981 F. Supp. 2d 296
D.N.J.2013Background
- In Aug. 2013 New Jersey enacted A3371 (N.J.S.A. 45:1-54, -55), banning licensed mental-health professionals from providing Sexual Orientation Change Efforts (SOCE) to minors; the law exempts supportive, exploratory counseling and treatment for gender transition and does not regulate unlicensed religious counselors.
- Plaintiffs are two licensed therapists (Tara King, Ronald Newman) and two associations (NARTH, AACC) who practice or advocate SOCE; they sued state officials alleging violations of the First Amendment (speech and free exercise), parental rights, and asserted claims on behalf of minor clients and parents.
- Garden State Equality moved to intervene to defend the statute; the court granted permissive intervention over Plaintiffs’ objection and ruled the intervenor need not show independent Article III standing to intervene.
- Plaintiffs moved for summary judgment; the State cross-moved. During the case Plaintiffs withdrew nominal damages and state-constitutional claims; a separate minor/plaintiff family later filed a related suit.
- The principal legal question was whether A3371 regulates constitutionally protected speech or religious exercise (triggering heightened scrutiny) or instead regulates professional conduct (subject to rational-basis review).
- The Court held A3371 regulates conduct (professional treatment), not speech or religious practice, applied rational-basis review, and upheld the statute; Plaintiffs’ summary judgment motion was denied and Defendants’ granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to intervene (Garden State) | Intervenor must have Article III standing | Intervenor need not show independent standing to permissively intervene | Permissive intervention granted; intervenor need not satisfy independent Article III standing here |
| First Amendment — Free speech (does A3371 regulate speech?) | SOCE is "talk therapy"; statute is a content/viewpoint-based speech restriction; requires strict scrutiny | A3371 regulates professional conduct/therapy, not speech; any speech effect is incidental | A3371 regulates conduct (therapy), not speech; incidental effects do not trigger O'Brien; rational-basis review applies; statute upheld |
| First Amendment — Free exercise (religious objection) | Law burdens therapists’ and parents’ religiously motivated counseling and parental rights; triggers strict scrutiny | Law is neutral and generally applicable regulation of professional conduct protecting minors | Law is neutral and generally applicable; rational-basis review applies; no free-exercise violation |
| Third-party standing / other jurisdictional bars (claims on behalf of minors; Eleventh Amendment) | Therapists may assert claims on behalf of minor clients and parents | Plaintiffs lack prudential third-party standing; Eleventh Amendment bars money damages against state officials in official capacity | Plaintiffs lack third-party standing for minors/parents; federal claims for money damages and state constitutional claims dismissed under Eleventh Amendment |
Key Cases Cited
- Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) (upholding California SOCE ban; treating psychotherapy regulation as conduct with only incidental speech effects)
- United States v. O’Brien, 391 U.S. 367 (1968) (intermediate scrutiny test for regulation of expressive conduct)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (speech integral to illegal conduct is not immune)
- Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (distinguishing expressive conduct from regulable conduct)
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (speech/conduct distinction; not all combined speech-conduct receives protection)
- Beach Communications, Inc. v. FCC, 508 U.S. 307 (1993) (rational-basis review allows legislative speculation in support of statutes)
- Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (doctor–patient informational speech protected; distinguishable on facts)
- Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (laws targeting religiously motivated conduct require strict scrutiny)