United States District Court, D. New Jersey
Decided July 30, 2014
Appearances: Counsel for Plaintiffs: Demetrios K. Stratis , Esq., Law Office of Demetrios K. Stratis, LLC, Fair Lawn, NJ.
Counsel for Defendant: Susan Marie Scott, Esq., Eric S. Pasternack, Esq., Robert T. Lougy, Esq., Office of the N.J. Attorney General, Trenton, NJ.
Counsel for Proposed Intervenor: Andrew Bayer, Esq., Gluck Walrath, LLP, Trenton, NJ.
The Honorable Freda L. Wolfson, United States District Judge.
Plaintiffs John Doe, a minor child by and through his parents Jack and Jane Doe, as well as Jack and Jane Doe, individually (collectively, " Plaintiffs" ), filed this lawsuit against Defendant New Jersey Governor Christopher J. Christie (" Defendant" or " Governor Christie" ), challenging the constitutionality of Assembly Bill Number A3371 (" A3371" ) (codified at N.J.S.A. 45:1-54, -55), which prohibits New Jersey state licensed practitioners, who provide professional counseling services, fro treating minors using methods of Sexual Orientation Change Efforts (" SOCE" ), more commonly known as " gay conversion therapy." Plaintiff John Doe seeks to engage in SOCE, and his parents Jack and Jane Doe wish the same for him, but Plaintiffs are precluded from obtaining SOCE in New Jersey under the prohibition set forth in A3371, and thus they have filed the instant action seeking a declaration that the statute is unconstitutional, and enjoining the operation thereof. Plaintiffs' core challenge to A3371 focuses on whether, by prohibiting the practice of SOCE, New Jersey has impermissibly infringed upon Plaintiffs' First Amendment rights-- i.e., freedom of speech and religious expression--as well as Plaintiffs Jack and Jane Doe's constitutional right to care for their child and direct his upbringing. In line with this Court's previous decision in a similar lawsuit, brought by therapists challenging the constitutionality of A3371, see King v. Christie, 981 F.Supp.2d 296 (D.N.J. 2013), as well as the law applicable to Plaintiffs' specific claims, I conclude that A3371 passes constitutional muster. Accordingly, Defendant's motion to dismiss is GRANTED in its entirety; and Plaintiffs' motion for preliminary injunction is DENIED. Additionally, Garden State Equality (" Garden State" ) has filed a motion to intervene under F.R.C.P. 24(b), which is GRANTED.
BACKGROUND & PROCEDURAL HISTORY
On August 19, 2013, Governor Christie signed into law A3371, prohibiting New Jersey state-licensed practitioners, who provide professional counseling services, from treating minors using methods of SOCE, i.e., " gay conversion therapy; " A3371 became effective on the same date. Following the signing of A3371 into law by Defendant, a lawsuit challenging the constitutionality of the statute was filed in this Court by Tara King Ed.D. and Ronald Newman, Ph.D., who are licensed therapists, as well as the National Association for Research and Therapy of Homosexuality (" NARTH" ) and the American Association of Christian Counselors (" AACC" ) (hereinafter referred to collectively as the " therapist-plaintiffs" ). On November 8, 2013, this Court rendered a decision upholding the constitutionality of A3371 as to the therapist-plaintiffs, and accordingly, denied their preliminary injunction. See King v. Christie, 981 F.Supp.2d 296. However, before that decision had been issued, Plaintiffs filed their own Complaint, raising similar challenges to A3371 but from the standpoint of potential recipients, rather than providers, of SOCE, and seeking to enjoin the operation of the statute. Nevertheless, despite the change in parties, Plaintiffs in this case are represented by the same counsel as are the therapist-plaintiffs in the King v. Christie case.
After the Court issued its decision in King, and during the course of the parties' briefing in the present matter, the Court inquired of Plaintiffs how they wished to proceed with their litigation, given the substantial overlap between King and the instant matter, including whether Plaintiffs wanted to supply additional argument addressing King. Declining to directly challenge the reasoning of my previous decision, Plaintiffs indicated they would rely on their initial briefing and substantially the same law and arguments raised in King, but as applied instead to individuals like Plaintiffs-- i.e., minor individuals and their parents who seek out SOCE, but are precluded from obtaining it in New Jersey by virtue of A3371. In light of the posture of the instant matter, and Plaintiffs' decision to rely on similar arguments and reasoning as the therapist-plaintiffs in King, in this Opinion I recite only those facts and law directly applicable to Plaintiffs' claims; further background on the issues of SOCE underlying the enactment of A3371, as well as the challenge to the California statute upon which A3371 is modeled, can be found in King.
Assembly Bill A3371 precludes persons licensed to practice in certain counseling professions from engaging in " the practice of seeking to change a [minor's] sexual orientation." § 2(b). The statute has two sections; Section 1 provides legislative findings and declarations, while Section 2 defines SOCE and establishes the scope of the legislative prohibition on such conduct. Simply put, A3371 prohibits licensed professionals in New Jersey from engaging in SOCE, deeming it of questionable benefit, and even potentially harmful, to minors.
In King, by opinion dated November 8, 2014, I determined that A3371 (i) does not violate the therapist-plaintiffs' First Amendment right to free speech because the statute regulates conduct, not speech, and does not have an incidental effect on speech, (ii) is rationally related to the state's interest in protecting minors from professional counselling deemed harmful, (iii) is neither unconstitutionally overbroad nor vague, and (iv) does not violate the Free Exercise Clause of the First Amendment. I further rejected the therapist-plaintiffs' attempt to assert a claim on behalf of minor children who desired to engage in SOCE, finding that the therapist-plaintiffs
lacked third-party standing to bring such a claim. Finally, I addressed a motion to intervene under F.R.C.P. 24(b) by Garden State--self-described as " the largest civil rights organization in the State of New Jersey and a leading advocate for New Jersey's lesbian, gay, bisexual, and transgender residents." Garden State Interve. Br., 1. Rejecting the therapist-plaintiffs' arguments I determined that Garden State did not require Article III standing to permissively intervene in the case, and, after finding that the requirements of Rule 24(b) were satisfied, granted Garden State leave to intervene. See generally King v. Christie, 981 F.Supp.2d 296.
A week before I rendered my decision in King, Plaintiffs here filed their Complaint and motion for a preliminary injunction. Plaintiffs did not indicate that their case was related to the King case, and so their Complaint was initially assigned to another district judge. On November 4, 2013, Plaintiffs' Complaint was transferred to me, and on November 14, 2013, I held a telephonic conference call with the parties, the primary purpose of which was to determine how Plaintiffs wished to proceed with their Complaint in light of my decision in King.  At that time, Plaintiffs indicated they would continue to rely on the briefing submitted with their preliminary injunction motion, and counsel for Defendant indicated that she would be filing a combined opposition to Plaintiffs' motion and a cross-motion to dismiss under Rule 12(b)(6), to which Plaintiffs filed a reply. Garden State also filed a motion to dismiss under Rule 12(b)(6), raising arguments substantially identical to those of Defendant.
On March 28, 2014, following the completion of briefing, the Court issued a Letter Order, staying the matter and administratively terminating the parties' motions due to a pending petition for certiorari before the United States Supreme Court from the Ninth Circuit's decision in Pickup v. Brown, 740 F.3d 1208, 1235 (9th Cir. 2014) cert. denied, 13-1281, 134 S.Ct. 2881, 189 L.Ed.2d 833, 2014 WL 1669209 (U.S. June 30, 2014) and cert. denied, 13-949, 134 S.Ct. 2871, 189 L.Ed.2d 833, 2014 WL 514711 (U.S. June 30, 2014). In the Letter Order, I explained that because of the identity of the issues between Pickup and the instant matter--including both (i) my reliance on Pickup as persuasive authority supporting my decision in King and (ii) the fact that Pickup addressed the same claims related to parental rights that Plaintiffs here assert--the posture of the Pickup case made it prudent, and in the interest of judicial economy, to stay Plaintiffs' matter pending a decision by the Supreme Court on the Pickup certiorari petition. See Dkt. No. 26 (Letter Order), 2-3. Last month, the Supreme Court denied the Pickup petition, leaving the Ninth Circuit's decision intact. Accordingly, given that Pickup remains good law, and that the Third Circuit has yet to issue any decision on the appeal from my opinion in King, I find it appropriate to lift the stay of the instant matter and reinstate Plaintiffs' motion for a preliminary injunction, Defendant's cross-motion to dismiss under Rule 12(b)(6), and Garden State's motion to intervene and motion to dismiss.
I. Standard of Review--Motion to Dismiss
In reviewing a motion to dismiss on the pleadings, the court " ...