King v. Governor of N.J.

• Decision Date: 11 September 2014
• Docket Number: No. 13–4429.,13–4429.
• Citation: 767 F.3d 216
• Parties: Tara KING, Ed. D. Individually and On Behalf of Her Patients; Ronald Newman, Ph. D., Individually and On Behalf of His Patients; National Association for Research and Therapy of Homosexuality, (Narth); American Association of Christian Counselors, Appellants v. GOVERNOR OF THE STATE OF NEW JERSEY; Eric T. Kanefsky, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, In His Official Capacity; Milagros Collazo, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, In Her Official Capacity; J. Michael Walker, Executive Director of the New Jersey Board of Psychological Examiners, In His Official Capacity; Paul Jordan, President of the New Jersey State Board of Medical Examiners, In His Official Capacity Garden State Equality (Intervenor in D.C.).
• Court: U.S. Court of Appeals — Third Circuit

767 F.3d 216

Tara KING, Ed. D. Individually and On Behalf of Her Patients; Ronald Newman, Ph. D., Individually and On Behalf of His Patients; National Association for Research and Therapy of Homosexuality, (Narth); American Association of Christian Counselors, Appellants

v. GOVERNOR OF THE STATE OF NEW JERSEY; Eric T. Kanefsky, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, In His Official Capacity; Milagros Collazo, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, In Her Official Capacity; J. Michael Walker, Executive Director of the New Jersey Board of Psychological Examiners, In His Official Capacity; Paul Jordan, President of the New Jersey State Board of Medical Examiners, In His Official CapacityGarden State Equality (Intervenor in D.C.).

No. 13–4429.

United States Court of Appeals, Third Circuit.

Argued July 9, 2014.

Filed: Sept. 11, 2014.

Mary E. McAlister, Esq., Daniel J. Schmid, Esq., Lynchburg, VA, Anita L. Staver, Esq., Mathew D. Staver, [Argued], Liberty Counsel, Orlando, FL, Demetrios K. Stratis, Esq., Fairlawn, NJ, for Appellants.

Robert T. Lougy, Esq., Eric S. Pasternack, Esq., Susan M. Scott, [Argued], Office of Attorney General of New Jersey, Richard J. Hughes Justice Complex, Trenton, NJ, for Appellee.

Shireen A. Barday, Esq., David S. Flugman, Esq., [Argued], Frank M. Holozubiec, Esq., Andrew C. Orr, Kirkland & Ellis, New York, NY, Andrew Bayer, Esq., Gluck Walrath, Trenton, NJ, Shannon P. Minter, Esq., Christopher F. Stoll, Esq., Amy Whelan, Esq., National Center for Lesbian Rights, San Francisco, CA, for Intervenor Appellee.

Mordechai Biser, Esq., Agudath Israel of America, Ronald D. Coleman, Esq., Goetz Fitzpatrick, Esq., New York, NY, Jonathan C. Dalton, Esq., Alliance Defending Freedom, Scottsdale, AZ, Amicus Appellant.

Kristy K. Marino, Esq., Eileen R. Ridley, Esq., Foley & Lardner, Sandford J. Rosen, Esq., Rosen, Bien & Galvan, San Francisco, CA, Suman Chakraborty, Esq., Squire Patton Boggs LLP, Hayley J. Gorrenberg, Esq., Lambda Legal Defense & Education Fund, Inc., Lisa A. Linsky, Esq., McDermott, Will & Emery, Tanya E. Kalivas, Esq., Arnold & Porter, New York, NY, Curtis C. Cutting, Esq., Horvitz & Levy, Encino, CA, Emily B. Goldberg, Esq., McCarter & English, Newark, NJ, Amicus Appellee.

Before: SMITH, VANASKIE, and SLOVITER, Circuit Judges.

OPINION

SMITH, Circuit Judge.

A recently enacted statute in New Jersey prohibits licensed counselors from engaging in “sexual orientation change efforts”¹ with a client under the age of 18. Individuals and organizations that seek to provide such counseling filed suit in the United States District Court for the District of New Jersey, challenging this law as a violation of their First Amendment rights to free speech and free exercise of religion. Plaintiffs also asserted claims on behalf of their minor clients under the First and Fourteenth Amendments. The District Court rejected Plaintiffs' First Amendment claims and held that they lacked standing to bring claims on behalf of their minor clients. Although we disagree with parts of the District Court's analysis, we will affirm.

I.

A.

Plaintiffs are individuals and organizations that provide licensed counseling to minor clients seeking to reduce or eliminate same-sex attractions (“SSA”). Dr. Tara King and Dr. Ronald Newman are New Jersey licensed counselors and founders of Christian counseling centers that offer counseling on a variety of issues, including sexual orientation change, from a religious perspective. The National Association for Research and Therapy of Homosexuality (“NARTH”) and the American Association of Christian Counselors are organizations whose members provide similar licensed counseling in New Jersey.

Plaintiffs describe sexual orientation change efforts (“SOCE”) counseling as “talk therapy” that is administered solely through verbal communication. SOCE counselors may begin a session by inquiring into potential “root causes” of homosexual behavior, such as childhood sexual trauma or other developmental issues, such as a distant relationship with the same-sex parent. A counselor might then attempt to effect sexual orientation change by discussing “traditional, gender-appropriate behaviors and characteristics” and how the client can foster and develop these behaviors and characteristics. Many counselors, including Plaintiffs, approach counseling from a “Biblical perspective” and may also integrate Biblical teachings into their sessions.²

On August 19, 2013, Governor Christopher J. Christie signed Assembly Bill A3371 (“A3371”) into law.³ A3371 provides:

a. A person who is licensed to provide professional counseling ... shall not engage in sexual orientation change efforts with a person under 18 years of age.

b. As used in this section, “sexual orientation change efforts” means 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; except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another, or counseling that:

(1) provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and

(2) does not seek to change sexual orientation.

N.J. Stat. Ann. § 45:1–55. Though A3371 does not itself impose any penalties, a licensed counselor who engages in the prohibited “sexual orientation change efforts” may be exposed to professional discipline by the appropriate licensing board. See N.J. Stat. Ann. § 45:1–21.

A3371 is accompanied by numerous legislative findings regarding the impact of SOCE counseling on clients seeking sexual orientation change. N.J. Stat. Ann. § 45:1–54. The New Jersey legislature found that “being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming” and that “major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years.” Id. The legislature also cited reports, articles, resolutions, and position statements from reputable mental health organizations opposing therapeutic intervention designed to alter sexual orientation. Many of these sources emphasized that such efforts are ineffective and/or carry a significant risk of harm. According to the legislature, for example, a 2009 report issued by the American Psychological Association (“APA Report”) concluded:

[S]exual 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.

Id.

Finally, the legislature declared that “New Jersey 11 has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” Id.

B.

On August 22, 2013, Plaintiffs filed a complaint against various New Jersey executive officials (“State Defendants”)⁴ in the United States District Court for the District of New Jersey, alleging that A3371 violated their rights to free speech and free exercise of religion under the First and Fourteenth Amendments. The complaint also alleged constitutional claims on behalf of Plaintiffs' minor clients and their parents. Specifically, Plaintiffs claimed that A3371 violated the minor clients' First and Fourteenth Amendment rights to free speech and free exercise of religion and the parents' Fourteenth Amendment right to substantive due process.⁵

The following day, Plaintiffs moved for a Temporary Restraining Order and/or Preliminary Injunction to prevent enforcement of A3371. During a telephone conference with the parties, the District Court denied Plaintiffs' motion for preliminary relief and, at Plaintiffs' request, converted this motion into a motion for summary judgment. On September 6, 2013, Garden State Equality (“Garden State”), a New Jersey civil rights organization that advocates for lesbian, gay, bisexual, and transgender equality, filed a motion to intervene as a defendant. On September 13, 2013, State Defendants and Garden State filed cross-motions for summary judgment. The District Court heard argument on all of these motions on October 1, 2013, and issued a final ruling in an order dated November 8, 2013.

The District Court first considered whether Garden State was required to demonstrate Article III standing to participate in the lawsuit as an intervening party.⁶ The Court acknowledged that this was an open question in the Third Circuit, and adopted the view held by a majority of our sister circuits that an intervenor need not have Article III standing to participate. The Court then held that Garden State fulfilled the requirements for permissive intervention pursuant to Federal Rule of Civil Procedure 24(b), reasoning that Garden State's motion was timely, it shared a common legal defense with State Defendants, and its participation would not unduly prejudice the adjudication of Plaintiffs' rights. Accordingly, the Court granted Garden State's motion to intervene.

The District...