The Third Circuit on Thursday affirmed a lower court ruling upholding a New Jersey law prohibiting licensed counselors from treating minors with "conversion therapy" to change their sexual orientation, despite concerns about restricting the therapists’ free speech rights.
Although the three-judge panel upheld the ruling, it disagreed with a New Jersey federal court that state Assembly bill A3371, which prohibits the use of conversion therapy for anyone under the age of 18, regulated professional conduct rather than constitutionally protected speech, even if the treatment is largely conducted through talk therapy.
While the law did impinge on the therapists’ free speech rights, those rights were afforded limited protection because the therapists were speaking as state-licensed professionals in a professional relationship, and the state had a substantial interest in protecting its citizens from harmful or ineffective medical practices, the panel found.
“While the function of this speech does not render it ‘conduct’ that is wholly outside the scope of the First Amendment, it does place it within a recognized category of speech that is not entitled to the full protection of the First Amendment,” according to the opinion.
Two therapists and two organizations sought to overturn the bill prohibiting the use of conversion therapy, also called sexual orientation change efforts, to help minors alter their sexual orientation, alleging it restricted their First Amendment rights to free speech and free exercise of religion and Fourteenth Amendment right to due process.
In November 2013, U.S District Judge Freda L. Wolfson dismissed the suit, finding the therapists weren’t entitled to any free speech protection because the law regulated their professional conduct in treating patients.
In July, attorneys for the plaintiffs told the Third Circuit that the law puts therapists at risk of losing their licensure for dispensing advice aligned with their religious beliefs.
The panel said the district court’s focus on whether the counseling is speech or conduct obscured the more important constitutional question of how much First Amendment protection should be given to speech used in the practice of a licensed profession.
The panel agreed with the plaintiffs that the law discriminates on the basis of the content of speech, but ruled that it doesn’t trigger strict scrutiny.
The panel ruled that such speech is entitled to an intermediate level of protection, similar to commercial speech, because it provides valuable information that might not otherwise reach the public and has traditionally been subject to government regulation.
Mental health professionals must communicate with clients in the course of therapy, and limiting the state’s ability to regulate a profession when speech is involved would “unduly undermine its authority to protect its citizens from harm," the panel said.
The law furthered a substantial state interest to protect its citizens, in light of professional and scientific opinion that conversion counseling was ineffective and potentially harmful to clients, the panel said. In addition, the statute was sufficiently tailored to advance that interest, the panel ruled.
The panel also backed the district court’s ruling that the law doesn’t violate the therapists’ right to free exercise of religion, because it is a neutral and generally applicable law that is rationally related to the state’ interest in protecting minors.
Matthew D. Staver of Liberty Counsel, who represents the plaintiffs, told Law360 on Thursday that the panel’s decision sets up a potential hearing of the case by the U.S. Supreme Court, because of a conflict with a 2013 Ninth Circuit ruling affording greater protection to professional speech.
The panel’s comparison of professional speech to commercial speech also could interest the high court, Staver said.
“I believe that’s a new issue that’s never been addressed by the Supreme Court,” Staver said.
Andrea Bowen, executive director of Garden State Equality, a group that intervened in the suit in 2013, said in a statement Thursday that the decision was a "major victory" for minors protected from the therapy.
“No one should subject minors to conversion therapy — least of all state-licensed clinicians responsible for the care and well-being of their patients," Bowen said.
U.S. Circuit Judges D. Brooks Smith, Thomas I. Vanaskie and Dolores Sloviter sat on the panel for the Third Circuit.
The plaintiffs are represented by Mathew D. Staver, Anita L. Staver, Mary E. McAlister and Daniel J. Schmid of Liberty Counsel and Demetrios K. Stratis.
The state of New Jersey parties are represented by Deputy Attorneys General Susan M. Scott and Eric S. Pasternack and Assistant Attorney General Robert T. Lougy.
Garden State Equality as an intervenor is represented by Shannon P. Minter and Christopher F. Stoll of the National Center for Lesbian Rights, Shireen A. Barday, David Flugman, Frank M. Holozubiec and Andrew C. Orr of Kirkland & Ellis LLP and Andrew Bayer of Gluck Walrath LLP.
The case is Tara King, et al. v. Christopher J. Christie, case number 13-4429, in the Third Circuit Court of Appeals.
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