3rd Circ. Told NJ Gay Conversion Ban Thwarts Parental Choice

A New Jersey couple challenging a state law banning the use of talk therapy to alter the sexual orientation of minors told the Third Circuit in a reply brief the law is unconstitutional and the present case is distinguishable from another failed challenge to it.

Attorneys for a “John Doe” minor and his parents, identified as Jack and Jane Doe, urged the Third Circuit to overturn A-3371, a New Jersey law banning the use of “conversion therapy” to alter the sexual orientation of minors. In a Dec. 18 reply brief, the parents argued the law infringes the parents' fundamental rights to direct the upbringing and education of their child.

According to the brief, A-3371 is “an unprecedented intrusion into the counseling relationship of mental health professionals in New Jersey, and it runs roughshod over the rights of parents and minors in New Jersey to make decisions for themselves regarding issues as fundamental as their own personal identities.”

The Does said the state put forth a faulty argument by suggesting its prior win in another lawsuit, King v. Gov. Chris Christie, which challenged the law on behalf of the physicians who administer conversion therapy means the current case should be similarly dismissed. The constitutional arguments in the current matter are fundamentally different because the plaintiffs are parents, the brief said.

Though the state has argued the law doesn't infringe parental rights because it only regulates mental health professionals, the plaintiffs said there are many cases in which the court has found parental rights were infringed through the regulation of a third party's conduct. One such case is Meyer v. Nebraska, in which a statute prohibiting teachers from teaching foreign languages until eight grade, which the U.S. Supreme Court later said was an infringement of parental rights.

“Under these cases, any many others, the rights of parents to direct the upbringing and education of their children is sufficiently implicated and violated by A-3371, which intrudes into that relationship and coerces a specific choice in the mental health of that child,” the brief said.

The parents filed suit to upend A-3371, which Christie signed in August 2013. The plaintiffs sought the Third Circuit's review after U.S. District Judge Judge Freda T. Wolfson booted the claims of constitutional infringement, as she did in the related King case. While it disagreed with elements of the lower court's analysis, the Third Circuit affirmed the King decision in September.

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

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

Representatives for the parties did not immediately respond to requests for comment on Monday.

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

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

The plaintiffs are represented by Mathew D. Staver, Anita L. Staver, Mary E. McAlister and Daniel J. Schmid of Liberty Counsel and Demetrios K. Stratis.

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

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