King v. Christie

• Decision Date: 08 November 2013
• Docket Number: Civil Action No. 13–5038.
• Citation: 981 F.Supp.2d 296
• Parties: Tara KING, Ed.D., et al., Plaintiffs, v. Christopher CHRISTIE, Governor of New Jersey, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

981 F.Supp.2d 296

Tara KING, Ed.D., et al., Plaintiffs,

v.Christopher CHRISTIE, Governor of New Jersey, et al., Defendants.

Civil Action No. 13–5038.

United States District Court, D. New Jersey.

Nov. 8, 2013.

Demetrios K. Stratis, Esq., Law Office of Demetrios K. Stratis, LLC, Fair Lawn, NJ, for Plaintiffs.

Susan Marie Scott, Esq., Eric S. Pasternack, Esq., Robert T. Lougy, Esq., Office of the NJ Attorney General, Trenton, NJ, for Defendants.

Andrew Bayer, Esq., Gluck Walrath, LLP, Trenton, NJ, for Proposed Intervenor.

OPINION

FREDA L. WOLFSON, District Judge.

On August 19, 2013, New Jersey Governor Christopher J. Christie signed into law Assembly Bill Number A3371 (“A3371”) (codified at N.J.S.A. 45:1–54, –55),¹ which prohibits New Jersey state licensed practitioners, who provide professional counseling services, from treating minors using methods of Sexual Orientation Change Efforts (“SOCE”), more commonly known as “gay conversion therapy;” A3371 became effective on the same date. The Bill is the second piece of legislation of its kind in the nation, with California having been the first state to successfully enact such a law.² In passing this statute, the New Jersey Legislature determined, inter alia, that this type of treatment subjects minors to potentially harmful consequences. Challengers to the constitutionality of A3371 are Plaintiffs, Tara King Ed.D. and Ronald Newman, Ph.D., who are individual licensed therapists, as well as the National Association for Research and Therapy of Homosexuality (“NARTH”) and the American Association of Christian Counselors (“AACC”) (collectively, “Plaintiffs”), whose members include various licensed professionals who practice or wish to engage in SOCE.³ The named defendants are Governor Christie, Eric T. Kanefsky, Director of the New Jersey Dep't of Law and Public Safety, Milagros Collazo, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, J. Michael Walker, Executive Director of the New Jersey Board of Psychological Examiners, and Paul Jordan, President of the New Jersey State Board of Medical Examiners (collectively, “Defendants” or the “State”). Plaintiffs also bring constitutional claims on behalf of the licensed professionals' minor clients and the clients' parents. ⁴ Presently before the Court are cross motions for summary judgment. ⁵ During the pendency of the briefing, Proposed Intervenor, Garden State Equality (“Garden State”), moved to intervene as a defendant in this case, or in the alternative, it sought amicus curiae status.

On these motions, the parties raise a host of legal issues, the most significant of which focuses on whether, by prohibiting the practice of SOCE, the State has impermissibly infringed upon Plaintiffs' First Amendment rights—freedom of speech and free religious expression. Because the Court finds that A3371 restricts neither speech nor religious expression, rational basis review applies. I further find that A3371 passes constitutional muster under that standard. Accordingly, Defendants' cross motion for summary judgment is GRANTED in its entirety; and Plaintiffs' motion for summary judgment is DENIED. Garden State's motion to intervene is GRANTED.

BACKGROUND

Assembly Bill A3371 precludes persons licensed to practice in certain counseling professions from engaging in “the practice of seeking to change a [minor's] sexual orientation.” § 2(b). The statute has two sections; Section 1 provides legislative findings and declarations, while Section 2 defines SOCE and establishes the scope of the legislative prohibition on such conduct.

Section 1 (N.J.S.A. 45:1–54)

In Section 1 of the Statute, the Legislature declared 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 then went on to state that “[m]inors who experience family rejection based on their sexual orientation face especially serious health risks,” and that “[s]uch directed efforts [at changing sexual orientation] are against fundamental principles of psychoanalytic treatment and often result in substantial psychological pain by reinforcing damaging internalized attitudes.” §§ 1(m), (j)(2).

In support of its determination, the Legislature cited many of the position statements and resolutions of professional associations, including, inter alia, the American Psychiatric Association, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry. § 1(c)-(m). According to the Legislature, each of these professional associations has concluded that there is little or no evidence of the efficacy of SOCE, and that SOCE has the potential for harm, such as causing those treated to experience depression, guilt, anxiety and thoughts of suicide. Id. Specifically, relyingon the American Psychological Association's report on Appropriate Therapeutic Responses to Sexual Orientation, the Legislature found 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, ... [and] a feeling of being dehumanized.” § 1(b).

Similarly, and particularly relevant to minors, citing an American Academy of Pediatrics journal article, the Legislature concluded that “[t]herapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation.” § 1(f). The Legislature also looked to an American Academy of Child and Adolescent Psychiatry journal article, which states that

[c]linicians should be aware that there is no evidence that sexual orientation can be altered through therapy, and that attempts to do so may be harmful.... Indeed, there is no medically valid basis for attempting to prevent homosexuality, which is not an illness. On the contrary, such efforts may encourage family rejection and undermine self-esteem, connectedness and caring, important protective factors against suicidal ideation and attempts. Given that there is no evidence that efforts to alter sexual orientation are effective, beneficial or necessary, and the possibility that they carry the risk of significant harm, such interventions are contraindicated.

§ 1(k).

Indeed, based on these professional associations' findings and other evidence before the Legislature, the State concluded that it “has a compelling interest in protecting the physical and psychological well-being of minors, including gays, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” § 1(n).

Section 2 (N.J.S.A. 45:1–55)

Assembly Bill A3371's prohibition on the practice of SOCE with a person under 18 years of age applies to “[a] person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the person's professional training for any of these professions.” § 2(a).⁶ Further, the Legislature defines SOCE as “the practice of seeking to change a person's sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender ....” § 2(b).

However, the statute makes clear that the prohibition 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 person's coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful or unsafe sexual practices”; and (2) any other type of counseling that does not seek to change sexual orientation. Id. at (1), (2).

Plaintiff's Challenge to A3371

Plaintiffs challenge the constitutionality of A3371 because they allege the statute violates their state and federal First Amendment rights, namely, freedom of speech and free exercise of religion. In addition, Plaintiffs, on behalf of minor clients and their parents, assert that A3371 interferes with the minor clients' right to self-determination and the parents' fundamental right to direct the upbringing of their children. As to free speech, Plaintiffs maintain that A3371 prohibits licensed professionals from engaging in, or referring to a licensed professional who engages in, counseling with a minor regarding his/her “unwanted” same-sex sexual attractions, placing an unconstitutional restraint on the content of Plaintiffs' message to their clients. Plaintiffs reason that A3371 “authorizes only one viewpoint on SOCE and unwanted same-sex sexual attractions, behaviors, and identity by forcing ... Plaintiffs ... to present only one viewpoint on the otherwise permissible subject matter of same-sex attractions....” Compl., ¶ 186.

Plaintiffs further complain that A3371 infringes on their “sincerely held religious beliefs to provide spiritual counsel and assistance to their clients who seek such counsel in order to honor their clients' right to self-determination and to freely exercise their own sincerely held religious beliefs to counsel on the subject matter of same-sex attractions....” Compl., ¶ 235. By doing so, Plaintiffs allege that A3371 “impermissibly burden[s] Plaintiffs' and...