Welch v. Brown
| Decision Date | 04 November 2014 |
| Docket Number | Civ. No. 2:12–2484 WBS KJN. |
| Citation | 58 F.Supp.3d 1079 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Donald WELCH, Anthony Duk, Aaron Bitzer, Plaintiffs, v. Edmund G. BROWN, Jr., Governor of the State of California, In His Official Capacity, Anna M. Caballero, Secretary of California State and Consumer Services Agency, In Her Official Capacity, Denise Brown, Director of Consumer Affairs, In Her Official Capacity, Christine Wietlisbach, Patricia Lock–Dawson, Samara Ashley, Harry Douglas, Julia Johnson, Sarita Kohli, Renee Lonner, Karen Pines, Christina Wong, In Their Official Capacities as Members of the California Board of Behavioral Sciences, Sharon Levine, Michael Bishop, Silvia Diego, Dev Gnanadev, Reginald Low, Denise Pines, Janet Salomonson, Gerrie Schipske, David Serrano Sewell, Barbara Yaroslaysky, In Their Official Capacities as Members of the Medical Board of California, Defendants. |
Kevin Trent Snider, Matthew Brown McReynolds, Pacific Justice Institute, Sacramento, CA, Michael John Peffer, Pacific Justice Institute, Santa Ana, CA, for Plaintiffs.
Alexandra Robert Gordon, Paul Evan Stein, California Attorney General's Office, San Francisco, CA, for Defendants.
MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs Donald Welch, Anthony Duk, and Aaron Bitzer seek to enjoin enforcement of Senate Bill 1172 (“SB 1172”), which prohibits mental health providers in California from engaging in sexual orientation change efforts (“SOCE”) with minors. The court previously granted plaintiffs' motion for a preliminary injunction after finding they could likely show that SB 1172 violated their rights to free speech under the First Amendment. Characterizing SB 1172 as a regulation of therapeutic treatment, not expressive speech, the Ninth Circuit held that SB 1172 did not violate free speech rights and thus reversed the court's order granting plaintiffs' motion for a preliminary injunction. See Pickup v. Brown, 740 F.3d 1208, 1229–32, 1236 (9th Cir.2014). The Ninth Circuit also held that SB 1172 is not unconstitutionally vague or overbroad and does not violate First Amendment expressive association rights or the fundamental rights of parents seeking SOCE for their minor children. Id. at 1232–36.
Because the court's previous order concluded that plaintiffs were likely to prevail on their 42 U.S.C. § 1983 claim asserting that SB 1172 violated their rights to free speech, the court did not address the alleged constitutional violations underlying plaintiffs' remaining § 1983 claims. After providing the parties with the opportunity for supplemental briefing, the court now addresses plaintiffs' motion for a preliminary injunction on the grounds that SB 1172 violates the Free Exercise and Establishment Clauses and privacy rights. Based on the Ninth Circuit's decision on appeal, the court need not address plaintiffs' § 1983 claims alleging that SB 1172 is unconstitutionally vague or overbroad and violates First Amendment expressive association rights and the fundamental rights of parents seeking SOCE for their minor children. See id. ( such claims).
SB 1172 went into effect on January 1, 2013 and was codified in sections 865, 865.1, and 865.2 of the California Business and Professions Code.1 Section 865.1 states, “Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.” Cal. Bus. & Prof.Code § 865.1. Section 865.2 provides that any SOCE “attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.” Id. § 865.2.
Subsection 865(b)(1) defines “sexual orientation change efforts” as “any practices by mental health providers that seek to change an individual's sexual orientation,” including “efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Id. § 865(b)(1). Excluded from classification as SOCE are “psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients' coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.”Id. § 865(b)(2).
Plaintiff Donald Welch is a licensed marriage and family therapist in California and an ordained minister. (Welch Decl. ¶ 1 (Docket No. 11).) He is currently the president of a non-profit professional counseling center, the owner and director of a for-profit counseling center, and an adjunct professor at two universities. (Id. ¶ 4.) Welch is also employed part-time as a Counseling Pastor for Skyline Wesleyan Church, which teaches that “human sexuality ... is to be expressed only in a monogamous lifelong relationship between one man and one woman within the framework of marriage.” .) Welch provides treatment that qualifies as SOCE under SB 1172, and his “compliance with SB 1172 will jeopardize [his] employment” at Skyline Wesleyan Church. (Id. ¶¶ 5, 8–9, 11, 17.)
Plaintiff Anthony Duk is a medical doctor and board certified psychiatrist in private practice who works with adults and children over the age of sixteen. (Duk Decl. ¶ 1 (Docket No. 13).) His current patients include minors “struggling with” homosexuality and bisexuality and he utilizes SOCE. (Id. ¶ 6.) Plaintiff Aaron Bitzer is an adult who was “involved in” SOCE as an adult and had plans to become a therapist and practice SOCE. (Bitzer Decl. ¶ ¶ 1–11, 15 (Docket No. 12).)
To succeed on a motion for a preliminary injunction, plaintiffs must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir.2011). The Supreme Court has repeatedly emphasized that “injunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22, 129 S.Ct. 365.
“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). “ ‘A preliminary injunction ... is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment.’ ” U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir.2010) (quoting Sierra On–Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984) ) (omission in original).
SB 1172 prohibits the use of SOCE with minors only when performed by a “mental health provider,” which is limited to:
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.
Cal. Bus. & Prof.Code § 865(a). Based on this definition, the parties agree that SB 1172 does not affect a religious leader's ability to provide SOCE through his or her church so long as that religious leader is not a “mental health provider” under the statute.
The parties dispute, however, whether SB 1172 extends to a religious leader providing SOCE through his or her church when, like Welch, the religious leader is also a “mental health provider” under the statute. Defendants contend that SB 1172 would not restrict Welch from providing SOCE in his capacity as a Counseling Pastor, so long as he does not “hold himself out” as a licensed marriage and family therapist when providing therapeutic treatment as a Counseling Pastor. (Defs.' Opp'n at 14:25–27 (Docket No. 33); cf. Amicus Curiae Opp'n at 9:7–10 (Docket No. 39) (“When he is practicing marriage and family therapy as a state-licensed therapist, whatever the setting, [ ] he is subject to the same regulations as every other licensed marriage and family therapist, and must comply with SB 1172.”).)
Defendants rely on several statutory exemptions for the proposition that SB 1172 would not restrict Welch from offering SOCE when working as a Counseling Pastor. Most relevant to Welch is the Licensed Marriage and Family Therapist Act (“LMFT Act”), which governs the licensing and regulation of marriage and family therapists. Cal. Bus. & Prof.Code §§ 4980 –4980.90 ; see also Cal. Bus. & Prof.Code § 4980.04 (). The LMFT Act prohibits the unlicensed practice of marriage and family therapy as defined in the LMFT Act.2 Id. § 4980(b). The LMFT Act provides that “[a] person engages in the practice of marriage and family therapy when he or she performs or offers to perform or holds himself or herself out as able to perform this service for remuneration in any form, including donations.” Id. § 4980.10 (emphasis added). Section 4980.01, however, exempts application of the LMFT Act to “any priest, rabbi, or minister of the gospel of any...
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