Presbytery of New Jersey of Orthodox Presbyterian Church v. Florio

• Decision Date: 13 December 1994
• Docket Number: No. 93-5559,93-5559
• Citation: 40 F.3d 1454
• Parties: The PRESBYTERY OF NEW JERSEY OF the ORTHODOX PRESBYTERIAN CHURCH, a New Jersey corporation; Calvary Orthodox Presbyterian Church of Wildwood, a New Jersey corporation; Rev. David B. Cummings, Appellants, v. James FLORIO, Governor of New Jersey, in his official capacity; Robert J. Del Tufo, Attorney General of New Jersey, in his official capacity; Marilyn Flanzbaum; Roman Angel; Betty Carson; Olga L. Vazquez-Clough; Felton Lingo, Sr.; Reinhold W. Smyczek; Casey Tam, all in their official capacities as members of The Division on Civil Rights; C. Gregory Stewart, in his official capacity as executive of The Division on Civil Rights; John Doe(s); Jane Doe(s), addresses unknown, the last two being fictitious names, the real names of said defendants being presently unknown or known only in part to plaintiffs, said fictitious names being intended to designate organizations, persons and others acting in concert with any of the defendants who engage in, are engaged in, or who intend to engage in, the conduct of defendants complained of herein, or who would have the right to file or seek enforcement of administrative, equitable or legal complaints or suits or to assert any other legal claims or remedies or enforcement thereof against the plaintiffs under the New Jersey Law Against Discrimination, as amended by the 1992 affectional and sexual orientation amendments, and all others similarly situated, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 1454

40 F.3d 1454

The PRESBYTERY OF NEW JERSEY OF the ORTHODOX PRESBYTERIAN

CHURCH, a New Jersey corporation; Calvary Orthodox

Presbyterian Church of Wildwood, a New Jersey corporation;

Rev. David B. Cummings, Appellants, v. James FLORIO, Governor of New Jersey, in his official

capacity; Robert J. Del Tufo, Attorney General of New

Jersey, in his official capacity; Marilyn Flanzbaum; Roman

Angel; Betty Carson; Olga L. Vazquez-Clough; Felton

Lingo, Sr.; Reinhold W. Smyczek; Casey Tam, all in their

official capacities as members of The Division on Civil

Rights; C. Gregory Stewart, in his official capacity as

executive of The Division on Civil Rights; John Doe(s);

Jane Doe(s), addresses unknown, the last two being

fictitious names, the real names of said defendants being

presently unknown or known only in part to plaintiffs, said

fictitious names being intended to designate organizations,

persons and others acting in concert with any of the

defendants who engage in, are engaged in, or who intend to

engage in, the conduct of defendants complained of herein,

or who would have the right to file or seek enforcement of

administrative, equitable or legal complaints or suits or to

assert any other legal claims or remedies or enforcement

thereof against the plaintiffs under the New Jersey Law

Against Discrimination, as amended by the 1992 affectional

and sexual orientation amendments, and all others similarly

situated, Appellees.

No. 93-5559.

United States Court of Appeals, Third Circuit.

Argued March 25, 1994.

Decided Nov. 16, 1994.

Sur Petition for Rehearing Dec. 13, 1994.

Thomas Stephen Neuberger (argued), Wilmington, DE, and James J. Knicely, Knicely & Cotorceanu, Williamsburg, VA, cooperating attorneys for the Rutherford Institute, for appellants.

Fred Devesa, Acting Atty. Gen. of N.J., Andrea M. Silkowitz, Asst. Atty. Gen., William H. Lorentz (argued), Deputy Atty. Gen., Charles S. Cohen, Deputy Atty. Gen., Office of Atty. Gen. of N.J., Newark, NJ, for appellees.

David L. Grove, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, and Richard S. Hyland, Louis A. Petroni, Montgomery, McCracken, Walker & Rhoads, Cherry Hill, NJ, and Eric J. Graninger, Presbyterian Church (U.S.A.), Associate Gen. Counsel, Louisville, KY, for amici curiae James E. Andrews, as Stated Clerk of the Presbyterian Church (U.S.A.) Gen. Assembly, The Diocesan Council of the Episcopal Diocese of Newark, John S. Spong, Bishop of the Episcopal Diocese of Newark, The Lutheran Office of Governmental Ministry in N.J., The New Jersey-West Hudson Valley Council of the Union of American Hebrew Congregations, N.J. Synod Council of the N.J. Synod, Evangelical Lutheran Church in America, N.J. Council of Churches, United Church of Christ Office for Church in Society.

Lewis H. Robertson, Evans, Osborne & Kreizman, Red Bank, NJ, for amicus curiae A.C.L.U. N.J.

Before HUTCHINSON, ROTH and ROSENN, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants, the Presbytery of New Jersey of the Orthodox Presbyterian Church We conclude, however, that the controversy is ripe because Cummings arguably alleges the statute threatens his right as an individual citizen to speak out against male and female homosexual acts and the state has expressly refused to offer any assurance it will not prosecute Cummings if he does so outside his church. The same, however, is not true of the institutional church plaintiffs, Presbytery and Calvary. Accordingly, we will reverse the district court's order and remand for further proceedings consistent with this opinion in so far as its order applies to Reverend Cummings. We will, however, affirm the district court's dismissal without prejudice of this action as it pertains to the institutional plaintiffs.

("Presbytery"), the Calvary Orthodox Presbyterian Church of Wildwood ("Calvary") and Reverend David B. Cummings ("Cummings"), a clergyman of the Orthodox Presbyterian denomination (collectively "plaintiffs"), appeal an order of the district court dismissing their complaint. ¹ Plaintiffs assert recent amendments to the New Jersey Law Against Discrimination (the "LAD" or "Act"), N.J.Stat.Ann. Secs. 10:5-1 to 10:5-42 (West 1993 & Supp.1994), violate the First Amendment right to freedom of speech. The amendments they question added to the category of impermissible distinctions "affectional or sexual orientation" to the statute's ban on certain forms of discrimination. Relying on a responsible state official's affidavit that the state would not enforce the LAD against Calvary or Presbytery as churches or Cummings as a church pastor, the district court held that the case was not ripe.

I.

In April 1992, the plaintiffs brought this suit to enjoin enforcement of recent amendments to the LAD which had added "affectional or sexual orientation" to the personal traits or characteristics generally protected against discrimination in public accommodations, ² employment and housing. See N.J.Stat.Ann. Secs. 10:5-4, 10:5-12 (West Supp.1994). The statute also prohibits "aid[ing], abet[ting], incit[ing], compel[ing] or coerc[ing]" others into violations of its prohibitions against discrimination. N.J.Stat.Ann. Sec. 10:5-12(e); see N.J.Stat.Ann. Sec. 10:5-12(n). The plaintiffs originally challenged these and other provisions as an infringement on the First Amendment right to the free exercise of religion and association as well as the right to freedom of speech. On May 15, 1992, they filed a motion for a preliminary injunction and on May 22 filed an amended complaint. On June 11, 1992, the state filed a motion for summary judgment along with a motion for dismissal. The district court heard oral argument but denied the motion for a preliminary injunction holding that the plaintiffs failed to establish both a likelihood of success on the merits and irreparable harm. The plaintiffs appealed to this Court and on December 14, 1992 we affirmed the district court in an unpublished memorandum opinion. Presbytery of New Jersey v. Florio, No. 92-5339, slip. op. at 13 (3d Cir. Dec. 14, 1992) ("Presbytery I "), see 983 F.2d 1052 (3d Cir.1992) (Table). Because of the state's affidavit stating its intention not to enforce the Act against religious institutions, we held that the plaintiffs failed to demonstrate the possibility of immediate and irreparable harm. Id. at 9-10. We also held that the possibility of private enforcement of the Act by activist homosexual groups was too remote to constitute an immediate threat of potential harm and, in any event, the private parties would not be bound by the injunction sought. Id. at 10-12. We specifically refused to comment on the district court's discussion Following our decision, the district court heard argument on the state's Rule 12(b)(1) motion to dismiss. The state argued that the plaintiffs lacked standing, the case was not ripe and that the federal court should abstain under Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The district court granted the state's motion and dismissed the complaint. Presbytery of New Jersey v. Florio, 830 F.Supp. 241 (D.N.J.1993) ("Presbytery II "). It held that the case was not ripe, based on the state's affidavit that it would not enforce the Act against the institutional plaintiffs as churches or Cummings in his capacity as a clergyman of the Orthodox Presbyterian Church. Id. at 248-50. ³ The plaintiffs filed a timely notice of appeal.

of the plaintiffs' likelihood of success on the merits. Id. at 13.

II.

The LAD, originally enacted in 1945, prohibits discrimination in employment, labor organization membership, public accommodations and real estate, financial, and business transactions. In 1991, the New Jersey legislature added "affectional or sexual orientation" to the personal characteristics of race, creed, color, national origin, ancestry, age, sex, and marital status previously protected. ⁴ Under the Act, it is unlawful for an employer "to refuse to hire or employ or to bar or to discharge or require to retire" any individual on the basis of a protected characteristic. Id. Sec. 10:5-12(a). The Act also prohibits the printing or circulating of any statement which expresses, directly or indirectly, that employment opportunities for persons with the protected characteristics will be limited. Id. Sec. 10:5-12(c). Public accommodations are similarly restrained. See id. Sec. 10:5-12(f). In addition, the LAD makes it illegal for any individual to refuse to transact business with individual groups who have any of the protected characteristics. Id. Secs. 10:5-12(l ), (m). The Act also makes it illegal "to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." Id. Sec. 10:5-12(e). Still another section applying the Act's prohibition against aiding, abetting, inciting or coercing violations of subsection (l ) and (m) specifically prohibits incitements to boycott persons who belong to the protected groups. Id. Sec. 10:5-12(n)(2). Finally, the Act requires owners of public accommodations and employers to post public notices informing employees and patrons of their rights under the Act. Id. Sec. 10:5-12(j).

The Act exempts religious organizations from compliance in the selection of their own employees and it permits religious organizations to restrict rental or use of their own property to members of their own faith. Id. Secs. 10:5-12(a), 10:5-5(n). The Act does not apply to private clubs or facilities for religious education. Id. Sec. 10:5-5(l ).

The state itself may enforce the Act's civil penalties against violators. An aggrieved individual may begin the process of civil enforcement by filing a complaint with the state Division on Civil Rights ("DCR") or proceeding The Orthodox Presbyterian Church ("OPC") is a national denomination with 170 member churches, including Calvary. The OPC split from the Presbyterian Church (U.S.A.) in 1936 over a...