Presbytery of NJ of Orth. Pres. Church v. Florio

• Decision Date: 13 September 1995
• Docket Number: Civ. No. 92-1641 (WGB).
• Citation: 902 F. Supp. 492
• Parties: The PRESBYTERY OF NEW JERSEY OF THE ORTHODOX PRESBYTERIAN CHURCH, Calvary Orthodox Presbyterian Church of Wildwood, and Rev. David B. Cummings, Plaintiffs, v. James FLORIO, Robert Del Tufo, Marilyn Flanzbaum, Roman Angel, Betty Carson, Olga L. Vasquez-Clough, Felton Lingo, Sr., Reinhold W. Smyczek, Casey Tam, C. Gregory Stewart, John Doe(s), and Jane Doe(s), Defendants.
• Court: U.S. District Court — District of New Jersey

902 F. Supp. 492

The PRESBYTERY OF NEW JERSEY OF THE ORTHODOX PRESBYTERIAN CHURCH, Calvary Orthodox Presbyterian Church of Wildwood, and Rev. David B. Cummings, Plaintiffs, v. James FLORIO, Robert Del Tufo, Marilyn Flanzbaum, Roman Angel, Betty Carson, Olga L. Vasquez-Clough, Felton Lingo, Sr., Reinhold W. Smyczek, Casey Tam, C. Gregory Stewart, John Doe(s), and Jane Doe(s), Defendants.

Civ. No. 92-1641 (WGB).

United States District Court, D. New Jersey.

September 13, 1995.

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Thomas S. Neuberger, Wilmington, DE, Richard J. Traynor, Morristown, NJ, for Plaintiffs.

Robert J. Del Tufo, Attorney General of New Jersey by William H. Lorentz, Charles S. Cohen, Andrea M. Silkowitz, Newark, NJ, for State Defendants.

Evans, Osborne & Kreizman by Lewis H. Robertson, Little Silver, NJ, for Amicus Curiae, the American Civil Liberties Union of New Jersey.

Montgomery, McCracken, Walker & Rhoads by Louis A. Petroni, Cherry Hill, NJ, for Religious Amicus Curiae¹.

OPINION

BASSLER, District Judge:

Plaintiff, Reverend David B. Cummings ("Reverend Cummings") moves for summary judgment declaring several provisions of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. ?? 10:5-1 ?€” 10:5-42, which added the category of "affectational or sexual orientation" to the list of traits or characteristics protected against discrimination in, among other things, employment, business transactions, housing, and public accommodations. See N.J.S.A. ? 10:5-12. Plaintiff claims that the NJLAD's prohibition against discrimination based upon "affectational or sexual orientation," both as written and as applied to him, violates the First Amendment to the United States Constitution.

In this action under 42 U.S.C. section 1983, Plaintiff asserts claims against several state officials responsible for enforcing the NJLAD, including Defendants, James Florio, Robert Del Tufo, Marilyn Flanzbaum, Roman Angel, Betty Carson, Olga L. Vasquez-Clough, Felton Lingo, Sr., Reinhold W. Smyczek, Casey Tam, and C. Gregory Stewart (collectively referred to as the "State Defendants").²

The Defendants move to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Alternatively, the Defendants request this Court either to: (1) abstain from deciding the merits of this action based upon Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); or (2) issue a declaratory judgment adopting as definitive the interpretation of the NJLAD contained in the two affidavits of C. Gregory Stewart, Director, Division on Civil Rights.

If this case is ripe and Plaintiff possesses standing to maintain this action, this Court has jurisdiction under 28 U.S.C. sections 1331 and 1343. For the reasons set forth in this Opinion, Reverend Cummings' motion for summary judgment is denied. Additionally, Defendants' motion for a declaratory judgment is denied. Defendants' motion to dismiss is granted in part and denied in part. This Court dismisses all of Reverend Cummings' claims, except for his claim that N.J.S.A. sections 10:5-12e and n are unconstitutional as applied to him. This Court shall abstain from deciding the merits of Reverend Cummings' as applied challenge pending an adjudication in New Jersey state court.

I. BACKGROUND

A. Plaintiffs' Challenge to the NJLAD

In 1992, the New Jersey Legislature added "affectational and sexual orientation" to the list of personal characteristics protected against discrimination, which previously included race, creed, color, national origin, ancestry, age, sex, and marital status. N.J.S.A. ? 10:5-12(a). As defined by the NJLAD, the category "affectational and sexual orientation" includes "male or female heterosexuality, homosexuality, or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such orientation." N.J.S.A. ? 10:5-5(hh).

Shortly thereafter, Plaintiffs, the Presbytery of New Jersey of the Orthodox Presbyterian Church ("OPC"), Calvary Orthodox Presbyterian Church of Wildwood ("Calvary"), and Reverend Cummings initiated this declaratory judgment action challenging the newly enacted prohibition against discrimination based upon "affectational and sexual orientation" on the ground that it violates the First, Fifth, Fourteenth, and Ninth Amendments to the United States Constitution.

Specifically, Plaintiffs sought to have seven provisions of the NJLAD declared unconstitutional. Two of the challenged provisions apply to employers: one makes it unlawful "to refuse to hire or employ or to bar or to discharge or require to retire" any individual based upon a characteristic protected by the NJLAD, N.J.S.A. ? 10:5-12(a); the other bans printing or distributing statements that express, either directly or indirectly, that employment opportunities are restricted or limited for persons possessing protected characteristics, N.J.S.A. ? 10:5-12(c). With respect to hiring decisions, however, the NJLAD expressly permits a religious organization to follow "the tenets of its religion in establishing and utilizing criteria for employment of an employee." N.J.S.A. ? 10:5-12(a). Another provision of the NJLAD proscribes restricting access to public accommodations on the basis of protected traits. N.J.S.A. ? 10:5-12(f). The NJLAD authorizes the Director of the New Jersey Division on Civil Rights to promulgate regulations requiring both employers and providers of public accommodations to post public notices informing employees and patrons of their rights under the NJLAD. N.J.S.A. ? 10:5-12(j).

Furthermore, two provisions prohibit refusing to do business with an individual because of a protected characteristic. N.J.S.A. ? 10:5-12(l), (m). To that end, the NJLAD makes it unlawful for anyone "to aid, abet, incite, compel, coerce, or induce" any prohibited discrimination in business transactions, including boycotting any person who refuses to engage in such unlawful activity. N.J.S.A. ? 10:5-12(n). Finally, the NJLAD proscribes aiding, abetting and inciting any other conduct forbidden under the Act. N.J.S.A. ? 10:5-12(e).

Moreover, the NJLAD provides several enforcement mechanisms, both public and private. By filing a complaint with the New Jersey Division on Civil Rights, an aggrieved person can initiate an investigation of the allegedly illegal practice that may prompt the State to commence an enforcement action. N.J.S.A. ? 10:5-13 ?€” 10:5-14.1. Alternatively, an aggrieved individual may proceed directly to state court. N.J.S.A. ? 10:5-13. The NJLAD expressly confers standing upon "any individual who has been discriminated against" as well as "any organization which represents or acts to further the interests of those who have been discriminated against." N.J.S.A. ? 10:5-38.

According to Plaintiffs, The Holy Bible and the OPC's doctrine require Plaintiffs and more than two thousand individual members of the OPC in New Jersey to condemn homosexuality, bisexuality, and heterosexual sex outside of marriage as "grievous sins." Amended Compl. ?? 6, 22. Plaintiffs alleged that their religious beliefs require them to "draw reasonable distinctions" based upon permissible and impermissible sexual conduct. Amended Compl. ? 22.

As a result, Plaintiffs allege that they have directly and indirectly discriminated against persons based upon "sexual or affectational orientation," even after the 1992 amendments to the NJLAD made this conduct unlawful. Plaintiffs have allegedly committed several types of unlawful discriminatory conduct, including: speaking out, printing and disseminating publications that condemn homosexuality, bisexuality, and heterosexual sex outside of marriage as "an abomination and sinful;" inquiring about the sexual practices of their employees and refusing to employ anyone engaged in "sinful" sexual conduct; aiding and abetting discrimination against persons on the basis of their sexual conduct; and refusing to transact business with homosexuals, bisexuals, and heterosexuals having sex outside of marriage. Amended Compl. ?? 49, 51, 57, 69.

Furthermore, Plaintiffs assert that OPC doctrine requires ministers and elders to discipline church members who are engaged in "sexual sin" or teach that "adultery or homosexuality are an acceptable lifestyle and that we the OPC should not `discriminate' in our dealings with such people." Stevenson Aff. ? 6; accord Cummings Aff. ? 5. If an OPC member refused to abandon a "sexually sinful" lifestyle or to recant "heretical" statements, OPC ministers or elders would be obligated to file "formal disciplinary charges" against that member. Stevenson Aff. ? 7; accord Bahnsen Aff. ? 4. Disciplinary action could result in expulsion of the unrepentant church member from OPC facilities, functions, and sacraments, including "the Lord's Supper," baptism, and marriage. Amended Compl. ?? 27, 29, 33, 34, 35.

B. Procedural History

Shortly after initiating this action, Plaintiffs requested this Court to issue a preliminary injunction precluding Defendants from enforcing the 1992 amendments to the NJLAD prohibiting discrimination based upon "affectational and sexual orientation" pending a determination of their constitutionality.

In opposition to Plaintiffs' application, Defendants relied upon the affidavit of C. Gregory Stewart, Director, New Jersey Division on Civil Rights (the "Division"), the agency charged with enforcing and applying the NJLAD. N.J.S.A. ?? 10:5-6, 10:5-9.1. As Director of the Division, Stewart is responsible for interpreting and construing the NJLAD with advice from the Attorney General. N.J.S.A. ?? 10:5-8d, 10:5-8g.

In the affidavit, Director Stewart set forth the Division's interpretation of relevant provisions of the NJLAD. In accordance with the Division's "longstanding construction" of...