Pickup v. Brown

• Decision Date: 04 December 2012
• Docket Number: No. 2:12–CV–02497–KJM–EFB.,2:12–CV–02497–KJM–EFB.
• Citation: 42 F.Supp.3d 1347
• Parties: David H. PICKUP, et al., Plaintiffs, v. Edmund G. BROWN, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

42 F.Supp.3d 1347

David H. PICKUP, et al., Plaintiffs

v.Edmund G. BROWN, et al., Defendants.

No. 2:12–CV–02497–KJM–EFB.

United States District Court, E.D. California.

Signed Dec. 4, 2012.

Mathew D. Staver, Liberty Counsel, Inc., Maitland, FL, Daniel J. Schmid, PHV, Mary Elizabeth McAlister, Rena M. Lindevaldsen, PHV, Stephen M. Crampton, PHV, Liberty Counsel, Inc., Lynchburg, VA, for Plaintiffs.

Alexandra Robert Gordon, Daniel J. Powell, Paul Evan Stein, Ca. Dept. of Justice, San Francisco, CA, for Defendants.

ORDER

KIMBERLY J. MUELLER, District Judge.

Plaintiffs seek to enjoin Senate Bill (SB) 1172 from taking effect on January 1, 2013. The bill prohibits licensed mental health professionals in California from engaging in sexual orientation change efforts (“SOCE”) with minors. Plaintiffs, who are therapists, parents and minors, contend SB 1172 violates their First and Fourteenth Amendment rights. Their motion came on for hearing on November 30, 2012. Plaintiffs were represented by Matt Staver in oral argument, and additionally in the courtroom by Daniel Schmid and Stephen Crampton. Defendants were represented by Deputy Attorney General Alexandra Gordon. Amicus Equality California was represented by David Dinielli and Michelle Friedland in oral argument, and also in the courtroom by Bram Alden, Christopher Stoll, Lika Miyake and Shannon Minter. After careful consideration of the arguments made in the briefs and at argument, and having reviewed the relevant legal authority, the court finds plaintiffs are not likely to prevail on the merits so as to prevail at this stage of the litigation. For the reasons explained below, plaintiffs' motion is DENIED.

I. PROCEDURAL HISTORY

Plaintiffs in this case are David Pickup, Christopher Rosik, Ph.D., Joseph Nicolosi, Ph.D., and Robert Vazzo, all licensed mental health professionals; the National Association for Research and Therapy of Homosexuality (NARTH); the American Association of Christian Counselors (AACC); Jack and Jane Doe 1, on behalf of minor John Doe 1; and Jack and Jane Doe 2, on behalf of minor John Doe 2. John Does 1 and 2 are patients of Dr. Nicolosi (Decl. of Jack Doe 1 ¶ 10, ECF¹ 28–5; Decl. of Jack Doe 2 ¶¶ 13–14, ECF 28–5). Plaintiffs name the following defendants: Governor Edmund G. Brown, Jr.; Anna Caballero, Secretary of the State and Consumer Services Agency of California; Kim Madsen, Executive Officer of the California Board of Behavioral Sciences; Michael Erickson, Ph.D., President of the California Board of Psychology; and Sharon Levine, President of the Medical Board of California.

Plaintiffs' complaint, filed on October 4, 2012, challenges SB 1172, which adds three provisions to California's Business and Professions Code. The new law provides that a mental health provider, as defined by the statute, shall not “engage in sexual orientation change efforts with a person under 18 years of age.” Sexual orientation change efforts are defined as “any practices ... that seek to change an individual's sexual orientation.” Plaintiffs assert six constitutional claims, alleging SB 1172 violates: (1) the therapists' right to free speech and the minors' right to receive information under the First Amendment; (2) the therapists' right to liberty of speech and the minors' right to receive information under Article I § 2(a) of the California Constitution ; (3) the parents' and minors' right to free exercise of religion; (4) the parents' and minors' right to free exercise and enjoyment of religion under Article I, § 4 of the California Constitution ; (5) the Jack and Jane Does' parental rights under the First and Fourteenth Amendment; and (6) the Jack and Jane Does' parental rights under Article I, § 7 of the California Constitution. (See generally ECF 1.)

On October 19, 2012, Equality California filed a motion to intervene as a party defendant. (ECF 24.) Plaintiffs have opposed the motion and Equality California has filed a reply. (ECF 56, 72.) The motion to intervene is resolved by separate order.

On October 23, 2012, plaintiffs filed the pending amended motion for a preliminary injunction. (ECF 29.) Defendants have opposed the motion and plaintiffs have filed a reply. (ECF 48, 60.)

On November 21, 2012, the court granted Equality California's request to file an amicus brief and to participate in oral argument on the motion for a preliminary injunction. (ECF 67.) Equality California filed its amicus brief on November 21, 2012. (ECF 70.)

II. BACKGROUND ON SOCE²

As passed by the Legislature, SB 1172 seeks to regulate therapy known as “sexual orientation change efforts,” or SOCE (pronounced “sosh”). “The phrase sexual orientation change efforts (SOCE) encompasses a variety of methods, including techniques derived from psychoanalysis, behavioral therapy

, and religious and spiritual counseling. These techniques share the common goal of changing an individual's sexual orientation from homosexual to heterosexual.” (ECF 52 ¶ 26 (emphasis in original).)

Modern SOCE traces its history to the mid-twentieth century, when homosexuality was considered a form of disease.³ At that time, “many mental health professionals sought to ‘cure’ [homosexuality] using a variety of techniques, including psychotherapy, hormone treatments, aversive conditioning with nausea-inducing drugs, lobotomy

, electroshock, and castration.” Id. ¶ 27. Use of these practices has dropped significantly in light of the current position of many American psychological and psychiatric professionals that homosexuality is not a mental illness. Id. ¶ 28. “[M]ost practitioners [have] stopped attempting to change sexual orientation and some [have taken] strong public stands against such efforts.”Id. Plaintiff NARTH's treatment guidelines recognize SOCE as “an increasingly controversial subject.” (ECF 63–2 at 6.)

Despite the documented decline of use in therapeutic practice, “the visibility of SOCE has increased in the last decade.”⁴ (ECF 54–1 at 33.) The American Psychological Association (“APA”) has observed that “most SOCE currently seem[s] directed to those holding conservative religious and political beliefs, and recent research on SOCE includes almost exclusively individuals who have strong religious beliefs.” Id. Plaintiff NARTH agrees that deeply religious people account for the bulk of patients now seeking SOCE. (ECF 63–2 at 17.) (“Research indicates that the majority of people who present to clinicians with unwanted same-sex attractions are motivated in part by deeply held religious values.”).

Modern day SOCE can be categorized as either aversion or nonaversion treatments, with some practitioners utilizing techniques from both. Aversion treatments include practices “such as inducing nausea, vomiting, or paralysis; providing electric shocks; or having the individual snap an elastic band around the wrist upon arousal by same-sex erotic images or thoughts. Other examples of aversive behavioral treatments

include covert sensitization, shame aversion, systematic desensitization, orgasmic recondition, and satiation therapy.” (ECF 54–1 at 30.) Plaintiff NARTH recognizes the controversy aversion treatment presents within the psychological and medical fields, as well as the potential harms to patients presented by such therapies. See ECF 63–2 at 29. NARTH's own treatment guidelines recommend avoiding some aversion treatments. See id. (“... in light of current research and professional ethics, some interventions for unwanted same-sex attractions and behavior are not recommended. These include shock therapy and other aversive techniques, so-called reparenting therapies, and coercive forms of religious prayer.”).

Nonaversive SOCE treatments center on “chang[ing] gay men's and lesbians' thought patterns by reframing desires, redirecting thoughts, or using hypnosis

, with the goal of changing sexual arousal, behavior, and orientation.” (ECF 54–1 at 30.) Such efforts often are accomplished by an accompanying “educational process of dating skills, assertiveness, and affection training with physical and social reinforcement to increase other-sex sexual behaviors.” Id.

Plaintiff NARTH's practice guidelines articulate the goal of SOCE as “support [ing] the principle that individuals are capable of making their own choices in response to same-sex attractions and [to] promote autonomy and self-determination.” (Id. at 21.) NARTH advises clinicians to accomplish this goal by “(a) acknowledging a client's choice or desire to seek intervention for unwanted same-sex attractions and behavior; (b) exploring why these attractions and behaviors are distressing to the client ...; (c) addressing the cultural and political pressures surrounding choice in response to same-sex attractions; (d) discussing the available range of professional therapies and resources ...; (e) providing understandable information on outcome research related to change interventions ...; and (f) obtaining informed consent for treatment.” Id. (citations omitted).

III. SB 1172

A. The Statute Enacted by SB 1172

SB 1172 enacts the following new sections of the California Business and Professions Code:

865. For the purposes of this article, the following terms shall have the following meanings:

(a) “Mental health provider” means a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation.

(b)(1) “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual's sexual orientation. This includes efforts to change behaviors or gender

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