In the News Law360

NJ Fights Latest Challenge To Gay Conversion Therapy Ban

New Jersey and a civil rights organization urged the Third Circuit on Monday to sink another appeal over a state law banning the use of “conversion therapy” to alter the sexual orientation of minors, arguing that an earlier decision from the court derails the plaintiffs' arguments.

The state and Garden State Equality are hoping the Third Circuit will follow through with its ruling in King v. Governor of New Jersey and back U.S. District Judge Freda T. Wolfson's dismissal in July of the suit filed on behalf of a “John Doe” minor by his parents, identified as “Jack and Jane Doe.”

“[The statute] fully comports with the Constitution and advances the interests of New Jersey residents by prohibiting licensed mental health providers from practicing a form of mental health treatment on minors that has been found harmful,” the state said in its brief.

The parents filed suit to upend a law that Gov. Chris Christie signed in August 2013 to ban counselors from treating minors using a controversial therapy technique aimed at changing sexual orientation. Judge Wolfson booted the claims of constitutional infringement, as she did in the related King case brought by two therapists and two organizations. While it disagreed with elements of the lower court's analysis, the Third Circuit affirmed that decision in September.

“The statute, as a regulation of professional speech, is subject to intermediate scrutiny,” the state said in its brief. “And because it directly advances the state’s substantial interest in protecting minors from a harmful medical practice and is not more extensive than necessary to serve that interest, the regulation survives intermediate scrutiny as this court found in King v. Governor...”

In its September ruling, the Third Circuit panel agreed with the therapists' contention that the ban on conversion therapy infringed their constitutional right to free speech, challenging the state's argument — affirmed by the district court — that the law regulated professional conduct, not speech, even if the treatment is based in talk therapy.

However, the appellate court affirmed the statute, ruling the state had a substantial interest in protecting its citizens from harmful or ineffective medical practices, and the therapists' rights had limited protection within the scope of its use as talk therapy by state-licensed practitioners.

According to Garden State Equality, the Third Circuit rejected virtually all of the parents' arguments in its King decision.

“And the only argument not expressly addressed in that opinion, that appellants’ right to receive information is violated, necessarily fails under King because there is no constitutional right to receive information that may be validly proscribed by the state,” GSE added in its brief.

While Jack and Jane Doe have contended that the law infringes on their right to oversee how their child is raised, the law doesn't actually regulate parents, according to GSE. The organization further states in the brief that parental rights aren't absolute and that the state can adopt reasonable regulations to protect the health and safety of children.

Attorneys for the parents did not immediately return a request for comment on Tuesday.

Jack and Jane Doe filed their suit a week prior to Judge Wolfson issuing her opinion in the King matter, but the plaintiffs decided to continue the litigation even after the opinion was released. The judge was not convinced the facts were any different when presented on behalf of parents claiming the law restricts them from parenting their child as they see fit.

The judge continued to point to the same evidence that led Christie to sign the law, studies claiming the therapy is ineffective at best and potentially traumatic at worst. The Does are no more constitutionally protected in choosing any treatment for their child than therapists are protected in choosing any treatment for a patient, the judge said.

The state of New Jersey parties are represented by Deputy Attorneys General Susan M. Scott and Eric S. Pasternack and Assistant Attorney General Lisa A. Puglisi.

Garden State Equality is represented by David S. Flugman, Frank M. Holozubiec, Shireen A. Barday, Andrew C. Orr and Andrew J. Welz of Kirkland Ellis LLP; Michael Gluck and Andrew Bayer of GluckWalrath LLP; and Shannon P. Minter, Christopher F. Stoll and Amy Whelan of the National Center for Lesbian Rights.

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 case is John Doe et al v. Chris Christie et al, case numbers 14-1941 and 14-3495 before the U.S. Court of Appeals for the Third Circuit.