Case: 13-4429 EQCF Dkt #18

Document: 003111462864

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Date Filed: 11/22/2013

CASE NO. 13-4429 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT TARA KING, ED.D., individually and on behalf of her patients, RONALD NEWMAN, PH.D., individually and on behalf of his patients, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs/Appellants, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, ERIC T. KANEFSKY, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, in his official capacity, MILAGROS COLLAZO, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, in her official capacity, J. MICHAEL WALKER, Executive Director of the New Jersey Board of Psychological Examiners, in his official capacity; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants/Appellees. And GARDEN STATE EQUALITY, Intervenor-Defendant/Appellee

PLAINTIFFS-APPELLANTS MOTION TO EXPEDITE APPEAL Mathew D. Staver (Lead Counsel) Anita L. Staver LIBERTY COUNSEL 1055 Maitland Ctr. Cmmns 2d Floor Maitland, FL 32751-7214 Tel. (800) 671-1776 Email court@lc.org Attorneys for Appellants Stephen M. Crampton Mary E. McAlister Daniel J. Schmid LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants

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MOTION FOR SUSPENSION OF RULE TO EXPEDITE APPEAL Pursuant to Rule 2 of the Federal Rules of Appellate Procedure, Third Circuit Local Rule 4.1, and in the interest of expediting the decision in this case, Plaintiffs/Appellants Tara King, Ed.D., individually and on behalf of her patients, Ronald Newman, Ph.D., individually and on behalf of his patients, National Association For Research And Therapy Of Homosexuality (NARTH), and the American Association Of Christian Counselors (AACC) (collectively

Appellants), by and through their attorneys, move the court for an order suspending the requirements of Rule 31 of the Federal Rules of Appellate Procedure, and substituting in place of such requirements the following procedure: That Appellants Opening Brief be filed and served on January 10th, 2014;1 That Appellees Response Brief be filed and served 20 days from the filing of Appellants Opening Brief; That Appellants Reply Brief be filed and served 10 days from the filing of Appellees Response Brief; Appellants have conferred with Appellees and Intervenor-Appellee regarding the proposed expedited schedule and Appellees and Intervenor-Appellee opposed the proposed schedule.

Appellants proposed date for the filing of their Opening Brief incorporates consideration of the upcoming holiday schedule and its potential impact on all parties to this appeal.
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In support of this Motion, Appellants state the following: PRELIMINARY STATEMENT Appellants are asking this Court to review the New Jersey District Courts November 8, 2013 order denying Appellants Motion for Summary Judgment, granting Appellees Motion for Summary Judgment and dismissing Appellants claims for declaratory judgment, preliminary and permanent injunctive relief and nominal damages for violations of the Appellants constitutional rights. ( See Appendix A to Motion for Injunction Pending Appeal, filed simultaneously with this Motion). Appellants are challenging New Jersey Assembly Bill 3371 (A3371), codified as N.J.S.A. 45:1-54 to 45:1-55, which prohibits licensed counselors from offering and minors from receiving counseling that seeks to reduce or eliminate same-sex sexual attractions, feelings or behaviors (SSA). Because of the threat that A3371 poses to Appellants and their clients fundamental constitutional rights of free speech and free exercise of religion, Appellants filed their Complaint under 42 U.S.C. 1983 on August 22, 2013, three days after the bill became effective immediately upon Governor Christies signature. Appellants simultaneously filed a Motion for a Preliminary Injunction seeking to enjoin the implementation of A3371. While the motion was pending, the parties agreed to convert the Motion for a Preliminary Injunction to a Motion for Summary Judgment, and that Appellees would file a Cross-Motion for Summary
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Judgment. Following briefing and oral argument, the District Court issued its order, and Appellants immediately filed a notice of appeal. Because A3371 has caused and is continuing to cause irreparable injury to Appellants and their clients through the deprivation of constitutional rights and is having a significantly negative impact on the lives and mental health of Appellants clients, Appellants are asking this Court to suspend the usual rules regarding briefing and oral argument and to expedite its consideration of Appellants appeal. Granting the relief sought on this motion will not result in any prejudice to Appellees or to Intervenor-Appellee who do not have fundamental constitutional rights being threatened by A3371 and who have already presented their arguments on the merits at the District Court. ARGUMENT A3371 provides that licensed professional counselors shall not engage in sexual orientation change efforts with a person under 18 years of age. N.J.S.A. 45:1-55(a) (emphasis added). Sexual orientation change efforts (SOCE) is defined as the practice of seeking to change a persons sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender. N.J.S.A. 45:1-55(b) (emphasis added). SOCE as defined by A3371excludes:
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[C]ounseling for a person seeking to transition from one gender to another, or counseling that: (1) provides acceptance, support, and understanding of a person or facilitates a persons coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (2) does not seek to change sexual orientation. Id. Under A3371, licensed counselors are permitted to say that a minors same -sex sexual attractions are to be accepted, supported and understood, but are prohibited from saying that behaviors, gender identity, or gender expressions can be changed or that same-sex attractions or feelings can be reduced or eliminated. N.J.S.A. 45:1-55(b). In short, the New Jersey Legislature has enacted a state-approved message that minors same-sex attractions and behaviors (SSA) are to be approved and supported and questions regarding gender identity are to be explored and developed, including to the point of trying to change gender expressions. N.J.S.A. 45:1-55(b). Counselors who stray from the state-approved message to counsel that unwanted SSA can be reduced or eliminated, even when clients have consented to or insisted upon that message, are punished with disciplinary action, even perhaps with the loss of their livelihoods. Id. Counselors who comply with A3371 and refuse to offer counseling with the message that SSA can be reduced or eliminated will be in violation of professional ethical standards for which they could also face disciplinary action. (See Declarations of Tara King, Ronald
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Newman, David Pruden and Eric Scalise, Exhibits B-E to Motion for Injunction Pending Appeal). A3371 chills Appellants free speech rights and their clients right to receive information under the United States and New Jersey constitutions, as Appellants are prevented from presenting minor clients with the message that their SSA can be reduced or eliminated, even when the clients have consented and requested the information. It is also endangering the lives and mental health of Appellants clients and those minors seeking this counseling. Indeed, as the testimony before the District Court made clear, this counseling has assisted young minors to overcome almost constant thoughts of suicide and even suicide attempts, continual feelings of hopelessness and despair, and has improved their depression and anxiety. (See Exhibits F and G to Motion for Injunction Pending Appeal). Time is of the essence to consider Appellants appeal because the mental health and lives of the minors in New Jersey is at stake. Even though professional standards require that counselors present clients with information regarding all available treatment options and respe ct the clients right to self-determination, counselors must forgo such conversations for fear of violating A3371. (King Decl. 3; Newman Decl. 5; Pruden Decl. 6; Scalise Decl. 7). If they forgo the requested conversations, Appellants risk professional discipline for violating professional standards. This Hobsons choice places a
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virtual gag order on licensed professional counselors, thereby depriving them of their free speech rights. Such a deprivation constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); Dombrowski v. Pfister, 380 U.S. 479, 487 (1965). New Jerseys purposeful unconstitutional [government] suppression of speech constitutes irreparable harm for preliminary injunction purposes. Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989) (citing Goldies Bookstore v. Superior Ct., 739 F.2d 466, 472 (9th Cir.1984)). Appellants are being forced to affirm the states approved message that SSA are to be approved, supported, and understood in order to maintain their professional licenses, in violation of longstanding free speech principles. Agency for Intl Dev. v. Alliance for Open Socy Intl, Inc., 133 S. Ct. 2321, 2327 (2013). Expedited consideration is an appropriate vehicle for addressing such irreparable injuries. See Nat'l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43 (1977) (expedited appeal is one avenue for safeguarding First Amendment rights during the period of appellate review which, in the normal course, may take a year or more to complete). When it enacted A3371, New Jersey violated the fixed star in our constitutional constellation, . . . that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Novosel v. Nationwide
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Ins. Co., 721 F.2d 894, 899 (3d Cir. 1983) (quoting Board of Education v. Barnette, 319 U.S. 624, 642 (1943)). Appellants and their clients fundamental constitutional rights have been chilled and will continue to be chilled until this Court resolves the constitutional issues surrounding A3371. Consequently, expediting consideration of this appeal is warranted to resolve the serious constitutional issues posed by A3371 as expeditiously as possible to lessen the irreparable injury suffered by Appellants. Granting expedited consideration will not prejudice the parties. Since the parties agreed to convert the Motion for Preliminary Injunction into a Motion for Summary Judgment, they had the opportunity to present evidence and have the merits of Appellants challenges considered by the District Court. Since the parties presented arguments on the merits at the District Court, presenting the issues on appeal should not require significant additional research so that preparation of briefs on an expedited schedule will not be unduly burdensome to any of the parties. Based upon the foregoing, Appellants respectfully request that this Court grant the Motion to Expedite.

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Dated November 22 , 2013.

Mathew D. Staver (Lead Counsel) Anita L. Staver LIBERTY COUNSEL 1055 Maitland Ctr. Cmmns 2d Floor Maitland, FL 32751-7214 Tel. (800) 671-1776 Email court@lc.org Attorneys for Appellants

/s/ Mary E. McAlister Stephen M. Crampton Mary E. McAlister Daniel J. Schmid LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on November 22, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel of record. /s/ Mary E. McAlister LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants