OPINION
On August 19, 2013, New Jersey Governor Christopher J. Christie signed into law Assembly Bill Number A3371 (“A3371”) (codified at N.J.S.A. 45:1-54, -55),
On these motions, the parties raise a host of legal issues, the most significant of which focuses on whether, by prohibiting the practice of SOCE, the State has impermissibly infringed upon Plaintiffs’ First Amendment rights — freedom of speech and free religious expression. Because the Court finds that A3371 restricts neither speech nor religious expression, rational basis review applies. I further find that A3371 passes constitutional muster under that standard. Accordingly, Defendants’ cross motion for summary judgment is GRANTED in its entirety; and Plaintiffs’ motion for summary judgment is DENIED. Garden State’s motion to intervene is GRANTED.
BACKGROUND
Assembly Bill A3371 precludes persons licensed to practice in certain counseling professions from engaging in “the practice of seeking to change a [minor’s] sexual orientation.” § 2(b). The statute has two sections; Section 1 provides legislative findings and declarations, while Section 2 defines SOCE and establishes the scope of the legislative prohibition on such conduct.
Section 1 (N.J.S.A. 45:1-54)
In Section 1 of the Statute, the Legislature declared that “[b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years.” § 1(a). The Legislature then went on to state that “[m]inors who experience family rejection based on their sexual orientation face especially serious health risks,” and that “[s]uch directed efforts [at changing sexual orientation] are against fundamental principles of psychoanalytic treatment and often result in' substantial psychological pain by .reinforcing damaging internalized attitudes.” §§ l(m), (j)(2).
In support of its determination, the Legislature cited many of the position statements and resolutions of professional associations, including, inter alia, the American Psychiatric Association, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry. § l(c)-(m). According to the Legislature, each of these professional associations has concluded that there is little or no evidence of the efficacy of SOCE, and that SOCE has the potential for harm, such as causing those treated to experience depression, guilt, anxiety and thoughts of suicide. Id. Specifically, rely
Similarly, and particularly relevant to minors, citing an American Academy of Pediatrics journal article, the Legislature concluded that “[t]herapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation.” § 1(f). The Legislature also looked to an American Academy of Child and Adolescent Psychiatry journal article, which states that
[clinicians should be aware that there is no evidence that sexual orientation can be altered through therapy, and that attempts to do so may be harmful.... Indeed, there is no medically valid basis for attempting to prevent homosexuality, which is not an illness. On the contrary, such efforts may encourage family rejection and undermine self-esteem, connectedness and caring, important protective factors against suicidal ideation and attempts. Given that there is no evidence that efforts to alter sexual orientation are effective, beneficial or necessary, and the possibility that they carry the risk of significant harm, such interventions are contraindicated.
§ 1(k).
Indeed, based on these professional associations’ findings and other evidence before the Legislature, the State concluded that it “has a compelling interest in protecting the physical and psychological well-being of minors, including gays, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” § l(n).
Section 2 (N.J.S.A. 45:1-55)
Assembly Bill A3371’s prohibition on the practice of SOCE with a person under 18 years of age applies to “[a] person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the person’s professional training for any of these professions.” § 2(a).
However, the statute makes clear that the prohibition does not include counseling for a person seeking to transition from one gender to another, or counseling that: (1) “provides acceptance, support, and understanding of a person or facilitates a person’s coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful or unsafe sexual practices”; and (2) any other type of
Plaintiff’s Challenge to A3371
Plaintiffs challenge the constitutionality of A3371 because they allege the statute violates their state and federal First Amendment rights, namely, freedom of speech and free exercise of religion. In addition, Plaintiffs, on behalf of minor clients and their parents, assert that A3371 interferes with the minor clients’ right to self-determination and the parents’ fundamental right to direct the upbringing of their children. As to free speech, Plaintiffs maintain that A3371 prohibits licensed professionals from engaging in, or referring to a licensed professional who engages in, counseling with a minor regarding his/her “unwanted” same-sex sexual attractions, placing an unconstitutional restraint on the content of Plaintiffs’ message to their clients. Plaintiffs reason that A3371 “authorizes only one viewpoint on SOCE and unwanted same-sex sexual attractions, behaviors, and identity by forcing ... Plaintiffs ... to present only one viewpoint on the otherwise permissible subject matter of same-sex attractions .... ” Compl., ¶ 186.
Plaintiffs further complain that A3371 infringes on their “sincerely held religious beliefs to provide spiritual counsel and assistance to their clients who seek such counsel in order to honor their clients’ right to self-determination and to freely exercise their own sincerely held religious beliefs to counsel on the subject matter of same-sex attractions.... ” Compl., ¶ 235. By doing so, Plaintiffs allege that A3371 “impermissibly burden[s] Plaintiffs’ and their clients’ sincerely held religious beliefs and compels them to both change those religious beliefs and to act in contradiction to them.” Id. at ¶ 237. This type of restriction, Plaintiffs assert, violates their state and federal constitutional rights to the free exercise of religion. Finally, Plaintiffs assert that A3371 violates the parents’ fundamental rights “to direct the upbringing and education of their children according to their sincerely held religious beliefs,” Id., ¶ 260, because the statute “prevents the parents ... from seeking mental health counseling for their minor children’s unwanted same-sex attractions ....” Id. at ¶ 261.
Shortly after Plaintiffs filed suit, Garden State sought permissive intervention to defend the constitutionality of A3371. Founded in 2004, Garden State is a New Jersey civil rights organization, primarily advocating for lesbian, gay, bisexual, and transgender (“LGBT”) equality within the state. It supports and lobbies for legislation, such as A3371, that prohibits, inter alia, discrimination on the basis of sexual orientation. Garden State aims to protect the interests of LGBT citizens in New Jersey, including youth. This organization has over 125,000 members, including LGBT minors and their parents, some of whom, according to Garden State, might be subject to SOCE treatment at the insistence of a parent or guardian, or based on the choice of a licensed mental health professional.
Procedural History
Plaintiffs filed their six-count Complaint on August 22, 2013. Initially, Plaintiffs moved to temporarily restrain Defendants from enforcing A3371. However, after a telephone conference, and with the consent of the parties, the Court converted Plaintiffs’ motion for a preliminary injunction to a summary judgment motion. Thereafter, Defendants cross-moved for summary judgment. After the filing of Plaintiffs’ initial motion, Garden State moved to intervene as a defendant in this matter. By Text Order dated September 16, 2013, the Court granted Garden State’s request, and indicated in that Order that the reasoning
On October 1, 2013, the Court held oral argument on these summary judgment motions, wherein counsel for Plaintiffs,
DISCUSSION
I. Standard of Review
A moving party is entitled to judgment as a matter of law where there is no genuine issue as to any material fact. See Fed. R. Civ. 56(c); Brooks v. Kyler,
Not every issue of fact will be sufficient to defeat a motion for summary judgment; issues of fact are genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
II. Motion to Intervene by Garden State
A. Standing as an Intervenor
According to Plaintiffs, in their supplemental briefing, Garden State must independently satisfy Article III standing requirements before it can be granted leave to intervene under Fed.R.Civ.P. 24(b). Generally, to demonstrate the “case or controversy” standing requirement un
To begin the analysis, I start with the Third Circuit’s acknowledgement in Am. Auto. Ins. Co. v. Murray,
Having reviewed the conflicting authorities cited above, I find that based on the circumstances of this case, Garden State need not satisfy standing requirements in order to intervene in these proceedings.
On the other side of the coin, the “majority” view does not impose independent standing requirements on an intervenor at the district court level. “ ‘[O]n many occasions the Supreme Court has noted that an intervenor may not have standing, but has not specifically resolved that issue, so long as another party to the litigation has sufficient standing to assert the claim at issue.’ ” San Juan County, Utah v. United States,
The Eleventh Circuit has explained that the standing requirement exists to ensure that a justiciable case or controversy exists. Chiles,
While the Third Circuit has not spoken on this matter and there are no cases on this issue in this district, there are at least three other district court opinions in this circuit that have found that an intervenor need not have independent standing to participate in district court proceedings. See Indian River Recovery Co. v. The China,
I find the reasoning of those courts that do not require independent standing by an intervenor to be persuasive. First, the constitutional requirement of standing only speaks to whether the federal district court has a justiciable controversy. In my view, so long there is a case or controversy before the court, it is not necessary that an intervenor have independent standing. Rather, Rule 24 aims to promote the efficient and orderly use of judicial resources by allowing persons to participate in the lawsuit to protect their interests or vindicate their rights. In that furtherance of the Rule, the court makes a determination whether those interests would be impaired by the disposition of the case. Imposing standing on an intervenor would eviscerate Rule 24’s practical approach. And, furthermore, such a restriction would impinge on the purposes of permissive intervention. Accordingly, I find that Garden State need not separately satisfy standing requirements to intervene.
B. Permissive Intervention Pursuant to Rule 24(b)
Garden State seeks to intervene on the basis of permissive intervention. Permissive intervention under Rule 24 requires (1) the motion to be timely; (2) an applicant’s claim or defense and the main action have a question of law or fact in common; and (3) the intervention may not cause undue delay or prejudice to the original parties’ rights. See Fed.R.Civ.P. 24(b); see also N.C.A.A. v. Governor of N.J.,
As to the first factor, Garden State’s motion is timely. Garden State moved to intervene only 14 days after the Complaint was filed. While Plaintiffs suggest that they did not have sufficient time to respond to Garden States’ briefing, the Court has provided all parties an opportunity to respond to each other’s arguments. There was more than sufficient time for Plaintiffs to address any .arguments made by Garden State before the summary judgment hearing. And, indeed, the Court afforded Plaintiffs an opportunity to submit supplemental briefing on issues they deemed important after the hearing, including on the question of the proposed intervenor’s standing.
Next, Plaintiffs contend that intervention is not necessary because Garden State’s interests are already adequately represented by Defendants. However, the presence of overlapping interests between Garden State and the State does not preclude permissive intervention. Rather, “[t]he shared interests of [Garden State] and the state defendants support [Garden State’s] argument that it shares a common question of law with the current action because it plans to defend the constitutionality of [A3371], the subject of the dispute between plaintiffs and the state defendants.” Pickup v. Brown, No. 12-2497,
Plaintiffs also contend that allowing Garden State to intervene would cause an undue delay of the resolution of Plaintiffs’ claims because it would result in additional briefing by Plaintiffs. I do not find this argument convincing. As I have already explained, Garden State’s filings in this
Accordingly, having satisfied the Rule 24(b) factors, Garden State is given leave to intervene.
III. Eleventh Amendment
In their Complaint, Plaintiffs bring parallel state constitutional claims against Defendants and they seek injunctive and declaratory relief, as well as nominal money damages. Defendants argue that the Eleventh Amendment bars Plaintiffs’ § 1983 claims for money damages and state constitutional claims. During the hearing, Plaintiffs argued that they are entitled to nominal money damages in this action should they prevail. Since Plaintiffs did not brief their position on this issue, the Court provided Plaintiffs an opportunity to submit additional briefing. Instead of any substantive response, Plaintiffs subsequently withdrew their claim for nominal damages.
Accordingly, all federal claims for monetary damages — however nominal — against Defendants in their official capacities are barred, and Plaintiffs’ state constitutional claims, i.e., Counts II and V, are dismissed.
IV. Third-Party Standing
As a jurisdictional matter, Defendants contend that Plaintiffs lack third-party standing to pursue claims on behalf of Plaintiffs’ minor clients and parents. As discussed previously, to satisfy the “case or controversy” standing requirement under Article III, a plaintiff must
It is important to bear in mind that in the jurisprudence of standing, a “litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio,
The prohibition against third-party standing, however, is not absolute. The Supreme Court has found that the principles animating these prudential concerns are not subverted if the third party is hindered from asserting its own rights and shares an identity of interests with the plaintiff. See Craig v. Boren,
Here, Plaintiffs assert constitutional claims on behalf of their minor clients and parents. To establish standing for these third parties, Plaintiffs must, in the first instance, show that they have suffered an injury. Indeed, Plaintiffs’ ability to bring third-party claims hinges on whether they suffered any constitutional wrongs by the passage of A3371.
V. First Amendment — Freedom of Speech
Plaintiffs first challenge the constitutionality of A3371 on the ground that it violates their First Amendment right to free speech, contending that the statute constitutes an impermissible viewpoint and content-based restriction on their ability to discuss and engage in SOCE. Specifically, Plaintiffs argue that the statute forbids licensed counselors from both (1) speaking on or about the subject of SOCE to their minor clients, including recommending SOCE or referring a client to SOCE, and (2) administering SOCE to their minor clients under any circumstance, regardless of the client’s informed consent to the practice. Plaintiffs posit that because psychotherapy is carried out virtually exclusively through “talk therapy,” any restriction on a therapist’s ability to engage in a particular type of therapy is therefore a restriction on that therapist’s First Amendment free speech right. Thus, Plaintiffs argue, that as a regulation of speech, A3371 cannot survive the applicable standard of review, ie., strict scrutiny.
The State rejects Plaintiffs’ interpretation of A3371, and, in particular, that the statute regulates, or implicates, speech in any form. Rather, the State claims that the statute merely restricts a licensed professional from engaging in practicing SOCE counseling, and accordingly is a rational exercise of the State’s long-recognized power to reasonably regulate the counseling professions. In that connection, the State asserts that A3371 targets conduct only, not speech. Accordingly, Defendants argue that the statute does not implicate any fundamental constitutional right and withstands rational basis review.
It is clear that the threshold issue before the Court is whether A3371 regulates constitutionally protected speech. I first determine whether the statute on its face seeks to regulate speech; I then turn to whether the statute has the effect of burdening speech or expressive conduct. Ultimately, if the statute does not implicate or burden constitutionally protected speech or expression in any manner, I apply rational basis review. If, however, the statute does seek to regulate speech or has the effect of burdening protected speech, directly or incidentally, I must determine the degree of constitutional protection afforded to, as well as the resulting burden on, that speech and then apply the appropriate standard of review.
I note that A3371 is a novel statute in New Jersey and other jurisdictions within the Third Circuit, as is the issue of whether counseling, by means of talk therapy, is entitled to any special constitutional protection. However, I do not start with a blank slate. Last year, California passed a law, SB 1172, that is virtually identical to A3371 in both language and purpose. After two district court challenges, one finding SB 1172 constitutional, Pickup v. Brown, No. 12-02497,
A. A3371 Does Not Regulate Speech
I begin by reviewing the plain language of A3371. Even a cursory review reveals that the statute nowhere references speech or communication; instead, the statute contains words and phrases that are generally associated with conduct. For example, the operative statutory language directs that a licensed counselor “shall not engage in sexual orientation change efforts,” and further defines “ ‘sexual orientation change efforts’ ” as “the practice of seeking to change a person’s sexual orientation.” N.J.S.A. 45:1-55 (emphasis added). Such language is commonly understood to refer to conduct, and not speech, expression, or some other form of communication. See, e.g., Barnes v. Glen Theatre, Inc.,
808, 814 n. 8 (3d Cir.1982) (finding that Pennsylvania statute regulating the bidding, distribution, screening, and exhibition of motion pictures to have “no facial impact upon speech”); United States v. Elcom Ltd.,
• Prevent mental health providers from communicating with the public about SOCE
• Prevent mental health providers from expressing their views to patients, whether children or adults, about SOCE, homosexuality, or any other topic
• Prevent mental health providers from recommending SOCE to patients, whether children or adults
• Prevent mental health providers from administering SOCE to any person who is 18 years of age or older
• Prevent mental health providers from referring minors to unlicensed counselors, such as religious leaders
• Prevent unlicensed providers, such as religious leaders, from administering SOCE to children or adults
• Prevent minors from seeking SOCE from mental health providers in other states
In that regard, although Plaintiffs do not meaningfully advance an argument that A3371 regulates speech per se, Plaintiffs nevertheless contend that A3371 clearly targets speech by virtue of the statute’s application solely to licensed counselors. According to Plaintiffs, SOCE counseling necessarily implicates speech because “SOCE counseling is talk therapy.” See Deel. of Dr. Tara King, ¶ 12;
SOCE counseling consists of discussions with the client concerning the nature and cause of their unwanted same-sex sexual attractions, behaviors, or identity; the extent of these attractions, behaviors, or identity; assistance in understanding traditional, gender-appropriate behaviors and characteristics; and assistance in fostering and developing those gender-appropriate behaviors and characteristics.
Decl. of Dr. Joseph Nicolosi, ¶ 10. Similarly, during oral argument, counsel for Plaintiffs stated that SOCE therapists “simply talk to [their clients] ... about what their ultimate objectives are, and they would try to give them support to reach that objective, which in this case would be change.” Tr., T18:18-23. Plaintiffs further stress that they do not use any “aversion techniques”
Plaintiffs’ argument rests entirely on the premise that SOCE counseling, in the form of talk therapy, is “speech” in the constitutional sense. Indeed, Plaintiffs, both in their papers and at argument, essentially treat this premise as self-evident, spending little time explaining why talk therapy is properly considered constitutionally protected speech rather than conduct. I believe a more far-reaching analysis is required because, as explained in more detail infra, “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co.,
I begin with the statutory framework in which A3371 is found: Subtitle 1 of Title 45 of the New Jersey Statutes, governing “Professions And Occupations Regulated By State Boards Of Registration And Examination.” N.J.S.A. 45:1-55. Indeed, A3371 expressly provides that the statute only applies to: “A person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including,
Section 45:14B-2 of the New Jersey Statute covers psychologists and defines the “practice of psychology” as “the rendering of professional psychological services,” which in turn are defined as “the application of psychological principles and procedures in the assessment, counseling or psychotherapy of individuals for the purposes of promoting the optimal development of their potential or ameliorating their personality disturbances and maladjustments as manifested in personal and interpersonal situations.” More simply put, this statute regulates licensed psychologists’ “application of psychological principles and procedures” to their clients. Because the statute targets the application of principles and procedures, and not any speech, I view this as a regulation of treatment, ie., conduct. In that sense, counseling, as it arises in the context of psychology, is identified as one of the vehicles for psychological treatment, not a form of speech or expression. It would therefore appear that the means through which counseling is carried out by a psychologist — ie., whether through talk therapy or actions — is immaterial for the purposes of this statutory definition; the relevant inquiry is whether the psychologist is applying psychological principles and procedures. Similar conclusions can be drawn from other New Jersey statutes regulating the professions and occupations covered by A3371, as these statutes abound with references to counseling as the application of established sociological or psychological methods, principles, and procedures.
Notably, by their own admission, Plaintiffs define SOCE counseling as being “no different than any other form of mental health counseling,” involving “the traditional psychodynamic process of looking at root causes, childhood issues, developmental factors, and other things that cause a person to present with all types of physical, mental, emotional, or psychological issues that in turn cause them distress.” Decl. of Dr. Tara King, ¶ 12. Accordingly, I find that the mere fact that counseling may be carried out through talk therapy does not alter my finding that A3371 regulates conduct and not speech.
Additional support for this conclusion comes from the Ninth Circuit’s decision in Pickup.
Because SB 1172 regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against, SOCE, we conclude that any effect it may have on freespeech interests is merely incidental. Therefore, we hold that SB 1172 is subject to only rational basis review and must be upheld if it “bear[s] ... a rational relationship to a legitimate state interest.”
Pickup,
Plaintiffs dispute the relevancy and persuasiveness of Pickup, contending that the panel misapplied controlling Ninth Circuit and Supreme Court precedent when it concluded that SB 1172, a law regulating SOCE therapy, is not a regulation of speech, notwithstanding that, as here, therapy in California is carried out almost entirely through “talk therapy.” Plaintiffs further argue that even if the Pickup panel properly concluded that a statute like A3371 regulates conduct with only an “incidental” impact on speech, the panel nevertheless erred when it applied rational basis review rather than the more demanding O’Brien test in upholding the statute. See United States v. O’Brien,
I have already independently concluded that A3371 regulates conduct, not speech, and thus I need not devote much time to Plaintiffs’ argument that the Pickup panel, in its analysis of whether SOCE therapy is conduct, not speech, erred when harmonizing the Ninth Circuit’s previous holdings in National Association for the Advancement of Psychoanalysis v. California Board of Psychology,
To begin, the Ninth Circuit, in Pickup, aptly explained that “the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech. That psychoanalysts employ speech to treat their clients does not entitle them, or their profession, to special First Amendment protection.” Pickup,
The Pickup panel distilled several principles applicable to the state’s authority and limits in regulating the therapist-client relationship:
(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.
Id.
Although to some extent Plaintiffs take issue with all three of these “principles,” the most salient to their challenge in this case is the second that psychotherapists are not entitled to special First Amendment protection merely because they use the spoken word as therapy. See, e.g., PI. Reply at 2. This argument is merely a corollary of Plaintiffs’ contention that “counseling,” by its very nature, is constitutionally protected speech. I have already explained why this is not so for the purposes of A3371. The same rationale extends to why psychotherapists, and other similarly regulated professionals, are not entitled to blanket First Amendment protection for any and all conversations that occur in the counselor-client relationship. To be clear, the line of demarcation between conduct and speech is whether the counselor is attempting to communicate information or a particular viewpoint to the client or whether the counselor is attempting to apply methods, practices, and procedures to bring about a change in the client—the former is speech and the latter is conduct.
However, there is a more fundamental problem with Plaintiffs’ argument, because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services. See Watson v. Maryland,
Finally, I address Plaintiffs’ reliance on Wollschlaeger v. Farmer, in which the court found that a Florida law preventing doctors from inquiring into a patient’s
For the foregoing reasons, I conclude that A3371 on its face does not target speech, and “counseling” is not entitled to special constitutional protection merely because it is primarily carried out through talk therapy. Thus, I find that A3371 does not seek to regulate speech; rather the statute regulates a particular type of conduct, SOCE counseling.
B. Level of Scrutiny — Rational Basis Review Applies
Having determined that A3371 regulates conduct, I must still determine if the statute carries with it any incidental effect on speech. Plaintiffs argue that because the conduct being regulated by A3371-SOCE counseling — is carried out entirely through speech, the statute necessarily has, at the very least, an incidental effect on speech and thus, a heightened level of judicial scrutiny applies.
In O’Brien, the Supreme Court addressed a federal law that made it a criminal offense to forge, alter, knowingly destroy, knowingly mutilate, or in any manner change a draft card. O’Brien,
Thus, the inquiry into whether O’Brien’s intermediate scrutiny review is appropriate turns on whether the alleged conduct falls within the scope of the First Amendment’s right to freedom of expression, and extends only to “conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative [as] [s]ymbolic expression, otherwise known as expressive conduct.” Barbnicki,
On the other hand, as I have noted herein, “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney,
Plaintiffs themselves discuss SOCE as a type of therapy, intended to bring about some form of change in the client. See, e.g., Decl. of Dr. Tara King, ¶ 12 (discussing SOCE as a form of counseling involving the “traditional psychodynamic process” to effect “change” in the client’s sexual orientation); Decl. of Dr. Ron Newman, ¶ 8 (“I also believe that change is possible and have personally counseled individuals who have successfully reduced or eliminated their unwanted same-sex attractions, behaviors, or identity.”); Decl. of Dr. Joseph Nicolosi, ¶ 11 (discussing SOCE as a means to eliminate or reduce a client’s unwanted same-sex sexual attractions).
Moreover, SOCE counseling is not like other forms of conduct traditionally found to be “inherently expressive,” such as the burning of a draft card in OBrien or the burning of a flag in Texas v. Johnson,
“Where rational basis review is appropriate, a statute withstands a substantive due process challenge if the state identifies a legitimate state interest that the legislature rationally could conclude was served by the statute.”
Here, the State’s professed interest is in protecting minors from professional counseling it deems harmful. It is beyond debate that the State has an interest in protecting vulnerable groups, Washington,
• “Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming”;
• “[S]exual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people”;
• “[T]he [American Psychological Association] advises parents, guardians, young people, and their families to avoid sexual orientation change efforts that portray homosexuality as a mental illness or developmental disorder”;
• “The American Academy of Pediatrics in 1993 published an article in its journal, Pediatrics, stating: ‘Therapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation’ ”; and
• “The American Academy of Child and Adolescent Psychiatry in 2012 published an article in its journal, Journal of the American Academy of Child and Adolescent Psychiatry, stating: ‘Clinicians should be aware that there is no evidence that sexual orientation can be altered throughtherapy, and that attempts to do so may be harmful
Id. It is also immaterial that some of the legislature’s findings and declarations address SOCE with respect to adults, as opposed to minors. It is certainly rational for the legislature to believe that the potential harms that attend SOCE for adults exist at least equally for minors. See Scavone,
Similarly, A3371’s prohibition on the practice of SOCE counseling is rationally related to the harm the statute seeks to prevent. A3371 targets only licensed professionals who engage in professional counseling of minors, and restricts them from performing the specific type of conduct — SOCE counseling — the legislature deemed harmful. This nexus is more than adequate to satisfy rational basis review. Id.
In sum, I conclude that: (1) A3371 on its face does not target speech; (2) “counseling” is not constitutionally protected speech merely because it is primarily carried out through talk therapy; (3) no speech or expressive conduct is incidentally burdened by A3371’s prohibition, and thus (4) rational basis review is appropriate for adjudging the statute’s constitutionality, which is easily satisfied by the stated legislative findings and the statute’s purpose.
C. A3371 is Neither Vague Nor Over-broad
In connection with their free speech challenge, Plaintiffs also assert that A3371 is both unconstitutionally vague and overbroad. These arguments are grounded in Plaintiffs’ contention that A3371 regulates speech. Having determined that A3371 covers conduct only, the majority of Plaintiffs’ arguments in this regard no longer apply. I nevertheless address whether, as an otherwise constitutionally permissible, rational regulation of conduct, A3371 is impermissibly vague or over-broad.
1. Vagueness
Plaintiffs contend that A3371 is unconstitutionality vague because Plaintiffs do not know what type of speech or conduct is actually prohibited by the statute. The “vagueness inquiry is grounded in the notice requirement of the Fourteenth Amendment’s due process clause.” J.S. v. Blue Mt. Sch. Dist.,
Moreover, in the context of a statutory proscription that purports to regulate a targeted industry or profession, a slightly different type of analysis applies: “if the statutory prohibition involves conduct of a select group of persons having specialized knowledge, and the challenged phraseology is indigenous to the idiom of that class, the standard is lowered and a court may uphold a statute which uses words or phrases having a technical or other special meaning, well enough known to enable those within its reach to correctly apply them.” United States v. Weitzenhoff
Plaintiffs contend that the term “sexual orientation” and the phrase “sexual orientation change efforts” are impermissibly vague. The latter challenge can be quickly dismissed, as it is based on, and significantly overlaps with, Plaintiffs’ substantive free speech challenge. Indeed, Plaintiffs’ primary theory in this case is that it is unclear whether under A3371 Plaintiffs can talk about SOCE to their clients, even if they are not engaging in actual SOCE. Plaintiffs thus argue that A3371 burdens speech because Plaintiffs will either be chilled from, or disciplined for, merely speaking about SOCE. As my earlier discussion makes clear, the reasonable reading of A3371, as well as the State’s position throughout this litigation, limits the application of the statute to the actual practice of SOCE. This limitation resolves Plaintiffs contention that SOCE, as a phrase, is unconstitutionally vague.
The statute defines SOCE by providing an illustrative list of practices: “ ‘sexual orientation change efforts’ means the practice of seeking to change a person’s sexual
Nothing in A3371 prevents a counselor from mentioning the existence of SOCE, recommending a book on SOCE or recommending SOCE treatment by another unlicensed person such as a religious figure or recommending a licensed person in another state. The statute does not require affirmation of a patient’s homosexuality. Even if, “at the margins,” there is some conjectural uncertainty as to what the statute proscribes, such uncertainty is insufficient to void the statute for vagueness because “it is clear what the statute proscribes in the vast majority of its intended applications,” namely counseling intended to alter a minor patient’s sexual orientation. See Cal. Teachers Ass’n v. State Bd. of Educ.,
Plaintiffs also challenge the term “sexual orientation,” noting that it is undefined in the statute, and citing the APA Task Force that explained that “[s]ame-sex sexual attractions and behavior occur in the context of a variety of sexual orientations ... and ... is fluid or has an indefinite outcome.” Plaintiffs reason that because the term “sexual orientation” has subjective and interchanging meanings, its usage in the challenged statute makes the statute vague. I am not persuaded that the term “sexual orientation” is unconstitutionally vague.
Plaintiffs, in their own declarations, demonstrate that they understand what the term sexual orientation means and how that term relates to the conduct prohibited by A3371. See, e.g., Decl. of Dr. Tara King, ¶ 4 (“We offer counseling on numerous issues, including ... sexual orientation change efforts”) id., ¶ 5 (“I am a former lesbian who went through SOCE counsel
Canvassing case law on this subject, I have found several courts that have determined that the term sexual orientation is not unconstitutionally vague. See Hyman v. City of Louisville,
2. Overbreadth
Plaintiffs lastly raise an over-breadth claim to A3371 as part of their First Amendment free speech challenge to the statute. Under the overbreadth doctrine, a law affecting speech will be deemed invalid on its face if it prohibits “a substantial amount of constitutionally protected speech.” City of Houston v. Hill,
Moreover, the overbreadth doctrine is more appropriately raised by a party “whose own activities are unprotected ... [to] challenge a statute by showing that it substantially abridges the rights of other parties not before the Court.” Schaumburg v. Citizens for a Better Env’t,
Unless it appears that “any attempt to enforce ” the challenged legislation “would create an unacceptable risk of the suppression of ideas,” a court should declare an entire statute invalid on its face only if the record indicates that the challenged statute will have a different impact upon third parties not before the court than it has upon the plaintiffs.
Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio,
Here, the State has represented throughout this litigation that it only intends to enforce A3371 against licensed professionals who actually conduct SOCE as a method of counseling, not against those who merely discuss the existence of SOCE with their clients. Because A3371 is constitutional with respect to its prohibition of the practice of SOCE, as explained supra in this Opinion, there exists at least one constitutional means of enforcing the statute. Thus, on this basis alone, Plaintiffs’ overbreadth challenge fails. Florio,
VI. First Amendment — Free Exercise of Religion
Plaintiffs maintain that in addition to their speech being unlawfully constrained, A3371 infringes on their First Amendment right to exercise their sincere
Under the First Amendment, “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.” Conestoga Wood Specialties Corp. v. Sec’y of the United States HHS,
Government action is not neutral and generally applicable if it burdens religious conduct because of its religious motivation, or if it burdens religiously motivated conduct but exempts substantial comparable conduct that is not religiously motivated. See Hialeah,
Here, A3371 makes no reference to any religious practice, conduct, or motivation. Therefore, on its face, the statute is neutral. Plaintiffs argue that the provisions of A3371 will disproportionately affect those motivated by religious belief because A3371 effectively engages in impermissible “religious gerrymandering” by providing individualized exemptions from the general prohibitions. Plaintiffs identify these categories of exemptions: (1) minors seeking to transition from one gender to another; (2) minors struggling with or confused about heterosexual attractions, behaviors, or identity; (3) counseling that facilitates exploration and development of same-sex attraction, behaviors, or identity; (4) individuals over the age of 18 who are seeking to reduce or eliminate same-sex attraction; and (5) counseling provided by unlicensed
To begin, there can be no serious doubt that the Legislature enacted A3371 because it found that SOCE “poses critical health risks” to minors. See N.J.S.A. 45:1-54. By doing so, the Legislature exercised its regulatory powers to prohibit licensed mental health professionals in New Jersey from engaging in SOCE. There is no indication in the record that religion was a motivating factor in the passage of A3371. In fact, Plaintiffs have not suggested that the Legislature was motivated by any religious purpose. From its plain language, the law does not seek to target or burden religious practices or beliefs. Rather, A3371 bars all licensed mental health providers from engaging in SOCE with minors, regardless of whether that provider or the minor seeking SOCE is motivated by religion or motivated by any other purpose. Plainly, A3371 is neutral in nature. See Brown v. City of Pittsburgh,
The statute is also generally applicable because A3371 does not suppress, target, or single out the practice of any religion because of religious conduct. At the outset, the Court disagrees with Plaintiffs’ characterization that A3371 carves out certain exceptions. Rather, those “exemptions” are areas that A3371 does not seek to regulate because they fall outside the purpose of the statute. Nevertheless, addressing Plaintiffs’ arguments, the “exemptions” to which Plaintiffs point do not undermine the purposes of the law. According to Plaintiffs, the first “exemption” in A3371 is for “counseling for a person seeking to transition from one gender to another”; that is, counseling not related to changing sexual orientation or gender identity, but toward assisting someone seeking to live consistently with his or her gender identity. This exemption does not undermine the purposes of A3371. In fact, it is consistent with the Legislature’s concern that conversion therapy is harmful. Next, that unlicensed counselors are not covered by the statute also does not undermine the purpose of the statute. As the Court has discussed earlier, pursuant to its police power, the State only aimed to regulate those professionals who are licensed. Stated differently, it is the State’s role to regulate its professionals — medical or otherwise — and therefore, because unlicensed professionals do not fall within the State’s comprehensive regulatory schemes, this type of “exemption” neither undermines the statute’s purpose nor does it somehow change the statute’s general applicability.
Moreover, to the extent that the Legislature distinguished between SOCE provided to minors and adults, this distinction does not render the law not generally applicable. Indeed, because the Legislature determined, pursuant to its regulatory powers, that SOCE treatment poses serious health risks to minors, the limited reach of the statute does not change the nature of the statute, particularly in light of the fact that the Legislature has a strong interest in protecting minors, a vulnerable group in society. See, supra, p.
Lastly, Plaintiffs argue that even if A3371 is a neutral and generally applicable law, A3371 is nevertheless subject to strict scrutiny as a violation of the “hybrid rights” doctrine. I summarily reject Plaintiffs’ invitation to apply the hybrid rights doctrine, as the Third Circuit has declined to apply this theory to Free Exercise claims. Brown,
Count IV of the Complaint is dismissed.
VII. CONCLUSION
For the reasons set forth above, Garden State’s motion for permissive intervention is GRANTED. Plaintiffs’ motion for summary judgment is DENIED. Defendants’ cross motion for summary judgment is GRANTED in its entirety. Accordingly, all of Plaintiffs’ federal and state constitutional claims against Defendants are DISMISSED, and Plaintiffs have no standing to bring any third party claims on behalf of their minor clients and the clients’ parents.
. At the time Plaintiffs brought this suit, Assembly Bill A3371 had not been codified as a statute, and thus, the parties refer in their papers to the now-codified statute as A3371. In this Opinion, the Court will interchangeably use A3371 or N.J.S.A. 45:1-54.-55.
. Challengers of the California statute were unsuccessful in overturning the law. The Ninth Circuit Court of Appeals, in Pickup v. Brown,
.There is no dispute that NARTH and AACC have associational standing to bring claims on behalf of their members.
. Within the last week, a minor client and his parents, represented by the same counsel as represents Plaintiffs here, filed a similar lawsuit against Defendants challenging the constitutionality of A3371. This matter also is assigned to me. See Doe v. Christie, et al., Civ. No. 13-6629(FLW).
. It is important to note that A3371 does not prohibit non-licensed counselors or therapists, including non-licensed religious counselors, from practicing SOCE.
. During a teleconference, counsel for Plaintiffs indicated that they were objecting to Garden State’s motion to intervene; however, counsel did not object to Garden State's alternative request to enter the litigation as amicus.
. Suggesting that the Third Circuit requires a proposed intervenor to satisfy standing, Plaintiffs rely on Frempong v. Nat’l City Bank of In.,
. It bears noting that the recent Supreme Court decision in Hollingsworth v. Perry, - U.S.-,
. To the clear, an intervenor, by right or permission, normally has the right to appeal an adverse final judgment by a trial court, just as any other party. Stringfellow v. Concerned Neighbors in Action,
. Indeed, it is clear that the Eleventh Amendment bars suits for damages, pursuant to 42 U.S.C. § 1983, against state officials sued in their official capacities. The Eleventh Amendment provides "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. It is beyond cavil that the Eleventh Amendment protects states and their agencies and departments from suit in federal court. See Bayete v. Ricci,
. Under the Eleventh Amendment, unlike federal claims seeking prospective injunctive relief, Plaintiffs may not bring state law claims — including state constitutional claims — against the State regardless the type of relief it seeks. See Pennhurst State Sch. & Hosp. v. Halderman,
. Plaintiffs concede that their ability to bring third-party claims depends upon whether they have suffered any injuries as a result of the passage of A3371. See T8:17-T917.
. Plaintiffs point out that the Ninth Circuit has directed the parties involved in the California statute litigation to brief whether en banc review of the panel’s decision would be appropriate. As of the date of this Opinion, however, no order for en banc review has issued.
. I pause briefly to note that, following oral argument in this matter, Plaintiffs filed a motion to "Reconsider Dispensing of Evidence and Deem Certain Facts Admitted.” See Dkt. No. 50. The thrust of Plaintiffs’ motion is twofold: (1) for the Court to reconsider its ruling that it would not consider evidence submitted in connection with Plaintiffs’ summary judgment motion, and (2) to deem the facts in Plaintiffs’ Complaint admitted by virtue of the State’s failure to timely file an answer. Both of these arguments are without merit.
First, Plaintiffs are mistaken in their belief that I have made any ruling with respect to consideration of their supporting declarations and other evidence. At oral argument, in a colloquy with Plaintiffs' counsel, I made clear that I would consider declarations from the named Plaintiffs as "they are absolutely relevant.” Tr., T59:25-T60:8. I explicitly stated that "I’m taking [Plaintiffs’] declarations,” and that "[i]f I find something in there that shouldn’t be considered, I’ll make a note of it.” Id. at T60:12-14. With respect to other declarations and evidence filed by Plaintiffs and Intervenor, I noted that there were volumes of submissions and objections, but that I was not making any rulings on the admissibility of the submitted evidence unless and until I determined that such evidence was necessary and appropriate to deciding the issues in this matter. Id. at T58:12-59:3. In that connection, I explained that the law was clear that if I were to find rational basis review applies to A3371, it would be unnecessary to consider evidence beyond the legislature’s stated findings, and thus there is no reason to prematurely decide the admissibly of such evidence. Id. at T59:4-ll. Accordingly, there is no basis for Plaintiffs’ reconsideration motion, and Plaintiffs’ motion is denied in that regard.
Second, Plaintiffs are not entitled to have certain facts in their Complaint be deemed admitted. Initially, Plaintiffs filed their Complaint accompanied by a motion for a preliminary injunction. Following a conversation with counsel for Plaintiffs and the State on August 27, 2013, the parties agreed that (1) the Complaint presented a legal issue only, (2) Plaintiffs’ motion should be treated as one for summary judgment, and (3) the State should be given the opportunity to file its own cross-motion for summary judgment. See Dkt. No. 13. Under the Federal Rules of Civil Procedure, the time in which a party must file a responsive pleading to a claim is tolled if that party elects to instead file a motion to dismiss. See Fed.R.Civ.P. 12(a)(4). In that connection, Rule 12 also permits a court to convert a motion to dismiss into one for summary judgment if evidence has been presented along with the motion. In light of Rule 12, and given the atypical procedural developments in this matter, the State is not yet required to file an answer to the Complaint. Accordingly, Plaintiffs' motion to deem admitted facts in the Complaint is denied.
. As Plaintiff King explained in her declaration, "aversion techniques, such as electroshock treatments, pornographic viewing, nausea-inducing drugs, etc. are unethical methods of treatment that have not been used by any ethical and licensed mental health professional in decades.” Decl. of Dr. Tara King, ¶ 12; see also Pickup,
. E.g., NJ. Stat. Ann. 45:8B-2(b) ("The practice of marriage and family therapy consists of the application of principles, methods and techniques of counseling and psychotherapy for the purpose of resolving psychological conflict, modifying perception and behavior, altering old attitudes and establishing new ones in the area of marriage and family life.”); id. at 45:15BB-3 ("'Clinical social work’ means the professional application of social work methods and values in the assessment and psychotherapeutic counseling of individuals, families, or groups. Clinical social work services shall include, but shall not be limited to: assessment; psychotherapy; client-centered advocacy; and consultation.”); id. (" 'Psychotherapeutic counseling' means the ongoing interaction between a social worker and an individual, family or group for the purpose of helping to resolve symptoms of mental disorder, psychosocial stress, relationship problems or difficulties in coping with the social environment, through the practice of psychotherapy.”); id. (" 'Social work counseling’ means the professional application of social work methods and values in advising and providing guidance to individuals, families or groups for the purpose of enhancing, protecting or restoring the capacity for coping with the social environment, exclusive of the practice of psychotherapy.”); id. at 45:2D-3 (" 'Alcohol and drug counseling’ means the professional application of alcohol and drug counseling methods which assist an individual or group to develop an understanding of alcohol and drug dependency problems, define goals, and plan action reflecting the individual’s or group’s interest, abilities and needs as affected by alcohol and drug dependency problems.”); cf. id. at 45:9-5, (covering psychiatrists and defining "the practice of medicine and surgery” to "include the practice of any branch of medicine and/or surgery, and any method of treatment of human ailment, disease, pain, injury, deformity, mental or physical condition”); id. at 45:11-23(b) ("The practice of nursing as a registered professional nurse is defined as diagnosing and treating human responses to actual or potential physical and emotional health problems, through such services as casefinding, health teaching, health counseling, and provi
. Although I have already noted that the Pickup case is not binding, it is significant in that it addresses California statute SB 1172, which is virtually identical to A3371, and appears to be the only Court of Appeals decision analyzing the relationship between conduct and speech in the psychotherapy context. Indeed, both parties have devoted substantial argument to the Pickup panel’s reasoning and its applicability to this case.
. The Wollschlaeger court relied on evidence that "as part of the practice of preventive medicine, practitioners routinely ask and counsel patients about a number of potential health and safety risks,” including firearms, and that the Florida law "interfere[d] in the doctor-patient relationship and ha[d] resulted in diminished efficacy of [physicians’] practice of preventive medical care.”
. Furthermore, here, the State has determined that the - potential harm to minors from SOCE, however slight, is sufficient to outweigh any potential benefits. In that connection, I note that Plaintiffs themselves acknowledge that there is a dearth of non-anecdotal evidence to support the success rate, and benefits of SOCE. Thus, unlike the Florida law precluding doctors from ascertaining medically relevant information from their patients, the circumstances here are more akin to a state finding physician assisted suicide to be harmful and enacting a law to prohibit its practice. Because there is no constitutional right to practice a particular type of medical or mental health treatment, A3371's prohibition of a particular form of counseling in which counselors apply therapeutic principles and procedures similarly does not implicate fundamental constitutional rights. See Washington,
.Plaintiffs similarly challenge the Pickup panel's conclusion that the California law, SB
. Ultimately, the O'Brien court found that the government’s interest in preventing the destruction of draft cards was sufficiently important, and unrelated to the suppression of free expression, to justify the federal law. O’Brien,
. The Third Circuit has explained that Plaintiffs have the burden of showing whether conduct is expressive. See Troster v. Pennsylvania State Dep't of Corr.,
. Moreover, Plaintiffs repeatedly point out that they only engage in SOCE with clients who approach them seeking such a change; indeed, Plaintiffs explain that it would be unethical for them to try to impose their own personal viewpoint on a client. See, e.g., Decl. of Dr. Tara King, ¶ 10 ("It is unethical to attempt to impose any kind of ideology or framework on a client in counseling, so I do not even raise SOCE discussions unless a client wants to engage in such counseling.”); id., ¶¶ 12-13; Decl. of Dr. Joseph Nicolosi, ¶¶ 7-8.
. In Bartnicki v. Vopper,
. Because I have rejected Plaintiffs' First Amendment free speech challenge, my analysis here turns on whether there is any substantive due process violation.
. The Third Circuit has repeatedly cautioned that a court engaging in rational basis review is not entitled
to second guess the legislature on the factual assumptions or policy considerations underlying the statute. If the legislature has assumed that people will react to the statute in a given way or that it will serve the desired goal, the court is not authorized to determine whether people have reacted in the way predicted or whether the desired goal has been served.
Sammon,
. Beyond that, the Supreme Court has recognized that "[t]he mental health of our citizenry, no less than its physical health, is a public good of transcendent importance,” Jaffee v. Redmond,
. For that reason, I need not consider the additional evidentiary submissions filed by Plaintiffs and Intervenor, and thus I need not rule on their admissibility. See supra, fn. 15.
. The statute further provides that " '[sjexual orientation change efforts’ shall not include ... counseling that (1) provides acceptance, support, and understanding of a person or facilitates a person’s coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, and (2) does not seek to change sexual orientation.” N.J.S.A. 45:1 — 55(b).
. For similar reasons, I reject Plaintiffs' reliance on Keyishian v. Board of Regents of University of State of N.Y.,
. For the same reason, I am unpersuaded by Plaintiffs’ reliance on the recent revision of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Health Disorders, DSM-V. See PL Supp. Authority, Dkt. No. 55. According to Plaintiffs, the DSM-V initially classified pedophilia as "sexual orientation,” but then later changed the classification to "sexual interest,” which Plaintiffs claim shows that the definition of sexual orientation is constantly changing. As the State correctly points out, and indeed, Plaintiffs’ own filing shows, the APA released a statement explaining that the initial classification of pedophilia as a sexual orientation was merely a typographical error. Thus, Plaintiffs’ claim that sexual orientation lack clear definition based on the DSM-V is merit-less, and in fact, borders on being frivolous.