptions.). Even a physicians First Amendment right to speak or not speak, when offered as part of the practice of medicine or providing treatment to a patient, is subject to reasonable licensing and regulation by the State. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 884 (1992) (observing where speech is part of medicine, it is subject to licensing and regulation by state). To buttress their argument that Chapter 150 regulates speech, not conduct, Plaintiffs assert that New Jerseys statute and Californias legislation banning 16
SOCE therapy for minors, are virtually identical and that this Court should look to Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012), for guidance. Of course, despite Plaintiffs suggestions otherwise, Welch was, from the outset, of minimal value because it reached precisely the opposite conclusion as the District Court opinion in Pickup. More importantly, for this Courts purposes, however, as the Ninth Circuit explained, Welch was wrongly decided and misapplied the relevant law. Pickup, 2013 U.S. App. LEXIS 18068, at *47-48. In Pickup, the Ninth Circuit rejected Welch and held that Californias virtually identical statute prohibiting licensed mental health providers from practicing SOCE permissibly regulated conduct, not speech. Pickup, 2013 U.S. App. LEXIS 18068, at *8, *3334. The court therefore applied rational basis review and found that Californias statute was rationally related to the legitimate government interest in protecting the well-being of minors. Id. Based on its reading of Conant and NAAP, the Ninth Circuit distilled the following principles in Pickup: (1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation. 17
[Pickup, 2013 U.S. App. LEXIS 18068, at *22.] Because the Ninth Circuit recognized that these principles were insufficient to determine, without more, whether a regulation prohibiting a licensed mental health provider from engaging in SOCE with minors is a regulation of speech or conduct, the court explained that it is necessary to view this issue along a continuum. Id. at *22-23. At one end of the continuum, the First Amendment provides the greatest protection where a professional is engaged in public dialogue. Id. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment just as any person is even though the state has the power to regulate medicine. Id. (citing Lowe v. SEC, 472 U.S. 181, 232 (1985) (White, J. concurring)). Within the confines of a professional relationship, however, the First Amendment protections afforded to a professionals speech are diminished. Id. at *25. At this midpoint along the continuum, the Supreme Court upheld, for example, a requirement that doctors disclose truthful, nonmisleading information to patients about certain risks of abortion[.] Id. (citing Planned Parenthood, 505 U.S. at 884). Finally, at the other end of the continuum, the state has great power to regulate professional conduct, i.e. treatment, even when such regulation may 18
have an incidental effect on speech. Id. at *28-29. The Ninth Circuit found that Californias virtually identical statute prohibiting licensed mental health providers from practicing SOCE on minors falls here, explaining that [m]ost, if not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment. Id. Were it otherwise, than any prohibition of a particular medical treatment would raise First Amendment concerns because of its incidental effect on speech. Id. See also Ohralik, 436 U.S. at 456 (the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.); Coggeshall, 604 F.3d at 667 (Simply because speech occurs does not exempt those who practice a profession from state regulation (including the imposition of disciplinary sanctions).). In rejecting the constitutional challenges to Californias statute, the Ninth Circuit explained that the statute regulated conduct, not speech: [it] bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with the patients. [SB] 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors. It is the limited reach of SB 1172 that distinguishes the present case from Conant, in which the government's policy prohibited speech wholly apart from the actual provision of treatment. Under its police power, California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful and, . . . , the fact that speech may be used to 19
carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech. [Pickup, 2013 U.S. App. LEXIS 18068, at *29-30 (internal citation omitted).] The California statute allows discussions of treatment, recommendations to obtain treatment, and expressions of opinions about SOCE and homosexuality. Id. at *30. The Court concluded that, since Californias statute leaves mental health providers free to discuss and recommend, or recommend against, SOCE, . . . any effect it may have only free speech interests is merely incidental. Id. at *32. As a result, the Ninth Circuit held that the California statute was only subject to rational basis review. Id. For these same reasons, this Court should find that Chapter 150, New Jerseys virtually identical statute, regulates treatment, that any effect on speech is merely incidental, and that the law is thus subject only to rational basis review. Though Plaintiffs argue otherwise, they rely on a tortured reading of the statute. For example, Plaintiffs contend that the legislation explicitly states that a licensed mental health professional shall not counsel a client with unwanted [same sex attractions] that change is possible. (Pls. Br., at 5). Plaintiffs also maintain that the statute prohibits mental health professionals from discussing the possibility of changing unwanted [same sex attractions]. (Pls. Br., at 6). These distortions of the statute however, ignore the statutory text and meaning. See Brock
20
v. Richland Shoe Co., 799 F.2d 80, 82 (3d Cir. 1986) (The words of statutes . . . should be interpreted where possible in their ordinary, everyday senses.) (quoting Malat v. Riddell, 383 U.S. 569, 571 (1966) (per curiam)). The challenged provision prohibits a person licensed to provide professional counseling from engag[ing] in sexual orientation change efforts with a person under 18 years of age. The statute defines sexual orientation change efforts as the practice of seeking to change a persons sexual orientation[.] Chapter 150, 2. Thus, like the California statute, the statute allows for discussions about treatment, recommendations to obtain treatment, and expressions about SOCE and homosexuality. See Pickup, 2013 U.S. App. LEXIS 18068, at *29-30. The statute only implicates the States authority under its police power to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful . . . . Id. at *29. Moreover, talk therapy does not receive special First Amendment protection merely because it is administered through speech. Id. at *30-31 (citing NAAP, 228 F.3d at 1054). To the extent that talk therapy implicates speech, it stands on the same First Amendment footing as other forms of medical or mental health treatment[,] and thus, it is subject to deferential review just as are other regulations of the practice of medicine. Id. at *31.
21
While Plaintiffs urge this Court to analyze New Jerseys statute in terms of content and viewpoint discrimination, (Pls. Br., at 9-11), they provide this Court no authority subjecting a regulation of medical or mental health treatment to strict scrutiny. Likewise, considering that New Jersey and California statutes are, as Plaintiffs admit, virtually identical, they fail mightily in distinguishing the present matter from Pickup. Therefore, rational basis is the appropriate level of scrutiny for New Jerseys legislation. The parameters of that review are well-known. A statute withstands rational basis review if it bear[s] . . . a rational relationship to a legitimate state interest. Id. at *33 (citing NAAP, 228 F.3d at 1049); see also Heller v. Doe, 509 U.S. 312, 320 (1993) (A statute is presumed constitutional and the burden is on the one attacking the legislative arrangement to negate every conceivable basis which might support it.) (citations omitted); Sammon, 66 F.3d at 645 (A court engaging in rational basis review is not entitled to second guess the legislature on the factual assumptions or policy considerations underlying the statute.) . New Jersey has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting minors against exposure to serious harms caused by sexual orientation change efforts. Chapter 150, 1(n). Without a doubt, protecting the well-being of minors is a legitimate state interest[,] and this 22
Court need not decide whether SOCE actually causes serious harms; it is enough that it could reasonably be conceived to be true by the governmental decision maker. Pickup, 2013 U.S. App. LEXIS 18068, at *33; see also Ginsberg v. New York, 390 U.S. 629, 640 (1968) (The State also has an independent interest in the well-being of its youth.). Accordingly, and for these same reasons, New Jerseys legislation is rationally related to the legitimate government interest of protecting the health and well-being of minors; and therefore, the statute survives rational basis review. Should the Court find that Plaintiffs have third-party standing on behalf of their minor patients to raise a claim under the First Amendment for the right to receive SOCE, that claim also fails. As discussed above, the challenged statute does not regulate speech; it only prohibits licensed mental health providers from engaging in SOCE with minors. It does not regulate, much less prohibit, discussions, recommendations, and expressions about SOCE. As such, it does not implicate the rights of Plaintiffs patients to receive information regarding SOCE. Moreover, it does not prohibit minors from obtaining SOCE from unlicensed mental health providers, such as religious counselors, or from licensed mental health providers in another state. Accordingly, the statute does not implicate the First Amendment rights of Plaintiffs minor clients.
23
The government may burden childrens First Amendment right to free speech, and legislation aimed at protecting the physical and emotional well -being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. New York v. Ferber, 458 U.S. 747, 757 (1982); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). Finally, there is no fundamental right to choose type of medical treatment or particular health care provider, Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d 639, 645 (3d Cir. 1995), or a mental health professional with specific training, NAAP, 228 F.3d at 1050. Therefore, Plaintiffs third-party claims on behalf of their minor patients are without merit and should be dismissed with prejudice. ii. Plaintiffs Cannot Credibly Argue That the Statute Is Vague Where Plaintiffs Claim to Provide Sexual Orientation Change Efforts, One Plaintiff Is a Self-Proclaimed Success Story for Sexual Orientation Change Efforts and the Term Sexual Orientation Is Clear Enough to a Reasonable Person and Even More Apparent to Mental Health Providers.
The challenged statute is not void for vagueness because the statute provides sufficient clarity to alert a reasonable person of ordinary intelligence, and certainly mental health professionals, of the conduct prohibited by the statute. In a void-for-vagueness challenge, [a court] must ensure that a statute or standard is fair in that it is not so vague that a party would not know what conduct is prohibited. Borden v. School Dist., 523 F.3d 153, 166-67 (3d Cir. 2008) (citing 24
San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir. 1992)). Nonetheless, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity. Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). Although a defendant is deemed to have fair notice of an offense if a reasonable person of ordinary intelligence would understand that his or her conduct is prohibited by the law in question[,] the standard is lowered further when the statutory prohibition involves the conduct of a select group of persons having specialized knowledge, and the challenged phraseology is indigenous to the idiom of that class. Pickup, 2013 U.S. App. LEXIS 18068, at *39-40 (quoting United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994)); Precious Metals Assocs., Inc. v. Commodity Futures Trading Commn, 620 F.2d 900, 907 (1st Cir. 1980) (observing that a court may uphold a statute which uses words or phrases having a technical or other special meaning, well enough known to enable those within its reach to correctly apply them . . . . (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926))). Here, Plaintiffs allege they have specialized knowledge in SOCE, yet nonetheless contend that the statute is vague due to the terms sexual orientation and sexual orientation change efforts, (Pls. Br., at 19), even though such terms are the vocabulary of their trade and the subject of extensive consideration by numerous professional associations. See Chapter 150, 1. In other words, they are 25
terms indigenous to the idiom of Plaintiffs. See Pickup, 2013 U.S. App. LEXIS 18068, at *39 (citing Weitzenhoff, 35 F.3d at 1289). Therefore, the State need only show that the phrases sexual orientation and sexual orientation change efforts are well enough known to enable those within [the statutes] reach to correctly apply them. Id. Just as in Pickup, it is difficult to fathom exactly how these Plaintiffs can credibly argue that they do not understand what the statute prohibits when they claim to be providers of sexual orientation change efforts. See Pickup, 2013 U.S. App. LEXIS 18068, at *40-41. Moreover, the term sexual orientation is not vague: [i]ts meaning is clear enough to a reasonable person and should be even more apparent to mental health providers. Id. at *41. Accordingly, Plaintiffs void for vagueness challenge to New Jerseys statute is wholly without merit. iii. The Statute Is Not Overbroad.
The overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statutes plainly legitimate sweep. Broadrick v. Oklahoma, 413 U.S. 601, 615-16 (1973). The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreath challenge. United States v. Williams, 553 U.S. 285, 303 (2008) (quoting Members of City Council of Los Angeles v. Taxpayers for 26
Vincent, 466 U.S. 789, 800 (1984)). Invalidating a statute as overbroad . . . is an exceptional remedy and should be employed sparingly and only as a last resort . . . . United States v. Knox, 977 F.2d 815, 823 (3d Cir. 1992). Plaintiffs contend that the legislation is overbroad because it completely bans under any circumstances counsel to any minor that seeks to change or reduce sex same attractions, behaviors, or identity. (Pls. Br. at 22). However, the conduct Plaintiffs deem overly broad falls squarely within the plainly legitimate sweep of the statute. Indeed, the fact that SOCE may be administered through speech does not diminish the States power to regulate mental health treatment. Pickup, 2013 U.S. App. LEXIS 18068, at *30-31 (citing NAAP, 228 F.3d at 1054). And [a]s with any ban on a particular medical treatment, there may be an incidental effect on speech. Any incidental effect, however, is small in comparison with the plainly legitimate sweep of the ban. Id. at *43 (quoting Broadrick, 413 U.S. at 615). Therefore, the statute is not overbroad and Plaintiffs challenge to the statute on this basis fails. iv. The Challenged Provision Does Not Offend The Free Exercise Clause Because It Is Neutral And Generally Applicable.
The challenged legislation is neutral, generally applicable, and fully consistent with the Free Exercise Clause of the United States Constitution. Plaintiffs efforts to paint the statute otherwise are wrong and inaccurate. 27
Accordingly, the statute does not implicate the Free Exercise clause, and any purported incidental burden on Plaintiffs religious practice or group d oes not alter that conclusion. Accordingly, this Court should dismiss their Free Exercise claims. The Free Exercise Clause does not bar regulation of all conduct related to the practice of religion. U.S. Const., amend. I; Employment Div. v. Smith, 494 U.S. 872, 879 (1990). While the Free Exercise Clause immunizes religious beliefs from government interference, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), it does not bar regulation of all conduct related to the practice of religion. Where a law is neutral and generally applicable, the Free Exercise Clause offers no protection at all, Smith, 494 U.S. at 879, even if the law incidentally burdens a particular religious practice or a particular religious group. Smith, 494 U.S. at 884-85, 886 n.3; Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004); Tenafly Eruv Assoc., Inc. v. Borough of Tenafly, 309 F.3d 144, 165 (3d Cir. 2002); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1128 (9th Cir. 2012) (citing Cantwell v. State of Conn., 310 U.S. 296, 303-04 (1940) (observing that right to freely exercise ones religion . . . does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).)).
28
The challenged provision is both neutral and generally applicable because it does not aim to infringe upon or restrict practices because of their religious motivation, and does not in a selective manner impose burdens only on conduct motivated by religious belief. Church of the Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520, 533, 543 (1993). A law is neutral if it does not target religiously motivated conduct either on its face or as applied in practice. Conestgoa Wood Specialities Corp. v. Sebelius, 917 F. Supp. 2d 394, 410 (E.D. Pa.), affd, 2013 U.S. App. LEXIS 15238 (3d Cir. July 26, 2013) (citing Blackhawk, 381 F.3d at 209); see also Lukumi, 508 U.S. at 533-40; Tenafly, 309 F.3d at 167. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context. Lukumi, 508 U.S. at 533. Apart from the text, the effect of a law in its real operation is strong evidence of its object when determining if the law is neutral as applied in practice. Id. at 535; see also Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365 (3d Cir. 1999). In a matter highly analogous to this case, pharmacies challenged a law requiring pharmacies to lawfully deliver all prescribed medications on the basis that it violated their right to free exercise of religion because it required the pharmacy to provide a contraceptive drug, which the pharmacy had religious
29
objections to dispensing. Stormans, 586 F.3d at 1114-17.2 There, the Ninth Circuit acknowledged that the rules may disproportionately affect pharmacists who objected to the contraceptive drug for religious reasons, but nevertheless found that fact [did] not undermine the neutrality of the rules. Id. at 1131. Thus, a regulation does not offend the Free Exercise Clause even when a group motivated by religious reasons may be more likely to engage in the proscribed conduct. Reynolds v. United States, 98 U.S. 145, 166-67 (1878). Here, Plaintiffs challenge a statute that makes no reference to any religious practice, conduct, or motivation. Therefore, the statute is facially neutral. While Plaintiffs argue that the provision will disproportionately affect[] those motivated by religious belief[,] Pls. Supp. Br., at 5, that does not undermine the neutrality of the law. Stormans, 586 F.3d at 1131. The Legislature enacted the statute because SOCE poses critical health risks to minors and the State may regulate the medical profession in New Jersey to prohibit harmful treatments. Chapter 150, (1)(b). The provision bars all licensed mental health providers from engaging in SOCE with minors, regardless of whether the mental health provider or the minor seeking SOCE is motived by religious beliefs. It is thus neutral in practice as well,
While the Third Circuit has rejected Stormanss analysis with respect to the Ninth Circuits passed through reasoning, see Conestoga Wood Specialties Corp., 2013 U.S. App LEXIS 15238, at *26-27, it rejected the conclusion that the free exercise claims of a companys owners could be asserted by the company itself, not the underlying analysis of the Free Exercise clause. Id. at 27-28. 30
because it does not suppress, target, or single out the practice of any religion because of religious content[,] Stormans, 586 F.3d at 1131. Chapter 150 is also generally applicable. A law is not generally applicable 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, 381 F.3d at 209 (citing Lukumi, 508 U.S. at 543-36); Combs v. Homer-Center School Dist., 540 F.3d 231, 241-42 (3d Cir. 2008). In Combs, the Third Circuit further explained that the Free Exercise clause is not implicated by a law that imposes the same requirements on those engaging in conduct for secular reasons as those engaging in the same conduct for religious reasons. 540 F.3d at 241-42. Any such law is generally applicable. Id. at 242. Here, Plaintiffs contend that Chapter 150 contains several exemptions that render it not generally applicable and subject it to heightened scrutiny. ( Pls. Supp. Br., at 5-6). However, their suggested exemptions are once again based upon an inaccurate interpretation of the statute. The statutes prohibition of SOCE does not create any exemptions or exceptions as Plaintiffs suggest. For example, Plaintiffs state that unlicensed counselors are exempt from the statute. They are simply wrong. Of course, the statute does not govern 31
unlicensed counselors; rather it regulates the provision of mental health treatment by those that are licensed through the State to provide such treatment. As set forth above, the Supreme Court has recognized the states role in regulating the medical profession. See, e.g., Watson, 218 U.S. at 176; see also Lambert, 272 U.S. at 597. Thus, Plaintiffs do not point to an exemption; rather, they point to areas presently beyond the States comprehensive regulation of the medical profession. Moreover, to the extent that the Legislature distinguished between SOCE provided to minors and adults, the right to practice religion freely does not include [the] liberty to expose . . . [a] child . . . to ill health or death. Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944). Because the Legislature determined that SOCE treatment poses critical health risks to minors, Plaintiffs argument that the limited reach of the statute renders the law not generally applicable is unavailing. Chapter 150 does not contain a mechanism for individualized exemptions or exempt a substantial category of conduct that is not religiously motivated from its prohibition on the practice of SOCE. Rather, the provision prohibits all State licensed mental health providers from practicing SOCE. It does not selectively impose burdens on religiously motivated conduct. Therefore, it is generally applicable and because the purpose of the law is not to target religion, but instead
32
to promote public heath[,] it complies with t he Free Exercise Clause. See Conestoga, 917 F. Supp. 2d at 410. Nevertheless, if this Court were to find that the statute did provide exemptions to the rule, any such exemptions are necessary, narrow, and do not interfere with the laws general applicability. See Stormans, 586 F.3d at 1134-35. Finally, [w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. United States v. Lee, 455 U.S. 252, 261 (1982). Thus, the Free Exercise Clause does not exempt individuals from the operations of laws that prescribe or proscribe practices contrary to their religious beliefs. Reynolds, 98 U.S. at 166-67. To permit otherwise would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Id. at 167. Accordingly, the statute is neutral and generally applicable. Therefore, it is subject to rational basis review, which it easily survives, and does not offend the Free Exercise Clause. As such, Plaintiffs Complaint should be dismissed and Defendants should be granted summary judgment.
33
v.
This Court should not consider Plaintiffs third-party parental rights claim on behalf of their minor clients parents. This claim was not properly asserted or briefed in Plaintiffs initial or supplemental briefs and such a failure constitutes a waiver of that argument. Anspach v. City of Phila., Dept of Pub. Health, 503 F.3d 256, 258 n.1 (3d Cir. 2007) (failure to raise an argument in ones opening brief waives it). Moreover, the Courts consideration of this argument at this juncture would be prejudicial because Defendants may not have an opportunity to respond to any arguments Plaintiffs raise on this issue in their reply. Nevertheless, should the Court find that Plaintiffs have third-party standing on behalf of their minor clients parents, that claim is without merit and Defendants should be awarded summary judgment. As discussed supra, the right to practice religion freely does not include [the] liberty to expose . . . [a] child . . . to ill health or death. Prince, 321 U.S. at 166-67; State v. Perricone, 181 A.2d 751, 757 (N.J. 1962) (holding that parents right to religious freedom does not include right to deny child necessary medical treatment). Parents may be free to become martyrs themselves[,] [b]ut it does not follow [that] they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. Prince, 321 U.S. at 170. As such, Plaintiffs argument ignores the 34
crucial distinction between an adults uninfringed ability to obtain SOCE on their own behalf and their ability to seek SOCE for a minor, which the Legislature has recognized as an especially deleterious practice. Moreover, 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, 2013 U.S. App. LEXIS 18068, at *47. Regardless, Plaintiffs third-party claims on behalf of the parents fail for the same reasons that Plaintiffs claims do, as discussed supra. Because the statute is neutral and generally applicable, it does not implicate the Free Exercise Clause. Therefore, Defendants should be awarded summary judgment because the statute easily survives the appropriate level of review: rational basis scrutiny. B. Plaintiffs have not established any legal harm, let alone imminent irreparable harm.
Because Plaintiffs cannot show actual success on the merits, they have failed to meet the requisite elements necessary for a permanent injunction. Ruiz v. New Garden Twp., 376 F.3d 203, 206 (3d Cir. 2004); In re Diet Drugs, 369 F.3d 293, 307 (3d Cir. 2004) (Of primary importance, a party seeking an injunction must show that there is some legal transgression that an injunction would remedy.). Therefore, this Court should not consider the remaining elements necessary for a permanent injunction and should grant Defendants summary judgment as a matter of law. Cf. NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 35
151, 153 (3d Cir. 1999) (instructing that [a] plaintiffs failure to establish any element in its favor renders a preliminary injunction inappropriate.). Nevertheless, Plaintiffs cannot carry the burden of showing that they will suffer imminent irreparable harm unless the State is enjoined from enforcing the challenged provision. As demonstrated above, the statute does not violate Plaintiffs First Amendment rights. It regulates conduct, not speech; it is not vague or overbroad; and, because it is neutral and generally applicable, it does not violate the Free Exercise Clause. It easily withstands rational basis review. Thus Plaintiffs have not demonstrated that they will suffer legal harm, let alone irreparable harm, if an injunction is not granted. It takes nothing away from the First Amendment to recognize that the use of speech in providing medical treatment does not insulate the provision of that treatment from regulation. Pickup, 2013 U.S. App. LEXIS 18068, at *22. Most, if not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment. Pickup, 2013 U.S. App. LEXIS 18068, at *28-19. C. The Hardship to Plaintiffs in the Absence of Relief Does Not Outweigh the Hardship to the Defendants and the Public.
Even if Plaintiffs were able to show actual success on the merits and irreparable harm, such a showing is outweighed in this case by the balancing of the equities by the public interest and New Jerseys interest in protecting the health 36
and well-being of minors. Winter v. NRDC, Inc., 555 U.S. 7, 23 (2008). Plaintiffs argue that the balance of equities tips in their favor because they have suffered a loss of their constitutional rights. Pls. Br., at 28. However, as set forth above, because the statute does not violate Plaintiffs constitutional rights, their alleged harm is unfounded. On the other hand, the harm caused by enjoining New Jersey from protecting minors is substantial. As the Legislature recognized, SOCE often result in psychological pain by reinforcing damaging internalized attitudes, Chapter 150, 1(j)(2), may encourage family rejection and undermine self -esteem, connectedness and caring, which are important protective factors against suicidal ideation and attempts, 1(k), and represent a serious threat to the health and well-being of affected people, 1-54(1)(l). As such, Plaintiffs baseless allegation of harm pales in comparison to the States very important role in preventing the harms suffered by minors subjected to SOCE. Accordingly, the balance of equities lies in favor of denying Plaintiffs request for a permanent injunction and granting Defendants summary judgment. D. The Public Interest Does Not Favor the Requested Permanent Injunction.
[A] court should be particularly cautious when contemplating relief that implicates public interests. Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010) (citing Weinberger, 456 U.S. at 312 (In exercising their sound discretion, courts of equity 37
should pay particular regard for the public consequences in employing the extraordinary remedy of injunction)); Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 338 (1933) (Where an important public interest would be prejudiced, the reasons for denying the injunction may be compelling)). The publics interest will undoubtedly be served by enforcing a statute that protects its minors from the deleterious practice of SOCE. By contrast, SOCE, a medical treatment, is not immune from regulation and may be regulated if, as is the case here, the regulation is rationally related to a legitimate governmental interest. Therefore, the public interest in protecting children overwhelmingly
38
CONCLUSION For the foregoing reasons, Plaintiffs request for a permanent injunction should be denied and Defendants should be granted summary judgment. Respectfully submitted, JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY By: s/Susan M. Scott Susan M. Scott Deputy Attorney General
39
JOHN J. HOFFMAN Acting Attorney General of New Jersey R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendants By: Susan M. Scott Deputy Attorney General (609) 777-3410 susan.scott@dol.lps.state.nj.us
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ______________________________ : TARA KING, ED.D., et al., : HON. FREDA L. WOLFSON, U.S.D.J. : Plaintiffs, : Civil Action No. 13-05038 (FLW-LHG) : v. : : CHRISTOPHER J. CHRISTIE, : Governor of the State of New Jersey, : et al., : STATEMENT OF MATERIAL FACTS : Defendants. : ______________________________ : 1. On August 19, 2013, Governor Christie signed Assembly Bill A3371,
which precludes persons licensed to practice in certain professions from engaging in conduct that the Legislature concluded was harmful to minors. P.L. 2013, c. 150 (to be codified at N.J. Stat. Ann. 45:1-54, -55); (See Exhibit A to Plaintiffs Complaint for Declaratory Judgment, Injunctive Relief, and Nominal Damages.)
2.
The law has two sections: Section 1 provides legislative findings and
declarations; Section 2 defines SOCE and establishes the scope of the legislative prohibition on such conduct. 3. In Section 1 of the statute, the Legislature included extensive findings,
stating that [b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years. (1)(a). 4. The Legislature cited many of the position statements and resolutions
of those professional associations, including the American Psychiatric Association, the American Academy of Pediatrics and the American Psychological Association. 1(c)-(m). 5. Each of these professional associations, the Legislature recounts, has
concluded that there is little or no evidence of the efficacy of SOCE, and that SOCE has the serious potential for harm, such as depression, guilt, anxiety and thoughts of suicide. 1(c)-(m). See also Declaration of Jack Drescher, 15, filed concurrently herewith (Drescher Decl.). 6. The Legislature looked first to a task force established by the
7.
to Sexual Orientation concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources. [ 1(b).] 8. The American Psychiatric Association explained that the potential
risks of reparative therapy are great, including depression, anxiety and selfdestructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient. 1(d)(2); Drescher Decl. 15. 9. These risks, and the lack of rigorous scientific research to
substantiate their claims of cure, 1(d)(1), led the Association to oppose any psychiatric treatment such as reparative or conversion therapy which is based upon the assumption that homosexuality per se is a mental disorder or based upon the a
priori assumption that a patient should change his or her sexu al orientation, 1(d)(3). See also Drescher Decl. 15. 10. Moreover, the Legislature focused particularly on the potential for
harm to minors because [m]inors who experience family rejection based on their sexual orientation face especially serious health risks. 1(m); Drescher Decl. 24. 11. Drawing on research published in the Journal of the American
Academy of Child and Adolescent Psychiatry, the Legislature explained that efforts to change sexual orientation may encourage family rejection and undermine self-esteem, connectedness and caring, important protective factors against suicidal ideation and attempts. 1(k); see also Drescher Decl. 23-25 (discussing the harmful effects of SOCE with minors). 12. Section 2 SOCE 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 . . . . 2(b). 13. SOCE specifically does 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. 2(b); see Drescher Decl. 28. 14. The statute only covers sexual orientation change efforts with a
person under 18 years of age. 2(a). 15. The statute also explains who is prohibited from engaging in SOCE.
The statute applies only to persons licensed to provide professional counseling under Title 45 of the Revised Statutes. Id. 16. Such licensed professionals include, by way of example, a
psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the persons professional training for any of these professions. Id.
JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY By: s/Susan M. Scott Susan M. Scott Deputy Attorney General
JOHN J. HOFFMAN Acting Attorney General of New Jersey R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendants By: Susan M. Scott Deputy Attorney General (609) 777-3410 susan.scott@dol.lps.state.nj.us THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ______________________________ : TARA KING, ED.D., et al., : : Plaintiffs, : : v. : : CHRISTOPHER J. CHRISTIE, : Governor of the State of New Jersey, : et al., : : Defendants. : ______________________________ : HON. FREDA L. WOLFSON, U.S.D.J. Civil Action No. 13-05038 (FLW-LHG)
I, Jack Drescher, M.D., declare as follows: 1. I have been retained by defendants as a consultant in connection with
this proceeding. I have personal knowledge of the contents of this declaration, and
if called upon to testify, I could and would testify competently to the contents of this declaration. BACKGROUND AND QUALIFICATIONS 2. My background, experience, memberships and scholarly publications
are summarized in my curriculum vitae, which is attached as Exhibit A to this declaration. I am a licensed physician in the State of New York, and am board certified in psychiatry. I have a private practice in psychiatry and psychoanalysis in New York City. As part of my practice, I have treated patients who have undergone sexual orientation change efforts. My experience with those patients led me to research and write about the subject of sexual orientation change efforts beginning in the late 1990s. 3. I am immediate past president of the Group for Advancement of
Psychiatry, a Distinguished Fellow of the American Psychiatric Association, and served as a consultant to the American Psychiatric Associations Committee on Public Affairs. I am a past Chair of the Associations Committee on Gay, Lesbian, and Bisexual Issues and a Past President of the New York County District Branch, with almost 2,000 members, the largest district branch in the United States. I have served on the American Psychiatric Associations DSM-5 Workgroup on Sexual and Gender Identity Disorders for the revised and recently released Diagnostic and Statistical Manual of Mental Disorders, and am a member of the World Health
2
Organizations Working Group on the Classification of Sexual Disorders and Sexual Health, part of the revision process of the eleventh edition of the International Classification of Diseases (ICD-11). I have academic appointment at New York Medical College (Clinical Associate Professor) and New York University (Adjunct Assistant Professor). 4. I have authored and co-authored numerous professional articles and
book chapters dealing with sexual orientation issues, including a book, Psychoanalytic Therapy and the Gay Man, and chapters on Homosexuality, Gay and Lesbian Identities, and Homosexual Behavior in the 8th and 9th editions of Kaplan and Sadocks Comprehensive Textbook of Psychiatryone of the most widely used psychiatric textbooks in the world. I have also edited and co-edited numerous books dealing with gender, sexuality and the health and mental health of the LGBT communities. I often speak for the APA to the media and general public on LGBTQ issues including sexual orientation change efforts (SOCE). 5. I served as one of six members on the American Psychological
Associations Task Force on Appropriate Therapeutic Responses to Sexual Orientation. The Task Force issued a report of its findings in 2009, after a lengthy process of extensive study of the existing research, and drafting and peer review of the findings (Report of the American Psychological Association Task Force on Appropriate Therapeutic Reponses to Sexual Orientation, 2009 (APA Report)).
3
SEXUAL ORIENTATION 6. Since at least the middle of the 19th century, scientists had debated
the issue of whether homosexuality was an illness or a normal variant of human sexuality. During the social turmoil of the 1960s and 1970s, protests prompted organized psychiatry to scientifically reassess the pathologizing of homosexuality. As a result, in 1973, the American Psychiatric Association (APA) removed homosexuality from the list of mental disorders in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The DSM-II instead included the term sexual orientation disturbance, which was replaced in the DSM-III by egodystonic homosexuality. In 1987, ego-dystonic homosexuality was removed entirely from the DSM-III-R, as it was recognized that the term still pathologized homosexuality, and such a result was inconsistent with the evidence-based approach embraced by psychiatry. The World Health Organization later followed suit, removing homosexuality from the Tenth Edition of the International Classification of Diseases (ICD-10) in 1992. 7. Once homosexuality was no longer considered a disease, the debate
over treatment of homosexuals continued. Two sides with differing belief systems emerged: one side believes that homosexuality is normal and acceptable and the other side believes that homosexuality is neither normal nor acceptable. The first belief system the normal/identity model regards homosexuality as a normal
4
variation of human expression and in acceptance of ones homosexual orientation as a distinguishing feature of a gay or lesbian identity. This group believes that gay men and lesbians are sexual minorities who need protection from discriminatory practices, including changing laws based on characterizations of homosexuality as either an illness or immoral choice. 8. The opposing position operates from an illness/behavior model.
This model regards any open expressions of homosexuality as behavioral symptoms either indicative of psychiatric illness or a moral failing, or perhaps some combination of both. This position maintains that illness and/or immorality cannot provide a foundation for creating a normal identity. 9. Following the 1973 removal of homosexuality from the DSM,
professional organizations like the American Psychiatric Association, the American Medical Association and the American Psychological Association, among others, recognized and accepted some of the social implications of the normal/identity model. Position statements were published supporting nondiscrimination on the basis of sexual orientation. The recognition and acceptance of the normal/identity model led some opposed to the model to claim that professional organizations had been taken over by homosexual activists and to dismiss their moral or scientific authority in the sociopolitical debate. (Jack
Drescher, Ethical Issues in Treating Gay and Lesbian Patients, 25 Psychiatr Clin N Am at 607, citing C. Socarides Homosexuality: a freedom too far, (1995).) 10. Other clinicians, whose belief in the discredited illness/behavior
model put them at odds with the mental health mainstream, began speaking out to the general public instead. Their message was that heterosexuality is the only normal expression of human sexuality, homosexuality is a sick/immoral behavior and not a normal identity and gay people are only seeking approval for bad behavior. (Id. at 607-08.) These therapists oppose the normal/identity model and argue that people are not born gay and can change their sexual orientation. (Id. at 608). SEXUAL ORIENTATION CHANGE EFFORTS 11. Sexual orientation change efforts have existed since at least the
beginning of the modern era, and are based upon either a concept that homosexuality is a disease that needs to be cured or a form of stunted psychosexual growth in need of maturing. Even Sigmund Freud attempted to change the sexual orientation of a young woman brought for treatment by her parents, but reported no success in his effort. In spite of the lack of any empirical data showing proven success, individuals wishing to escape the social stigma of being gay and/or whose religious beliefs condemn homosexuality continue to seek out clinicians who claim they can cure homosexuality.
6
12.
associations as private agreements between individual patients and therapists. It was originally believed, either implicitly or explicitly, that efforts to cure homosexuality would not lead to harm. However, complaints about poor outcomes in therapy led to increased outside scrutiny and an emerging clinical focus on patients who attempted and failed SOCE and later adopted a gay or lesbian identity. (See, e.g., Ariel Shidlo & Michael Schroeder, Changing Sexual Orientation: A Consumers Report, 33 Professional Psychology: Research and Practice 249-259 (2002)). Increasing numbers of anecdotal accounts from patients suggested that therapists may be doing psychological damage to patients and their families who fail to convert and ultimately come out as gay. 13. The use of psychoanalytic and behavior therapy in SOCE was
prevalent through the 1960s and early 1970s. Behavior therapists used a variety of aversion treatments, including electric shock treatments, nausea-inducing drugs and having an individual snap an elastic band around the wrist when the individual became aroused to same-sex erotic images or thoughts. (APA Report at 22). Some cognitive therapists attempted to change thought patterns using hypnosis or by redirecting thoughts and reframing desires, but these efforts were generally not successful. (See id.)
14.
After homosexuality was removed from the DSM, the use of aversive
therapies fell into disfavor as therapists became concerned that aversive therapies were inappropriate, unethical and inhumane. Prominent practitioners in psychoanalysis and other fields began questioning SOCE therapy and its underpinnings in the pathology of homosexuality. Over time, in addition to the non-discrimination policies adopted by the various professional organizations, mainstream professional organizations issued recommendations and position papers that SOCE therapy not be practiced. Concurrently, as training programs for mental health professionals stopped teaching SOCE therapies, their current practitioners are trained in these techniques outside the mental health mainstream. 15. In 1998, the American Psychiatric Association stated, The potential
risks of reparative therapy are great and include depression, anxiety, and selfdestructive behavior,
since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already
experienced by the patient. The statement went on to say, APA opposes any psychiatric treatment, such as reparative or conversion therapy, that is based on the assumption that homosexuality per se is a mental disorder or is based on the a priori assumption that the patient should change his or her homosexual orientation. In 2000, the American Psychiatric Association affirmed its earlier position that SOCE is not an appropriate treatment, recommending that ethical practitioners refrain from
8
attempts to change individuals sexual orientation, keeping in mind the medical dictum to first, do no harm. In that position paper, the APA noted that there are no sufficiently scientific rigorous outcome studies to evaluate all of the anecdotal claims of efficacy or harm of SOCE. But even with limited data, the APA found that it was possible to evaluate the theories which rationalize or support the conduct of reparative and conversion therapies. The APA noted that the theories are at odds with the scientific position that homosexuality per se is not a diagnosable mental disorder or some form of psychopathology that can or may be cured. Similar statements have been made by the American Academy of Child and Adolescent Psychiatry (see its Practice Parameter on Gay, Lesbian or Bisexual Sexual Orientation, Gender Nonconformity, and Gender Discordance in Children and Adolescents), the Royal College of Psychiatrists (homosexuality is not a psychiatric disorder and no sound scientific evidence exists that sexual orientation can be changed); and the Pan American Health Organization (Since homosexuality is not a disorder or a disease, it does not require a cure. There is no medical indication for changing sexual orientation). 16. Beginning in the late 1990s, the visibility of SOCE increased. Despite
the position of the overwhelming majority of mental health professionals that homosexuality is not a disease or a diagnosable mental disorder, some health care professionals continued to claim they could cure homosexuality. In an effort to
9
resolve the question, in 2007, the American Psychological Association assembled a task force (the Task Force), of which I was a member, to conduct a systematic review of the peer-reviewed research on SOCE in an effort to conduct an evidencebased appraisal of the potential benefits and harm of SOCE. 17. The Task Force found that there were few studies of SOCE that met
methodological standards such that conclusions could be drawn as to efficacy or safety. As to the more recent practices of SOCE, that lack of data caused the Task Force to conclude that claims that recent SOCE is effective are not supported. Some of the older studies with better scientific controls demonstrated that enduring change to an individuals sexual orientation is uncommon and that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE. (APA Report at 2-3). RISK OF HARM FROM SOCE 18. Plaintiffs, and current practitioners of SOCE, claim that aversive
therapies are no longer used. Although aversive therapies are uncommon and fell into disfavor after 1973, within the past ten years, I was contacted by a journalist for comments about Mormon men she interviewed in Nevada and Utah who had been subjected to shock treatment as part of SOCE. Although plaintiffs argue that current SOCE is conducted through talk therapy, implying that such therapy could not cause harm, talk therapy can cause significant harm to patients.
10
19.
sexual development. Typical statements in treatment by SOCE practitioners include hurtful untruths, such as you have a mental disorder, no matter what the American Psychiatric Association says or if you are gay, you will probably die early and live an unhappy and unhealthy life. Or gay relationships do not last and you will grow up to be old and lonely. Or God will not love you if you are gay. The discredited theories used to explain same-sex attraction include male patients not having close enough relationships with their father figures, or having dominating mother figures, or having been sexually abused early in their lives. 20. Reparative therapists beliefs can create unreasonable expectations since an underlying premise of SOCE is that if you want to change and try hard enough, or if your faith is strong enough, you can. This concept sets patients up to blame themselves for the treatments failure, even though the majority of people who attempt SOCE fail to change. When the change efforts are unsuccessful, the patient is told and often believes it is the patients own lack of motivation or faith, rather than any fault of the practitioner or the therapy itself, that led to failure to change. Such self-blame is always harmful to the patient. 21. Additional adverse effects of SOCE are reported in a growing number
of autobiographical accounts by gay individuals who unsuccessfully attempted to change their sexual orientations. Some reported therapist encouragement to marry
11
and have children, followed by the eventual dissolution of a patients heterosexual marriage. Others have reported feelings of depression, suicide, anxiety, and guilt evoked in a patient when the treatment failed. Still others have reported loss of self-esteem, avoidance of intimacy and sexual dysfunction. 22. Even though there is literature concerning the adverse effects of
SOCE in adult patients, there is little study of SOCE in minors. (APA Report at 72). Because sexual orientation generally does not emerge until puberty with the onset of sexual desires, the few non-peer reviewed presentations on childhood interventions are based on theories of sexual orientation that assume certain patterns of family relationships cause same-sex sexual orientation, and that encouraging gender stereotypical behavior and family relationships will alter sexual orientation. (Id.) 23. In spite of the lack of scientific studies, minors are particularly at risk
of harm from SOCE due to their emotional and cognitive vulnerability. They have limited capacity to participate in decision-making regarding their own treatment, and dont have the legal capacity for informed consent. They may be unable to anticipate the future consequences of a particular course of action or therapy. Minors depend on their parents to make treatment decisions for them, and their financial and psychological dependence on their parents may also eliminate any choice whether to undergo SOCE.
12
24.
may, in fact, be harmful. The therapist is an authority figure to the child, so statements that have negative impact on adults will have an even greater impact on children. Children may be particularly vulnerable to statements that God will not love them if they are gay, or, even worse, they are made vulnerable by the fear of family rejection in the likely event the therapy does not succeed. At least one study of lesbian, gay and bisexual youth has shown that family rejection is strongly associated with poor mental health outcomes as these groups were found to be 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression and 3.4 times more likely to use illegal drugs (See, e.g., Caitlin Ryan, David Huebner, Rafael M. Diaz & George Sanchez, Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay and Bisexual Young Adults, 123 Pediatrics 346 (Jan. 1, 2009).). LGBT youth are overrepresented in foster care, juvenile detention, and among homeless youth, often because parents who cannot accept children who are gay or gender variant throw them out of the home. 25. In SOCE approaches, simplistic misrepresentations of complex issues
are often presented to clients, their families and the public as facts, which results in unrealistic expectation and self-blame. In SOCE approaches with minors, an unscientific opinion based on an unproven theory is elevated to the same level as
13
science because of the childs perception of the therapist as an authority figure who represents the wishes of parents. In such cases, not only is a minor patient unable to give informed consent, parental consent is often based primarily upon their desires to change their childs sexual orientation rather than on sorting out the science and pseudoscience of human sexuality. Some parents are willing to make major sacrifices of time, effort, and money to achieve that goal, regardless of any proven lack of efficacy. 26. Patients may feel abandoned by their therapists in the event they
determine that SOCE is unsuccessful and they choose to come out as gay. In Dr. Joseph Nicolosis Declaration submitted in support of plaintiffs motion in this matter, he explicitly states that his informed consent form advises patients that neither he, nor anyone in his clinic, will provide what he refers to as gayaffirming therapy and that clients should seek another therapist [on their own] if that is the goal. (Declaration of Dr. Joseph Nicolosi, 7.) There is no suggestion in his Declaration that Dr. Nicolosi would refer the patient to another therapist who could provide a different type of therapy. Without a referral, and in need of continued therapy, according to anecdotal reports the patient may feel abandoned, with an increase in depression, anxiety and self-blame. 27. SOCE proponents, after more than half a century of practice, have
reported by individuals and therapists. When there is a risk of harm and no proven efficacy of treatment, the maxim first do no harm must come into play when treating patients, particularly minors. CONCLUSION 28. The position of mainstream medical and mental health professions is
that the role of a therapist is to help patients tolerate the feelings that emerge during the process of exploring possible sexual identities. Rather than focusing on a single outcome, the therapist should regard either a homosexual or heterosexual identity as a reasonable outcome of treatment. The therapists dedication to the patients best interest should be paramount in any treatment. SOCE is contrary to this recognized objective of treatment, and, as repeatedly recognized in the mainstream medical and mental health community, SOCE provides little benefit to patients while exposing those patients to substantial risks of harm. I declare under penalty of perjury pursuant to the laws of the State of New Jersey that the foregoing is true and correct. Executed this 12th day of September, 2013 in New York, New York.
________
15
Exhibit A
CURRICULUM VITAE
HOME: 420 West 23 Street, 7D New York, NY 10011 Tel: 212.645-2593 DOB: August 28, 1951
EDUCATION
Bachelor of Arts in Biology, l968-l972 Brooklyn College, CUNY, Brooklyn, NY. Transfer (no degree granted) l973-l978 University of Padova (Padua) School of Medicine, Italy Medical Degree, l978-l980 University of Michigan School of Medicine, Ann Arbor, MI
POST-DOCTORAL TRAINING
Categorical Internship in Psychiatry, l980-1981 St. Vincent's Hospital and Medical Center, New York, NY. Resident in Psychiatry, 1981-l983 SUNY-Downstate Medical Center, Brooklyn, NY. Chief Resident in Psychiatry, l983-l984 SUNY-Downstate Medical Center, Brooklyn, NY. Psychoanalytic Candidate in Training, l988-l992 William Alanson White Institute for Psychiatry, Psychoanalysis and Psychology, New York, NY.
HOSPITAL AFFILIATIONS
University Hospital of Brooklyn, 1984-1993 Brooklyn, NY. Gracie Square Hospital, 1986-1994 New York, NY. St. LukesRoosevelt Hospital Center, 2004-2008 New York, NY.
CO-AUTHORED BOOKS
Homosexuality and the Mental Health Professions: The Impact of Bias Committee on Human Sexuality, Group for the Advancement of Psychiatry The Analytic Press, 2000. Appropriate Therapeutic Responses to Sexual Orientation Report of the American Psychological Association Task Force American Psychological Association, 2009.
CO-EDITED BOOKS
Addictions in the Lesbian and Gay Community Co-Edited with Jeffrey R. Guss, M.D. The Haworth Medical Press, 2000. Gay and Lesbian Parenting Co-Edited with Deborah F. Glazer, Ph.D. The Haworth Medical Press, 2001. Sexual Conversion Therapy: Ethical, Clinical and Research Perspectives Co-Edited with Michael Schroeder, Psy.D. and Ariel Shidlo, Ph.D. The Haworth Medical Press, 2001. (Winner, Best Book on Gay, Lesbian and/or Bisexual Psychology, 2002 Division 44 of the American Psychological Association) Psychotherapy with Gay Men and Lesbians: Contemporary Dynamic Approaches Co-Edited with Ann DErcole, Ph.D. and Erica Schoenberg, Ph.D. Harrington Park Press, 2003. The Mental Health Professions and Homosexuality: International Perspectives Co-Edited with Vittorio Lingiardi, M.D. The Haworth Medical Press, 2003. Transgender Subjectivities: A Clinicians Guide Co-Edited with Ubaldo Leli, M.D. Harrington Park Press, 2004. Handbook of LGBT Issues in Community Mental Health Co-Edited with Ronald Hellman, M.D. Harrington Park Press, 2004. A Gay Mans Guide to Prostate Cancer Co-Edited with Gerald Perlman, Ph.D. Harrington Park Press, 2005. Sexual and Gender Diagnoses of the Diagnostic and Statistical Manual (DSM): A Reevaluation Co-Edited with Dan Karasic, M.D. The Haworth Press, 2005. Barebacking: Psychosocial & Public Health Approaches Co-Edited with Perry N. Halkitis, Ph.D. and Leo Wilton, Ph.D. Harrington Park Press, 2006.
ON-LINE PUBLICATIONS
The Psychology of the Closet: Governor McGreevey's New Clothes, Ascribe Newswire, August 27, 2004 http://www.ascribe.org/cgibin/spew4th.pl?ascribeid=20040827.094013&time=10%2018%20PDT&year=2004&public=1 Same Sex Marriage, Psy Broadcasting Corporation, June 20, 2005 http://www.psybc.com/forums/showflat.php?Cat=0&Number=7442&an=0&page=0#Post7442 The Case of Karl and Dr. Breck, Virtual Mentor: Ethics Journal of the American Medical Association, 8:303-308, May 1. 2006 http://virtualmentor.ama-assn.org/2006/05/ccas2-0605.html. Freud on HomosexualitySetting the Record Straight, PsyBroadcasting Corporation, September 2006 http://www.psybc.com/fora.php. From Freud to Gay-Friendly, Psych-e-News (Newsletter of the Division of Psychoanalysis, New York State Psychological Association), Issue #1, January 2008 http://www.nyspa.org/docs/divisions/psychoanalysis/eNewsJan08.htm#LETTER.BLOCK8. LGBT Mental Health Syllabus Work Product of the LGBT Committee of the Group for the Advancement of Psychiatry, 2007 http://www.aglp.org/gap The Doctor is Out (of Touch) Response to FoxNews Keith Ablows commentary about Chaz Bono http://www.hrcbackstory.org/2011/09/the-doctor-is-out-of-touch/#.Tm9pWKhe2Vp Posted September 13, 2011 Coming Out and Fitting In--The Post-Don't Ask, Don't Tell Era Begins Commentary on the first day of DADT repeal going into effect http://www.foxnews.com/opinion/2011/09/20/coming-out-and-fitting-in-post-dont-ask-dont-tellera-begins/ Posted September 20, 2011
EXPERT COMMENTATORRADIO
Converting a Persons Sexual Preference Commentary on involuntary treatment of gay and lesbian adolescents to change their sexual orientation The Mitch Albom Show, July 28, 2005. Making Gays Straight Commentary on involuntary treatment of gay and lesbian adolescents to change their sexual orientation. On Point, NPR, July 29, 2005. 100 Percent Heterosexual Commentary on possible harm of sexual conversion therapies. Here and Now, WBUR (Boston NPR affiliate), February 7. 2007. Homosexuality: Nurture or Nature? Commentary on possible harm of sexual conversion therapies. To The Point, KCRW (Los Angeles, CA, NPR affiliate), March 1. 2007. American Psychiatry and Homosexuality: An Oral History Discussion of new book about APA's 1973 decision to remove homosexuality from the DSM. Michael Signorile Show, Sirius Radio, May 30, 2007. Commentary on nomination of James Holsinger, MD for Surgeon General. The Mike and Chuck Show, KCUB (Tucson, AZ, ABC affiliate), June 11, 2007. Commentary on American Psychological Association Task Force on Therapeutic Responses to Sexual Orientation. The Anthony Mazzarelli Show, WPHT (Philadelphia, PA, CBS affiliate), July 11, 2007. Commentary on Psychological Issues Related to Bathroom Sex (Following Senator Larry Craig story). The Agenda with Joe Solmonese, XM Radio, September 17, 2007. Commentary on controversial APA symposium on homosexuality. Michael Signorile Show, Sirius Radio, April 29, 2008. Homosexuality Debate Squelched by Gay Activists Commentary on controversial APA symposium on homosexuality. Bryant Park Project, Local NPR Broadcast, May 12, 2008. Mental Health Effects of Current Economic Crisis Commentary on psychological responses to economic downturn and what individuals can do to help themselves. FoxNews Radio Affiliates (WINK, Ft Myers, FL; WTVN, Columbus, OH; WJNO, West Palm Beach, FL; WRVA, Richmond, VA; KTRH, Houston, TX; WERC, Memphis, TN; KLIN, Lincoln, Nebraska; WGST, Atlanta, GA; KCOL, Loveland, CO), June 10, 2008.
JOHN J. HOFFMAN Acting Attorney General of New Jersey R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendants By: Susan M. Scott Deputy Attorney General (609) 777-3410 susan.scott@dol.lps.state.nj.us
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ______________________________ : TARA KING, ED.D., et al., : HON. FREDA L. WOLFSON, U.S.D.J. : Plaintiffs, : Civil Action No. 13-05038 (FLW-LHG) : v. : : CHRISTOPHER J. CHRISTIE, : Governor of the State of New Jersey, : et al., : ORDER : Defendants. : ______________________________ : This matter having come before the Court on a cross-motion of John J. Hoffman, Acting Attorney General of New Jersey, by Susan M. Scott, Deputy Attorney General, appearing on behalf of Defendants for an Order granting Defendants summary judgment, and the Court having considered the papers submitted herein, this matter being decided under Fed. R. Civ. P. 78 and for good cause shown;
IT IS on this
day of
, 2013;
ORDERED that Defendants Cross-Motion for Summary Judgment is hereby GRANTED and the Plaintiffs Complaint is hereby DISMISSED with prejudice.
JOHN J. HOFFMAN Acting Attorney General of New Jersey R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendants By: Susan M. Scott Deputy Attorney General (609) 777-3410 susan.scott@dol.lps.state.nj.us
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ______________________________ : TARA KING, ED.D., et al., : HON. FREDA L. WOLFSON, U.S.D.J. : Plaintiffs, : Civil Action No. 13-05038 (FLW-LHG) : v. : : CHRISTOPHER J. CHRISTIE, : Governor of the State of New Jersey, : et al., : CERTIFICATION OF SERVICE : Defendants. : ______________________________ : I hereby certify that the Notice of Cross-Motion, Brief, Statement of Material Facts, Declaration of Jack Drescher, M.D., Proposed Order and Certification of Service, all on behalf of Defendants were electronically filed with the Clerk of the United States District Court and that copies of these documents have been sent by electronic and overnight mail to:
Demetrios K. Stratis, Esquire Law Office of Demetrios K. Stratis, LLC 10-04 River Road Fair Lawn, NJ 07410 Counsel for Plaintiff Andrew Bayer, Esquire Gluck Walrath, LLP 428 Riverview Plaza Trenton, NJ 08611 Counsel for Movant-Intervenor
JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY By: s/Susan M. Scott Susan M. Scott Deputy Attorney General