3:13-cv-06629 #17

Case 3:13-cv-06629-FLW-LHG Document 17 Filed 12/06/13 Page 1 of 3 PageID: 509
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOHN DOE by and through JACK DOE and JANE DOE, et al., Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Defendant. PROPOSED INTERVENOR-DEFENDANT GARDEN STATE EQUALITYS NOTICE OF MOTION TO DISMISS AND/OR FOR JUDGMENT ON THE PLEADINGS TO: Demetrios Stratis Mathew D. Staver Stephen M. Crampton Daniel J. Schmid Liberty Counsel P.O. Box 11108 Lynchburg, VA 2450 Tel. 434-592-7000 Attorneys for Plaintiffs PLEASE TAKE NOTICE that, upon the accompanying memorandum, declarations, and all other papers and proceedings in this action, Garden State Equality will move this Court before the Honorable Freda Wolfson at the United States Courthouse, 402 East State Street, Trenton, NJ 08608, on January 6, 2014 at 10:00 a.m., for an order, pursuant to Rules 12(b)(6) and/or 12(c) of the Federal Rules of Civil Procedure, dismissing Plaintiffs complaint in its entirety against Defendant Christopher J. Christie and Proposed-Intervenor Defendant Garden State Equality. Hon. Freda L. Wolfson, U.S.D.J. Hon. Lois H. Goodman, U.S.M.J. Civil Action Case No. 13-cv-6629 (FLW) (LHG)
Dated: December 6, 2013
GluckWalrath LLP By: /s Andrew Bayer Michael Gluck Andrew Bayer 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901
KIRKLAND & ELLIS LLP By: /s David S. Flugman Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Pro hac vice applications pending 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and -Andrew J. Welz Pro hac vice application pending 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200
NATIONAL CENTER FOR LESBIAN RIGHTS By: /s Shannon P. Minter Shannon P. Minter Amy Whelan Christopher F. Stoll Pro hac vice applications pending 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442 Attorneys for Proposed Intervenor-Defendant Garden State Equality
Case 3:13-cv-06629-FLW-LHG Document 17-1 Filed 12/06/13 Page 1 of 36 PageID: 512
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOHN DOE, by and through JACK DOE and JANE DOE, et al., Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Defendant.
Civil Action Case No. 13-cv-6629 (FLW) (LHG) Hon. Freda L. Wolfson, U.S.D.J. Hon. Lois H. Goodman, U.S.M.J.
PROPOSED INTERVENOR-DEFENDANT GARDEN STATE EQUALITYS MEMORANDUM OF LAW IN SUPPORT OF ITS OPPOSITION TO PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION AND ITS MOTION TO DISMISS Michael Gluck Andrew Bayer GluckWalrath LLP 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901 Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Pro hac vice applications pending KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and -Andrew J. Welz Pro hac vice application pending KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 Shannon P. Minter Amy Whelan Christopher F. Stoll Pro hac vice applications pending NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442
Attorneys for Proposed Intervenor-Defendant Garden State Equality
TABLE OF CONTENTS Page FACTUAL BACKGROUND..........................................................................................................8 A. B. C. A3371 and Its Enactment.........................................................................................8 Previous Litigation Challenges to A3371 ..............................................................12 The Instant Litigation.............................................................................................13
ARGUMENT.................................................................................................................................14 I. PLAINTIFFS COMPLAINT SHOULD BE DISMISSED IN ITS ENTIRETY .............14 A. Plaintiffs Freedom of Speech Claims Fail Because A3371 Regulates Medical Treatment, Not Expression ......................................................................15 1. 2. 3. 4. The State May Enact Rational Regulations of Conduct, Including Medical Treatment .....................................................................................16 A3371 Easily Satisfies Rational Basis Review..........................................20 A3771 Does Not Violate the Right to Receive Information......................22 Plaintiffs Cannot Show That Medical Treatments, Including Those Barred By A3371, Constitute Inherently Expressive Conduct That Triggers Intermediate Scrutiny Under OBrien, And Even If Intermediate Scrutiny Applied, It Is Readily Satisfied Here .....................23
B. C. II.
A3371 Does Not Violate the Free Exercise Clause of the First Amendment........24 A3371 Does Not Infringe Upon Plaintiffs Parental Rights ..................................28
PLAINTIFFS DO NOT SATISFY THE REQUIREMENTS FOR A PRELIMINARY INJUNCTION .......................................................................................31 A. B. Plaintiffs Cannot Establish Irreparable Harm ........................................................32 Plaintiffs Cannot Establish that the Balance of Equities Tips in Their Favor, or That an Injunction is in the Public Interest ............................................33
CONCLUSION..............................................................................................................................34
TABLE OF AUTHORITIES Page CASES Accountants Soc. of Va. v. Bowman, 860 F.2d 602 (4th Cir. 1988)..................................................................................................... 17 Am. Inst. of Foot Med. v. N.J. State Bd. of Med. Examrs, 807 F. Supp. 1170 (D.N.J. 1992) .............................................................................................. 18 Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421 (3d Cir. 1994)...................................................................................................... 32 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................. 14 Bangura v. City of Phila., 338 F. Appx 261 (3d Cir. 2009)............................................................................................... 14 Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982) .................................................................................................................. 22 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................. 14 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004)................................................................................................ 25, 26 Blass v. Weigel, 85 F. Supp. 775 (D.N.J. 1949) .................................................................................................. 18 Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009)...................................................................................................... 27 Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256 (3d Cir. 2006)...................................................................................................... 14 C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3rd Cir. 2005)..................................................................................................... 29 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ................................................................................................ 24, 25, 26, 27 City of Dallas v. Stanglin, 490 U.S. 19 (1989) .................................................................................................................... 16 Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010) ..................................................................................................... 17 2
Combs v. HomerCenter Sch. Dist., 540 F.3d 231 (3d Cir. 2008)...................................................................................................... 28 Conchatta Inc. v. Miller, 458 F.3d 258 (3d Cir. 2006)...................................................................................................... 24 Cunningham v. New Jersey, 452 F. Supp. 2d 591 (D.N.J. 2006) ........................................................................................... 16 Deja Vu of Nashville, Inc. v Metro. Govt of Nashville & Davidson County, Tenn., 274 F.3d 377 (6th Cir 2001)...................................................................................................... 34 Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524 (3d Cir. 2011), cert. denied, 132 S. Ct. 2773 (2012) ......................................................................................... 20 England v. La. State Bd. of Med. Examrs, 263 F.2d 661 (5th Cir. 1959)..................................................................................................... 15 Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147 (3d Cir. 2010)...................................................................................................... 14 Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95 (1941) .................................................................................................................... 19 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999)...................................................................................................... 27 Garlic v. F.D.A, 783 F. Supp. 4 (D.D.C. 1992) ................................................................................................... 31 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) .................................................................................................................. 17 Grant v. City of Pittsburgh, 98 F.3d 116 (3d Cir. 1996)........................................................................................................ 16 Grohs v. Yatauro, -- F. Supp. 2d --, Civ No. 2:12-00905 (KM) (MCA), 2013 WL 6145708 (D.N.J. Nov. 20, 2013)............................................................................... 32 Hobbie v. Unempt Appeals Commn of Fla., 480 U.S. 136 (1987) .................................................................................................................. 27 In re Morgan Stanley Smith Barney LLC Wage & Hour Litig., Civ. No. 2:11-3121 (WJM), 2012 WL 6554386 (D.N.J. Dec. 14, 2012).................................. 14 Jehovahs Witnesses v. King Cnty. Hosp., Unit No. 1 (Harborview), 390 U.S. 598 (1968) (per curiam), affg 278 F. Supp. 488 (W.D. Wash. 1967) .............................................................................. 29 3
King v. Christie, -- F. Supp. 2d --, Civil Action No. 13-5038 (FLW), 2013 WL 5970343 (D.N.J. Nov. 8, 2013).......................................................................... passim Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007)...................................................................................................... 27 Lowe v. SEC, 472 U.S. 181 (1985) .................................................................................................................. 17 McTernan v. City of York, 564 F.3d 636 (3d Cir. 2009)...................................................................................................... 28 Mitchell v. Clayton, 995 F.2d 772 (7th Cir. 1993)..................................................................................................... 31 Monroe v. Bryan, 487 F. Appx 19 (3d Cir. 2012)................................................................................................. 32 Montanye v. Wissahickon Sch. Dist., 218 F. Appx 126 (3d Cir. 2007)......................................................................................... 16, 23 Natl Assn for Advancement of Psychoanalysis v. Ca. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000)................................................................................. 15, 18, 24, 31 New York v. Ferber, 458 U.S. 747 (1982) .................................................................................................................. 24 Non-Resident Taxpayers Assn v. Municipality of Phila., 341 F. Supp. 1139 (D.N.J. 1971), affd, 478 F.2d 456 (3d Cir. 1973)...................................... 16 Opticians Assn v. Indep. Opticians, 920 F.2d 187 (3d Cir. 1990)...................................................................................................... 32 Parham v. J.R., 442 U.S. 584 (1979) ............................................................................................................ 29, 30 Pickup v. Brown, No. 2:12CV02497KJMEFB, 2012 WL 6021465 (E.D. Cal. Dec. 4, 2012)...................... 23 Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013)............................................................................................ passim Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) .................................................................................................................. 18 Prince v. Massachusetts, 321 U.S. 158 (1944) .................................................................................................................. 29 Romero-Ochoa v. Holder, 712 F.3d 1328 (9th Cir.2013).................................................................................................... 21 4
Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006) .................................................................................................................... 23 Rutherford v. United States, 616 F.2d 455 (10th Cir. 1980)................................................................................................... 31 Sable Commcns of Cal., Inc. v. F.C.C., 492 U.S. 115 (1989) .................................................................................................................. 20 Schware v. Bd. of Bar Examrs, 353 U.S. 232 (1957) .................................................................................................................. 17 Spence v. State of Wash., 418 U.S. 405 (1974) .................................................................................................................. 23 Swartzwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002)................................................................................................ 32, 33 Territory of Alaska v. Am. Can Co., 358 U.S. 224 (1959) .................................................................................................................. 14 Texas v. Johnson, 491 U.S. 397 (1989) .................................................................................................................. 23 Turbe v. Govt of V.I., 938 F.2d 427 (3d Cir. 1991)...................................................................................................... 14 United States v. OBrien, 391 U.S. 367 (1968) ............................................................................................................ 23, 24 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) .................................................................................................................. 22 Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................................................................................. 28 Watson v. Maryland, 218 U.S. 173 (1910) ...................................................................................................... 15, 18, 24 Wiley Mission v. State, Civil Action No. 10-cv-03024 (RBK) (JS), 2011 WL 3841437 (D.N.J. Aug. 25, 2011) ......... 27 Winter v Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ...................................................................................................................... 32 STATUTES 2012 N.J. Law A.B. 3771 ...................................................................................................... passim N.J. Stat. Ann. 45 ....................................................................................................................... 26 5
On November 8, 2013, this Court upheld the constitutionality of Assembly Bill Number 3371 (A3371), finding that it restricts neither speech nor religious expression. King v. Christie, -- F. Supp. 2d --, Civil Action No. 13-5038 (FLW), 2013 WL 5970343, at *1 (D.N.J. Nov. 8, 2013). Over two months after A3371 was signed and went into effect, and one week before the Court issued its decision in King, Plaintiffsa minor child and his two parents, who seek sexual orientation change efforts (SOCE) for the minor childfiled a complaint and motion for a preliminary injunction contending that A3371 infringes upon their rights to free speech and free exercise of religion as protected by the United States Constitution. Plaintiffs raise nearly identical arguments to those raised and rejected in King. As this Court recognized in King, the New Jersey Legislaturewhich reviewed substantial evidence and testimony, including statements from the nations leading mental health organizations and from individuals who had experienced SOCE first-handwas fully within its constitutional powers to reach the conclusion that New Jersey has a compelling interest in protecting the physical and psychological well-being of minors and in protecting them from serious harms caused by sexual orientation change efforts. 2013 WL 5970343, at *3. Because Plaintiffs claims in this case suffer from the same fatal flaws as those identified by the Court in King, not only do Plaintiffs fail to demonstrate a likelihood of success on the merits of their claims, but their claims also fail as a matter of law. As such, Plaintiffs motion for a preliminary injunction should be denied and Garden State Equalitys motion to dismiss Plaintiffs complaint in its entirety should be granted. First, Plaintiffs cannot prevail on their claims that A3371 violates their constitutional right to receive information (Counts I and III). As this Court recognized in King, A3371 does not in any way prevent Plaintiffs from receiving information about SOCE; it simply prevents 6
licensed professionals from conducting SOCE with patients under the age of 18. And as this Court recognized in King, A3371which prohibits only the practice of SOCEregulates conduct, not speech. As such, A3371 is subject to only rational basis review, which it easily satisfies. (See infra at Section I.A.) Second, Plaintiffs claims for violation of the free exercise of religion clause of the First Amendment (Counts II and III) fail because A3371 is a neutral law of general applicability. A3371 was not enacted for the purpose of burdening religious practice, nor does it contain exceptions permitting secular practitioners or members of favored religions to engage in the prohibited conduct. To the contrary, A3371 was enacted to protect all minors in New Jersey from treatment that the state found to be unsafe, and includes no exemptions for licensed professionals to engage in the prohibited conduct, whether for religious or secular reasons. Likewise, Plaintiffs cannot sustain a hybrid rights claim because courts in this Circuit, including this Court, do not recognize such a claim. (See infra at Section I.B.) Third, Plaintiffs claim that A3371 infringes the fundamental rights of parents to direct the upbringing and education of their children (Count IV) fails as a matter of law. The
constitutionally protected rights of parents do not include a right to dictate the content of conduct regulations for licensed professionals; nor do they include a right to choose for their children a particular medical treatment that the state reasonably has prohibited based on its determination that such treatment is harmful or ineffective. (See infra at Section I.C.) Finally, Plaintiffs fail to satisfy the requirements for obtaining a preliminary injunction. Because none of their claims are sustainable as a matter of law, Plaintiffs cannot demonstrate a reasonable likelihood of success on the merits. Moreover, Plaintiffs cannot establish irreparable harm here because A3371 does not infringe upon any of Plaintiffs constitutional rights. Finally,
Plaintiffs cannot show that the balance of equities tips in their favor or that a preliminary injunction serves the public interest. (See infra at Section II.) FACTUAL BACKGROUND A. A3371 and Its Enactment
New Jersey enacted A3371 to prevent state-licensed mental health professionals from subjecting patients under 18 years of age to scientifically discredited and unsafe attempts to change their sexual orientation or gender identity. (2012 N.J. Laws A.B. 3771.) Attempts to use therapy or other psychological techniques to change sexual orientation date to at least the midtwentieth century, at a time when most practitioners wrongly assumed that being gay, lesbian, or bisexual was a disease. (Declaration of Gregory Herek, Ph.D. (Herek Decl.) 11, 27.)1 Based on that false assumption, many mental health professionals tried to cure LGBT people using techniques that included psychotherapy, hormone treatments, aversive conditioning with nausea-inducing drugs, lobotomy, electroshock, and castration. (Id. 27.) Homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973, and since that time, most practitioners have stopped engaging in efforts to change sexual orientation. (Id. 12, 28.) Once homosexuality was no longer classified as an illness, the rationale for trying to cure it by changing an individuals sexual orientation ceased to exist. (Id. 28.) Despite the medical and mental health professions conclusion, nearly 40 years ago, that being gay, lesbian, or bisexual is not a condition that
1
While the Court can and should uphold A3371 solely based upon the record developed by the New Jersey Legislature, all of which materials properly may be considered in connection with Garden State Equalitys motion to dismiss (see infra at 9), Garden State Equality respectfully submits three expert declarations in response to those affidavits submitted by Plaintiffs and to supplement the record in this case for purposes of opposing Plaintiffs preliminary injunction motion. The Court does not need to rely on such declarations for purposes of ruling on Garden State Equalitys motion to dismiss.
requires change or treatment, some practitioners have continued to employ techniques designed to change their patients sexual orientation based on the false premise that being gay, lesbian, or bisexual is an abnormal or undesirable condition that can or should be changed. (Herek Decl., Ex. C, American Psychological Association, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009) (APA Task Force Report), at 25; Declaration of Douglas Haldeman, Ph.D. (Haldeman Decl.) 8.) In recent years, practitioners of sexual orientation change efforts have more commonly used forms of talk therapy rather than surgical, pharmacological, or aversive methods. Yet while these methods appear less extreme than some prior methods, the nations leading medical and mental health organizations have found that these practices also present significant risks of physical and mental harm to patients who undergo them. For example, the American
Psychological Association (the APA) has warned that sexual orientation change efforts can pose critical health risks to lesbian, gay, bisexual, and transgender (LGBT) people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, [and] suicidality, among other negative consequences. (A3371 1(b).) In particular, the APA
determined that the potential risks of reparative therapy are great, including depression, anxiety, and self-destructive behavior. (Id. 1(d).) And the American Academy of Child and
Adolescent Psychiatry found that there is no evidence that sexual orientation can be altered through therapy, and that there is no medically valid basis for attempting to prevent homosexuality, which is not an illness. (Id. 1(k).)2
Some practitioners of SOCE claim that childhood sexual abuse may cause some individuals to develop same-sex attractions and that SOCE is an appropriate treatment for sexual abuse victims. (See, e.g., Dkt. #4-7, Rosik Decl., 18.) However, there is no credible evidence that sexual abuse can change a persons sexual orientation, and of the several well9
In enacting A3371, the New Jersey Legislature considered and relied upon each of these professional organizations conclusions, as well as similar statements from the American School Counselor Association, American Academy of Pediatrics, American Medical Association, National Association of Social Workers, American Counseling Association, American Psychoanalytic Association, and Pan American Health Organization (a regional office of the World Health Organization). (Id. 1(e)-(j), (l).) These organizations have stated that sexual
orientation change efforts (1) are unnecessary and offer no therapeutic benefit because they attempt to cure something that is not an illness and requires no treatment, (2) are contrary to the modern scientific understanding of sexual orientation, (3) are ineffective, and (4) carry a risk of serious harm to patients. (Id. 1(c), (e)-(j), (l).) The Legislature also relied on research demonstrating that the risks of harm are especially great for minors. It cited research concluding that gay, lesbian, and bisexual young adults who experienced high levels of family rejection in adolescence based on their sexual orientation were 8.4 times more likely to report having attempted suicide and 5.9 times more likely to report high levels of depression than peers from families reporting no or low levels of rejection. (Id. 1(m).) Numerous witnesses appeared before the Assemblys Committee on Women and Children to support the passage of A3371. Supporters of the bill included the New Jersey Psychological Association, the New Jersey Psychiatric Association, and the American Academy of Pediatrics, New Jersey Chapter. (See Exhibit 1 to Affirmation of Andrew Bayer (Bayer Aff.), N.J. Assembly Women & Children Committee, Hearing on A3371, June 13, 2013
established treatment protocols for victims of sexual abuse, not one includes attempting to change the victims sexual orientation. (See Declaration of Laura Davies, M.D., 9, 15-16.)
10
(witness slips), at 2, 7-8.3) The National Association of Social Workers, New Jersey Chapter, stated in its letter of support that [n]ot only is there no scientific data to support the success of psychological attempts to change sexual orientation, but these therapies can actually have extremely detrimental effects on patients. (Exhibit 2 to Bayer Aff., Letter from Walter Kalman, MSW, LSW, Exec. Dir., Natl Assn of Soc. Workers, N.J. Chapter to Members of the Assembly Women & Children Committee (June 13, 2013).) Additionally, Dr. Jean Mercer, a
developmental psychologist and professor emerita of psychology, noted that the use of conversion therapies . . . with children and adolescents poses particular ethical problems because [m]inors cannot effectively refuse or resist treatments wanted by their parents or other authorities. (Exhibit 3 to Bayer Aff., Testimony of Dr. Jean Mercer, PhD, Prof. Emerita of Psychology, Stockton College, before N.J. Assembly Women & Children Committee, Hearing on A3371, June 13, 2013.) Other witnesses testifying before the legislature included individuals who as minors had been sent to licensed therapists who attempted to change their sexual orientation. These
witnesses reported that these efforts were ineffective and succeeded only in causing them great pain and anxiety. Mordechai Levovitz, who underwent sexual orientation change efforts starting when he was six years old because his parents were concerned that his behavior was too feminine, testified that he was made to feel by doctors that there was something wrong with [him] and was made to feel shame and engage in a fruitless labor that left [him] sad and broken. (Exhibit 4 to Bayer Aff., Testimony of Modechai Levovitz, Co-Exec. Dir., JQY, before
3
The New Jersey Assembly committees transcribe hearings only at the request of a committee member. An audio recording of the N.J. Assembly Women & Children Committee, June 13, 2013 Hearing on A3371 is available at http://www.njleg.state.nj.us/media/archive_audio2.asp?KEY=AWC&SESSION=2012.
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N.J. Assembly Women & Children Committee, Hearing on A3371, June 13, 2013.) Ryan Kendall testified that his experiences with sexual orientation change efforts as a teenager drove him to the brink of suicide and led to depression, periods of homelessness, and drug abuse. (Exhibit 5 to Bayer Aff., Testimony of Ryan Kendall before N.J. Assembly Women & Children Committee, Hearing on A3371, June 13, 2013.) In light of the findings of leading medical and mental health organizations, the cited research, and the testimony presented to its committees, the Legislature determined that New Jersey has a compelling interest in protecting the physical and psychological well-being of minors and protecting them from serious harms caused by sexual orientation change efforts. (2012 N.J. Laws A.B. 3771 1(n).) B. Previous Litigation Challenges to A3371
On August 22, 2013, just 3 days after A3371 took effect, a lawsuit was filed by two therapists licensed by the State of New Jersey and two organizations whose members include licensed professionals who practice or wish to engage in SOCE. See King, 2013 WL 5970343, at *4. That lawsuit alleged that A3371 violated the plaintiffs freedom of speech and free exercise of religion and also asserted claims on behalf of minor clients and their parents that A3371 interferes with the minors rights to self-determination and the parents fundamental right to direct the upbringing of their children. See id. The plaintiffs filed a motion for preliminary injunction and temporary restraining order that later, with the consent of all parties, was converted into a motion for summary judgment. See id. The defendants in that case (consisting of Governor Christie and a number of state officials), as well as defendant-intervenor Garden State Equality, opposed the plaintiffs summary judgment motion and cross-moved for summary judgment in their favor. Id.
12
On November 8, 2013, this Court issued a 66-page opinion denying the plaintiffs motion for summary judgment and granting the defendants and Garden State Equalitys motion for summary judgment. Specifically, the Court rejected the plaintiffs freedom of speech claims, finding that A3371 regulates conduct and not speech, and their freedom of religion claims on the grounds that A3371 is a law of general applicability that does not impermissibly burden the freedom of religion. Id. at *1. The Court also rejected the plaintiffs claim under the hybrid rights doctrine, as the Third Circuit has not applied this theory to free exercise claims, and rejected the claims brought on behalf of minors and their parents for lack of standing. Id. at *8*9, *27. C. The Instant Litigation
Plaintiffs filed this litigation on November 1, 2013, over two months after A3371 took effect and just one week before the Court issued its opinion in King. Plaintiffs complaint contends that John Doe, a minor, wishes to engage in SOCE counseling and that his parents, Jack Doe and Jane Doe, wish to provide such counseling to him in his native state of New Jersey. Plaintiffs assert four claims, all of which overlap with the claims brought in the King litigation. Count I asserts that A3371 prevents Plaintiffs from receiving information in violation of the First Amendments free speech clause. (Compl. 120-32.) Count II alleges that A3371 burdens the Plaintiffs free exercise of religion by placing them in an irresolvable conflict between their sincerely held religious beliefs and compliance with the prohibition on SOCE counseling. (Id. at 133-47.) Count III claims that A3371 violates Plaintiffs hybrid rights to the free exercise of religion and right to receive information and direct the upbringing of their child. (Id. at 148-58.) Finally, Count IV contends that A3371 violates Jack and Jane Does fundamental parental rights under the First and Fourteenth Amendments. (Id. at 159-67.)
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ARGUMENT I. PLAINTIFFS COMPLAINT SHOULD BE DISMISSED IN ITS ENTIRETY To withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 158 (3d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In evaluating such a motion, the court may consider items subject to judicial notice, matters of public record, order, [and] items appearing in the record of the case. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (internal quotes and citations omitted). This includes a statutes legislative history. See In re Morgan Stanley Smith Barney LLC Wage & Hour Litig., Civ. No. 2:11-3121 (WJM), 2012 WL 6554386, at *2 (D.N.J. Dec. 14, 2012) (citing Territory of Alaska v. Am. Can Co., 358 U.S. 224, 226-27 (1959)). Because, as explained below, none of Plaintiffs claims are viable as a matter of law, the Court should grant Garden State Equalitys motion and dismiss Plaintiffs complaint.4
Garden State Equality filed a motion to intervene in this litigation and a proposed Answer on November 15, 2013. To the extent that the Court declines to grant the motion to intervene, which remains pending, Garden State Equality respectfully requests leave to submit this brief, and its accompanying materials, as amicus curae in support of Defendants opposition to Plaintiffs preliminary injunction motion and in support of Defendants motion to dismiss. Likewise, to the extent that the Court grants the motion to intervene and accepts Garden State Equalitys Answer for filing before ruling on this motion to dismiss, Garden State Equality respectfully requests that the Court treat its motion to dismiss as a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The standards for granting a motion for judgment on the pleadings are substantively identical to those for granting a Rule 12(b)(6) motion to dismiss. See Bangura v. City of Phila., 338 F. Appx 261, 264 (3d Cir. 2009) (A motion for judgment on the pleadings, like a motion to dismiss, will be granted if the plaintiff has not articulated enough facts to raise a right to relief above the speculative level. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))); see also Turbe v. Govt of V.I., 938 F.2d 427, 428 (3d Cir. 1991) (Rule 12(c) motion for judgment on the pleadings alleging failure to state a claim upon which relief can be granted is analyzed under the same standard as a Rule 12(b)(6) motion to dismiss).
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A.
Plaintiffs Freedom of Speech Claims Fail Because A3371 Regulates Medical Treatment, Not Expression
New Jersey enacted A3371 pursuant to the long-established power of states to regulate medical practice to enforce professional standards and protect patients from harm, fraud, discrimination, and abuse. See Watson v. Maryland, 218 U.S. 173, 176 (1910); England v. La. State Bd. of Med. Examrs, 263 F.2d 661, 673 n.17 (5th Cir. 1959) (collecting cases) ([T]he Supreme Court has never changed its policy of reviewing with reluctance and self-restraint state regulations in the medical field.). As this Court previously has noted, A3371s operative statutory language does only one thing: it 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 persons sexual orientation. King, 2013 WL 5970343, at *10 (emphasis in original). A3371 does not prohibit licensed therapists from writing or speaking about sexual orientation change efforts either to the public or to their patients. See id. at *11. A3371s regulation of treatment by licensed health care professionals therefore lies at the core of the states police power to regulate medical practice to protect patients health and safety, and raises no First Amendment issue, even though the regulated treatment involves speech. See Natl Assn for Advancement of Psychoanalysis v. Ca. Bd. of Psychology, 228 F.3d 1043, 1054 (9th Cir. 2000) (NAAP). This Court relied upon these established principles on November 8, 2013, when it upheld A3371 against a constitutional challenge that raised issues identical in all material respects to those at issue in this case. See generally King, 2013 WL 5970343. Specifically, this Court recognized, Plaintiffs argument . . . taken to its logical end . . . 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. Id. at *15. 15
Such a result, this Court explained, runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals. Id. This Courts decision in King was also consistent with the Ninth Circuits recent opinion upholding Californias nearly identical prohibition on licensed therapists engaging in SOCE with minors. See Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013).5 Because Plaintiffs latest complaint provides no basis for this Court reach a conclusion at odds with its holdings on First Amendment free speech grounds, Counts I and III, which allege violations of the First Amendments guarantee of freedom of speech, fail as a matter of law. 1. The State May Enact Rational Regulations of Conduct, Including Medical Treatment
It is well-settled that the First Amendment does not preclude reasonable state regulation of professional conduct. Indeed, decisions of both the Third Circuit and district courts within this Circuit establish that conduct regulations generally do not give rise to any First Amendment concerns.6 And the mere fact that a reasonable conduct regulation may be violated in whole or in part through speech does not suffice to bring that conduct within the ambit of the First Amendment. See King, 2013 WL 5970343, at *12. Plaintiffs ignore these long-established
5
The Ninth Circuit is the only federal appellate court to consider a First Amendment challenge to a statute prohibiting licensed therapists from attempting to change the sexual orientation of minors. Given the absence of binding precedent, the Third Circuit looks to its sister circuits for guidance. See, e.g., Grant v. City of Pittsburgh, 98 F.3d 116, 124 (3d Cir. 1996). See, e.g., Montanye v. Wissahickon Sch. Dist., 218 F. Appx 126, 130 (3d Cir. 2007) (teachers bringing a student to psychotherapy sessions); Cunningham v. New Jersey, 452 F. Supp. 2d 591, 595-96 (D.N.J. 2006) (prison nurses providing an inmate with his medical records); Non-Resident Taxpayers Assn v. Municipality of Phila., 341 F. Supp. 1139, 1146 (D.N.J. 1971) (non-residents refusal to pay municipal taxes in protest of tax laws), affd, 478 F.2d 456 (3d Cir. 1973); see also City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (It is possible to find some kernel of expression in almost every activity a person undertakes[,] but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.).
16
principles and insteadjust as the plaintiffs did in Kingrest their argument entirely on the premise that because SOCE often is conducted through talk therapy, such therapy must be speech entitled to First Amendment protection. See id. This Court rejected the same faulty contention in King and should do so again here for the same reasons. See id. (Plaintiffs . . . spend[] 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 . . . it has never been deemed an abridgement 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. (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949))). Courts have long recognized that states may enact reasonable professional regulations even when the professional conduct at issue entailsor entirely consists ofspeech. See King, 2013 WL 5970343, at *15 (collecting cases); see also, e.g., Lowe v. S.E.C., 472 U.S. 181, 228 (1985) (White, J., concurring in result) (The power of government to regulate the professions is not lost whenever the practice of a profession entails speech.); Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658, 667 (1st Cir. 2010) (Simply because speech occurs does not exempt those who practice a profession from state regulation[.]); Accountants Soc. of Va. v. Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (Professional regulation is not invalid, nor is it subject to first amendment strict scrutiny, merely because it restricts some kinds of speech.). Such regulations are permissible as long as they have a rational connection with the applicants fitness or capacity to practice the profession. Lowe, 472 U.S. at 228 (quoting Schware v. Bd. of Bar Examrs, 353 U.S. 232, 239 (1957)).
17
State regulation of the conduct of medical professionals, even when that conduct involves speech, has been particularly pervasive because of the states interest in protecting members of the public from incompetent, unethical, or dangerous practices. See King, 2013 WL 5970343, at *20 (It is beyond debate that the State has an interest in protecting vulnerable groups. (citing cases)); see also Am. Inst. of Foot Med. v. N.J. State Bd. of Med. Examrs, 807 F. Supp. 1170, 1173 (D.N.J. 1992) (It is difficult to imagine a state interest more important than the protection of citizens against the harms of unethical or incompetent practitioners of the healing arts. (internal quotation marks omitted)); Watson, 218 U.S. at 176 (It is properly within the states police power to regulate and license professions, especially when public health concerns are affected.). Moreover, the Supreme Court has held that when speech is part of the practice of medicine, [it is] subject to reasonable licensing and regulation by the State. Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (plurality opinion) (rejecting First Amendment challenge to state law requiring doctors to provide certain truthful, non-misleading information to patients seeking abortion).7 Similarly, in Blass v. Weigel, 85 F. Supp. 775, 782 (D.N.J. 1949), the court declined to find an impermissible abridgment of free speech based on a plaintiffs claim that a New Jersey licensing statute prevent[ed] him from disseminating information concerning the science of naturopathy. See also Pickup, 728 F.3d at 1056 (holding that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone); NAAP, 228 F.3d at 1054 ([T]he key component of psychoanalysis is the treatment of emotional suffering and depression, not speech . . . . That
7
While the plurality opinion was joined by only three justices, an additional four justices agreed that the applicable standard for evaluating a regulation of speech in the context of the practice of medicine was a reasonableness standard. Casey, 505 U.S. at 967-68 (Rehnquist, C.J., White, Scalia, and Thomas, J.J., concurring in part and dissenting in part).
18
psychoanalysts employ speech to treat their clients does not entitle them, or their profession, to special First Amendment protection.). This Courts holding in King, as well as the Ninth Circuits holding in Pickup, make clear why Plaintiffs are similarly incorrect in arguing here that A3371 should be analyzed as a viewpoint- or content-based restriction on speech. Specifically, just as plaintiffs in King had argued, Plaintiffs here assert in purely conclusory terms that SOCE is obviously expressive because counselors intend to convey the message that minors struggling with unwanted [samesex attractions] can eliminate or reduce them. (Pls. Br. at 24.) But this Court rejected that rationale in King, finding that SOCE counseling is not a means of communication to express any particular viewpoint; rather it is a means of treatment intended to bring about a change in the mental health and psyche of the client who desires and seeks out such a change. 2013 WL 5970343, at *18 (noting that the plaintiffs argued in King that SOCE was a means to eliminate or reduce a clients unwanted same-sex attractions). Because A3371 regulates only the actual provision of mental health treatment, not speech about treatment, no special First Amendment scrutiny is warranted, and viewpoint- and content-neutrality analysis does not apply.8 See King, 2013 WL 5970343, at *18 (SOCE counseling is not a means of communication to express any particular viewpoint.); see also Pickup, 728 F.3d at 1056 (SB 1172 regulates only treatment,
8
A3371 prohibits any efforts by covered professionals to change a minors sexual orientationnot only, as Plaintiffs erroneously suggest, efforts to change a same-sex orientation. (Pls. Br. at 12.) The statute defines sexual orientation change efforts as the practice of seeking to change a persons sexual orientation, including, but not limited to, efforts to . . . eliminate sexual or romantic attractions or feelings toward a person of the same gender . . . . A3371 2(b) (emphasis added). Where a statute employs the term including, the examples that follow are illustrative, rather than exhaustive. See Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) ([T]he term including is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.).
19
and nothing in NAAP requires us to analyze a regulation of treatment in terms of content and viewpoint discrimination.). 2. A3371 Easily Satisfies Rational Basis Review
As this Court held in King, because A3371 regulates only conduct, it implicates free speech interests only incidentally, if at all, and is therefore subject to rational basis review, which it easily satisfies. 2013 WL 5970343, at *17; see also Pickup, 728 F.3d at 1056. [U]nder rational basis review, the challenged [state action] must be upheld if it is rationally related to a legitimate state interest. Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 556 (3d Cir. 2011), cert. denied, 132 S. Ct. 2773 (2012). It is beyond debate that the State has an interest in protecting vulnerable groups. King, 2013 WL 5970343, at *20; see also Pickup, 728 F.3d at 1057 (Without a doubt, protecting the well-being of minors is a legitimate state interest.); see also Sable Commcns of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (holding that there is a compelling interest in protecting the physical and psychological well-being of minors.). Here, as this Court is aware, after extensive hearings, the Legislature rationally determined that A3371 would promote these interests based on findings by every leading mental health professional association in the country that (1) SOCE has not been demonstrated to be effective and presents a risk of serious harm; and (2) homosexuality is not a disease or condition that warrants treatment. See A3371 1(a)-(m); accord King, 2013 WL 5970343, at *20
(chronicling the legislative findings). As the Ninth Circuit stated in upholding the California statute, the overwhelming consensus [before the legislature] was that SOCE was harmful and ineffective. On this record, we have no trouble concluding that the legislature acted rationally by relying on that consensus. Pickup, 728 F.3d at 1057. Likewise, in King, this Court observed that [i]t is certainly rational for the legislature to believe that the potential harms that attend to SOCE for adults exist at least equally for minors. 2013 WL 5970343, at *20. 20
Plaintiffs insistence that the Legislature lacked a sufficient basis to enact A3371 is meritless and, in any event, irrelevant. [U]nder rational basis review, [w]e ask only whether there are plausible reasons for [the legislatures] action, and if there are, our inquiry is at an end. Pickup, 728 F.3d at 1057 (quoting Romero-Ochoa v. Holder, 712 F.3d 1328, 1331 (9th Cir. 2013)). As this Court noted, those reasons need not be the legislatures stated reasons as long as [the Court] can conceive of some rational basis for the statute. King, 2013 WL 5970343, at *20 (emphasis added). That standard is more than satisfied by the conclusions of the 2009 APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation,9 on which the Legislature relied, as well as the opinions of many other professional organizations that concluded that homosexuality is not an illness and does not require treatment (American School Counselor Association), SOCE therapy can provoke guilt and anxiety (American Academy of Pediatrics), it may be harmful (National Association of Social Workers), and it may contribute to an enduring sense of stigma and self-criticism (American Psychoanalytic Association). Pickup, 728 F.3d at 1057; see also A3371 1(b), (e), (f), (h), (j).10
Plaintiffs claim that the APA Task Force found some evidence of both alleged harm and benefits produced by SOCE does not withstand scrutiny. (Pls. Br. at 10.) The Task Force concluded that scientific evidence shows that SOCE is not likely to produce its intended outcomes and can produce harm for some of its participants. (See APA Task Force Report at 83; id. at 85 (There is no research demonstrating that providing SOCE to children or adolescents has an impact on adult sexual orientation.).) After the Task Force completed its report, the APA issued a resolution concluding that there is insufficient evidence to support the use of psychological interventions to change sexual orientation. (Herek Decl., 38.) Plaintiffs suggest that New Jerseys law permitting minors 14 years or older to request admission to psychiatric facilities under certain circumstances shows that A3371s ban on SOCE on minor patients is irrational, because these same minors could check themselves in and out of a psychiatric hospital even without parental consent. (Pls. Br. at 27 (citing N.J. Ct. R. 4:74-7A(c)). But this argument is of no moment because both A3371 and N.J. Ct. R. 4:74-7A(c) share the goal of protecting minors from harm and ensuring that they receive competent, beneficial treatment.
10
21
3.
A3771 Does Not Violate the Right to Receive Information
Plaintiffs claim that A3771 violates their right to receive information has no merit. In Pickup, the Ninth Circuit disposed of an identical claim in a footnote, concluding that it failed for all the same reasons as the claim that the challenged statute infringed on licensed therapists First Amendment right to speak. 728 F.3d at 1057 & n. 9. The same is true here. While the right to receive information is protected by the First Amendment as the inherent corollary of the right to speak, Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982), A3371 does not restrict minors ability to receive any type of information because it does not prohibit licensed counselors from communicating with their minor patients about SOCE, or from recommending that their minor patients seek SOCE elsewhere. A3371 is therefore unlike the challenged federal policy in Conant, which prevented doctors from recommending medical marijuana to their patients. That policy violated the First Amendment because it prohibited speech wholly apart from the actual provision of treatment. Pickup, 728 F.3d at 1055. In contrast, like the statute upheld in Pickup, A3371 bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. Id. at 1056. Plaintiffs reliance on Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (VCCC) is similarly misplaced. Unlike the statute challenged in VCCC, which the Court held impermissibly suppressed the flow of prescription drug price information, id., at 770, A3371 does not prevent licensed counselors from sharing information with their minor clients. It simply prohibits licensed therapists from engaging in treatment practices that the Legislature has reasonably concluded offer no benefit to patients and involve a risk of serious harm.
22
4.
Plaintiffs Cannot Show That Medical Treatments, Including Those Barred By A3371, Constitute Inherently Expressive Conduct That Triggers Intermediate Scrutiny Under OBrien, And Even If Intermediate Scrutiny Applied, It Is Readily Satisfied Here
Plaintiffs argue in the alternative that A3371 should be subjected to the intermediate scrutiny analysis established in United States v. OBrien, 391 U.S. 367 (1968). For a conduct
regulation such as A3371 to trigger First Amendment protection, however, the conduct must be inherently expressive. It not enough that the person engaging in the conduct thereby intends to express an idea. Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 66 (2006). In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, courts must ask whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it. Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. State of Wash., 418 U.S. 405, 41011 (1974)); Montanye, 218 F. Appx at 130 (same). The practices barred by A3371 do not meet this test. Unlike conduct such as burning a flag, the purpose of providing mental health treatment is not to convey a particular message, nor is the provision of mental health treatment likely to be seen as such by the patient or by others. See King, 2013 WL 5970343, at *18 (SOCE
counseling is not like other forms of conduct traditionally found to be inherently expressive); see also Pickup v. Brown, No. 2:12CV02497KJMEFB, 2012 WL 6021465, at *10 (E.D. Cal. Dec. 4, 2012) (collecting cases and holding that [c]ourts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct). The purpose of providing medical or mental health care is to treat patients, not to convey the therapists chosen message. And patients receiving care from licensed health care practitioners reasonably expect to receive competent treatment based on professional standards of care; they 23
do not expect their treatment to convey a message about the providers personal views. See, e.g., NAAP, 228 F.3d at 1054 (holding that the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech.). Moreover, even if OBrien were applied, A3371 would easily pass muster. Under the OBrien test, a regulation is constitutional only if (1) it is within the constitutional power of the Government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Conchatta Inc. v. Miller, 458 F.3d 258, 267 (3d Cir. 2006) (quoting United States v. OBrien, 391 U.S. 367, 377 (1968)). Here, there can be no question that the state has the power to regulate medicine or that the protection of minors from dangerous medical treatment is important or substantial. See Watson, 218 U.S. at 176; New York v. Ferber, 458 U.S. 747, 756-57 (1982). Moreover, as explained herein, the state interest is unrelated to free expression and A3371 is narrowly tailored to prohibit only the act of engaging in SOCE with minors by licensed therapists. B. A3371 Does Not Violate the Free Exercise Clause of the First Amendment
As this Court correctly stated in King, where a law is neutral and of general applicability, it need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice. 2013 WL 5970343, at *25 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993)). As this Court held in King, there is no question that because A3371 makes no reference to any religious practice, conduct, or motivation. . . . on its face, the statute is neutral. King, 2013 WL 5970343, at *26. Additionally, as this Court previously observed, there is no indication in the record that religion was a motivating factor in the passage of A3371. Id. Rather, this Court 24
explained, 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. Id. Therefore, A3371 is neutral in nature, and because it is neutral in nature, even if A3371 disproportionately affects those motivated by religious belief, this fact does not raise any Free Exercise concerns. Id. (citing Lukumi, 508 U.S. at 581). Finally, the Court held in King that the statute is generally applicable because it does not suppress, target, or single out the practice of any religion because of religious conduct. Id. All of the arguments raised by Plaintiffs here are materially identical to the arguments that this Court rejected in King. For example, Plaintiffs here, as in King, cite Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), for the proposition that heightened scrutiny ought to apply because A3371 purportedly contains individualized and categorical exemptions. (Pls. Br. at 32.) This Court already considered and rejected the very same argument, noting instead that 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. King, 2013 WL 5970343, at *26 (rejecting the contention that the purported exemptions undermined the general applicability of A3371). Moreover, to the extent that A3371 can be considered to have exemptions, those exemptions are not of the sort that Blackhawk describes because A3371s exemptions do not undermine[] the purposes of the law to at least the same degree as the covered conduct that is religiously motivated. Blackhawk, 381 F.3d at 209. As this Court explained in King: [T]he 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 25
consistent with the Legislatures 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 otherwiseand therefore, because unlicensed professionals do not fall within the States comprehensive regulatory schemes, this type of exemption neither undermines the statutes purpose nor does it somehow change the statutes general applicability. King, 2013 WL 5970343, at *26. Additionally, A3371 readily satisfies the test for neutrality described by the Third Circuit in Blackhawk, because it is facially neutral; makes no reference to any religious practice, conduct, or motivation; and is neutral as applied in practice. Id. at *25-*26 (observing same). That is, A3371 bans all SOCE on minors by licensed mental health providers, not only SOCE motivated by religious beliefs. Id. at *26. The law does not seek to target or burden religious practices or beliefs, but rather aims to protect minors from purported mental health treatments that are harmful, regardless of whether the motivation for those purported treatments is secular or religious. Id. Therefore, even if it were true, as Plaintiffs claim, that A3371
disproportionately affects those motivated by religious belief, (Pls. Br. at 31), that would not raise Free Exercise concerns. Lukumi, 508 U.S. 520, 531 (1993) (holding that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice). In addition, A3371 does not permit[] individualized, discretionary exemptions, a principal free exercise harm on which the Third Circuit focused in Blackhawk. 381 F.3d at 209.11
11
Contrary to Plaintiffs contentions, A3371 does not pose the sort of religious
Moreover, while New Jersey law does exempt all clergy from licensing laws applicable to therapists, that exemption applies generally to all clergy and to all licensing requirements. See N.J. Stat. Ann. 45:8B-48, 45:9-18.1, 45:14B-8, 45:15BB-5 (West 2013). Such 26
gerrymander described in Lukumi, which invalidated a law that targeted a practice associated with a specific religion, while exempting almost all other similar practices. Id. at 535-36 (The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice.). A3771 does not regulate religiously motivated conduct, while leaving analogous secular conduct by licensed counselors unreached. Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 265 (3d Cir. 2007).12 Finally, as this Court explained in King, there is no merit to Plaintiffs cursory argument that, even if A3371 is a neutral, generally applicable law, A3371 is nevertheless subject to strict scrutiny as a violation of the so-called hybrid rights of Plaintiffs. The Third Circuit has universally declined to apply the hybrid rights theory. King, 2013 WL 597034, at *27 (Lastly, Plaintiffs argue that even if A3371 is a neutral and generally applicable law, it 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.); see also Wiley Mission v. State, Civil Action No. 10-cv-03024 (RBK) (JS), 2011 WL 3841437, at *10 (D.N.J. Aug. 25, 2011); see Brown v. City of Pittsburgh, 586 F.3d 263, 284 n.24 (3d Cir. 2009) (Like many of our sister courts of appeals,
exemptions are common in a wide variety of laws, and the existence of such an exemption does not render an otherwise neutral and generally applicable law subject to challenge. See, e.g., Hobbie v. Unempt Appeals Commn of Fla., 480 U.S. 136, 144-45 (1987) (noting that the Supreme Court has long recognized that the government may . . . accommodate religious practices).
12
Similarly, in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), the Third Circuit held that the Newark Police Departments requirement that Muslim police officers shave their religious beards could not withstand heightened scrutiny because the departments policy provided for a secular exemption (for medical reasons) and thus had made a value judgment that religious motivations were not as important as secular motivations. Id. at 366. No similar disparate treatment is present here.
27
we have not endorsed this theory.); McTernan v. City of York, Pa., 564 F.3d 636, 647 n.5 (3d Cir. 2009) (We have neither applied nor expressly endorsed a hybrid rights theory, and will not do so today.); Combs v. HomerCenter Sch. Dist., 540 F.3d 231, 247 (3d Cir. 2008) ([W]e believe the hybrid-rights theory to be dicta.). For reasons explained above, as a neutral and generally applicable law, A3371 is subject only to rational basis review, which it easily survives. C. A3371 Does Not Infringe Upon Plaintiffs Parental Rights
Count IV of the Complaint alleges that A3371 infringes on the fundamental rights of the parents to direct the upbringing and education of their children according to their sincerely held religious beliefs under the First and Fourteenth Amendments, (Compl. 160), because A3371 prevents such parents from seeking mental health counseling from a licensed New Jersey professional for their sons unwanted same-sex attractions, behaviors, and identity and gender confusion (Id. at 163.) Plaintiffs Jack and Jane Doe allege that, as an infringement of such rights, A3371 must be supported by a compelling state interest and must be narrowly tailored to meet that end, and further allege that A3371 is neither a compelling state interest nor narrowly tailored to achieve any compelling purpose. (Id. 161-65.) Plaintiffs argument fails, however, because the constitutionally protected rights of parents do not include the right to choose for their children a particular type of provider for a particular medical or mental health treatment that the state has deemed harmful. Pickup, 728 F.3d at 1060-61 (citing Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). As an initial matter, Plaintiffs argument fundamentally misses the mark because A3371 regulates the practices of state-licensed mental health professionals, not parents, and therefore does not infringe upon Jack and Jane Does rights to direct the upbringing of their child. The statute applies exclusively to [a] person who is licensed to provide professional counseling, i.e., professionals licensed by New Jersey. A3371 2(a). Parents ability to raise their children 28
is unaffected. They remain free to communicate their values to their children; to care for and nurture them; to control their education; to seek out religious or pastoral counseling; and to discuss issues of sexual orientation with them. Because A3371 only prohibits professionals from engaging in practices that the legislature reasonably has determined pose a danger to the health of minors, Plaintiffs argument that the law infringes upon their parental rights is without merit. Second, to the extent that A3371 restricts the activities of Jack and Jane Doe in any way, the law nonetheless easily passes constitutional muster. Although the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children, the right is neither absolute nor unqualified. C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3rd Cir. 2005) (internal quotation marks omitted). States have power to guard the general interest in youths well-being . . . in many . . . ways, and the states authority is not nullified merely because the parent grounds his claim to control the childs course of conduct on religion or conscience. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Thus, parents constitutional rights to make decisions regarding the care of their children do not include a right to expose [a] child . . . to ill health or death, and the states may, subject to some exceptions, require that children be vaccinated, id. at 166-67, or undergo necessary medical care, such as blood transfusions, over the objections of parents. See Jehovahs Witnesses v. King Cnty. Hosp., Unit No. 1 (Harborview), 390 U.S. 598 (1968) (per curiam), affg 278 F. Supp. 488, 504 (W.D. Wash. 1967). Plaintiffs misconstrue Supreme Court precedent when they argue that parents have an absolute right to make decisions relating to the mental health of the child. (Pls. Br. at 38 (citing Parham v. J.R., 442 U.S. 584, 602 (1979)).) Parham specifically recognizes that a state is not without constitutional control over parental discretion in dealing with children when their
29
physical or mental health is jeopardized. 442 U.S. at 603.
Although parents retain plenary
authority to seek mental health care for their children, that authority is not absolute but, rather, is subject to a physicians independent examination and medical judgment. Id. at 604. And, as discussed above, the state has a legitimate interest in regulating the provision of medical treatment to protect public health and safety. Plaintiffs additional argument that there is no proof of any harm befalling children engaging in SOCE therapy similarly fails. (Pls. Br. at 39.) While Plaintiffs cite the APAs Task Force Report to support this claim, the New Jersey legislature expressly noted that this report concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay and bisexual people. A3371 1(b) (listing litany of potential harms). The legislative findings also relied upon the conclusions of numerous other professional organizations that SOCE puts patients at risk of serious harms, lacks a scientific basis, and provides no demonstrable benefits. Id. 1(c)-(m). Moreover, the legislature received testimony at
legislative hearings from a number of individuals that described the harms of going through SOCE. (See Exhibit 1 to Bayer Aff., Recording of Hearing on A3371 Before the Assembly Comm. on Women & Children, June 13, 2013.) The constitutional rights of parents protected by the Fourteenth Amendment do not include a right to choose for a child a particular medical or psychological treatment that the state, after extensive legislative hearings, has determined is ineffective and harmful. In reviewing the constitutionality of Californias similar statutory ban on SOCE for minors, the Ninth Circuit canvassed the law on parents fundamental rights and found no case supporting the right of a parent to choose for a child a particular provider to provide a particular treatment that the state deems harmful. Pickup, 728 F.3d at 1060-61. As the Ninth Circuit observed, a long line of
30
cases from courts across the country holds that the fundamental rights of patients themselves do not extend to the choice of type of treatment or of a particular health care provider, much less to a prohibited type of treatment. Id. at 1061 (quoting NAAP, 288 F. 3d at 1050 ([S]ubstantive due process rights do not extend to the choice of type of treatment or of a particular health care provider.)); see also Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993) ([A] patient does not have a constitutional right to obtain a particular type of treatment or to obtain treatment from a particular provider if the government has reasonably prohibited that type of treatment or provider.); Rutherford v. United States, 616 F.2d 455, 457 (10th Cir. 1980) (holding that terminally ill cancer patients have no substantive due process right to obtain non-FDA-approved drugs); Garlic v. F.D.A., 783 F. Supp. 4, 5 (D.D.C. 1992) (finding no substantive due process rights to receive non-FDA-approved drugs to treat Alzheimers disease). As the Ninth Circuit observed, it would be odd if parents had a substantive due process right to choose specific treatments for their childrentreatments that reasonably have been deemed harmful by the statebut not for themselves, especially because the Supreme Court has recognized that the state has greater power over children than over adults. Pickup, 728 F.3d 1061. Neither the First Amendment nor the Fourteenth Amendment guarantees parents such a right. Accordingly, Plaintiffs cannot establish that A3371 infringes upon their fundamental rights to direct the upbringing and education of their children. II. PLAINTIFFS DO NOT SATISFY PRELIMINARY INJUNCTION THE REQUIREMENTS FOR A
A preliminary injunction is an extraordinary remedy that requires the District Court to consider (1) whether the movant has a reasonable probability of success on the merits; (2) whether irreparable harm would result if the relief sought is not granted; (3) whether the relief would result in greater harm to the non-moving party; and (4) whether the relief is in the public 31
interest. Monroe v. Bryan, 487 F. Appx 19, 21 (3d Cir. 2012) (quoting Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002)). Indeed, an injunction should be granted only in limited circumstances and only if the plaintiff has produced evidence sufficient to convince the court that all four factors favor the relief. Grohs v. Yatauro, -- F. Supp. 2d --, Civ No. 2:1200905 (KM) (MCA), 2013 WL 6145708, at *11 (D.N.J. Nov. 20, 2013) (citing Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994); Opticians Assn v. Indep. Opticians, 920 F.2d 187, 191-92 (3d Cir. 1990)). As explained above, none of Plaintiffs claims are sustainable as a matter of law, and therefore they could not, as a matter of law, satisfy the first prong of the preliminary injunction inquiry by demonstrating a reasonable probability of success on the merits. But even if Plaintiffs had a viable claim on which they were likely to succeed, they still would not be entitled to a preliminary injunction because they cannot satisfy the other prongs of the preliminary injunction inquiry. In particular, Plaintiffs cannot establish irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest because its argument relies exclusively on the premise that SOCE is protected speech, despite this Courts recent and explicit finding to the contrary. Winter v Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);13 see also King, 2013 WL 5970343, at *16. A. Plaintiffs Cannot Establish Irreparable Harm
Plaintiffs argument that they are suffering irreparable harm rests on the contention that they are being deprived of their First Amendment right to receive medical information. (Pls. Br. at 42.) But, Plaintiffs fundamental premise is wrong, as the Court recognizing in King that
13
Though Plaintiffs neither cite to Winter, nor refer to the case in the context of any of the other prongs, Plaintiffs discussion of the third Winter element presumably refers to Winter v Natural Resources Defense Council, Inc. (See Ps. Brief at 42.)
32
A3371 does not seek to regulate the conveying of information. 2013 WL 5970343, at *16. Nor, as Plaintiffs claim, does A3371 silence[ ] licensed therapists. (Pls. Br. at 41.) In King, this Court explained that while attempting to communicate information or a particular viewpoint . . . is speech, attempting to apply methods, practices, and procedures to bring about change . . . is conduct. 2013 WL 5970343, at *15. Because this Court has already
independently concluded that A3371 regulates conduct, not speech, Plaintiffs argument that A3371 implicates licensed therapists conveyance of information fails, and, along with it, Plaintiffs claim of irreparable harm. Id. at *14. B. Plaintiffs Cannot Establish that the Balance of Equities Tips in Their Favor, or That an Injunction is in the Public Interest
Plaintiffs argument that the balance of equities tips in their favor similarly relies on a faulty legal premise, and thus fails as well. According to Plaintiffs, the balance of equities pits their loss of fundamental freedoms against Defendants interest in halting SOCE counseling. (Ps. Brief at 43.) But Plaintiffs have lost no such freedom because A3371, as a matter of law, does not limit their ability to receive information.14 King, 2013 WL 5970343, at *16. Moreover, Plaintiffs reliance on Swartzwelder v McNeilly, 297 F.3d 228 (3d Cir. 2002), actually underscores the weakness of their balance of equities claim argument. In Swartzwelder, the court found that the equities favored the plaintiff because the absence of an injunction would prevent him from testifying as an expert witness in use of police force cases, such that those who might have benefitted from his testimony would have suffered an important loss. 297 F.3d at 242. Here, Plaintiffs will suffer no such important loss without an injunction in place, as
14
Similarly, because Plaintiffs contention that counseling, by its very nature, is constitutionally protected speech is wrong as a matter of law, King, 2013 WL 5970343, at *15, Plaintiffs argument that curtailing constitutionally protected speech will not advance the public interest falls flat. (Pls. Br. at 43.)
33
they remain free to seek and receive any information regarding SOCE, including from licensed counselors in New Jersey; A3371 applies only to the provision of treatment and does not restrict the communication or reception of information in any way. On the other hand, an injunction would have the effect of leaving children across the state vulnerable to a practice that the legislature reasonably has concluded has the potential to cause grave harm. Finally, Plaintiffs citation to Deja Vu of Nashville, Inc. v Metropolitan Government of Nashville and Davidson County, Tennessee for the proposition that if the plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment is of no moment because Plaintiffs constitutional claims fail as a matter of law. 274 F.3d 377, 400 (6th Cir 2001). Plaintiffs thus cannot demonstrate that the balance of equities tilts in their favor. CONCLUSION For the all these reasons, Garden State Equality respectfully requests that the Court deny Plaintiffs motion for a preliminary injunction and grant its motion to dismiss. Dated: December 6, 2013 GluckWalrath LLP By: /s Andrew Bayer Michael Gluck Andrew Bayer 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901
34
KIRKLAND & ELLIS LLP By: /s David S. Flugman Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Pro hac vice applications pending 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and -Andrew J. Welz Pro hac vice application pending 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 NATIONAL CENTER FOR LESBIAN RIGHTS By: /s Shannon P. Minter Shannon P. Minter Amy Whelan Christopher F. Stoll Pro hac vice applications pending 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442 Attorneys for Proposed Intervenor-Defendant Garden State Equality
35
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOHN DOE by and through JACK DOE and JANE DOE, et al., Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Defendant.
PROPOSED INTERVENOR-DEFENDANT GARDEN STATE EQUALITYS OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Michael Gluck Andrew Bayer GluckWalrath LLP 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901 Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Pro hac vice applications pending KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and -Andrew J. Welz Pro hac vice application pending KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 Shannon P. Minter Amy Whelan Christopher F. Stoll Pro hac vice applications pending NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442
Proposed Intervenor-Defendant Garden State Equality submits the following objections to the declarations submitted in support of Plaintiffs Motion for Preliminary Injunction (Dkt. # 4). Plaintiffs submitted Declaration of John Doe (Dkt. # 4-2); Declaration of Jack Doe (Dkt. # 4-3); Declaration of Jane Doe (Dkt. # 4-4); Declaration of Dr. Ronald Newman (Dkt. # 4-5); Declaration of David Pruden (Dkt. # 4-6); Declaration of Dr. Christopher Rosik (Dkt. # 4-7); and Declaration of Dr. Joseph Nicolosi (Dkt. # 4-8). Garden State Equality requests that the
evidence described below be declared inadmissible and stricken. GENERAL OBJECTIONS Proposed Intervenor-Defendant Garden State Equality objects generally to the Declarations of Dr. Ronald Newman (Dkt. # 4-5), David Pruden (Dkt. # 4-6), Dr. Christopher Rosik (Dkt. # 4-7), and Dr. Joseph Nicolosi (Dkt. # 4-8) to the extent that they are offered as scientific opinion on the efficacy or safety of Sexual Orientation Change Efforts (SOCE) generally, or on minors in particular. First, there is insufficient empirical validation of the theory that SOCE is effective or safe. Fed. R. Evid. 104(a), 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 570, 589-95 (1993). The Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (on which Plaintiffs rely) concluded that existing studies of SOCE are inadequate to empirically demonstrate either efficacy or safety, particularly in the treatment of minors. Second, Plaintiffs theorythat SOCE is safe and effectiveis not generally accepted by licensed mental health professionals. The declarants testimony neither demonstrates that the safety and efficacy of SOCE is generally accepted, nor provides an adequate scientific basis for that theory. Fed. R. Evid. 104(a), 702; Daubert, 509 U.S. at 589-95, Boyd v. City and County of San Francisco, 576 F.3d 938, 945-46 (2009).
Moreover, if the Court applies rational basis review, the overwhelming majority of the material contained in Plaintiffs Declarations (Dkt. # 4-2; Dkt. # 4-3; Dkt. # 4-4) will be irrelevant to the question of whether A3371 is merely rationally related to the states legitimate interest. SPECIFIC OBJECTIONS Objections to Declaration of John Doe (Dkt. # 4-2) Testimony Objection
3 (I began to see a counselor for romantic Lacks Foundation (Fed. R. Evid. 602) feelings I was having toward other boys and men, among other things, which I understand are now prohibited under New Jersey's law, A3371, at least if I get the counseling from a licensed counselor.) 4 ( and not like the boys he had grown up Lacks Foundation, Hearsay (Fed. R. Evid. 602, with.) 802) 7 (My parents knew that I was suicidal.) Speculation, Hearsay (Fed. R. Evid. 602, 802)
8 (My parents agreed to seek help from a Hearsay (Fed. R. Evid. 802) professional counselor.) 9 (He explained to us the theory of why I Hearsay (Fed. R. Evid. 802) was experiencing same-sex attractions.) 10 (I now speak with my normal voice) 10 (I display less feminine characteristics) Lacks Foundation (Fed. R. Evid. 602, 702) Lacks Foundation (Fed. R. Evid. 602, 702)
11 (I would also say that my same-sex Lacks Foundation (Fed. R. Evid. 602, 702) attractions have really started to go away, and on a scale of one to ten, I would say they are to the point where they are only three out of ten when it used to be eight out of ten.) 11 (These counseling sessions have really Speculation, Lacks Foundation (Fed. R. Evid. helped me.) 602, 702)
Testimony 12
Objection Speculation (Fed. R. Evid. 602)
13 (I have made progress, but I think there Speculation, Lacks Foundation (Fed. R. Evid. is still a lot I want to talk about with my 602, 702) counselor to help me reach my goal of eliminating my unwanted same-sex attractions and resolving the underlying issues that once caused my confusion over gender identity.) 13 (Talking with my counselor has really Speculation, Lacks Foundation (Fed. R. Evid. made my feelings of anxiety and hopelessness 602, 702) go away.) 14 ( he told my parents and me that his Irrelevant, Hearsay (Fed. R. Evid. 401, 802) counseling does not include some of the therapy that he says could really help me out with my goals. My counselor talks about how I am feeling about things from day to day and how I am continuing to get rid of my unwanted same-sex attractions. My counselor told me that there are also licensed psychologists who do counseling very similar to his, but will also talk with me about some of the things that bothered me when I was younger. My counselor says that the conversations with him have really helped me, but that licensed psychologists know more about other types of counseling and that I will probably like talking to them as much as I like talking to him.) 14 (I was disappointed when my parents Hearsay (Fed. R. Evid. 802) told me that the counselors in New Jersey are not allowed to talk to me about these things anymore.) 15 16 Speculation (Fed. R. Evid. 602) Speculation, Lacks Foundation (Fed. R. Evid. 602, 702) Irrelevant, Speculation, Lacks Foundation (Fed. R. Evid. 401, 602, 702)
17
Testimony 18
Objection Speculation, Lacks Foundation (Fed. R. Evid. 602, 702)
Objections to Declaration of Jack Doe (Dkt. # 4-3) Testimony Objection
3 (Early in my marriage, my wife and I had Irrelevant (Fed. R. Evid. 401) many arguments in front of our infant son. I had a difficult time conveying my love and support outwardly or expressing it verbally. I was so focused on being the provider of the home that sometimes I neglected my other duties, and that caused a lot of problems.) 4 Irrevelant, Lacks Foundation, Speculation (Fed. R. Evid. 401, 602, 702) Irrelevant (Fed. R. Evid. 401)
6 (He entered a new school, got involved in Irrelevant (Fed. R. Evid. 401) the drama club, started swimming on the local swim team and entered karate tournaments.) 7 (At age 12, our sons voice began to Irrelevant (Fed. R. Evid. 401) change with adolescence. It seemed that the deeper his voice became, the more our son tried to make his voice artificially higher and by the time he turned 13, he began to speak in an obviously artificially high, falsetto voice.) 7 (We took a trip to Myrtle Beach, and our Irrelevant (Fed. R. Evid. 401) son shaved his armpits, flushed his underwear down the toilet. 7 (Then, we returned home to find various Irrelevant (Fed. R. Evid. 401) pornographic pictures and illustrations of men in various positions under his mattress.) 8 (Through NARTH, we found a fantastic Irrelevant (Fed. R. Evid. 401) therapist, who happens to be an Orthodox
Testimony Jew.)
Objection
8 (We have learned together that there is no Irrelevant (Fed. R. Evid. 401) such thing as the perfect man.) 9 (Because of that counseling, I have seen Irrelevant, Speculation, Lacks Foundation our son grow closer to me, begin to embrace (Fed. R. Evid. 401, 602, 702) his masculinity, and no longer speak of suicide, cutting himself, or wanting to be a girl. He has become actively involved in martial arts and swimming while still pursuing his artistic interests. Our son was voted Best Team Spirit two years in a row by his swim team coaches, won matches in karate tournaments, had a lead role in his 8th grade play, and earned a scholarship to his Catholic High School.) 10 Speculation, Lacks Foundation, Hearsay (Fed. R. Evid. 602, 702, 802)
11 (Our current counselor is a licensed Lacks Foundation, Hearsay (Fed. R. Evid. 602, clinical social worker in New York, but his 702, 802) counseling does not involve the in-depth analysis and discussion of the underlying causes and background information that many licensed psychologists do in this area. Because his counseling is more prospective thinking, our counselor informed us that our son might benefit from the additional counseling of a person who engages in conversations dealing with root causes, background information, and other introspective analysis offered in other licensed professional counseling. Our counselor made such a recommendation based on some of the recent discussions he has had with our son, and we want to continue to be able to make sure our son receives the best counseling from the best counselors on all aspects of those problems that cause him distress. Because of that recommendation, we contacted licensed mental health counselors in New Jersey to attempt to engage one of them 5
Testimony for our son.) 12
Objection
Irrelevant, Lacks Foundation (Fed. R. Evid. 401, 602, 702) Speculation, Lacks Foundation (Fed. R. Evid. 602, 702) Objections to Declaration of Jane Doe (Dkt. # 4-4) Testimony Objection
13
3 (Early in my marriage, my husband and I Irrelevant (Fed. R. Evid. 401) would engage in frequent arguments over his stubbornness, absenteeism, and general inability to show outward manifestations of his love and support for me and my son. He was a wonderful provider, but he spent the majority of his time focused on that. This caused a lot of tension between my husband and I, and we engaged in heated arguments in front of our son.) 4 (Because I did not always feel he was Irrelevant (Fed. R. Evid. 401) showing me the proper affection, I would constantly give my husband a hard time about how he was not caring enough, how he did not love his wife and family enough, and how men were so terrible at expressing their feelings. While it was true that my husband was somewhat cold and had a difficult time expressing his emotions, I should have never said these things in front of our young son.) 4 (Our son has also always been very Irrelevant, Speculation (Fed. R. Evid. 401, sensitive and artistic, which is why my critical 602) view of my husband and my husbands lack of emotion likely had a negative impact on our sons upbringing.) 5 (He was also a gifted artist who drew free- Irrelevant, Speculation, Hearsay (Fed. R. Evid. hand sketches of Ariel on any scrap piece of 6
Testimony paper he could find. Our son spent many long 401, 602, 802) hours drawing, which my husband did not appreciate because he was not an artist himself.)
Objection
5 (While he was drawing my husband Hearsay (Fed. R. Evid. 802) asked, Why cant you be like all the normal boys and go outside to play sports?) 5 (I was livid because I was a musician and Irrelevant (Fed. R. Evid. 401) knew what it was like to be a sensitive artist.) 6 Irrelevant (Fed. R. Evid. 401)
7 (At these moments, he would yell that he Hearsay (Fed. R. Evid. 802) would have preferred it if God had made him a girl.) 7 (Because of these statements, we knew Lacks Foundation, Speculation (Fed. R. Evid. that our son was really hurting inside and was 602, 702) beginning to struggle with his personal and gender identity.) 8 (At this point, we knew we needed to seek Lacks Foundation, Speculation (Fed. R. Evid. counseling for our son. We desperately wanted 602, 702) to help our son with what appeared to be significant psychological confusion over his gender identity.) 8 (I have a fairly extensive understanding of Irrelevant (Fed. R. Evid. 401) the theories relating to gender identity disorder and same-sex attractions, which I obtained in part from self-study and in part through my Masters in Systematic Theology from Seton Hall University's Immaculate Conception Seminary School of Theology.) 9 Speculation, Lacks Foundation, Hearsay (Fed. R. Evid. 602, 702, 802)
10 (Our son's distress and anxiety came to a Speculation, Lacks Foundation (Fed. R. Evid. peak when he turned 12, and his voice began to 602, 702) change with adolescence. It seemed the deeper 7
Testimony it became, the more our son tried to make his voice artificially higher and by the time he turned 13, he began to speak in a high, artificial falsetto. At this point, the downward spiral was very quick.)
Objection
10 (Upon our return home, we found Irrelevant (Fed. R. Evid. 401) various pornographic pictures and illustrations of men in graphic sexual positions under his mattress.) 11 (Through NARTH, we found a fantastic Irrelevant (Fed. R. Evid. 401) therapist, an LCSW, who happens to be an Orthodox Jew.) 12 (He explained to us his theory of why my Hearsay (Fed. R. Evid. 802) son was experiencing same-sex attractions and why he was experiencing significant psychological distress over his gender identity confusion, which he believed were really the manifestation of underlying emotional issues.) 13 (Since the counseling sessions, we have Lacks Foundation, Speculation (Fed. R. Evid. noticed significant changes in our son, and all 602, 702) of them are positive. Our son no longer appears to struggle with the distress and anxiety over his gender confusion, and has made significant progress in eliminating his unwanted same-sex attractions. Most importantly, our son does not express suicidal thoughts anymore, and based on my observations I believe it is because of the beneficial discussions he has had with the counselor.) 14 Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
15 (Our current counselor is a licensed Lacks Foundation, Speculation (Fed. R. Evid. clinical social worker in New York, but his 602, 702) counseling does not involve the in-depth analysis and discussion of the underlying 8
Testimony causes and background information that many licensed psychologists have in this area. Because his counseling is more prospective thinking, our counselor informed us that our son might benefit from the additional counseling of a person who engages in conversations dealing with root causes, background information, and other introspective analysis offered in other licensed professional counseling. Our counselor made such a recommendation based on some of the recent discussions he has had with our son, and we want to continue to be able to make sure our son receives the best counseling from the best counselors on all aspects of those problems that cause him distress.) 16
Objection
Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
17 (The relationship between our son and Lacks Foundation, Speculation (Fed. R. Evid. the two of us has significantly improved since 602, 702) he started counseling. If he is not allowed to continue, then I fear that our relationship with our son will regress as he becomes unhappy with any increased and unwanted gender and sexual identity issues.) 17 (We have seen the counseling benefit our Lacks Foundation, Speculation (Fed. R. Evid. son, and we have not seen any harm resulting 602, 702) from the counseling. He appears much happier and less withdrawn and depressed since he began counseling.) 18 (In addition to the fact that my husband Irrelevant, Religious Beliefs (Fed. R. Evid. and I firmly believe that our son should be able 401, 610) to seek counseling for his unwanted same-sex attractions, my husband and I also have sincerely held religious beliefs that homosexuality is a sinful and harmful lifestyle. My husband and I also have sincerely held religious beliefs that we should provide our son with the necessary education to understand Sacred Scripture, as well as the teachings of 9
Testimony our Catholic church.) 19
Objection
Irrelevant (Fed. R. Evid. 401) Objections to Declaration of Plaintiff Dr. Ronald Newman (Dkt. # 4-5) Testimony Objection
5 (As is true with much of my practice, the Irrelevant, Lacks Foundation, Speculation individuals who seek SOCE counseling from (Fed. R. Evid. 401, 602, 702) me do so because they have a desire to conform their attractions, behavior, and identity to their sincerely held religious beliefs. Many of these individuals seek to reduce or eliminate their unwanted same-sex attractions because their religious beliefs inform them that change is possible. 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.) 8 (I have been contacted recently by the Lacks Foundation, Speculation, Hearsay (Fed. Plaintiffs in this action seeking to engage a R. Evid. 602, 702, 801-02) licensed mental health counselor in New Jersey who can provide SOCE counseling to their son. The Does said that they were seeking a licensed psychologist to assist their son, John Doe, with some of his psychological distress that was rooted in some childhood needs that went unfulfilled and that their current counselor had suggested they contact a licensed counselor who explores and discussed the root causes and symptoms of unwanted same-sex attractions.) 6 (Because of A3371, I was forced to Irrelevant, Lacks Foundation (Fed. R. Evid. inform the Does that neither I nor any licensed 401, 602, 702) mental health counselor in New Jersey could engage in SOCE counseling with their son.) 7 Irrelevant (Fed. R. Evid. 401)
8 (Prior to A3371, when both the minor Irrelevant (Fed. R. Evid. 401) 10
Testimony client and the parents wanted SOCE counseling, then I explained to them the nature of such counseling. I also explained to the client that if at any point in the course of the clients therapy the client decides he no longer wants to continue counsel for same-sex attractions, behaviors, or identity, then he should inform me immediately because the clients counsel should always be based on the goals and objectives of the client.)
Objection
8 (I explained that SOCE counseling has Irrelevant (as to Dr. Newmans practice), been effective for some people with unwanted Speculation, Lacks Foundation (Fed. R. Evid. same-sex attractions, behavior, or identity, but 401, 602, 702) that the counseling can sometimes invoke stress and anxiety about past events or root causes. I have counseled a number of individuals for whom SOCE has been effective and successful, but I have also counseled individuals who determined that their same-sex attractions, behaviors, or identities were no longer unwanted. Many of the individuals I counseled that decided to stop the SOCE counseling still benefited from the counseling sessions.) Objections to Declaration of Plaintiff David Pruden (Dkt. # 4-6) Testimony 3 4 Objection Irrelevant (Fed. R. Evid. 401) Irrelevant (as to Mr. Prudens interpretation of A3371), Lacks Foundation, Speculation (Fed. R. Evid. 401, 602, 702) Irrelevant (Fed. R. Evid. 401) Speculation, Lacks Foundation (Fed. R. Evid. 602, 702) Lacks Foundation, Speculation, Hearsay (Fed.
5 6
11
Testimony
Objection R. Evid. 602, 702, 802)
Objections to Declaration of Plaintiff Dr. Christopher Rosik (Dkt. # 4-7) Testimony Objection
3 (It appears that the APA operated with a Lacks Foundation, Speculation (Fed. R. Evid. litmus test when considering task force 602, 702) membership the only views of homosexuality that were tolerated are those that uniformly endorsed same-sex behavior as a moral good.) 4 Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
9 (arguing that serious methodological Lacks Foundation, Speculation (Fed. R. Evid. problems would never be tolerated by the task 602, 702) force were this SOCE-supportive research) 10 (Shidlo and Schroeder (2002) and Schroeder and Shidlo (2003) had an explicit mandate to find clients who had been harmed) 11 (Task Force appears to have ignored the warnings from the studys authors) Lacks Foundation, Speculation (Fed. R. Evid. 602, 702) Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
12 (The APA and other professional bodies Lacks Foundation (Fed. R. Evid. 602, 702) that utilize [the Task Force Report] are negligent if not fraudulent) 13 (And since SOCE commonly involves Lacks Foundation, Speculation (Fed. R. Evid. helping clients become more aware of the 602, 702) stress and distress in their lives in order to manage or alleviate them, as do many approaches to mental health care, persons who leave therapy prematurely may have an increased awareness or experience of their (pre-) existing stress and distress. Thus, they may feel worse as a consequence of not having allowed therapy sufficient time to help resolve the difficulties.)
12
Testimony 14
Objection
Irrelevant, Misleading, Prejudicial, Lacks Foundation, Speculation (Fed. R. Evid. 401, 402, 403, 602, 702) 18 (It is perfectly reasonable to believe that Lacks Foundation, Speculation (Fed. R. Evid. not offering professional SOCE to some 602, 702) minors with unwanted same- sex attractions and behaviors who seek such care may actually harm them by not helping them deal with what is one of the possible consequences of sexual molestation and abuse.) 20 21 26 Irrelevant (Fed. R. Evid. 401, 402, 403) Irrelevant (Fed. R. Evid. 401, 402, 403) Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
28 (This report contains the most careful Lacks Foundation (Fed. R. Evid. 602, 702) and extensive database ever obtained on the childhood experiences of matched homosexual and heterosexual populations.) 28 (arguing that one of the findings surprised Speculation, Lacks Foundation (Fed. R. Evid. the authors of the referenced study). 602, 702) 33 (a finding underscored even more by its Lacks Foundation (Fed. R. Evid. 602, 702) occurrence in a country with a relatively accepting attitude toward homosexuality.) 36 (A3371s intent for a blanket prohibition Irrelevant, Lacks Foundation (Fed. R. Evid. on SOCE for all minors with unwanted same- 401, 402, 602, 702) sex attractions and behaviors is akin to doing heart surgery with a chainsaw in its inability to address the complex realities of sexual orientation.) 38 (The experience of NARTH clinicians is Hearsay, Double Hearsay (Fed. R. Evid. 801, that while some clients report complete change 802) and some indicate no change, many clients report achieving sustained, satisfying, and meaningful shifts in the direction and intensity 13
Testimony
Objection
of their sexual attractions, fantasy, and arousal as well as behavior and sexual orientation identity.) 41 Irrelevant, Argumentative, Lacks Foundation, Speculation (Fed. R. Evid. 401, 402, 602, 702) 43 (Causatively, then, sexual orientation is Speculation, Lacks Foundation (Fed. R. Evid. by no means comparable to a characteristic 602, 702) such as race or biological sex which are thoroughly immutable.) 47 (Research in this area is almost entirely Lacks Foundation (Fed. R. Evid. 602, 702) reliant upon self-reports of perceived discrimination) 49 (While it is often assumed that Lacks Foundation, Speculation (Fed. R. Evid. conservative religious environments are 602, 702) stigmatizing and harmful for sexual minorities by definition) 50 (A3371 would unnecessarily and without Lacks Foundation, Speculation (Fed. R. Evid. scientific warrant eliminate the potential role 602, 702) of conservative religious values for ameliorating the effects of stigma in the context of SOCE. This would prevent clients from one means of prioritizing their religious values above their same-sex attractions when these factors are in conflict.) 52 Irrelevant (as to Dr. Rosiks interpretation of A3371), Misleading (Fed. R. Evid. 403) 53 (This arguably is a form of stigma and Lacks Foundation (Fed. R. Evid. 602, 702) discrimination toward practitioners of SOCE, who ironically, have developed their own set of practice guidelines that, when followed, can be expected to reduce the risk of harm to SOCE consumers) 54 (Spitzer may have originally wished to Speculation, Hearsay (Fed. R. Evid. 602, 702, retract the 2003 study) 801, 802) 56 Irrelevant, Argumentative (Fed. R. Evid. 401, 14
Testimony 402)
Objection
61 Lacks Foundation (Fed. R. Evid. 602, 702) 62 (professional associations such as APA Lacks Foundation, Speculation (Fed. R. Evid. do not approach SOCE literature in an 602, 702) objective manner, but rather with an eye to their advocacy interests) 62 (arguing that anecdotes that SOCE causes Lacks Foundation (Fed. R. Evid. 602, 702) harm are not as well documented than that SOCE is beneficial) 64 Irrelevant, Lacks Foundation, Speculation (Fed. R. Evid. 401, 602, 702) 65 (Clients often pursue psychological care Lacks Foundation, Speculation (Fed. R. Evid. for such difficulties due to deeply held 602, 702) religious and moral beliefs (i.e., that divorce or abortion are wrong) and may experience significant emotional distress in addressing these issues. In this context, the selective attention A3371 gives to SOCE again hints at political advocacy rather than science as a primary inspiration for this law.) 66 Irrelevant, Lacks Foundation, Speculation, Hearsay (Fed. R. Evid. 401, 602, 702)
68 (If this were not true, it would be hard to Irrelevant (Fed. R. Evid. 401, 402) understand how the American Psychological Associations leadership body-the Council of Representatives-could vote 157-0 to support same-sex marriage) Objections to Declaration of Plaintiff Dr. Joseph Nicolosi (Dkt. # 4-8) Testimony Objection
7 (I and most NARTH members provide Lacks Foundation, Hearsay (Fed. R. Evid. 602, clients with a consent form that outlines the 702, 801, 802) nature of the treatment, . . . and informs the client that success in any method of 15
Testimony
psychotherapy is not guaranteed and could potentially be harmful. In my consent form, I explicitly state that I do not, nor does anyone at my clinic, provide gay-affirming treatment.)
Objection
8 (I and most NARTH members also explain Lacks Foundation, Hearsay (Fed. R. Evid. 602, that if at any point in the course of the clients 702, 801, 802) therapy, the client decides that he no longer wants therapy for unwanted same-sex attractions, behaviors, or identity, then he should inform the counselor immediately because a clients course of treatment should always be based on his objectives.) 9 (I and most NARTH members explain to Lacks Foundation, Hearsay (Fed. R. Evid. 602, our clients that the nature of SOCE counseling is 702, 801, 802) such that many people report benefits from the counseling . . . . I explain that as with other issues people face in their lives, many people report that their recognition of their heterosexual potential and identity is a lifelong process that continues with them after therapy.) 11 (Most of the patients with unwanted same- Lacks Foundation, Speculation, Hearsay (Fed. sex sexual attractions, behaviors, or identity who R. Evid. 602, 702, 801, 802) seek SOCE do so to develop and foster healthy, heterosexual relationships and seek the elimination or reduction of their unwanted samesex sexual attractions, behaviors, or identity. I have had many clients who, through SOCE counseling, have been able to succeed in reducing their unwanted same-sex attractions, behaviors, or identity and have reported a marked increase in their recognition of their heterosexual potential.) 12 (I have also had clients who decided that Lacks Foundation, Speculation, Hearsay (Fed. they wanted to remain in the homosexual R. Evid. 602, 702, 801, 802) lifestyle, but report that SOCE counseling helped them to understand the nature of their homosexual identity and, as a result, were able to better cope with that identity after SOCE counseling. These same clients who decide to remain in the homosexual lifestyle have reported that they experienced no harm as a result of 16
Testimony
SOCE counseling.)
Objection
14 (In fact, the APA rejected every Lacks Foundation, Speculation (Fed. R. Evid. practitioner of SOCE counseling that applied 602, 702) for membership on the Task Force. Many of the applicants that the APA rejected were prominent scholars in the field of same-sex attractions, behaviors, and identity, and SOCE counseling, including A. Dean Byrd, Ph.D., George Rekers, Ph.D., Stanton Jones, Ph.D., Mark Yarhouse, Ph.D., and me.) 15 (The APA violated long-established Lacks Foundation, Speculation (Fed. R. Evid. scientific principles by intentionally rejecting 602, 702) all practitioners of SOCE and prohibiting the participation of individuals with differing views, values, and practice. Indeed, the a priori assumptions of the APA Report reveal that it was designed to reach a preordained verdict, which would accept homosexuality as a normal variant of human sexuality and that people should embrace and accept it. Specifically, the APA Report stated that it was accepting as a beginning principle that [s]ame-sex sexual attractions, behavior, and orientations per se are normal and positive variants of human sexuality. APA Report at 2. This clearly indicates that the Report was ideologically opposed to and would not even consider any evidence of non-normative causes of homosexuality and would reject any notion that people should seek to change such attractions, behaviors, or identity The scientific methodology used by the Task Force is flawed because the only voices included in the APA Report are well known for their disapproval of any efforts by homosexual individuals to seek change, even when those individuals seek such change in order to live in accordance with their sincerely-held religious or moral beliefs.) 15 (Even the proponents of anti-SOCE Hearsay (Fed. R. Evid. 801, 802) legislation like A3371 attest to the need for objective and unbiased opinion when conducting 17
Testimony
a study of this nature.)
Objection
16 (First, the APA Report failed to review the Lacks Foundation, Speculation (Fed. R. Evid. well-documented psychological and medical 602, 702) health risks associated with homosexual and bisexual behavior.) 16 (Second, the APA Report failed to Lacks Foundation, Speculation (Fed. R. Evid. consider the factors associated with the 602, 702) development of homosexual attractions and merely assumed that homosexuality is as developmentally normal as heterosexuality.) 16 (Third, the APA Report did not study Lacks Foundation, Speculation (Fed. R. Evid. individuals who reported success from SOCE 602, 702) counseling, apparently because it considered change unnecessary and undesirable. ) 16 (Fourth, the APA Report elevated the Lacks Foundation, Speculation (Fed. R. Evid. standard for success in treatment for unwanted 602, 702) same-sex attractions, behaviors, or identity, and this standard is far higher than the standard for success applicable to any other course of psychological treatment.) 16 (Many other courses of treatment also Misleading (Fed. R. Evid. 403) have notorious reputations for resistance to success, specifically courses of treatment for narcissism, borderline personality disorder, and alcohol and drug abuse, but there is no debate about the usefulness of these courses of treatment.) 16 (Nevertheless, the APA Report ignored Lacks Foundation, Speculation (Fed. R. Evid. any potential comparison to these treatment 602, 702) options and also ignored the fact that psychologists continue to engage in these courses of treatment despite their uncertain outcomes. Additionally, these courses of treatment all continue with the blessing of the APA and all of the other professional organizations that criticize SOCE counseling.) 17 (Proponents of A3371 seek to increase the Lacks Foundation, Speculation (Fed. R. Evid. burden on SOCE counselors by defining success 602, 702) 18
Testimony
in any course of treatment as requiring that it must achieve its intended goals all or most of the time. . . . [T]he APA Report singled out SOCE alone for this absurd standard is itself strong evidence of the bias of its members.)
Objection
19 (On page 18, the APA Report implies Lacks Foundation, Speculation (Fed. R. Evid. that by striving to live a life consistent with 602, 702) their religious values, people with same-sex attractions, behaviors, or identity must deny their true sexual selves. This further implies that individuals with sincerely-held religious beliefs that lead them to seek a reduction or elimination of their unwanted same-sex attractions, behaviors, or identity will not experience organismic wholeness, selfawareness, and mature development of their personal identity. Those religious individuals who seek to live in conformity to their religious values are assumed to experience a constriction of their true selves because of a religiously imposed behavioral control. This false distinction, created by the APA Report, ignores the desire of many clients to live in congruence with the fundamental tenets of their sincerely-held religious and moral beliefs.) 19 (For these individuals, the values they hold Lacks Foundation, Speculation, Hearsay (Fed. because of their religious beliefs are viewed as R. Evid. 602, 702, 801, 802) guideposts and sources of inspiration that help guide them on their pursuit of wholeness, and wholeness for these people can only be achieved by living in congruence with their religious beliefs.) 20 (The APA Report ignores the fact that Lacks Foundation, Speculation, Hearsay (Fed. many people desire to elevate their religious R. Evid. 602, 702, 801, 802) beliefs above any unwanted same-sex attractions, behaviors, or identity and that they seek counseling to assist them with this goal.) 21 (The APAs change in position and its Lacks Foundation, Speculation, Hearsay (Fed. assumptions that homosexuality is immutable R. Evid. 602, 702, 801, 802) 19
Testimony
were based on political and social pressure, not concrete scientific evidence.)
Objection
22 (The definition of sexual orientation Lacks Foundation, Speculation (Fed. R. Evid. includes pederasty, which is a homosexual 602, 702) relationship between a young man and a pubescent boy outside his immediate family, or pedophilia, or a host of other paraphilias or fetishes.) 23 (A3371 . . . is aimed at reframing an Lacks Foundation, Speculation (Fed. R. Evid. individuals religious perspectives deemed 602, 702) antiquated or discriminatory and imposing an ideology on those individuals that do not wish to live in conformity with the view espoused by A3371 and the APA.) 24 (The assertions of A3371 proponents are based on the unsubstantiated belief that same-sex attractions, behaviors, or identity are the result of biology.) 25 (A3371 will cause immediate and irreparable harm to New Jersey licensed counselors and clinics that focus on SOCE counseling, in that A3371 will prohibit them from continuing beneficial and successful courses of treatment with minor clients and force licensed counselors to stop speaking about SOCE treatment or risk losing their licenses. This law will immediately and directly harm the counselors right to speak to and counsel clients in accordance with not only the counselors religious and moral values, but with the clients religious and moral values. The law will also immediately and directly infringe upon their clients right to receive information.) Lacks Foundation, Speculation, Hearsay (Fed. R. Evid. 602, 702, 801, 802)
Lacks Foundation, Speculation, Legal Conclusion (Fed. R. Evid. 602, 702, 704)
26 (Moreover, A3371s operative Lacks Foundation, Speculation (Fed. R. Evid. commencement will be a shocking disturbance to 602, 702) minor clients who are now in counseling. This counseling, which runs afoul of the prohibitions contained in A3371, consists solely of verbal discussion between the counselors and the clients as individuals, exploring the clients feelings and 20
Testimony
helping them align their feelings with their religious and moral beliefs. . . . The therapeutic alliance between the clients and counselors established at the cost of great time, monetary expense, and trust - will be destroyed.)
Objection
26 (There can be no further discussion Lacks Foundation, Speculation, Legal regarding the clients own therapeutic goals and Conclusion (Fed. R. Evid. 602, 702, 704) the therapeutic relationship upon which those goals were based to reduce or eliminate same-sex sexual attractions, behavior, or identity.) 27 (When New Jersey licensed counselors are Lacks Foundation, Speculation (Fed. R. Evid. forced to terminate their SOCE counseling with 602, 702) minor patients, many of the minors will regress and will suffer adverse health consequences stemming from an inability to address their goal of recognizing their heterosexual potential.) 28 (Some clients and their parents will have Lacks Foundation, Speculation (Fed. R. Evid. to seek out counselors who are not licensed and 602, 702) therefore not subject to the dictates of A3371. They might continue to receive the SOCE counseling they desire, but it will be administered by unlicensed professionals.) 29 (As a clinical psychologist, my experience Lacks Foundation (Fed. R. 602, 702) and opinion inform me that it is important for SOCE counseling to be engaged in by those therapists who have studied it and understand the benefits and potential risks.) 30 (A3371 will cause New Jersey counselors Lacks Foundation, Speculation, Legal to violate Section 3.10 of the American Conclusion (Fed. R. Evid. 602, 702, 704) Psychological Associations Ethics Code (APA Code) because they will be prohibited from even discussing a course of treatment, SOCE, that is part of the information that they are ethically required to provide to their clients. Counselors would also be prohibited from even referring a client who wants to discuss SOCE therapy to a professional who can provide it.) 31 (Compliance with A3371 will force New Lacks Foundation, Speculation (Fed. R. Evid. 21
Testimony
Jersey counselors to violate the informed consent 602, 702) mandates of Section 3.10 of the APA Code and probably also infringe ethical requirement outlined in General Principle E of the APA Code that a counselor allow the patient complete freedom to make a self-determined choice concerning his therapy.)
Objection
32 (A3371 is certain to cause irreparable Lacks Foundation, Speculation (Fed. R. Evid. harm to the practice of New Jersey counselors by 602, 702) putting their professional license in jeopardy no matter how they proceed, and with no guidelines on how to resolve the conflict between A3371 and the ethical codes.) 33, p. 131 (A3371 will also cause New Jersey Lacks Foundation, Speculation (Fed. R. Evid. counselors to violate Section 3.06 of the APA 602, 702) Code by causing them to enter into a relationship where their objectivity is called into question because A3371 mandates that only one ideologyi.e., the States ideology condemning SOCEbe shared in the counselors office.) 34, p. 13-14 35, p. 14 Lacks Foundation, Speculation (Fed. R. Evid. 602, 702) Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
33, pp. 14-15 (This prohibition is virtually Lacks Foundation, Speculation (Fed. R. Evid. impossible to comply with because it is well 602, 702) understood in the mental health profession, and conceded by the APA Report, that sexual orientation is difficult to define and encompasses a number of factors, including behavior, practices, identity, and attractions. Given that this prohibition specifically deals with a concept the APA Report concluded was fluid, counselors will ultimately be required to guess at
1
The Nicolosi Declaration contains two sets of paragraphs numbered 33 through 35. See Decl. of Dr. Joseph Nicolosi, Dkt. # 4-8, at 13-16. The page number is therefore provided for the sake of clarity with respect to the three pairs of duplicative paragraph numbers.
22
Testimony
what practices would be prohibited under this bill.)
Objection
33, p. 15 (Since sexual orientation includes Misleading (Fed. R. Evid. 403) pederasty and pedophilia, for example, a counselor counseling a client who has unwanted same-sex sexual attractions toward other younger minors or acts on such attractions (behavior), will be prohibited from a course of counseling designed to reduce or eliminate such attractions, behavior, or identity. Furthermore, a counselor may not counsel a minor victim of an adult pederast or pedophile that it is wrong to engage in sexual behavior with an adult of the samesex.) 34, p. 15 (Proponents of A3371 would agree Argumentative (Fed. R. Evid. 401, 402) that if a teen says he is gay, he is gay. But are we to believe him? What is the credibility of a teenager who, according to the new law, cannot be believed if he says his homosexual feelings do not represent his deepest sense of self, and he wants to change? How are we to define a teenager who has same-sex attractions, behaviors, or identity but does not believe his sexual behavior makes him gay? He believes that deep down he is a heterosexual, but has same-sex attractions, behaviors, or identity. Is it behavior or identity that defines his gayness?) 34, p. 15-16 (Moreover, same-sex sexual Lacks Foundation, Speculation (Fed. R. Evid. attractions, behaviors, and identity among minors 602, 702) often diminish or disappear spontaneously. It would be unethical for a licensed counselor to tell the client who is experiencing temporary unwanted same-sex sexual attractions, behaviors, or identity that such attractions, behavior, or identity is something the client should embrace. In not helping the client eliminate or reduce such attractions, behavior, or identity, the counselor might be pushing the client toward homosexuality, when in fact the client is heterosexual and merely experiencing a temporary period of homosexual attractions.) 23
Testimony 35, p. 16 (When does education and information on SOCE not become the practice of it?)
Objection Argumentative (Fed. R. Evid. 401, 402)
35, p. 16 (ultimately, the counselor will have Lacks Foundation, Speculation (Fed. R. Evid. to guess as to whether the State of New Jersey 602, 702) would consider such counsel a violation of A3371. . . . A counselor educating about SOCE could likely be perceived as counseling to reduce or eliminate same-sex sexual attractions, behaviors, or identity and thus be in violation of A3371.) 36 (proponents of A3371 have previously Irrelevant (as to Dr. Nicolosis interpretation of attempted to establish an arbitrary and unrealistic A3371); Lacks Foundation, Speculation (Fed. distinction between practices of SOCE, versus R. Evid. 401, 602, 702) a counselors speech. . . . licensed counselors will ultimately be required to guess at whether practice or speech would be prohibited under this law.) 37 (Counselors will be forced to guess at Lacks Foundation; Speculation (Fed. R. Evid. whether a discussion of behavior incongruent 602, 702) with ones beliefs and values is an effort to reduce or eliminate unwanted same-sex attractions, behaviors, or identity, which could include mannerisms or speech under A3371. . . . If counselors are prohibited from such discussions, then their clients will face irreparable harm.) 39 (Rather, I and my colleagues who practice Hearsay (Fed. R. Evid. 801, 802) SOCE attempt to have parents accept their teen irrespective of their sexual orientation outcome.) 40 Lacks Foundation (Fed. R. Evid. 602, 702)
24
Dated: December 6, 2013
GluckWalrath LLP By: /s Andrew Bayer Michael Gluck Andrew Bayer 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901 KIRKLAND & ELLIS LLP By: /s David S. Flugman Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Pro hac vice applications pending 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and -Andrew J. Welz Pro hac vice application pending 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 NATIONAL CENTER FOR LESBIAN RIGHTS By: /s Shannon L. Minter Shannon L. Minter Amy Whelan Christopher F. Stoll Pro hac vice applications pending 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442
25
26
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOHN DOE by and through JACK DOE and JANE DOE, et al., Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Defendant.
[PROPOSED] ORDER ON PROPOSED INTERVENOR-DEFENDANT GARDEN STATE EQUALITYS OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION
Upon consideration of Proposed Intervenor-Defendant Garden State Equalitys Objections to Evidence Submitted in Support of Plaintiffs Motion for Preliminary Injunction, dated December 6, 2013, the Court hereby rules as follows: SPECIFIC OBJECTIONS Objections to Declaration of John Doe (Dkt. # 4-2) Testimony Objection Ruling Sustained: ___ Overruled: ___
3 (I began to see a counselor Lacks Foundation (Fed. R. for romantic feelings I was Evid. 602) having toward other boys and men, among other things, which I understand are now prohibited under New Jersey's law, A3371, at least if I get the counseling from a licensed counselor.) 4 ( and not like the boys he Lacks Foundation, Hearsay had grown up with.) (Fed. R. Evid. 602, 802)
Sustained: ___ Overruled: ___
Testimony
Objection
Ruling Sustained: ___ Overruled: ___
7 (My parents knew that I was Speculation, Hearsay (Fed. R. suicidal.) Evid. 602, 802)
8 (My parents agreed to seek Hearsay (Fed. R. Evid. 802) help from a professional counselor.) 9 (He explained to us the Hearsay (Fed. R. Evid. 802) theory of why I was experiencing same-sex attractions.) 10 (I now speak with my Lacks Foundation (Fed. R. normal voice) Evid. 602, 702)
Sustained: ___ Overruled: ___ Sustained: ___ Overruled: ___ Sustained: ___ Overruled: ___
10 (I display less feminine Lacks Foundation (Fed. R. characteristics) Evid. 602, 702)
11 (I would also say that my Lacks Foundation (Fed. R. same-sex attractions have really Evid. 602, 702) started to go away, and on a scale of one to ten, I would say they are to the point where they are only three out of ten when it used to be eight out of ten.) 11 (These counseling sessions Speculation, Lacks Foundation have really helped me.) (Fed. R. Evid. 602, 702)
12
Speculation (Fed. R. Evid. 602)
13 (I have made progress, but Speculation, Lacks Foundation I think there is still a lot I want to (Fed. R. Evid. 602, 702) talk about with my counselor to help me reach my goal of eliminating my unwanted samesex attractions and resolving the underlying issues that once caused my confusion over gender 2
Testimony identity.)
Objection
Ruling
13 (Talking with my Speculation, Lacks Foundation counselor has really made my (Fed. R. Evid. 602, 702) feelings of anxiety and hopelessness go away.) 14 ( he told my parents and Irrelevant, Hearsay (Fed. R. me that his counseling does not Evid. 401, 802) include some of the therapy that he says could really help me out with my goals. My counselor talks about how I am feeling about things from day to day and how I am continuing to get rid of my unwanted same-sex attractions. My counselor told me that there are also licensed psychologists who do counseling very similar to his, but will also talk with me about some of the things that bothered me when I was younger. My counselor says that the conversations with him have really helped me, but that licensed psychologists know more about other types of counseling and that I will probably like talking to them as much as I like talking to him.) 14 (I was disappointed when Hearsay (Fed. R. Evid. 802) my parents told me that the counselors in New Jersey are not allowed to talk to me about these things anymore.) 15 Speculation (Fed. R. Evid. 602)
16
Speculation, Lacks Foundation (Fed. R. Evid. 602, 702) 3
Sustained: ___
Testimony
Objection
Ruling Overruled: ___
17
Irrelevant, Speculation, Lacks Foundation (Fed. R. Evid. 401, 602, 702) Speculation, Lacks Foundation (Fed. R. Evid. 602, 702)
Sustained: ___ Overruled: ___ Sustained: ___ Overruled: ___
18
Objections to Declaration of Jack Doe (Dkt. # 4-3) Testimony Objection Ruling Sustained: ___ Overruled: ___
3 (Early in my marriage, my Irrelevant (Fed. R. Evid. 401) wife and I had many arguments in front of our infant son. I had a difficult time conveying my love and support outwardly or expressing it verbally. I was so focused on being the provider of the home that sometimes I neglected my other duties, and that caused a lot of problems.) 4 Irrevelant, Lacks Foundation, Speculation (Fed. R. Evid. 401, 602, 702) Irrelevant (Fed. R. Evid. 401)
6 (He entered a new school, Irrelevant (Fed. R. Evid. 401) got involved in the drama club, started swimming on the local swim team and entered karate tournaments.) 7 (At age 12, our sons voice Irrelevant (Fed. R. Evid. 401) began to change with adolescence. It seemed that the 4
Testimony deeper his voice became, the more our son tried to make his voice artificially higher and by the time he turned 13, he began to speak in an obviously artificially high, falsetto voice.)
Objection
Ruling
7 (We took a trip to Myrtle Irrelevant (Fed. R. Evid. 401) Beach, and our son shaved his armpits, flushed his underwear down the toilet. 7 (Then, we returned home to Irrelevant (Fed. R. Evid. 401) find various pornographic pictures and illustrations of men in various positions under his mattress.) 8 (Through NARTH, we found Irrelevant (Fed. R. Evid. 401) a fantastic therapist, who happens to be an Orthodox Jew.) 8 (We have learned together Irrelevant (Fed. R. Evid. 401) that there is no such thing as the perfect man.) 9 (Because of that counseling, Irrelevant, Speculation, Lacks I have seen our son grow closer Foundation (Fed. R. Evid. 401, to me, begin to embrace his 602, 702) masculinity, and no longer speak of suicide, cutting himself, or wanting to be a girl. He has become actively involved in martial arts and swimming while still pursuing his artistic interests. Our son was voted Best Team Spirit two years in a row by his swim team coaches, won matches in karate tournaments, had a lead role in his 8th grade play, and earned a scholarship to his Catholic High School.)
Testimony 10
Objection Speculation, Lacks Foundation, Hearsay (Fed. R. Evid. 602, 702, 802)
Ruling Sustained: ___ Overruled: ___ Sustained: ___ Overruled: ___
11 (Our current counselor is a Lacks Foundation, Hearsay licensed clinical social worker in (Fed. R. Evid. 602, 702, 802) New York, but his counseling does not involve the in-depth analysis and discussion of the underlying causes and background information that many licensed psychologists do in this area. Because his counseling is more prospective thinking, our counselor informed us that our son might benefit from the additional counseling of a person who engages in conversations dealing with root causes, background information, and other introspective analysis offered in other licensed professional counseling. Our counselor made such a recommendation based on some of the recent discussions he has had with our son, and we want to continue to be able to make sure our son receives the best counseling from the best counselors on all aspects of those problems that cause him distress. Because of that recommendation, we contacted licensed mental health counselors in New Jersey to attempt to engage one of them for our son.) 12 Irrelevant, Lacks Foundation (Fed. R. Evid. 401, 602, 702)
13
Speculation, Lacks Foundation 6
Sustained: ___
Testimony
Objection (Fed. R. Evid. 602, 702)
Ruling Overruled: ___
Objections to Declaration of Jane Doe (Dkt. # 4-4) Testimony Objection Ruling Sustained: ___ Overruled: ___
3 (Early in my marriage, my Irrelevant (Fed. R. Evid. 401) husband and I would engage in frequent arguments over his stubbornness, absenteeism, and general inability to show outward manifestations of his love and support for me and my son. He was a wonderful provider, but he spent the majority of his time focused on that. This caused a lot of tension between my husband and I, and we engaged in heated arguments in front of our son.) 4 (Because I did not always Irrelevant (Fed. R. Evid. 401) feel he was showing me the proper affection, I would constantly give my husband a hard time about how he was not caring enough, how he did not love his wife and family enough, and how men were so terrible at expressing their feelings. While it was true that my husband was somewhat cold and had a difficult time expressing his emotions, I should have never said these things in front of our young son.) 4 (Our son has also always Irrelevant, Speculation (Fed. R. been very sensitive and artistic, Evid. 401, 602) which is why my critical view of my husband and my husbands lack of emotion likely had a negative impact on our sons 7
Testimony upbringing.)
Objection
Ruling
5 (He was also a gifted artist Irrelevant, Speculation, who drew free-hand sketches of Hearsay (Fed. R. Evid. 401, Ariel on any scrap piece of paper 602, 802) he could find. Our son spent many long hours drawing, which my husband did not appreciate because he was not an artist himself.) 5 (While he was drawing my Hearsay (Fed. R. Evid. 802) husband asked, Why cant you be like all the normal boys and go outside to play sports?) 5 (I was livid because I was a Irrelevant (Fed. R. Evid. 401) musician and knew what it was like to be a sensitive artist.) 6 Irrelevant (Fed. R. Evid. 401)
7 (At these moments, he Hearsay (Fed. R. Evid. 802) would yell that he would have preferred it if God had made him a girl.) 7 (Because of these Lacks Foundation, Speculation statements, we knew that our son (Fed. R. Evid. 602, 702) was really hurting inside and was beginning to struggle with his personal and gender identity.) 8 (At this point, we knew we Lacks Foundation, Speculation needed to seek counseling for our (Fed. R. Evid. 602, 702) son. We desperately wanted to help our son with what appeared to be significant psychological confusion over his gender identity.)
Testimony
Objection
8 (I have a fairly extensive Irrelevant (Fed. R. Evid. 401) understanding of the theories relating to gender identity disorder and same-sex attractions, which I obtained in part from self-study and in part through my Masters in Systematic Theology from Seton Hall University's Immaculate Conception Seminary School of Theology.) 9 Speculation, Lacks Foundation, Hearsay (Fed. R. Evid. 602, 702, 802)
10 (Our son's distress and Speculation, Lacks Foundation anxiety came to a peak when he (Fed. R. Evid. 602, 702) turned 12, and his voice began to change with adolescence. It seemed the deeper it became, the more our son tried to make his voice artificially higher and by the time he turned 13, he began to speak in a high, artificial falsetto. At this point, the downward spiral was very quick.) 10 (Upon our return home, we Irrelevant (Fed. R. Evid. 401) found various pornographic pictures and illustrations of men in graphic sexual positions under his mattress.) 11 (Through NARTH, we Irrelevant (Fed. R. Evid. 401) found a fantastic therapist, an LCSW, who happens to be an Orthodox Jew.) 12 (He explained to us his Hearsay (Fed. R. Evid. 802) theory of why my son was experiencing same-sex attractions 9
Testimony and why he was experiencing significant psychological distress over his gender identity confusion, which he believed were really the manifestation of underlying emotional issues.)
Objection
Ruling
13 (Since the counseling Lacks Foundation, Speculation sessions, we have noticed (Fed. R. Evid. 602, 702) significant changes in our son, and all of them are positive. Our son no longer appears to struggle with the distress and anxiety over his gender confusion, and has made significant progress in eliminating his unwanted samesex attractions. Most importantly, our son does not express suicidal thoughts anymore, and based on my observations I believe it is because of the beneficial discussions he has had with the counselor.) 14 Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
15 (Our current counselor is a Lacks Foundation, Speculation licensed clinical social worker in (Fed. R. Evid. 602, 702) New York, but his counseling does not involve the in-depth analysis and discussion of the underlying causes and background information that many licensed psychologists have in this area. Because his counseling is more prospective thinking, our counselor informed us that our son might benefit from the additional counseling of a person who engages in conversations dealing with root causes, background information, 10
Testimony and other introspective analysis offered in other licensed professional counseling. Our counselor made such a recommendation based on some of the recent discussions he has had with our son, and we want to continue to be able to make sure our son receives the best counseling from the best counselors on all aspects of those problems that cause him distress.) 16
Objection
Ruling
17 (The relationship between Lacks Foundation, Speculation our son and the two of us has (Fed. R. Evid. 602, 702) significantly improved since he started counseling. If he is not allowed to continue, then I fear that our relationship with our son will regress as he becomes unhappy with any increased and unwanted gender and sexual identity issues.) 17 (We have seen the Lacks Foundation, Speculation counseling benefit our son, and (Fed. R. Evid. 602, 702) we have not seen any harm resulting from the counseling. He appears much happier and less withdrawn and depressed since he began counseling.) 18 (In addition to the fact that Irrelevant, Religious Beliefs my husband and I firmly believe (Fed. R. Evid. 401, 610) that our son should be able to seek counseling for his unwanted same-sex attractions, my husband and I also have sincerely held religious beliefs that 11
Testimony homosexuality is a sinful and harmful lifestyle. My husband and I also have sincerely held religious beliefs that we should provide our son with the necessary education to understand Sacred Scripture, as well as the teachings of our Catholic church.) 19
Objection
Ruling
Irrelevant (Fed. R. Evid. 401)
Objections to Declaration of Plaintiff Dr. Ronald Newman (Dkt. # 4-5) Testimony Objection Ruling Sustained: ___ Overruled: ___
5 (As is true with much of my Irrelevant, Lacks Foundation, practice, the individuals who Speculation (Fed. R. Evid. 401, seek SOCE counseling from me 602, 702) do so because they have a desire to conform their attractions, behavior, and identity to their sincerely held religious beliefs. Many of these individuals seek to reduce or eliminate their unwanted same-sex attractions because their religious beliefs inform them that change is possible. 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.) 8 (I have recently by the action seeking licensed mental been contacted Lacks Foundation, Speculation, Plaintiffs in this Hearsay (Fed. R. Evid. 602, to engage a 702, 801-02) health counselor 12
Testimony in New Jersey who can provide SOCE counseling to their son. The Does said that they were seeking a licensed psychologist to assist their son, John Doe, with some of his psychological distress that was rooted in some childhood needs that went unfulfilled and that their current counselor had suggested they contact a licensed counselor who explores and discussed the root causes and symptoms of unwanted same-sex attractions.)
Objection
Ruling
6 (Because of A3371, I was Irrelevant, Lacks Foundation forced to inform the Does that (Fed. R. Evid. 401, 602, 702) neither I nor any licensed mental health counselor in New Jersey could engage in SOCE counseling with their son.) 7 Irrelevant (Fed. R. Evid. 401)
8 (Prior to A3371, when both Irrelevant (Fed. R. Evid. 401) the minor client and the parents wanted SOCE counseling, then I explained to them the nature of such counseling. I also explained to the client that if at any point in the course of the clients therapy the client decides he no longer wants to continue counsel for same-sex attractions, behaviors, or identity, then he should inform me immediately because the clients counsel should always be based on the goals and objectives of the client.)
13
Testimony 8 (I explained that SOCE counseling has been effective for some people with unwanted same-sex attractions, behavior, or identity, but that the counseling can sometimes invoke stress and anxiety about past events or root causes. I have counseled a number of individuals for whom SOCE has been effective and successful, but I have also counseled individuals who determined that their same-sex attractions, behaviors, or identities were no longer unwanted. Many of the individuals I counseled that decided to stop the SOCE counseling still benefited from the counseling sessions.)
Objection Irrelevant (as to Dr. Newmans practice), Speculation, Lacks Foundation (Fed. R. Evid. 401, 602, 702)
Objections to Declaration of Plaintiff David Pruden (Dkt. # 4-6) Testimony 3 Objection Irrelevant (Fed. R. Evid. 401) Ruling Sustained: ___ Overruled: ___ 4 Irrelevant (as to Mr. Prudens interpretation of A3371), Lacks Foundation, Speculation (Fed. R. Evid. 401, 602, 702) Irrelevant (Fed. R. Evid. 401) Sustained: ___ Overruled: ___
Speculation, Lacks Foundation (Fed. R. Evid. 602, 702)
14
Testimony 7
Objection Lacks Foundation, Speculation, Hearsay (Fed. R. Evid. 602, 702, 802)
Objections to Declaration of Plaintiff Dr. Christopher Rosik (Dkt. # 4-7) Testimony Objection Ruling Sustained: ___ Overruled: ___
3 (It appears that the APA Lacks Foundation, Speculation operated with a litmus test when (Fed. R. Evid. 602, 702) considering task force membership the only views of homosexuality that were tolerated are those that uniformly endorsed same-sex behavior as a moral good.) 4 Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
9 (arguing that serious Lacks Foundation, Speculation methodological problems would (Fed. R. Evid. 602, 702) never be tolerated by the task force were this SOCE-supportive research) 10 (Shidlo and Schroeder (2002) and Schroeder and Shidlo (2003) had an explicit mandate to find clients who had been harmed) 11 (Task Force appears to have ignored the warnings from the studys authors) 12 (The APA and other professional bodies that utilize [the Task Force Report] are negligent if not fraudulent) 13 (And since SOCE commonly involves helping Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
Lacks Foundation (Fed. R. Evid. 602, 702)
Lacks Foundation, Speculation (Fed. R. Evid. 602, 702) 15
Testimony clients become more aware of the stress and distress in their lives in order to manage or alleviate them, as do many approaches to mental health care, persons who leave therapy prematurely may have an increased awareness or experience of their (pre-) existing stress and distress. Thus, they may feel worse as a consequence of not having allowed therapy sufficient time to help resolve the difficulties.)
Objection
Ruling
Irrelevant, Misleading, Prejudicial, Lacks Foundation, Speculation (Fed. R. Evid. 401, 402, 403, 602, 702) 18 (It is perfectly reasonable Lacks Foundation, Speculation to believe that not offering (Fed. R. Evid. 602, 702) professional SOCE to some minors with unwanted same- sex attractions and behaviors who seek such care may actually harm them by not helping them deal with what is one of the possible consequences of sexual molestation and abuse.) 20 Irrelevant (Fed. R. Evid. 401, 402, 403) Irrelevant (Fed. R. Evid. 401, 402, 403) Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
14
21
26
28 (This report contains the Lacks Foundation (Fed. R. Evid. most careful and extensive 602, 702) database ever obtained on the childhood experiences of matched homosexual and 16
Testimony heterosexual populations.)
Objection
Ruling
28 (arguing that one of the Speculation, Lacks Foundation findings surprised the authors of (Fed. R. Evid. 602, 702) the referenced study). 33 (a finding underscored Lacks Foundation (Fed. R. Evid. even more by its occurrence in a 602, 702) country with a relatively accepting attitude toward homosexuality.) 36 (A3371s intent for a Irrelevant, Lacks Foundation blanket prohibition on SOCE for (Fed. R. Evid. 401, 402, 602, all minors with unwanted same- 702) sex attractions and behaviors is akin to doing heart surgery with a chainsaw in its inability to address the complex realities of sexual orientation.) 38 (The experience of Hearsay, Double Hearsay (Fed. NARTH clinicians is that while R. Evid. 801, 802) some clients report complete change and some indicate no change, many clients report achieving sustained, satisfying, and meaningful shifts in the direction and intensity of their sexual attractions, fantasy, and arousal as well as behavior and sexual orientation identity.) 41 Irrelevant, Argumentative, Lacks Foundation, Speculation (Fed. R. Evid. 401, 402, 602, 702) 43 (Causatively, then, sexual Speculation, Lacks Foundation orientation is by no means (Fed. R. Evid. 602, 702) comparable to a characteristic such as race or biological sex which are thoroughly immutable.) 17
Testimony
Objection
Ruling
47 (Research in this area is Lacks Foundation (Fed. R. Evid. almost entirely reliant upon self- 602, 702) reports of perceived discrimination) 49 (While it is often assumed Lacks Foundation, Speculation that conservative religious (Fed. R. Evid. 602, 702) environments are stigmatizing and harmful for sexual minorities by definition) 50 (A3371 would Lacks Foundation, Speculation unnecessarily and without (Fed. R. Evid. 602, 702) scientific warrant eliminate the potential role of conservative religious values for ameliorating the effects of stigma in the context of SOCE. This would prevent clients from one means of prioritizing their religious values above their same-sex attractions when these factors are in conflict.) 52 Irrelevant (as to Dr. Rosiks interpretation of A3371), Misleading (Fed. R. Evid. 403) 53 (This arguably is a form of Lacks Foundation (Fed. R. Evid. stigma and discrimination toward 602, 702) practitioners of SOCE, who ironically, have developed their own set of practice guidelines that, when followed, can be expected to reduce the risk of harm to SOCE consumers) 54 (Spitzer may have Speculation, Hearsay (Fed. R. originally wished to retract the Evid. 602, 702, 801, 802) 2003 study) 56 Irrelevant, Argumentative (Fed. 18
Sustained: ___ Overruled: ___ Sustained: ___
Testimony
Objection R. Evid. 401, 402)
Ruling Overruled: ___ Sustained: ___ Overruled: ___ Sustained: ___ Overruled: ___
61
Lacks Foundation (Fed. R. Evid. 602, 702)
62 (professional associations Lacks Foundation, Speculation such as APA do not approach (Fed. R. Evid. 602, 702) SOCE literature in an objective manner, but rather with an eye to their advocacy interests) 62 (arguing that anecdotes that Lacks Foundation (Fed. R. Evid. SOCE causes harm are not as 602, 702) well documented than that SOCE is beneficial) 64 Irrelevant, Lacks Foundation, Speculation (Fed. R. Evid. 401, 602, 702) 65 (Clients often pursue Lacks Foundation, Speculation psychological care for such (Fed. R. Evid. 602, 702) difficulties due to deeply held religious and moral beliefs (i.e., that divorce or abortion are wrong) and may experience significant emotional distress in addressing these issues. In this context, the selective attention A3371 gives to SOCE again hints at political advocacy rather than science as a primary inspiration for this law.) 66 Irrelevant, Lacks Foundation, Speculation, Hearsay (Fed. R. Evid. 401, 602, 702)
68 (If this were not true, it Irrelevant (Fed. R. Evid. 401, would be hard to understand how 402) the American Psychological Associations leadership bodythe Council of Representativescould vote 157-0 to support 19
Testimony same-sex marriage)
Objection
Ruling
Objections to Declaration of Plaintiff Dr. Joseph Nicolosi (Dkt. # 4-8) Testimony Objection Ruling Sustained: ___ Overruled: ___
7 (I and most NARTH Lacks Foundation, Hearsay members provide clients with a (Fed. R. Evid. 602, 702, 801, consent form that outlines the 802) nature of the treatment, . . . and informs the client that success in any method of psychotherapy is not guaranteed and could potentially be harmful. In my consent form, I explicitly state that I do not, nor does anyone at my clinic, provide gay-affirming treatment.) 8 (I and most NARTH Lacks Foundation, Hearsay members also explain that if at any (Fed. R. Evid. 602, 702, 801, point in the course of the clients 802) therapy, the client decides that he no longer wants therapy for unwanted same-sex attractions, behaviors, or identity, then he should inform the counselor immediately because a clients course of treatment should always be based on his objectives.) 9 (I and most NARTH Lacks Foundation, Hearsay members explain to our clients that (Fed. R. Evid. 602, 702, 801, the nature of SOCE counseling is 802) such that many people report benefits from the counseling . . . . I explain that as with other issues people face in their lives, many people report that their recognition of their heterosexual potential and identity is a lifelong process that continues with them after therapy.) 20
Testimony
Objection
11 (Most of the patients with Lacks Foundation, Speculation, unwanted same-sex sexual Hearsay (Fed. R. Evid. 602, attractions, behaviors, or identity 702, 801, 802) who seek SOCE do so to develop and foster healthy, heterosexual relationships and seek the elimination or reduction of their unwanted same-sex sexual attractions, behaviors, or identity. I have had many clients who, through SOCE counseling, have been able to succeed in reducing their unwanted same-sex attractions, behaviors, or identity and have reported a marked increase in their recognition of their heterosexual potential.) 12 (I have also had clients who Lacks Foundation, Speculation, decided that they wanted to remain Hearsay (Fed. R. Evid. 602, in the homosexual lifestyle, but 702, 801, 802) report that SOCE counseling helped them to understand the nature of their homosexual identity and, as a result, were able to better cope with that identity after SOCE counseling. These same clients who decide to remain in the homosexual lifestyle have reported that they experienced no harm as a result of SOCE counseling.) 14 (In fact, the APA rejected Lacks Foundation, Speculation every practitioner of SOCE (Fed. R. Evid. 602, 702) counseling that applied for membership on the Task Force. Many of the applicants that the APA rejected were prominent scholars in the field of same-sex attractions, behaviors, and identity, and SOCE counseling, including A. Dean Byrd, Ph.D., George Rekers, Ph.D., Stanton Jones, Ph.D., Mark Yarhouse, 21
Testimony Ph.D., and me.)
Objection
Ruling
15 (The APA violated long- Lacks Foundation, Speculation established scientific principles (Fed. R. Evid. 602, 702) by intentionally rejecting all practitioners of SOCE and prohibiting the participation of individuals with differing views, values, and practice. Indeed, the a priori assumptions of the APA Report reveal that it was designed to reach a preordained verdict, which would accept homosexuality as a normal variant of human sexuality and that people should embrace and accept it. Specifically, the APA Report stated that it was accepting as a beginning principle that [s]ame-sex sexual attractions, behavior, and orientations per se are normal and positive variants of human sexuality. APA Report at 2. This clearly indicates that the Report was ideologically opposed to and would not even consider any evidence of nonnormative causes of homosexuality and would reject any notion that people should seek to change such attractions, behaviors, or identity The scientific methodology used by the Task Force is flawed because the only voices included in the APA Report are well known for their disapproval of any efforts by homosexual individuals to seek change, even when those individuals seek such change in order to live in accordance with their sincerely-held religious or 22
Testimony moral beliefs.)
Objection
Ruling
15 (Even the proponents of Hearsay (Fed. R. Evid. 801, anti-SOCE legislation like A3371 802) attest to the need for objective and unbiased opinion when conducting a study of this nature.) 16 (First, the APA Report Lacks Foundation, Speculation failed to review the well- (Fed. R. Evid. 602, 702) documented psychological and medical health risks associated with homosexual and bisexual behavior.) 16 (Second, the APA Report Lacks Foundation, Speculation failed to consider the factors (Fed. R. Evid. 602, 702) associated with the development of homosexual attractions and merely assumed that homosexuality is as developmentally normal as heterosexuality.) 16 (Third, the APA Report did Lacks Foundation, Speculation not study individuals who reported (Fed. R. Evid. 602, 702) success from SOCE counseling, apparently because it considered change unnecessary and undesirable. ) 16 (Fourth, the APA Report Lacks Foundation, Speculation elevated the standard for success (Fed. R. Evid. 602, 702) in treatment for unwanted samesex attractions, behaviors, or identity, and this standard is far higher than the standard for success applicable to any other course of psychological treatment.) 16 (Many other courses of Misleading (Fed. R. Evid. 403) treatment also have notorious reputations for resistance to 23
Testimony
Objection
Ruling
success, specifically courses of treatment for narcissism, borderline personality disorder, and alcohol and drug abuse, but there is no debate about the usefulness of these courses of treatment.) 16 (Nevertheless, the APA Lacks Foundation, Speculation Report ignored any potential (Fed. R. Evid. 602, 702) comparison to these treatment options and also ignored the fact that psychologists continue to engage in these courses of treatment despite their uncertain outcomes. Additionally, these courses of treatment all continue with the blessing of the APA and all of the other professional organizations that criticize SOCE counseling.)
17 (Proponents of A3371 seek Lacks Foundation, Speculation to increase the burden on SOCE (Fed. R. Evid. 602, 702) counselors by defining success in any course of treatment as requiring that it must achieve its intended goals all or most of the time. . . . [T]he APA Report singled out SOCE alone for this absurd standard is itself strong evidence of the bias of its members.) 19 (On page 18, the APA Lacks Foundation, Speculation Report implies that by striving to (Fed. R. Evid. 602, 702) live a life consistent with their religious values, people with same-sex attractions, behaviors, or identity must deny their true sexual selves. This further implies that individuals with sincerely-held religious beliefs that lead them to seek a reduction or elimination of their unwanted 24
Testimony same-sex attractions, behaviors, or identity will not experience organismic wholeness, selfawareness, and mature development of their personal identity. Those religious individuals who seek to live in conformity to their religious values are assumed to experience a constriction of their true selves because of a religiously imposed behavioral control. This false distinction, created by the APA Report, ignores the desire of many clients to live in congruence with the fundamental tenets of their sincerely-held religious and moral beliefs.)
Objection
Ruling
19 (For these individuals, the Lacks Foundation, Speculation, values they hold because of their Hearsay (Fed. R. Evid. 602, religious beliefs are viewed as 702, 801, 802) guideposts and sources of inspiration that help guide them on their pursuit of wholeness, and wholeness for these people can only be achieved by living in congruence with their religious beliefs.) 20 (The APA Report ignores Lacks Foundation, Speculation, the fact that many people desire to Hearsay (Fed. R. Evid. 602, elevate their religious beliefs 702, 801, 802) above any unwanted same-sex attractions, behaviors, or identity and that they seek counseling to assist them with this goal.) 21 (The APAs change in Lacks Foundation, Speculation, position and its assumptions that Hearsay (Fed. R. Evid. 602, homosexuality is immutable were 702, 801, 802) based on political and social pressure, not concrete scientific evidence.) 25
Testimony
Objection
Ruling
22 (The definition of sexual Lacks Foundation, Speculation orientation includes pederasty, (Fed. R. Evid. 602, 702) which is a homosexual relationship between a young man and a pubescent boy outside his immediate family, or pedophilia, or a host of other paraphilias or fetishes.) 23 (A3371 . . . is aimed at Lacks Foundation, Speculation reframing an individuals religious (Fed. R. Evid. 602, 702) perspectives deemed antiquated or discriminatory and imposing an ideology on those individuals that do not wish to live in conformity with the view espoused by A3371 and the APA.) 24 (The assertions of A3371 proponents are based on the unsubstantiated belief that samesex attractions, behaviors, or identity are the result of biology.) 25 (A3371 will cause immediate and irreparable harm to New Jersey licensed counselors and clinics that focus on SOCE counseling, in that A3371 will prohibit them from continuing beneficial and successful courses of treatment with minor clients and force licensed counselors to stop speaking about SOCE treatment or risk losing their licenses. This law will immediately and directly harm the counselors right to speak to and counsel clients in accordance with not only the counselors religious and moral values, but with the clients religious and moral values. The law will also immediately and directly infringe upon their clients right to receive information.) Lacks Foundation, Speculation, Hearsay (Fed. R. Evid. 602, 702, 801, 802)
Lacks Foundation, Speculation, Legal Conclusion (Fed. R. Evid. 602, 702, 704)
26
Testimony
Objection
Ruling
26 (Moreover, A3371s Lacks Foundation, Speculation operative commencement will be a (Fed. R. Evid. 602, 702) shocking disturbance to minor clients who are now in counseling. This counseling, which runs afoul of the prohibitions contained in A3371, consists solely of verbal discussion between the counselors and the clients as individuals, exploring the clients feelings and helping them align their feelings with their religious and moral beliefs. . . . The therapeutic alliance between the clients and counselors - established at the cost of great time, monetary expense, and trust - will be destroyed.) 26 (There can be no further Lacks Foundation, Speculation, discussion regarding the clients Legal Conclusion (Fed. R. Evid. own therapeutic goals and the 602, 702, 704) therapeutic relationship upon which those goals were based to reduce or eliminate same-sex sexual attractions, behavior, or identity.) 27 (When New Jersey licensed Lacks Foundation, Speculation counselors are forced to terminate (Fed. R. Evid. 602, 702) their SOCE counseling with minor patients, many of the minors will regress and will suffer adverse health consequences stemming from an inability to address their goal of recognizing their heterosexual potential.) 28 (Some clients and their Lacks Foundation, Speculation parents will have to seek out (Fed. R. Evid. 602, 702) counselors who are not licensed and therefore not subject to the dictates of A3371. They might continue to receive the SOCE counseling they desire, but it will 27
Testimony
be administered by unlicensed professionals.)
Objection
Ruling
29 (As a clinical psychologist, Lacks Foundation (Fed. R. 602, my experience and opinion inform 702) me that it is important for SOCE counseling to be engaged in by those therapists who have studied it and understand the benefits and potential risks.) 30 (A3371 will cause New Lacks Foundation, Speculation, Jersey counselors to violate Legal Conclusion (Fed. R. Evid. Section 3.10 of the American 602, 702, 704) Psychological Associations Ethics Code (APA Code) because they will be prohibited from even discussing a course of treatment, SOCE, that is part of the information that they are ethically required to provide to their clients. Counselors would also be prohibited from even referring a client who wants to discuss SOCE therapy to a professional who can provide it.) 31 (Compliance with A3371 Lacks Foundation, Speculation will force New Jersey counselors (Fed. R. Evid. 602, 702) to violate the informed consent mandates of Section 3.10 of the APA Code and probably also infringe ethical requirement outlined in General Principle E of the APA Code that a counselor allow the patient complete freedom to make a self-determined choice concerning his therapy.) 32 (A3371 is certain to cause Lacks Foundation, Speculation irreparable harm to the practice of (Fed. R. Evid. 602, 702) New Jersey counselors by putting their professional license in jeopardy no matter how they proceed, and with no guidelines on 28
Testimony
how to resolve the conflict between A3371 and the ethical codes.)
Objection
Ruling
33, p. 131 (A3371 will also Lacks Foundation, Speculation cause New Jersey counselors to (Fed. R. Evid. 602, 702) violate Section 3.06 of the APA Code by causing them to enter into a relationship where their objectivity is called into question because A3371 mandates that only one ideologyi.e., the States ideology condemning SOCEbe shared in the counselors office.) 34, p. 13-14 Lacks Foundation, Speculation (Fed. R. Evid. 602, 702) Lacks Foundation, Speculation (Fed. R. Evid. 602, 702)
35, p. 14
33, pp. 14-15 (This prohibition Lacks Foundation, Speculation is virtually impossible to comply (Fed. R. Evid. 602, 702) with because it is well understood in the mental health profession, and conceded by the APA Report, that sexual orientation is difficult to define and encompasses a number of factors, including behavior, practices, identity, and attractions. Given that this prohibition specifically deals with a concept the APA Report concluded was fluid, counselors will ultimately be required to guess at what practices would be prohibited under this bill.)
The Nicolosi Declaration contains two sets of paragraphs numbered 33 through 35. See Decl. of Dr. Joseph Nicolosi, Dkt. # 4-8, at 13-16. The page number is therefore provided for the sake of clarity with respect to the three pairs of duplicative paragraph numbers.
29
Testimony
Objection
33, p. 15 (Since sexual Misleading (Fed. R. Evid. 403) orientation includes pederasty and pedophilia, for example, a counselor counseling a client who has unwanted same-sex sexual attractions toward other younger minors or acts on such attractions (behavior), will be prohibited from a course of counseling designed to reduce or eliminate such attractions, behavior, or identity. Furthermore, a counselor may not counsel a minor victim of an adult pederast or pedophile that it is wrong to engage in sexual behavior with an adult of the same-sex.) 34, p. 15 (Proponents of A3371 Argumentative (Fed. R. Evid. would agree that if a teen says he 401, 402) is gay, he is gay. But are we to believe him? What is the credibility of a teenager who, according to the new law, cannot be believed if he says his homosexual feelings do not represent his deepest sense of self, and he wants to change? How are we to define a teenager who has same-sex attractions, behaviors, or identity but does not believe his sexual behavior makes him gay? He believes that deep down he is a heterosexual, but has same-sex attractions, behaviors, or identity. Is it behavior or identity that defines his gayness?) 34, p. 15-16 (Moreover, same- Lacks Foundation, Speculation sex sexual attractions, behaviors, (Fed. R. Evid. 602, 702) and identity among minors often diminish or disappear spontaneously. It would be unethical for a licensed counselor to tell the client who is 30
Testimony
experiencing temporary unwanted same-sex sexual attractions, behaviors, or identity that such attractions, behavior, or identity is something the client should embrace. In not helping the client eliminate or reduce such attractions, behavior, or identity, the counselor might be pushing the client toward homosexuality, when in fact the client is heterosexual and merely experiencing a temporary period of homosexual attractions.)
Objection
Ruling
35, p. 16 (When does education Argumentative (Fed. R. Evid. and information on SOCE not 401, 402) become the practice of it?) 35, p. 16 (ultimately, the Lacks Foundation, Speculation counselor will have to guess as to (Fed. R. Evid. 602, 702) whether the State of New Jersey would consider such counsel a violation of A3371. . . . A counselor educating about SOCE could likely be perceived as counseling to reduce or eliminate same-sex sexual attractions, behaviors, or identity and thus be in violation of A3371.) 36 (proponents of A3371 have previously attempted to establish an arbitrary and unrealistic distinction between practices of SOCE, versus a counselors speech. . . . licensed counselors will ultimately be required to guess at whether practice or speech would be prohibited under this law.) Irrelevant (as to Dr. Nicolosis interpretation of A3371); Lacks Foundation, Speculation (Fed. R. Evid. 401, 602, 702)
37 (Counselors will be forced Lacks Foundation; Speculation to guess at whether a discussion of (Fed. R. Evid. 602, 702) behavior incongruent with ones 31
Testimony
beliefs and values is an effort to reduce or eliminate unwanted same-sex attractions, behaviors, or identity, which could include mannerisms or speech under A3371. . . . If counselors are prohibited from such discussions, then their clients will face irreparable harm.)
Objection
Ruling
39 (Rather, I and my colleagues Hearsay (Fed. R. Evid. 801, who practice SOCE attempt to 802) have parents accept their teen irrespective of their sexual orientation outcome.) 40
Lacks Foundation (Fed. R. Evid. Sustained: ___ 602, 702) Overruled: ___
Hon. Freda L. Wolfson, U.S.D.J.
32
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOHN DOE, by and through JACK DOE and JANE DOE, et al., Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Defendant.
[PROPOSED] ORDER GRANTING GARDEN STATE EQUALITYS MOTION TO DISMISS THIS MATTER having been brought before the Court through the filing of a Notice of Motion to Dismiss and/or for Judgment on the Pleadings by Intervenor-Defendant Garden State Equality, by and through its attorneys, and the Court having considered the moving papers submitted with the Notice of Motion and all opposition papers submitted by Plaintiffs, for the reasons set forth in the Courts written opinion; and for good cause having been shown; IT IS ORDERED ON THIS ___ day of _____________, 201__; ORDERED that Garden State Equalitys motion is granted and that Plaintiffs Complaint is hereby dismissed with prejudice; and IT IS FURTHER ORDERED that a copy of this Order shall be served upon all parties to these actions or their counsel of record within seven (7) days from the date hereof.
______________________________ Hon. Freda L. Wolfson, U.S.D.J.
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOHN DOE by and through JACK DOE and JANE DOE, et al., Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Defendant. CERTIFICATE OF SERVICE Hon. Freda L. Wolfson, U.S.D.J. Hon. Lois H. Goodman, U.S.M.J. Civil Action Case No. 13-cv-6629 (FLW) (LHG)
Michael Gluck Andrew Bayer GluckWalrath LLP 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901
Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Pro hac vice applications pending KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and -Andrew Welz Pro hac vice application pending KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200
Shannon P. Minter Amy Whelan Christopher F. Stoll Pro hac vice applications pending NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442
I hereby certify that on this 6th day of December, 2013, I electronically filed the following documents with the Clerk of the Court using CM/ECF: 1. Proposed Intervenor-Defendant Garden State Equalitys Notice of Motion to Dismiss and/or for Judgment on the Pleadings; 2. Memorandum of Law in Support of Motion to Dismiss and/or for Judgment on the Pleadings; 3. Declaration of Douglas G. Haldeman, Ph.D.; 4. Declaration of Gregory M. Herek, Ph.D.; 5. Declaration of Laura Davies, M.D.; 6. Affirmation of Andrew Bayer, Esq 7. Objections to Evidence Submitted in Support of Plaintiffs Motion for Preliminary Injunction; 8. Proposed Order on Objections to Plaintiffs Evidence; 9. Proposed Order; and 10. Certificate of Service
I also certify that the foregoing documents are being served this day on all counsel of record via transmission of Notices of Electronic Filing generated by CM/EFC and via Email.
_/s/Andrew Bayer ANDREW BAYER Dated: December 6, 2013

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Case 3:13-cv-06629-FLW-LHG Document 17 Filed 12/06/13 Page 1 of 3 PageID: 509

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Dated: December 6, 2013

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A3771 Does Not Violate the Right to Receive Information

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physical or mental health is jeopardized. 442 U.S. at 603.

Although parents retain plenary

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