The opinion of the court was delivered by: BASSLER
Plaintiff, Reverend David B. Cummings ("Reverend Cummings") moves for summary judgment declaring several provisions of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. §§ 10:5-1 - 10:5-42, which added the category of "affectational or sexual orientation" to the list of traits or characteristics protected against discrimination in, among other things, employment, business transactions, housing, and public accommodations. See N.J.S.A. § 10:5-12. Plaintiff claims that the NJLAD's prohibition against discrimination based upon "affectational or sexual orientation," both as written and as applied to him, violates the First Amendment to the United States Constitution.
In this action under 42 U.S.C. section 1983, Plaintiff asserts claims against several state officials responsible for enforcing the NJLAD, including Defendants, James Florio, Robert Del Tufo, Marilyn Flanzbaum, Roman Angel, Betty Carson, Olga L. Vasquez-Clough, Felton Lingo, Sr., Reinhold W. Smyczek, Casey Tam, and C. Gregory Stewart (collectively referred to as the "State Defendants").
If this case is ripe and Plaintiff possesses standing to maintain this action, this Court has jurisdiction under 28 U.S.C. sections 1331 and 1343. For the reasons set forth in this Opinion, Reverend Cummings' motion for summary judgment is denied. Additionally, Defendants' motion for a declaratory judgment is denied. Defendants' motion to dismiss is granted in part and denied in part. This Court dismisses all of Reverend Cummings' claims, except for his claim that N.J.S.A. sections 10:5-12e and n are unconstitutional as applied to him. This Court shall abstain from deciding the merits of Reverend Cummings' as applied challenge pending an adjudication in New Jersey state court.
A. Plaintiffs' Challenge to the NJLAD
In 1992, the New Jersey Legislature added "affectational and sexual orientation" to the list of personal characteristics protected against discrimination, which previously included race, creed, color, national origin, ancestry, age, sex, and marital status. N.J.S.A. § 10:5-12(a). As defined by the NJLAD, the category "affectational and sexual orientation" includes "male or female heterosexuality, homosexuality, or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such orientation." N.J.S.A. § 10:5-5(hh).
Shortly thereafter, Plaintiffs, the Presbytery of New Jersey of the Orthodox Presbyterian Church ("OPC"), Calvary Orthodox Presbyterian Church of Wildwood ("Calvary"), and Reverend Cummings initiated this declaratory judgment action challenging the newly enacted prohibition against discrimination based upon "affectational and sexual orientation" on the ground that it violates the First, Fifth, Fourteenth, and Ninth Amendments to the United States Constitution.
Specifically, Plaintiffs sought to have seven provisions of the NJLAD declared unconstitutional. Two of the challenged provisions apply to employers: one makes it unlawful "to refuse to hire or employ or to bar or to discharge or require to retire" any individual based upon a characteristic protected by the NJLAD, N.J.S.A. § 10:5-12(a); the other bans printing or distributing statements that express, either directly or indirectly, that employment opportunities are restricted or limited for persons possessing protected characteristics, N.J.S.A. § 10:5-12(c). With respect to hiring decisions, however, the NJLAD expressly permits a religious organization to follow "the tenets of its religion in establishing and utilizing criteria for employment of an employee." N.J.S.A. § 10:5-12(a). Another provision of the NJLAD proscribes restricting access to public accommodations on the basis of protected traits. N.J.S.A. § 10:5-12(f). The NJLAD authorizes the Director of the New Jersey Division on Civil Rights to promulgate regulations requiring both employers and providers of public accommodations to post public notices informing employees and patrons of their rights under the NJLAD. N.J.S.A. § 10:5-12(j).
Furthermore, two provisions prohibit refusing to do business with an individual because of a protected characteristic. N.J.S.A. § 10:5-12(l),(m). To that end, the NJLAD makes it unlawful for anyone "to aid, abet, incite, compel, coerce, or induce" any prohibited discrimination in business transactions, including boycotting any person who refuses to engage in such unlawful activity. N.J.S.A. § 10:5-12(n). Finally, the NJLAD proscribes aiding, abetting and inciting any other conduct forbidden under the Act. N.J.S.A. § 10:5-12(e).
Moreover, the NJLAD provides several enforcement mechanisms, both public and private. By filing a complaint with the New Jersey Division on Civil Rights, an aggrieved person can initiate an investigation of the allegedly illegal practice that may prompt the State to commence an enforcement action. N.J.S.A. § 10:5-13 - 10:5-14.1. Alternatively, an aggrieved individual may proceed directly to state court. N.J.S.A. § 10:5-13. The NJLAD expressly confers standing upon "any individual who has been discriminated against" as well as "any organization which represents or acts to further the interests of those who have been discriminated against." N.J.S.A. § 10:5-38.
According to Plaintiffs, The Holy Bible and the OPC's doctrine require Plaintiffs and more than two thousand individual members of the OPC in New Jersey to condemn homosexuality, bisexuality, and heterosexual sex outside of marriage as "grievous sins." Amended Compl. PP 6, 22. Plaintiffs alleged that their religious beliefs require them to "draw reasonable distinctions" based upon permissible and impermissible sexual conduct. Amended Compl. P 22.
As a result, Plaintiffs allege that they have directly and indirectly discriminated against persons based upon "sexual or affectational orientation," even after the 1992 amendments to the NJLAD made this conduct unlawful. Plaintiffs have allegedly committed several types of unlawful discriminatory conduct, including: speaking out, printing and disseminating publications that condemn homosexuality, bisexuality, and heterosexual sex outside of marriage as "an abomination and sinful;" inquiring about the sexual practices of their employees and refusing to employ anyone engaged in "sinful" sexual conduct; aiding and abetting discrimination against persons on the basis of their sexual conduct; and refusing to transact business with homosexuals, bisexuals, and heterosexuals having sex outside of marriage. Amended Compl. PP 49, 51, 57, 69.
Furthermore, Plaintiffs assert that OPC doctrine requires ministers and elders to discipline church members who are engaged in "sexual sin" or teach that "adultery or homosexuality are an acceptable lifestyle and that we [the OPC] should not 'discriminate' in our dealings with such people." Stevenson Aff. P 6; accord Cummings Aff. P 5. If an OPC member refused to abandon a "sexually sinful" lifestyle or to recant "heretical" statements, OPC ministers or elders would be obligated to file "formal disciplinary charges" against that member. Stevenson Aff. P 7; accord Bahnsen Aff. P 4. Disciplinary action could result in expulsion of the unrepentant church member from OPC facilities, functions, and sacraments, including "the Lord's Supper," baptism, and marriage. Amended Compl. PP 27, 29, 33, 34, 35.
Shortly after initiating this action, Plaintiffs requested this Court to issue a preliminary injunction precluding Defendants from enforcing the 1992 amendments to the NJLAD prohibiting discrimination based upon "affectational and sexual orientation" pending a determination of their constitutionality.
In opposition to Plaintiffs' application, Defendants relied upon the affidavit of C. Gregory Stewart, Director, New Jersey Division on Civil Rights (the "Division"), the agency charged with enforcing and applying the NJLAD. N.J.S.A. §§ 10:5-6, 10:5-9.1. As Director of the Division, Stewart is responsible for interpreting and construing the NJLAD with advice from the Attorney General. N.J.S.A. §§ 10:5-8d, 10:5-8g.
This Court denied Plaintiffs' application for preliminary relief in an oral opinion rendered on June 19, 1992. Plaintiffs appealed this denial to the Third Circuit Court of Appeals, which affirmed this Court's decision in an unpublished memorandum opinion. Presbytery of New Jersey v. Florio, 983 F.2d 1052, slip op. at 13 (Dec. 14, 1992) (Presbytery I), see 983 F.2d 1052 (3d Cir. 1992) (Table).
After the Third Circuit's decision, this Court entertained Defendants' motion to dismiss the Amended Complaint on the grounds that Plaintiffs' lacked standing, their claims were not yet ripe for adjudication, and that Pullman abstention was appropriate. See 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971. In light of Director Stewart's affidavit, which clarified the Division's interpretation of the NJLAD, Plaintiffs conceded that the scope of their challenge to the 1992 amendments to the NJLAD had been limited to the following provisions: (1) N.J.S.A. § 10:5-12(e) (making it unlawful to aid and abet any violations of the Act); (2) N.J.S.A. § 10:5-12(n) (prohibiting aiding and abetting refusals to do business, including boycotts); and (3) N.J.S.A. § 10:5-12(j) (requiring posting of notices). Presbytery II, 830 F. Supp. at 247; 40 F.3d at 1461. Plaintiffs argued that the first two sections impermissibly restrict freedom of speech, while the third provision, by compelling forced speech, violates their freedom of conscience. Presbytery II, 830 F. Supp. at 247.
In granting the motion to dismiss, this Court concluded that Plaintiffs' claims were not ripe. Presbytery of New Jersey v. Florio, 830 F. Supp. 241, 250 (D.N.J. 1993), rev'd in part, 40 F.3d 1454 (3d Cir. 1994) [hereinafter Presbytery II]. Based upon the Stewart Affidavit, this Court concluded that the State had waived enforcement of the NJLAD against both the institutional Plaintiffs and Reverend Cummings for any discrimination by them on the basis of "affectational or sexual orientation." Presbytery II, 830 F. Supp. at 249. Consequently, this Court determined that Plaintiffs did not face "a 'real and immediate' threat of enforcement" by the State as required to maintain a ripe declaratory judgment action. Id. (citing Salvation Army v. New Jersey Dept. of Community Affairs, 919 F.2d 183, 192 (3d Cir. 1990)).
Similarly, this Court concluded that Plaintiffs had not substantiated their general allegation that the threat of private enforcement had chilled their religious expression with "evidence of a present and concrete effect" upon their discriminatory speech and conduct. Id. (citing Salvation Army, 919 F.2d at 193). Therefore, Plaintiffs claims against the as yet unknown Defendants who might utilize the private enforcement provisions of the NJLAD were similarly unripe for adjudication. Id.
Since this Court dismissed Plaintiffs' Complaint as unripe, it did not reach the issues of standing and abstention.
In response to this Court's decision, Plaintiffs again appealed to the Third Circuit, which affirmed this Court's dismissal of the claims by the institutional Plaintiffs, the OPC and Calvary, but reversed with respect to Plaintiff Cummings. Presbytery II, 40 F.3d at 1470. The Third Circuit held that although the Amended Complaint consistently refers to Plaintiff Cummings as "Reverend," its allegations encompass allegedly illegal actions by Cummings in his institutional capacity as well as his personal life. Presbytery II, 40 F.3d at 1465-66. The Stewart affidavit, which continually refers to "religious organizations" and "exempt churches," waived prosecution of Reverend Cummings for actions taken in his official capacity as a minister. The affidavit did not, however, "disavow enforcement against the members of the church for their public activities nor does it preclude enforcement against Cummings for his activities outside the Church." Id. at 1461. Consequently, the Third Circuit held that Reverend Cummings had presented a controversy ripe for adjudication. Id. at 1470.
On remand to this Court, Reverend Cummings, the only remaining Plaintiff moves for summary judgment on the merits of his First Amendment challenge. Meanwhile, the Defendants have renewed their motion to dismiss on the grounds that Cummings' claims are not ripe for adjudication, he lacks standing and Pullman abstention is appropriate.
A. Issues Before the Court for Resolution
As a threshold matter, this Court must identify which issues are properly before this Court for resolution. Defendants' have moved for a declaration, "adopting as definitive" the interpretations of the challenged provisions of the NJLAD contained in Director Stewart's affidavits. Def. Br. at 4. The Declaratory Judgment Act provides that federal courts "upon the filing of an appropriate pleading, may declare the rights and other legal relation of any interested party . . ." In fact, Defendants have not filed any pleadings in this action, having chosen to file two motions to dismiss in lieu of filing an answer. As a result, Defendants have not asserted any cross-claim or any other claim to affirmative relief. Since Defendants' have failed to file any pleading upon which a declaratory judgment could be based, their motion for a declaratory judgment is denied.
Furthermore, this Court must identify which provisions of the NJLAD remain before the Court for a determination of their constitutionality. Both before this Court and the Third Circuit, Plaintiff conceded that Director Stewart's initial affidavit narrowed the scope this challenge to three provisions of the NJLAD: (1) N.J.S.A. § 10:5-12e (prohibiting aiding and abetting violations of the Act); (2) N.J.S.A. § 10:5-12n (making it unlawful to aid and abet discriminatory refusals to do business, including through boycotting); and (3) N.J.S.A. § 10:5-12j (requiring posting of notices). Presbytery II, 830 F. Supp. at 247; 40 F.3d at 1461. In spite of this prior concession, Plaintiff's Notice of Motion for Summary Judgment requests this Court to declare four additional provisions of the NJLAD unconstitutional: N.J.S.A. § 10:5-12(c) (prohibiting employers from distributing statements that restrict employment opportunities available to protected persons); N.J.S.A. § 10:5-12f (banning discriminatory limitations on access to public accommodations); and N.J.S.A. §§ 10:5-12l and m (making it unlawful to refuse to engage in business transactions or to extend credit based upon sexual orientation).
In an effort to convince this Court to rule upon the constitutionality of all seven provisions, Plaintiff contends that Director Stewart's supplemental affidavit "dramatically reverses the State's prior enforcement representations made to this Court and to the Third Circuit" Pl. Letter Br. of 6/20/95, at 1. Plaintiff suggests that these alleged changes in the State's enforcement policy have somehow reactivated his previously abandoned challenge to sections 10:5-12c and f. Plaintiff offers no explanation for his renewed challenge to the provisions of the NJLAD that prohibit "direct" discrimination in business transactions, N.J.S.A. §§ 10:5-12l and m.
In fact, Director Stewart's supplemental affidavit adds little, if anything, to the plain language of N.J.S.A. sections 10:5-12c and f. In the supplemental affidavit, Director Stewart argues that the Amended Complaint fails to allege that either Reverend Cummings or any members of the OPC are covered employers or public accommodations subject to the requirements of the NJLAD. Stewart Supp. Aff. PP 19-20. In making this argument, Director Stewart does not enunciate any new State enforcement policy; he merely provides an interpretation of the existing statutory language. Whether this Court adopts Director Stewart's interpretation depends upon whether it comports with definitions of "employer" and "public accommodation" provided by the NJLAD itself. See N.J.S.A. § 10:5-5e,l.
Federal courts possess the power to resolve only actual "cases" or "controversies." U.S. CONST., art. III, § 2. Both outgrowths of the "case" or "controversy" requirement, the justiciability doctrines of standing and ripeness relate not only to a federal court's power to adjudicate a particular controversy, but also to the wisdom of its doing so. Presbytery II, 40 F.3d at 1462. The Defendants contend that the Amended Complaint fails to meet both of these constitutional prerequisites for judicial action.
Standing relates to "who is a proper party to litigate a particular matter, ripeness [doctrine] . . . determine[s] when that litigation may occur. Specifically . . . [it] seeks to separate matters that are premature for review because the injury is speculative and may never occur, from those cases that are appropriate for federal court action." Erwin Chemerinsky, Federal Jurisdiction, § 2.4 (1989).
In response to the Third Circuit's ruling, the Defendants have submitted a supplemental affidavit from Director Stewart, further elaborating upon the Division's interpretation of the NJLAD. In so doing, the Defendants argue that they have eliminated any "real and immediate" threat of [state] enforcement" against Reverend Cummings and other religiously motivated persons under the aid and abet and boycott provisions of the NJLAD. See Salvation Army, 919 F.2d at 192. As a result, this Court must once again assess whether Reverend Cummings' claims are ripe for adjudication.
A ripe case involves "a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be on a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 81 L. Ed. 617, 57 S. Ct. 461 (1937). The purpose of ripeness doctrine is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967).
As enunciated by the Supreme Court, the decision whether a claim is ripe is governed by two considerations: "the fitness of issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories, 387 U.S. at 149. "The prototypical case not yet ripe for adjudication involves a plaintiff who seeks pre-enforcement review of a statute." Kessler Institute for Rehabilitation v. Borough of Essex Fells, 876 F. Supp. 641, 657 (D.N.J. 1995) (citing Chemerinsky, § 2.4). Since pre-enforcement review is often pursued through a declaratory judgment action, ripeness is a special problem in this area. See Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 85 L. Ed. 826, 61 S. Ct. 510 (1941).
As a result, the Third Circuit has adopted a three part test for determining whether pre-enforcement review is appropriate in the context of a declaratory judgment action. A court must examine: " the adversity of the interests of the parties,  the conclusiveness of the judicial judgment, and  the practical help, or utility of that judgment." Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir. 1990), see also Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 412-24 (3d Cir. 1992) [hereinafter Armstrong] (noting that these factors are not exclusive).
The second factor, conclusiveness, derives from the requirement that a ripe controversy must be remediable "through a decree of conclusive character, as distinguished from an opinion advising what the law would be on a hypothetical state of facts." Aetna Life Ins. Co., 300 U.S. at 240. "A declaratory judgment granted in the absence of a concrete set of facts would itself be a 'contingency' and applying it to actual controversies which subsequently arise would be an 'exercise in futility.'" Presbytery II, 40 F.3d at 1463 (citing Armstrong, 961 F.2d at 412). The need for a "concrete set of facts" varies. Armstrong, 961 F.2d at 421. The Supreme Court has held that the "actual factual setting" is important in cases alleging unconstitutional takings, see Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 294-95, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981), while "a factual record is not as important where the question is 'predominantly legal." Armstrong, 961 F.2d at 421 (quoting Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 201, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983)).
Regarding the third factor, utility, this requirement is met where "the court is convinced that [by its action] a useful purpose will be served." Step-Saver, 912 F.2d at 649 (citations omitted). The court should assess the utility of a judgment in terms of "whether the parties' plans of actions are likely to be affected by a declaratory judgment." Id. at 649 n.9.
Finally, these three factors are not the only relevant considerations in determining whether judicial intervention is appropriate. As an additional factor, the Supreme Court has considered whether "postponing consideration of the question presented, until a more concrete controversy arises, also has the advantage of permitting the state courts further opportunity to construe [the challenged provisions] . . . and perhaps in the process to 'materially alter the question to be decided.'" Renne v. Geary, 501 U.S. 312, 323, 115 L. Ed. 2d 288, 111 S. Ct. 2331 (1991) (citations omitted).
In deciding this motion to dismiss, this Court must accept all factual allegations contained in the Amended Complaint as true and draw all reasonable inferences therefrom in favor of the Plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). "The test in reviewing a motion to dismiss for failure to state a claim is whether, under any reasonable reading of the pleadings, plaintiff may be entitled to relief." Presbytery II, 40 F.3d at 1465 (quoting Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1989)).
In holding that Cummings had presented a ripe controversy, the Third Circuit specifically expressed concern that the initial Stewart Affidavit did not obviate the threat that Reverend Cummings would be prosecuted if he, in his individual capacity, engaged in the acts alleged in paragraphs 49, 51, 57, and 69 of the Amended Complaint. Presbytery II, 40 F.3d at 1469. These acts include: speaking out and lobbying against homosexuality and other "sexual sins," Amended Compl. PP 49, 51; printing and disseminating materials that condemn these sexual practices, Amended Compl. P 49; inquiring about the sexual practices of prospective employees; refusing to hire anyone committing "sexual sins," Amended Compl. P 69; making reasonable distinctions based upon these sexual practices, Amended Compl. P 51, 69; aiding and abetting discrimination against homosexuals, bisexuals and heterosexuals having sex outside of marriage, Amended Compl. P 51; and refusing to "buy from, contract with, or otherwise do business with persons based upon that person's homosexual, bisexual, or heterosexual practices," Amended Compl. P 57.
As a statement of general policy, Director Stewart maintains that the NJLAD does not apply to First Amendment protected speech that is unaccompanied by conduct in violation of the Act. Stewart Supp. Aff. P 6. In other words, no one will be subject to prosecution under the NJLAD for "pure speech" that falls within the scope of the First Amendment's protections, regardless of its content and "wherever it may take place, in the 'pulpit' or outside of it." Stewart Supp. Aff. PP 8, 7, 6. Similarly, Director Stewart reaffirms that NJLAD does not authorize prosecution of anyone for either engaging or refusing to engage in speech based upon religious principle and belief. Stewart Supp. Aff. P 7 (quoting Stewart Aff. P 13). Rather, Director Stewart construes the NJLAD as prohibiting only: (1) "pure" speech that falls outside of the First Amendment's protection for a reason other than its discriminatory content; and (2) speech that is accompanied by conduct violative of the NJLAD. Stewart Supp. Aff. PP 6, 14.
Applying these general principles, Director Stewart construes N.J.S.A. section 10:5-12e, which makes it unlawful to "aid, abet, incite, compel or coerce" acts prohibited by the NJLAD, "or to attempt to do so," to require either speech that is not constitutionally protected or actions unlawful under the NJLAD.
To date, no reported or unreported decision has interpreted the prohibition against inciting violations of the NJLAD. N.J.S.A. § 10:5-12e; Stewart Supp. Aff. P 14. If this incitement provision is ever enforced, Director Stewart assures that it "must be and will be read consistently with current First Amendment law" applying only to speech that is not protected by the First Amendment because it is "'directed to inciting or producing imminent lawless action and is likely to produce such action.'" Stewart Supp. Aff. P 14 (citing Brandenburg v. Ohio, 395 U.S. 444, 447, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969) (per curiam)). Under this interpretation, illegal incitement to discriminate under the NJLAD would not include "expressions of . . . opposition to the mere existence of the law or to the people who happen to be included within any of the protected categories of the law, and advocacy that it be repealed or violated." Stewart Supp. Aff. P 14.
Moreover, Director Stewart maintains that section 10:5-12e requires more than just speech to constitute illegal "aiding and abetting." Instead, section 10:5-12e "requires action which assists, supports, and supplements the action of another in conduct" that violates the NJLAD. Stewart Supp. Aff. P 12.
Even under Director Stewart's interpretation of N.J.S.A. section 10:5-12e, Reverend Cummings and other OPC members face a real and immediate threat of prosecution if they engage in the activities alleged in the Amended Complaint. Plaintiff disavows any intention to engage in advocacy directed to and likely to result in "imminent lawless action," Pl. Br. at 32, which would be subject to prosecution under Director Stewart's interpretation of N.J.S.A. § 10:5-12e. Stewart Supp. Aff. P 14 (citing Brandenburg, 395 U.S. at 447). Therefore, Plaintiff does not face any real threat of prosecution for incitement. Plaintiff's Amended Complaint specifically alleges, however, that Reverend Cummings and other OPC members intend to aid and abet discrimination against homosexuals, bisexuals, and heterosexuals engaged in sex outside of marriage, which is prohibited by the NJLAD. Amended Compl. PP 51,
Contrary to Director Stewart's characterization, Plaintiff has alleged conduct that satisfies Director Stewart's interpretation of aiding and abetting and thus could result in prosecution. Plaintiff alleges that he and other members of the OPC are employers subject to the NJLAD. Amended Compl. P 67; see also P 51. In addition, Plaintiff alleges that he and other OPC members "publish, circulate, issue, display, post and mail printed material condemning homosexuality, bisexuality, and heterosexual sex outside of marriage." PP 53, 51. Consistent with these allegations, Reverend Cummings could print a leaflet encouraging discrimination based upon "affectational or sexual orientation" and give it to an OPC member who is an employer. If that employer distributed it to prospective employees, that employer would have violated N.J.S.A. § 10:-12c, which prohibits circulating statements that directly or indirectly indicate that employment opportunities will be discriminatorily limited based upon an applicant's sexual orientation. By printing and providing the leaflet to the employer, Reverend Cummings would have "assisted, supported and supplemented" the employer's conduct of distributing the leaflet in violation of the NJLAD. See N.J.S.A. § 10:5-12c. Therefore, such conduct by Reverend Cummings would constitute unlawfully aiding and abetting another in conduct violative of the NJLAD as those terms have been construed by Director Stewart. Since Director Stewart's supplemental affidavit has failed to eliminate Reverend Cummings' "real and immediate" threat of prosecution under section 10:5-12e, the parties interests remain adverse in this respect. See Salvation Army, 919 F.2d at 192.
In addition, Director Stewart's supplemental affidavit amplifies the Division's interpretation of the NJLAD provision that makes it unlawful to "aid, abet, incite, compel, coerce or induce" violations of the NJLAD provisions prohibiting discrimination in business or credit transactions, or "to attempt, or conspire to do so." N.J.S.A. § 10:5-12n (incorporating by reference N.J.S.A. §§ 10:5-12l,m. Conduct prohibited under this section includes boycotting. N.J.S.A. § 10:5-12n(2). Director Stewart represents that this provision will be interpreted to prohibit "only such boycotts as are designed to achieve an unlawful objective, since such boycotts are not protected by the First Amendment." Stewart Supp. Aff. P 16 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915-920, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982). In the absence of an unlawful objective, Director Stewart claims that the NJLAD permits people, subject to minor restrictions, "to picket, advocate, speak and distribute leaflets and other written material around and about businesses" of their choosing. Stewart Supp. Aff. P 16.
With the supplemental affidavit, Director Stewart has completely failed to eliminate the "real and immediate" threat of prosecution under section 10:5-12n(2) that Reverend Cummings and other OPC members face. See Salvation Army, 919 F.2d at 192. Plaintiff alleges that OPC members like himself "refuse to knowingly buy from, contract with, or otherwise do business with persons on the basis of that person's homosexual, bisexual, or heterosexual practices." Amended Compl. P 57. Plaintiff and the other OPC members evidence their disapproval of homosexual, bisexual and heterosexual persons engaged in sex outside of marriage by isolating and discriminating against such persons in business transactions. See Amended Compl. PP 24, 29. The NJLAD expressly states that this discriminatory objective is unlawful. N.J.S.A. §§ 10:5-12l, m. Therefore, Director Stewart's representation that Plaintiff and others will not be prosecuted for boycotting or any other aiding and abetting discrimination in business transactions, unless it is directed toward an unlawful end, does not in any way insulate Plaintiff from prosecution. The parties' interests thus remain adverse with respect to enforcement of N.J.S.A. § 10:5-12n.
With respect to N.J.S.A. section 10:5-12j, Director Stewart's supplemental affidavit represents that he has not promulgated any regulations requiring persons covered by the act to post notices informing the public that discrimination based upon "affectational or sexual orientation" is prohibited. The NJLAD authorizes the Director "by regulation [to] require" notice posting, but does not require him to do so. N.J.S.A. § 10:5-12j. Existing regulations require employers, real estate agents, and places of public accommodation to post notices informing the public that discrimination based upon traditionally protected characteristics, such as race, creed, color, or national origin is prohibited. N.J.A.C. §§ 13:8-1.1 - 13:8-2.3. Although Director Stewart has not promulgated a regulation adding "affectational or sexual orientation" to that list, the Division prepared new notices to reflect the 1992 amendments to the NJLAD and some of these notices were distributed. Stewart Supp. Aff. P 17. Director Stewart ordered distribution stopped "because of the absence of regulatory authorization." Stewart Supp. Aff. P 17. Therefore, Director Stewart contends, no one is currently required to post notices stating that discrimination based upon "affectational or sexual orientation" is illegal. Stewart Supp. Aff. P 17.
Since no law or existing regulation requires Plaintiff and other OPC members to post notices indicating that discrimination based upon sexual orientation in employment, public accommodations, and real estate transactions is illegal, Plaintiff has failed to demonstrate that his interests are currently adverse to those of the Defendants. Plaintiff has submitted a notice prepared by the Division to reflect the 1992 amendments to the NJLAD. Pl. Br. Exh. 1. While this revised notice may suggest that Director Stewart intends to promulgate the necessary regulation, unless and until he does so, Plaintiff and other OPC members do not face a "real and immediate" threat of prosecution. See Salvation Army, 919 F.2d at 192. As a result, the parties do not possess adverse interests with ...