14-3495 Garden State Equality Brief

Case: 14-3495
Document: 003111795648
Page: 1
Date Filed: 11/17/2014
14-1941, 14-3495
d
IN THE
United States Court of Appeals

FOR THE THIRD CIRCUIT
JOHN DOE, by and through Jack Doe and Jane Doe; JACK DOE,
individually and on behalf of his son, John Doe; JANE DOE,
individually and on behalf of her son, John Doe,
Appellants,
v.
CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey,
in his official capacity; GARDEN STATE EQUALITY,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
BRIEF FOR APPELLEE

GARDEN STATE EQUALITY
MICHAEL GLUCK
ANDREW BAYER
GLUCKWALRATH LLP
428 River View Plaza
Trenton, New Jersey 08611
(609) 278-3900
SHANNON P. MINTER
CHRISTOPHER F. STOLL
AMY WHELAN
NATIONAL CENTER FOR
LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, California 94102
(415) 392-6257
DAVID S. FLUGMAN
FRANK M. HOLOZUBIEC
SHIREEN A. BARDAY
ANDREW C. ORR
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
and
ANDREW J. WELZ
655 Fifteenth Street, N.W.
Washington, DC 20005
(202) 879-5000
Attorneys for Appellee Garden State Equality
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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, and Third Circuit
Local Appellate Rule 26.1, Garden State Equality hereby makes the following
disclosures:
1. For non-governmental corporate parties please list all parent corporations:
None
2. For non-governmental corporate parties please list all publicly held
companies that hold 10% or more of the partys stock:
None
3. If there is a publicly held corporation which is not a party to the proceeding
before this Court but which has as a financial interest in the outcome of the
proceeding, please identify all such parties and specify the nature of the
financial interest or interests:
None
4. In all bankruptcy appeals counsel for the debtor or trustee of the bankruptcy
estate must list: 1) the debtor, if not identified in the case caption; 2) the
members of the creditors committee or the top 20 unsecured creditors; and,
3) any entity not named in the caption which is active participant in the
bankruptcy proceeding. If the debtor or trustee is not participating in the
appeal, this information must be provided by appellant.
N/A
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TABLE OF CONTENTS
Page
STATEMENT OF RELATED CASES AND PROCEEDINGS .........................1
COUNTERSTATEMENT OF THE ISSUES ON REVIEW ...............................1
COUNTERSTATEMENT OF THE CASE...........................................................2
COUNTERSTATEMENT OF FACTS ..................................................................5
A.
B.
Enactment Of A3371. ............................................................................5

(i)
The Legislatures Finding That Being Gay Is Not An

Illness. .........................................................................................5
(ii)
The Legislatures Finding That Sexual Orientation

Change Efforts Are Ineffective And Potentially Harmful. .........6
Procedural History Below. ..................................................................10

(i)
The King Case. ..........................................................................10
(ii)
The Case At Issue. ....................................................................12
SUMMARY OF ARGUMENT .............................................................................14

STANDARD OF REVIEW ...................................................................................15
ARGUMENT ..........................................................................................................16
I.
THIS COURTS OPINION IN KING FORECLOSES

APPELLANTS FREE SPEECH AND FREE EXERCISE
CLAIMS. ......................................................................................................16
A.
This Court Already Has Held That A3371 Does Not Constitute
Impermissible Viewpoint Discrimination. ..........................................18
B.
Impermissible Content-Based Discrimination. ...................................19
C.
This Court Already Has Held That A3371 Advances An

Important Government Interest. ..........................................................20
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D.
This Court Already Has Held That A3371 Does Not Restrict
More Speech Than Necessary To Achieve The States Interest. ........21
E.
A3371 Does Not Violate Appellants Right To Receive

Information. .........................................................................................22
F.
II.
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(i)
A3371 Does Not Prevent Appellants From Receiving

Information................................................................................22
(ii)
There Is No Right To Receive Information Whose

Transmission The State May Validly Restrict. .........................25
This Court Already Has Held That A3371 Does Not Violate
The First Amendment Right To Free Exercise Of Religion. ..............27
THE DISTRICT COURT CORRECTLY HELD THAT A3371

DOES NOT VIOLATE APPELLANTS PARENTAL RIGHTS...........27
A.
A3371 Does Not Interfere With Parent-Child Relationships..............28
B.
Parental Rights Are Not Absolute And Do Not Include A Right

To Subject Children To Medical Treatments Deemed Harmful
Or Ineffective By The State. ...............................................................29
CONCLUSION.......................................................................................................35
ii
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TABLE OF AUTHORITIES
Page
Cases
Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach,
495 F.3d 695 (D.C. Cir. 2007) ..............................................................................30
Anspach ex rel. Anspach v. City of Phila., Dept. of Pub. Health,
503 F.3d 256 (3d Cir. 2007) .................................................................................28
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,
457 U.S. 853 (1982) ....................................................................................... 23, 25
C.N. v. Ridgewood Bd. of Educ.,
430 F.3d 159 (3d Cir. 2005) .................................................................................31
Combs v. Home-Ctr. Sch. Dist.,
540 F.3d 241 (3d Cir. 2008) .......................................................................... 32, 34
Conant v. Walters,
309 F.3d 629 (9th Cir. 2002) ................................................................................23
Duncan v. United States,
590 F. Supp. 39 (W.D. Okla. 1984) ......................................................................30
Heffner v. Murphy,
745 F.3d 56 (3d Cir. 2014) ...................................................................................21
Hutchins v. District of Columbia,
188 F.3d 531 (D.C. Cir. 1999) ..............................................................................32
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.,
650 F.3d 915 (3d Cir. 2011) .................................................................................28
Jacobson v. Massachusetts,
197 U.S. 11 (1905) ................................................................................................32
Jehovahs Witnesses v. King Cnty. Hosp. Unit No. 1 (Harborview),
390 U.S. 598 (1968) ..............................................................................................32
iii
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King v. Governor of New Jersey,

767 F.3d 216 (3d Cir. 2014) ......................................................................... passim
Meyer v. Nebraska,
262 U.S. 390 (1923) ..............................................................................................34
Mitchell v. Clayton,
995 F.2d 772 (7th Cir. 1993) ................................................................................30
Monteiro v. Tempe Union High Sch. Dist.,
158 F.3d 1022 (9th Cir. 1998) ..............................................................................26
Natl Assn for the Advancement of Psychoanalysis v. Ca. Bd. of Psychology,
228 F.3d 1043 (9th Cir. 2000) ..............................................................................30
Okla. Chapter of the Am. Acad. of Pediatrics v. Fogarty,
366 F. Supp. 2d 1050 (N.D. Okla. 2005) ..............................................................30
Parham v. J.R.,
442 U.S. 584 (1979) ..............................................................................................33
PG Publg Co. v. Aichele,
705 F.3d 91 (3d Cir.), cert. denied, 133 S. Ct. 2771 (2013).................................26
Phillips v. County of Allegheny,
515 F.3d 224 (3d Cir. 2008) .................................................................................15
Pickup v. Brown,
740 F.3d 1208 (9th Cir.), cert. denied, 134 S. Ct. 2871 (2014) .................... 26, 31
Pierce v. Socy of the Sisters of the Holy Names of Jesus & Mary,
268 U.S. 510 (1925) ..............................................................................................34
Prince v. Massachusetts,
321 U.S. 158 (1944) ................................................................................. 31, 32, 34
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ..............................................................................................19
Rutherford v. United States,
616 F.2d 455 (10th Cir. 1980) ..............................................................................30
iv
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Sammon v. N.J. Bd. of Med. Examrs,

66 F.3d 639 (3d Cir. 1995) ...................................................................................29
Schuylkill Energy Res., Inc. v. Pa. Power & Light Co.,
113 F.3d 405 (3d Cir. 1997) .................................................................................15
Sorrell v. IMS Health Inc.,
131 S. Ct. 2653 (2011) ..........................................................................................23
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) ................................................................................. 23, 24, 25
Statutes
N.J. STAT. ANN. 45:1-54 ............................................................................... passim
N.J. STAT. ANN. 45:1-55........................................................................................30
Rules
Fed. R. Civ. P. 24 .....................................................................................................14
N.J. Ct. R. 4:74-7A ..................................................................................................27
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STATEMENT OF RELATED CASES AND PROCEEDINGS

On September 11, 2014, this Court issued an opinion in King v. Governor of
New Jersey, 767 F.3d 216 (3d Cir. 2014), which affirmed the dismissal by the
United States District Court for the District of New Jersey (District Court) of a
nearly-identical lawsuit as the one that is the subject of this appeal. In the King
opinion, this Court held that A3371 was not unconstitutional as it, inter alia,
neither abridged the plaintiffs freedom of speech nor burdened their free exercise
of religion.
COUNTERSTATEMENT OF THE ISSUES ON REVIEW
1.
Whether the District Court correctly held that New Jersey Statutes
45:1-54 et seq. (Assembly Bill 3371 or A3371), which prohibits licensed

mental health professionals from engaging in sexual orientation change efforts
with patients under 18 years of age, does not infringe Appellants rights to freedom
of speech, where the state legislature found that those practices present serious
health risks to minors based on the conclusions of all leading medical and mental
health organizations.
2.
Whether the District Court correctly held that A3371 does not violate
Appellants rights to the free exercise of religion because the law is facially neutral
with respect to religion, there is no evidence that passage of the law was motivated
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by religious concerns, and the law is generally applicable to all licensed mental
health professionals.
3.
Whether the District Court correctly held that A3371 does not infringe
upon Appellants Jack and Jane Does rights to direct the upbringing of their child.
COUNTERSTATEMENT OF THE CASE
Every one of the claims and arguments raised by Appellants in this appeal is
foreclosed as a matter of controlling Third Circuit law. On September 11, 2014,
this Court issued its decision in King v. Governor of New Jerseya case in which
Appellants attorneys, representing several practitioners and supporters of sexual
orientation change efforts (or SOCE), raised nearly identical claims and
arguments as Appellants raise hereaffirming the constitutionality of A3371 and
dismissing the First Amendment freedom of speech and free exercise of religion
claims asserted therein. 767 F.3d 216.1 Though the King opinion was issued three
weeks before they filed their opening brief, Appellants largely ignore King and,
instead, proceed to reiterate the precise arguments that this Court rejected in that
case. But Appellants cannot escape the fact that King is directly on point and
compels the same result here: affirmance of the District Courts ruling dismissing
Appellants lawsuit and affirming the constitutionality of A3371.
1
Unless otherwise indicated, internal citations and quotations are omitted, and
emphasis is added.
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As this Court found in King, the State of New Jersey properly acted within
its broad powers to regulate the activities of professionals operating under state
licensure when it adopted A3371. The law does one thing and one thing only:
prohibits mental health professionals licensed by the State of New Jersey from
engaging in conduct that seeks to change the sexual orientation of minor patients.
As this Court noted in King, the law does not prevent these counselors from
engaging in a public dialogue on homosexuality or sexual orientation changeit
prohibits only a professional practice that is, in this instance, carried out through
verbal communication.
767 F.3d at 233.
Before passing the bill by
overwhelming margins in both houses, the New Jersey legislature heard and
considered evidence and testimony, including statements from SOCE survivors
and the nations most prominent mental health organizations. That record, which
this Court has described as substantial, demonstrated that over the last few
decades a number of well-known, reputable professional and scientific
organizations have publicly condemned the practice of SOCE, expressing serious
concerns about its potential to inflict harm. Id. at 238. Based on this evidence,
the New Jersey legislature concluded 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. N.J. STAT.
ANN. 45:1-54(n).
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As explained in further detail below, most of the arguments Appellants

advance here were raised, and rejected by this Court, in King. Here, as in King,
Appellants argue that A3371 constitutes unconstitutional viewpoint and content
discrimination that cannot withstand strict scrutiny. But in King, this Court upheld
A3371 as a regulation of professional speech under intermediate scrutinya ruling
that applies with equal force in this case. Here, as in King, Plaintiffs argue that
A3371 unconstitutionally burdens their free exercise of religion. But in King, this
Court rejected that argument, finding instead that A3371 is a neutral law of general
applicabilitya ruling that also applies equally in this case.
And while Jack and Jane Doe raise a new argument here that A3371 burdens
their fundamental rights as parents to direct the upbringing of their child, A3371
does not restrict the conduct of parents in any way. In any case, parental rights do
not include the authority to compel state-licensed professionals to provide a
treatment that the state has reasonably determined to be unsafe and devoid of any
medical benefit.
Given, as the Court found in King, the substantial evidence of
potential harm (and absence of evidence of effectiveness) associated with SOCE,

this Courts decision in King dooms this new claim as well.
A3371 implicates the most basic power of the State: to protect the health and
safety of the public (and in this case, vulnerable youth) from dangerous practices
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by regulating the activities of licensed professionals. This Court should affirm the
District Courts dismissal of Appellants Complaint.
COUNTERSTATEMENT OF FACTS
A.
Enactment Of A3371.
New Jersey enacted A3371 based on its finding that sexual orientation
change efforts are ineffective and carry significant risk of harm. King, 767 F.3d at
221-22. In reaching that conclusion, the New Jersey legislature relied on the views
of the leading medical and mental health organizations in the field that SOCE is
ineffective, dangerous, and can lead to depression, guilt, helplessness,
hopelessness, shame, social withdrawal, suicidality, [and] substance abuse, among
other effects. Id. at 222 (citing American Psychological Association (APA)
Report (Appendix (App.) 73 (Complaint Ex. C, American Psychological
Association, Report of the American Psychological Association Task Force on
Appropriate Therapeutic Responses to Sexual Orientation (2009))). See N.J.
STAT. ANN. 45:1-54.
(i)
The Legislatures Finding That Being Gay Is Not An Illness.
Efforts to cure sexual orientation date back to at least the mid-twentieth

century, before the modern medical community recognized that being gay is not an
illness. (See App. 360, 365, 371-72 (Declaration of Gregory Herek, Ph.D.) (noting
that homosexuality was removed from the Diagnostic and Statistical Manual of
Mental Disorders in 1973).) Once the medical community recognized that being
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gay is not a disease, the rationale for trying to cure it by changing an individuals
sexual orientation ceased to exist.
(Id. at 372.)
The New Jersey legislature
recognized as much, finding that being lesbian, gay, or bisexual is not a disease,
disorder, illness, deficiency, or shortcoming and that major professional
associations of mental health practitioners and researchers in the United States
have recognized this fact for nearly 40 years. King, 767 F.3d at 221 (quoting
N.J. STAT. ANN. 45:1-54).
(ii)
The Legislatures Finding That Sexual Orientation Change

Efforts Are Ineffective And Potentially Harmful.
The legislature also relied on the judgments of independent professional

organizations that possess specialized knowledge and experience concerning
SOCE, and which have spoken with [ ] urgency and solidarity regarding their
conclusion that sexual orientation change efforts are ineffective, and present risks
of serious harm. King, 767 F.3d at 238. [S]ubstantial evidence supported the
New Jersey legislatures conclusion that SOCE is ineffective. Id. at 239. For
example, the American Academy of Child and Adolescent Psychiatry found that
there is [neither] evidence that sexual orientation can be altered through therapy,
no[r] any medically valid basis for attempting to prevent homosexuality, which is
not an illness. N.J. STAT. ANN. 45:1-54(k). The National Association of Social
Workers has similarly concluded that [n]o data demonstrates that reparative or
conversion therapies are effective. N.J. STAT. ANN. 45:1-54(h). Numerous
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other such organizations have also concluded that there is no credible evidence
that SOCE counseling is effective. King, 767 F.3d at 238 (citing N.J. STAT. ANN.
45:1-54).
In addition to the prevailing medical view that sexual orientation change
efforts are not effective, the legislature also relied on substantial evidence that
those practices can cause serious harm. In particular, the legislature relied on a
legislative record demonstrat[ing] that over the last few decades a number of
well-known, reputable professional and scientific organizations have publicly
condemned the practice of SOCE, expressing serious concerns about its potential
to inflict harm. King, 767 F.3d at 238. For example, 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.
Id. at 222 (citing N.J. STAT. ANN.
45:1-54(b)). The American Academy of Child and Adolescent Psychiatry has

similarly concluded that efforts to change individuals sexual orientation can
undermine self-esteem, connectedness and caring, [which are] important
protective factors against suicidal ideation and attempts.
45:1-54(k).
N.J. STAT. ANN.
The New Jersey legislature considered and relied upon these
professional organizations conclusions, as well as similar statements from the
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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.
45:1-54(e)-(j), (l); see also King, 767 F.3d at 221-22 (noting that the legislature
[ ] cited reports, articles, resolutions, and position statements from reputable
mental health organizations opposing [SOCE]).
The legislature also relied upon 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. N.J.
STAT. ANN. 45:1-54(m). Indeed, this Court recognized that the New Jersey
legislatures empirical judgment on the potential harm to minors was highly
plausible, noting that [i]t is not too far a leap in logic to conclude that a minor
client might suffer psychological harm if repeatedly told by an authority figure that
her sexual orientationa fundamental aspect of her identityis an undesirable
condition. King, 767 F.3d at 239.
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In addition to the views of the medical and mental health community, the
legislature also received testimony from individuals who had been subjected to
sexual orientation change efforts as minors. These individuals described the harm
they experienced as a result of undergoing sexual orientation change efforts. For
example, one individual explained that he was made to feel shame and engage in
a fruitless labor that left [him] sad and broken. (See App. 457-59 (Exhibit 4 to
Bayer Aff., Testimony of Mordechai Levovitz, Co-Exec. Dir., JQY, before N.J.
Assembly Women & Children Committee, Hearing on A3371, June 13, 2013).)
Another recounted how the sexual orientation efforts he underwent drove him to
the brink of suicide and led to depression, periods of homelessness, and drug
abuse. (See App. 461-62 (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 these 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. N.J. STAT. ANN.
45:1-54(n).
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Procedural History Below.

(i)
The King Case.
Soon after Governor Christie signed A3371 into law, a group of licensed
therapists and professional organizations represented by the same counsel as
Appellants here filed suit in the District Court, challenging A3371 as a violation of
their First Amendment rights to free speech and free exercise of religion. King,
767 F.3d at 220-22. In addition to their own claims, those plaintiffs challenged the
law on behalf of their minor clients under the First and Fourteenth Amendment.
Id. at 222. All three named Appellants here appear to have submitted declarations
in support of the King plaintiffs claims. (Compare King Appendix (King App.)
537 (Declaration of John Doe, Minor Child), 542 (Declaration of Jane Doe, Mother
of Minor Child), and 549 (Declaration of Jack Doe, Father of Minor Child) with
App. 220 (Declaration of John Doe), 232 (Declaration of Jane Doe), and 227
(Declaration of Jack Doe).)
The District Court rejected the King plaintiffs claims in their entirety,
finding that (1) the licensed therapists and professional organizations lacked
standing to assert claims on behalf of the minor clients, King, 767 F.3d at 223; (2)
A3371 regulates conduct, rather than speech, that the law was thus not subject to
heightened First Amendment scrutiny, and that the law was thus constitutional
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under a lesser standard of review, id.; and (3) A3371 did not violate the King
plaintiffs right to the free exercise of religion, id.. at 223-24.
On appeal, this Court affirmed the District Courts decision, albeit under a
different rationale as regards the freedom of speech claim. In addressing that
claim, this Court held that SOCE counseling involves professional speech and that,
as such, A3371 was subject to intermediate First Amendment scrutiny. Id. at 237.
Noting that the value of [a] professionals services stems largely from her ability
to apply [ ] specialized knowledge to a clients individual circumstances, and that
clients ordinarily have no choice but to place their trust in these professionals,
and, by extension, in the State that licenses them, this Court held that A3371 was
constitutional only if it directly advance[ed] the States interest in protecting its
citizens from harmful or ineffective professional practices and [was] no more
extensive than necessary to serve that interest. Id. at 232-33. Finding that A3371
satisfied this standard, this Court rejected the King appellants free speech claims.
Id. at 240-41. This Court also rejected the King appellants free exercise claims,
and agreed with the District Court that the King Appellants lacked standing to
assert claims on behalf of their minor clients. Id. at 241-44. Although the King
appellants had asserted claims based on their minor clients right to receive
information, this Courts finding that the King appellants lacked standing to assert
claims on behalf of their minor clients obviated the need to consider those claims
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on appeal. Id. at 243-44. Finally, while the King appellants had also asserted
claims on behalf of their minor clients parents in the District Court, they
abandoned those claims on appeal. Id. at 243 n.26.
(ii)
The Case At Issue.
While the King case remained pending in the District Court, Appellants
John, Jack, and Jane Doe filed their Complaint in the instant litigation, raising
largely identical First Amendment claims as the King plaintiffs raised. (App. 35,
53-57 (Complaint for Declaratory and Injunctive Relief and Damages).)
Appellants also raised the right to information and parental rights claims that had
been mooted and abandoned in King, respectively. (Id. at 58-60.) In support of
their claims, Appellants filed declarations from Drs. Ronald Newman, Christopher
Rosik, and Joseph Nicolosi, all of whom were either individual plaintiffs or
members of the professional organization plaintiffs in King. (Compare, e.g., App.
239 (Declaration of Ronald Newman, Ph.D.), and 246 (Declaration of Christopher
Rosik, Ph.D.) with King App. 174 (Declaration of Dr. Ronald Newman), and 187
(Declaration of Dr. Christopher Rosik).) Appellants did not indicate that their case
was related to King when they filed their Complaint, so the case was initially
assigned to another judge, before being transferred to Judge Freda Wolfson on
November 4, 2013. (App. 7-8 (Opinion).)
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After the District Court issued its decision in King on November 8, 2013,
Judge Wolfson asked Appellants how they wished to proceed with this litigation
given the substantial overlap between King and the instant matter. (App. 6
(Opinion).) Appellants declined to directly challenge the District Courts King
opinion, and instead indicated that they would rely on their initial briefing and
substantially the same law and arguments raised in King, but as applied instead
to . . . minor individuals and their parents as opposed to licensed therapists. (Id.)
On July 31, 2014, after lifting a stay of the case that it had imposed pending
resolution of a petition for writ of certiorari filed by the plaintiffs in the Ninth
Circuit Pickup litigation (which petition was rejected by the Supreme Court),2 the
District Court issued its opinion rejecting Appellants claims in their entirety.
Relying on its holding in King that A3371 regulates conduct rather than speech, the
District Court rejected Appellants free speech claims, including their right to
information claim. (Id. at 12-18.) In addition, noting that Appellants here raise
virtually identical arguments, and rely on the same case law and reasoning in
support of their free exercise claim as the King appellants, the District Court
rejected that claim as well. (Id. at 18-20.) Next, observing that the fundamental
rights of parents do not include the right to choose a specific medical or mental
2
Appellants appealed the District Courts stay order to this Court, but no action
was taken on that appeal, which is now moot given the District Courts issuance
of its decision disposing of the underlying case.
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health treatment that the state has reasonably deemed harmful or ineffective, the
District Court rejected Appellants parental rights claims. (Id. at 20-24.) Finally,
the District Court rejected Appellants claim that Garden State Equality lacked
standing and failed to satisfy the standard for intervention under Federal Rule of
Civil Procedure 24.3 (Id. at 11-12.)
Appellants filed their timely notice of appeal on July 31, 2014, and filed
their opening brief on October 1, 2014.
SUMMARY OF ARGUMENT
Appellants free speech and free exercise claims fail under the analysis set
forth in the King opinion. Virtually all of the arguments raised by Appellants
hereinincluding
that
A3371
constitutes
viewpoint
and
content-based
discrimination subject to strict scrutiny, that it does not advance an important

government interest, that it restricts more speech than is necessary, and that it
burdens free exercise because it is neither neutral nor generally applicableall
were raised and rejected by this Court in King. And the only argument not
expressly addressed in that opinion, that Appellants right to receive information is
violated, necessarily fails under King because there is no constitutional right to
Appellants did not appeal the District Courts ruling permitting Garden State
Equality to intervene in this litigation.
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receive information that may be validly proscribed by the state. (See infra at
Section I.)
Jack and Jane Does claim that A3371 violates their fundamental rights to
direct the upbringing of their child similarly fails. As an initial matter, this claim
fails on its face because A3371 does not regulate parents at all; instead, it regulates
only the professional activities of licensed therapists. Moreover, the Supreme
Court and this Court have made clear that parental rights are not absolute and do
not bar reasonable state regulations to protect childrens health and safety.
Because this Court in King held that A3371 is such a law, Jack and Jane Doe
cannot show that they have a constitutional right to require the state to permit
licensed therapists to subject their minor son to the harmful practices it bars. (See
infra at Section II.)
STANDARD OF REVIEW
This Court reviews a district courts decision to grant a motion to dismiss de
novo, and must accept all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief. Phillips v. County
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The Court need not, however
accept as true unsupported conclusions and unwarranted inferences. Schuylkill
Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997).
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ARGUMENT
I.
THIS COURTS OPINION IN KING FORECLOSES APPELLANTS

FREE SPEECH AND FREE EXERCISE CLAIMS.
The free speech and free exercise challenges to A3371 raised by Appellants
here were fully litigated and rejected by this Court in King just two months ago. In
King, this Court held that A3371 is a regulation of professional speech because it
was enacted pursuant to the States interest in protecting its citizens from
ineffective or harmful professional services. King, 767 F.3d at 235. Observing
that States have traditionally enjoyed broad authority to regulate professions as a
means of protecting the public, this Court held that intermediate scrutiny is the
appropriate standard of review for regulations of professional speech such as
A3371. Id. at 234. This Court then articulated the applicable test under that
standard to be whether the regulation in question directly advances the States
substantial interest in protecting its citizens from harmful or ineffective
professional practices and is not more extensive than necessary to serve that
interest. Id. at 224. Finally, finding that the States interest in protecting its
citizens from harmful professional practices is unquestionably substantial, and
that A3371 directly advances that interest without regulating more extensively than
necessary, this Court upheld the statute against the King appellants free speech
challenge. Id. at 237-40.
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This Courts conclusion that A3371 is subject to, and satisfies, intermediate
scrutiny forecloses the arguments that Appellants advance here in support of their
free speech claim.
Indeed, this Courts opinion in King squarely rejected
Appellants arguments that A3371 (1) constitutes viewpoint discrimination; (2)

amounts to content-based discrimination which is subject to strict scrutiny; (3) fails
to advance an important government interest; and (4) restricts more speech than
necessary to achieve the states interest.4
Although Appellants advance an
additional argument here that was not before the Court in Kingthat A3371
violates their right to receive informationas described below, the Courts opinion
in King forecloses that claim as well. Finally, in King, this Court rejected the same
argument Appellants advance here, that A3371 violates their right to the free
exercise of religion.
In the briefing below, Garden State Equality argued (and the District Court
held) that Appellants free speech claims can and should be dismissed on the
ground that A3371 targets professional conduct and not speech as that term is
defined under First Amendment doctrine. While Garden State Equality believes
that A3371 could be affirmed under the analysis undertaken by the District
Court, and without waiver of any of the arguments advanced in the District
Court below regarding the conduct/speech distinction, Garden State Equality
agrees that A3371 easily passes muster under the intermediate scrutiny standard
applicable to regulations of professional speech as discussed in King, which
controls here.
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Impermissible Viewpoint Discrimination.
Appellants here insist that A3371 is a textbook example of viewpoint

discrimination, a claim which they support with whole swaths of argument cut
and pasted, verbatim, from the appellants briefing in King. (Appellants Br. at
21.) But these arguments fare no better the second time around, as this Court has
clearly held that A3371 does not discriminate on the basis of viewpoint.
In
particular, this Court in King rejected the same argument advanced by Appellants
here, that A3371 prohibits them from expressing the viewpoint that [same-sex
attractions] can be reduced or eliminated, noting that such an interpretation is a
misreading of the statute. King, 767 F.3d at 237. (See Appellants Br. at 21
(arguing that A3371 precludes discussion of the particular viewpoint that
unwanted [same-sex attraction] can be reduced or eliminated).) This Court went
on to explain that A3371 merely prohibits expressing this viewpoint in a very
specific wayby actually rendering the professional services that they believe to
be effective, and, thus, does not amount to impermissible viewpoint
discrimination. King, 767 F.3d at 237.
While Appellants here argue that this Courts King decision failed to
adequately grasp how counselors speech was infringed, i.e., counselors cannot
counsel clients that unwanted [same-sex attraction] can be reduced, but can
counsel that unwanted [same-sex attraction] should be encouraged, (Appellants
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Br. at 19), Appellants argument is without basis. Indeed, this Courts opinion in
King made clear that any professional practice . . . implicitly communicat[es] the
viewpoint that such practice is effective and beneficial, but that [t]he prohibition
of this method of communicating a particular viewpoint . . . is not the type of
viewpoint discrimination with which the First Amendment is concerned. King,
767 F.3d at 237. The King decision thus makes clear that A3371 does not amount
to viewpoint discrimination.
B.
Impermissible Content-Based Discrimination.
This Courts King decision similarly forecloses Appellants argument that

A3371 amounts to content-based discrimination subject to strict scrutiny. Id. at
236 ([W]e reject Plaintiffs argument that A3371 should be subject to strict
scrutiny because it discriminates on the basis of content.). While Appellants
correctly note that this Court found that A3371 discriminates on the basis of
content, they fail to recognize this Courts analysis that, in the context of lesser
protected categories of speech, such as professional speech regulated by A3371,
a statute does not trigger strict scrutiny [w]hen the basis for the content
discrimination consists entirely of the very reason the entire class of speech at issue
is proscribable. Id. (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)).
A3371
fits
comfortably
within
this
category
of
permissible
content
discrimination, because the States longstanding authority to protect its citizens

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from ineffective or harmful professional practices is precisely the reason New

Jersey targeted SOCE counseling with A3371.
King, 767 F.3d at 237.
Therefore, this Court concluded, A3371 does not trigger strict scrutiny by
discriminating on the basis of content in an impermissible manner. Id.
C.
This Court Already Has Held That A3371 Advances An

Important Government Interest.
This Courts King opinion similarly rejected Appellants present claim that
A3371 does not advance an important government interest. (Appellants Br. at
36.) Indeed, this Court found that, not only is the States interest in protecting its
citizens from harmful professional practices [ ] unquestionably substantial, but
[h]ere, New Jerseys stated interest is even stronger because A3371 seeks to
protect minor clientsa population that is especially vulnerable to such practices.
King, 767 F.3d at 237-38. This Court thus left no doubt that the strength of the
states interest was more than sufficient to satisfy intermediate scrutiny.
Appellants claim that A3371 fails to advance the States interest fares no
better in its latest iteration. Appellants, like the appellants in King, insist that the
legislative justification for A3371 is pure speculation based on opinion
statements, and amounts to [m]ere disagreement with the viewpoint that
unwanted SSA can be changed. (Appellants Br. at 37-38.) But this Court
rejected these same arguments in King, holding that a state legislature is not
constitutionally required to wait for conclusive scientific evidence before acting to
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protect its citizens, and that [t]his is particularly true when a legislatures
empirical judgment is highly plausible, as . . . New Jerseys judgment is in this
case. King, 767 F.3d at 239. Having been rejected by this Court in King,
Appellants claim that A3371 does not advance an important state interest fails
here as well.
D.
This Court Already Has Held That A3371 Does Not Restrict More
Speech Than Necessary To Achieve The States Interest.
Like their other free speech arguments, Appellants claim that A3371
burdens far more speech than necessary to achieve its purported interest is
similarly foreclosed by the King opinion. (Appellants Br. at 39.) In King, this
Court observed that the fit between the states interest and the means by which
the statute advances that interest need not necessarily [be] the single best
disposition but one whose scope is in proportion to the interest served, even if the
fit is imperfect. King, 767 F.3d at 239 (citing Heffner v. Murphy, 745 F.3d 56,
92-93 (3d Cir. 2014)). This Court went on to reject the King appellants arguments
that A3371 failed to satisfy that standard. King, 767 F.3d at 240. Appellants offer
no reason why the Court should reach a contrary conclusion regarding the same
law here.
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E.
Document: 003111795648
A3371 Does
Information.
Not
Violate
Page: 29
Appellants
Right
To
Receive
Appellants only free speech argument not specifically raised in King is their
claim that A3371 violates their right to receive information as a corollary of the
right to speak. (Appellants Br. at 14.) But the reasoning of the King opinion
forecloses that claim as well. Appellants cannot identify any actual information
that A3371 has prevented them from receiving. This is unsurprising given that, as
this Courts opinion in King explains, A3371 does not prevent the free flow of
information regarding SOCE or any other topic. As Appellants brief makes clear,
the information to which they claim a First Amendment right of access is simply
SOCE counseling itself, and this Court has squarely held that the state may validly
proscribe SOCE, along with the speech that practice involves. Appellants offer no
authority for their asserted right to receive counseling that counselors have no right
to provide.
None exists, and Appellants right to information claim fails
accordingly.
(i)
A3371 Does Not Prevent Appellants From Receiving

Information.
At the outset, Appellants cannot articulate what information A3371 has

prevented them from receiving.
While making general references to critical
information and information vital to their mental health decisions, Appellants

only examples are discussions of SOCE counseling that seek to reduce or
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eliminate unwanted [same sex attraction], and the viewpoint of SOCE

counseling. (Appellants Br. at 15-18.)5 That is, Appellants assert a right to
either (1) SOCE itself (which New Jersey has validly banned as practiced on
minors), or (2) something else (which Appellants do not identify). Appellants
failure to clearly identify the purportedly suppressed information stands in stark
contrast to the First Amendment cases cited in their brief, where the laws or
policies at issue actually prevented dissemination of specific information or
content. For example, Appellants cite to cases in which the Supreme Court has
found fault with laws or policies infringing on the right to access prescription
drug price information, prescriber-identifying information, and specific books
in a school library. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 770 (1976); Sorrell v. IMS Health Inc., 131 S. Ct.
2653, 2663 (2011); Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v.
Pico, 457 U.S. 853, 870 (1982). Appellants point to no such specific content
proscribed by A3371 other than SOCE itself. Instead, they argue that A3371 is
unconstitutional because it prevents John Doe from receiving information in a
counseling context. (Appellants Br. at 18.) It is thus clear that Appellants are
5
Contrary to Appellants assertion, and unlike the policy at issue in Conant v.

Walters, where mere discussions of the medical use of marijuana trigger[ed]
the policy, 309 F.3d 629, 637 (9th Cir. 2002), A3371 does not reach any
discussions other than those that occur as part of SOCE counseling itself. King,
767 F.3d at 237.
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not asserting a right to receive information as such, but rather a desire to receive
information in a particular way: during and as part of actual SOCE therapy,
whichas this Court already has heldthe state may validly ban.
That Appellants are asserting an infringement of their right to receive
information in a specific wayas opposed to the right to receive it at allis
underscored by the myriad other channels by which SOCE-related information can
be exchanged outside of actual counseling. For example, A3371 does not prevent
John Doe from receiving information regarding SOCE or anything else from a
professional [ ] speaking to the public at large or offering her personal opinion
outside the context of actual counseling. King, 767 F.3d at 232. Indeed, as long as
the parties are not engaged in SOCE itself, the law does not interfere at all with
discussions of SOCE counseling, expression of the viewpoint of SOCE
counseling (see Appellants Br. at 15, 18), or any other exchange of information
between John Doe and a licensed therapist in New Jersey. See King, 767 F.3d at
237 (A3371 allows [therapists] to express . . . their personal opinion [regarding
SOCE] to anyone they please, including their minor clients.).6
A3371 is thus nothing like the statute in Va. State Bd. of Pharmacy, on which
Appellants rely. There, the Supreme Court found that the law single[d] out
speech of a particular content and [sought] to prevent its dissemination
completely. 425 U.S. at 771. A3371, on the other hand merely constrains the
exchange of information, as Appellants concede, in a counseling context.
(Appellants Br. at 18.)
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In sum, A3371 does not restrict any information beyond the professional
speech that the law validly regulates, and the information which Appellants claim
has been suppressed is, in fact, available to them by numerous other means.
(ii)
There Is No Right To Receive Information

Transmission The State May Validly Restrict.
Whose
This Court already has held that licensed therapists do not have a
constitutional right to perform SOCE on minors. In order to succeed on their
present claim, Appellants must therefore establish that the First Amendment
protects John Does right to have New Jerseys licensed therapists do something
that the therapists themselves have no constitutional right to do.
In effect,
Appellants ask this Court to find that a state may regulate speech that occurs as
part of a constitutionally proscribable treatmentunless someone wants to hear the
speech.
Appellants cite no authority for this proposition. On the contrary, the cases
on which Appellants rely make clear that the First Amendment reciprocity between
speakers and listeners contemplates no such proscribable as to speakers but not as
to listeners principle. For example, in Pico, the Supreme Court observed that the
right to receive ideas follows ineluctably from the senders First Amendment right
to send them. 457 U.S. at 867 (emphasis in original). And in Virginia State
Board of Pharmacy, the Court similarly noted that [i]f there is a right to advertise,
there is a reciprocal right to receive the advertising. 425 U.S. at 757. Appellants
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offer no explanation for why the states regulatory authority based on its interest
in protecting its citizens from ineffective or harmful professional services would
apply with any less force where the listener, rather than the speaker, challenges the
statute. King, 767 F.3d at 235.7 Indeed, the Ninth Circuit rejected the argument
that a California statute virtually identical to A3771 violated minors rights to
receive information. See Pickup v. Brown, 740 F.3d 1208, 1232 n.9 (9th Cir.),
cert. denied, 134 S. Ct. 2871 (2014). In so holding, the Ninth Circuit found it
unnecessary to analyze minors rights to receive information separately from
therapists rights to speak, in light of the well-established rule that the right to
receive information is an inherent corollary of the rights of free speech and press.
See id. (quoting Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027
n.5 (9th Cir. 1998)). Given that [t]he right to listen is derivative of an individuals
right to speak, and this Court has already held that licensed therapists do not have
the right to perform SOCE on minors, this Court should reach the same conclusion
here. PG Publg Co. v. Aichele, 705 F.3d 91, 100 n.9 (3d Cir.), cert. denied, 133 S.
Ct. 2771 (2013).
7
Appellants strain to compare A3371 to a New Jersey statute allowing minors to

request admission to psychiatric facilities on a [judges] finding that the
minors request is informed and voluntary. (Appellants Br. at 18-19 (citing
N.J. Ct. R. 4:74-7A(c)).) Appellants apples to oranges comparison fails to
recognize however, that whereas residential psychiatric treatment may benefit
certain patients, the New Jersey legislatures highly plausible conclusion is
that SOCE is ineffective and potentially harmful. King, 767 F.3d at 239.
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This Court Already Has Held That A3371 Does Not Violate The
First Amendment Right To Free Exercise Of Religion.
Like Appellants free speech claim, their free exercise claim already has
been rejected by this Court. While Appellants insist that A3371 is not neutral,
and [n]either is it generally applicable, (Appellants Br. at 45), this Courts
opinion in King rejected the very same arguments. In particular, this Court held
that A3371 is neutral and generally applicable, and therefore triggers only rational
basis review. King, 767 F.3d at 243. Having already concluded that A3371
survives intermediate scrutiny, the Court went on to hold that it follows ipso
facto that this law is rationally related to a legitimate government interest. Id.
Just as in King, Appellants free exercise claims thus fail here as well.
II.
THE DISTRICT COURT CORRECTLY HELD THAT A3371 DOES

NOT VIOLATE APPELLANTS PARENTAL RIGHTS.
Appellants Jack and Jane Doe allege that A3371 infringes upon their
fundamental rights as parents by preventing them from obtaining a particular

mental health treatment for their minor child from state-licensed therapists. While
this Court in King did not directly address a claim for that alleged violation, the
King opinion necessarily compels the conclusion that the District Court correctly
dismissed that claim as well, because (1) A3371 regulates state-licensed
professionals rather than parents, and (2) parents rights to direct the upbringing of
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their children do not include the right to subject children to medical treatments that
the State reasonably has deemed harmful and ineffective.
A.
A3371 Does Not Interfere With Parent-Child Relationships.
As an initial matter, Appellants argument 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 right to direct the
upbringing of their child. Courts have recognized the parental liberty interest
only where the behavior of the state actor compelled interference in the parentchild relationship. Anspach ex rel. Anspach v. City of Phila., Dept. of Pub.
Health, 503 F.3d 256, 262 (3d Cir. 2007). A conflict with the parents liberty will
not be lightly found and exists only if the states action deprived them of their
right to make decisions concerning their child, and not when the action merely
complicated the making or implementation of those decisions. J.S. ex rel. Snyder
v. Blue Mountain Sch. Dist., 650 F.3d 915, 933-34 (3d Cir. 2011). No such
conflict exists here.
A3371 applies exclusively to a person who is licensed to provide
professional counseling, i.e., to professionals licensed by the State. N.J. STAT.
ANN. 45:1-55(a). It does not regulate parents or interfere with their relationships
with their children. Parents remain free to communicate their values to their
children, control their childrens upbringing, provide them with religious
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instruction, and share their beliefs regarding sexual orientation with them. The
sole effect of A3371 is to regulate state-licensed professionals. Therefore, the
District Court correctly concluded that the statute does not burden Appellants
parental rights. (See App. 23 (Opinion) (distinguishing this case from situations
in which the state has positively interjected itself into parental decision making or
the family structure).)
B.
Parental Rights Are Not Absolute And Do Not Include A Right To

Subject Children To Medical Treatments Deemed Harmful Or
Ineffective By The State.
Appellants argument stretches the parental rights doctrine far beyond its
established bounds. Rather than limiting a states ability to interfere with parentchild relationships, Appellants argument would impose an affirmative obligation
on the State to provide access to mental health treatmentseven those the State
has found to be harmful and ineffectivemerely because parents wish to obtain
those treatments for their children. No such constitutional obligation exists.
Courts uniformly have held that there is no constitutionally protected right to
a medical treatment the State reasonably has deemed ineffective or unsafe, either
on ones own behalf or on behalf of ones children. As this Court has noted, [i]n
the absence of extraordinary circumstances, state restrictions on a patients choice
of a particular treatment . . . have been found to warrant only rational basis
review. Sammon v. N.J. Bd. of Med. Examrs, 66 F.3d 639, 645 (3d Cir. 1995).
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Other courts similarly have upheld such restrictions in the context of medical
treatment. See Natl Assn for the Advancement of Psychoanalysis v. Ca. Bd. of
Psychology, 228 F.3d 1043, 1050 (9th Cir. 2000) ([S]ubstantive due process
rights do not extend to the choice of type of treatment or of a particular health care
provider.); Abigail Alliance for Better Access to Developmental Drugs v. von
Eschenbach, 495 F.3d 695, 711 (D.C. Cir. 2007) (terminally ill patients have no
fundamental right to access treatments whose safety has not yet been tested);
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) (terminally ill cancer patients have no fundamental right to obtain non-FDAapproved drugs); see also Duncan v. United States, 590 F. Supp. 39, 40-41 (W.D.
Okla. 1984) (parent of a child with Downs Syndrome could not obtain unapproved
drug); Okla. Chapter of the Am. Acad. of Pediatrics v. Fogarty, 366 F. Supp. 2d
1050 (N.D. Okla. 2005) (parents have no fundamental right to obtain experimental
asthma drug for their children).8
As the D.C. Circuit has noted, [n]o circuit court has acceded to an affirmative
access claim. Abigail Alliance, 495 F.3d at 710 n.8.
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Rejecting the argument that a California law similar to A3371 violated

parents rights, the Ninth Circuit concluded that it would be odd if parents had a
substantive due process right to choose specific treatments for children
treatments that reasonably have been deemed harmful by the statebut not for
themselves. Pickup, 740 F.3d at 1236. That conclusion is especially compelling
given the well-settled principle that the state has greater authority to legislate in the
interest of protecting children. Prince v. Massachusetts, 321 U.S. 158, 168 (1944)
(The states authority over childrens activities is broader than over like actions of
adults.).
Given that settled law, the District Court properly concluded that the
fundamental rights of parents do not include the right to choose a specific medical
or mental health treatment that the State reasonably has deemed harmful or
ineffective. To find otherwise would create unimaginable and unintentional
consequences. (App. 3, 24 (Opinion).)
Indeed, it is well established that parents rights to direct the upbringing and
instruction of their children are neither absolute nor unqualified, C.N. v.
Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3d Cir. 2005), and, in particular, do
not prevent the enactment of laws to protect childrens safety and well-being. As
the Supreme Court long ago recognized, parental rights do not include liberty to
expose the community or the child to communicable disease or the latter to ill
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health or death. Prince, 321 U.S. at 166-67. States may restrict, or even compel,
certain parental actions when the health or safety of the child or the public at large
is at issue. For example, even over parental objections, states may enforce child
labor regulations and compulsory vaccination laws and require that children
undergo blood transfusions.
See Prince, 321 U.S. at 166; Jacobson v.
Massachusetts, 197 U.S. 11 (1905); Jehovahs Witnesses v. King Cnty. Hosp. Unit
No. 1 (Harborview), 390 U.S. 598 (1968). States may require parents who home
school their children to meet reasonable educational standards. Combs v. HomeCtr. Sch. Dist., 540 F.3d 241, 249 (3d Cir. 2008). And states may compel parents
to require their children to obey curfew laws.
Hutchins v. District of Columbia,
188 F.3d 531 (D.C. Cir. 1999 (plurality opinion) (upholding curfew ordinance
applicable only to minors against parental rights challenge).
A3371 falls squarely within the states authority to enact legislation to
protect childrens health and well-being and to regulate licensed medical providers.
As this Court already has determined, A3371 directly advances New Jerseys
stated interest in protecting minor citizens from harmful professional practices.
King, 767 F.3d at 239.
Given this Courts holding that New Jersey has the
authority to ban SOCE as practiced on minors based on the states determination
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that the practice is harmful,9 it strains reason to suggest that Jack and Jane Doe
nonetheless have a constitutional right to require the state to permit licensed mental
health providers to subject their minor son to that practice.
Appellants strain to read Parham v. J.R., 442 U.S. 584 (1979) as giving
parents an absolute right to make decisions relating to the mental health of the
child. (Appellants Br. at 56.) But Parham expressly rejected any such absolute
right, affirming that a state is not without constitutional control over parental
discretion in dealing with children when their physical or mental health is
jeopardized. 442 U.S. at 603.10
Here, the State has enacted a reasonable
The New Jersey legislature expressly noted that the APAs Task Force Report
concluded that sexual orientation change efforts can pose critical health risks
to lesbian, gay and bisexual people. N.J. STAT. ANN. 45:1-54(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. 45:1-54(c)-(m). Moreover, the legislature received
testimony at legislative hearings from a number of individuals that described
the harms of going through SOCE. (See App. 418-432 (Exhibit 1 to Bayer
Declaration, Witness Slips from the NJ Assembly Women & Children
Committee Hearing on A3371 on June 12, 2013).) This Court already has
found that this evidence is substantial and that the New Jersey legislature was
entitled to rely on the empirical judgments of independent professional
organizations that possess specialized knowledge and experience concerning
the professional practice under review, particularly when this community has
spoken with such urgency and solidarity on the subject. King, 767 F.3d at 238.
10
Appellants also overstate the scope of the parental right in Parham. The
Supreme Court held that parents may commit their children to mental hospitals
without an adversarial hearing, but only because the statute in question properly
protected children by requiring the superintendent of each regional hospital to
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regulation to protect minors from mental health practices that are ineffective and
unsafe. Thus, it is well within the rightful boundary of its power to protect
minors from harmful possibilities . . . of psychological or physical injury.
Prince, 321 U.S. at 170.
Appellants reliance on cases addressing parents right to educate their
children is also misplaced.
(See Appellants Br. at 57-59 (citing Meyer v.
Nebraska, 262 U.S. 390 (1923) and Pierce v. Socy of the Sisters of the Holy
Names of Jesus & Mary, 268 U.S. 510 (1925)).)
As this Court has recognized,
those cases stand for the proposition that while the state cannot prevent parents
from choosing a specific educational program, parents do not have a
constitutional right to avoid reasonable state regulation of their childrens
education. Combs, 540 F.3d at 249. Here, this principle means that Appellants
Jack and Jane Doe have a right to seek mental health care for their children, but
cannot dictate what treatments may lawfully be provided by state-licensed mental
health providers.
That is, they do not have a constitutional right to avoid
reasonable state regulation of their childrens medical care, including New

Jerseys reasonable prohibition of the harmful practices barred by A3371. Id.
exercise independent judgment as to the childs need for confinement. Id. at

604. Thus, the parental right in Parham was limited; the judgment of the
medical official would outweigh a parents wish to commit his or her child if
the commitment was not medically warranted.
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In sum, Appellants offer no reason for this Court to overturn the

well-reasoned decision of the District Court in holding that A3371 does not violate
Jack and Jane Does parental rights.
CONCLUSION
For all the foregoing reasons, this Court should affirm the District Courts
opinion in its entirety and sustain the dismissal of Appellants Complaint.
Dated: November 17, 2014

/s David S. Flugman
Frank Holozubiec
David S. Flugman
Shireen A. Barday
Andrew C. Orr
601 Lexington Avenue
New York, New York 10022
Telephone: (212) 446-4800
Facsimile: (212) 446-4900
-- and -Andrew J. Welz
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Telephone: (202) 637-2015
Facsimile: (202) 879-5200
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NATIONAL CENTER FOR LESBIAN RIGHTS

Shannon P. Minter
Christopher F. Stoll
Amy C. Whelan
870 Market Street, Suite 370
San Francisco, California 94102
Telephone: (415) 392-6257
Facsimile: (415) 392-8442
GLUCKWALRATH LLP
Michael Gluck
Andrew Bayer
428 River View Plaza
Trenton, New Jersey 08611
Telephone: (609) 278-3900
Facsimile: (609) 278-3901
Attorneys for Appellee
Garden State Equality
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CERTIFICATION OF COUNSEL
I, David S. Flugman, hereby certify that:
1.
I am a member of the bar of this court;
2.
This brief complies with the type-volume limitation of Fed. R
App. P. 32(a)(7)(B) because this brief contains 8,004 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii);
3.
This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and type style requirements of Fed. R. App. P. 32(a)(6)

because this brief has been prepared in a proportionally spaced typeface
using Microsoft Word in Times New Roman (14 point font);
4.
The electronic version of this brief is identical to the text
version in the paper copies filed with the court. This document was scanned
using Microsoft Forefront and that no viruses were detected.
5.
On this date, seven (7) hard copies of the Brief for Appellee
Garden State Equality were sent to the Clerks Office. Pursuant to Local
Appellate Rules 31.1(d) and 113.4(a), I caused the Brief for Appellee
Garden State Equality to be served on counsel for Appellants via the Notice
of Docket Activity generated by the Courts electronic filing system (i.e.,
CM/ECF).
Dated: November 17, 2014

New York, New York
s/ David S. Flugman
Counsel for Appellee Garden
State Equality

14-3495 Garden State Equality Brief

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Case: 14-3495

Date Filed: 11/17/2014

United States Court of Appeals

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

BRIEF FOR APPELLEE

Attorneys for Appellee Garden State Equality

Date Filed: 11/17/2014

CORPORATE DISCLOSURE STATEMENT

Date Filed: 11/17/2014

Enactment Of A3371. ............................................................................5

The Legislatures Finding That Being Gay Is Not An

The Legislatures Finding That Sexual Orientation

Procedural History Below. ..................................................................10

The King Case. ..........................................................................10

The Case At Issue. ....................................................................12

SUMMARY OF ARGUMENT .............................................................................14

THIS COURTS OPINION IN KING FORECLOSES

This Court Already Has Held That A3371 Advances An

Date Filed: 11/17/2014

A3371 Does Not Violate Appellants Right To Receive

A3371 Does Not Prevent Appellants From Receiving

There Is No Right To Receive Information Whose

THE DISTRICT COURT CORRECTLY HELD THAT A3371

A3371 Does Not Interfere With Parent-Child Relationships..............28

Parental Rights Are Not Absolute And Do Not Include A Right

Date Filed: 11/17/2014

Date Filed: 11/17/2014

King v. Governor of New Jersey,

Date Filed: 11/17/2014

Sammon v. N.J. Bd. of Med. Examrs,

Date Filed: 11/17/2014

STATEMENT OF RELATED CASES AND PROCEEDINGS

45:1-54 et seq. (Assembly Bill 3371 or A3371), which prohibits licensed

Date Filed: 11/17/2014

Date Filed: 11/17/2014

767 F.3d at 233.

Before passing the bill by

Date Filed: 11/17/2014

As explained in further detail below, most of the arguments Appellants

Given, as the Court found in King, the substantial evidence of

potential harm (and absence of evidence of effectiveness) associated with SOCE,

Date Filed: 11/17/2014

The Legislatures Finding That Being Gay Is Not An Illness.

Efforts to cure sexual orientation date back to at least the mid-twentieth

Date Filed: 11/17/2014

The New Jersey legislature

The Legislatures Finding That Sexual Orientation Change

The legislature also relied on the judgments of independent professional

Date Filed: 11/17/2014

Id. at 222 (citing N.J. STAT. ANN.

45:1-54(b)). The American Academy of Child and Adolescent Psychiatry has

N.J. STAT. ANN.

The New Jersey legislature considered and relied upon these

professional organizations conclusions, as well as similar statements from the

Date Filed: 11/17/2014

American School Counselor Association, American Academy of Pediatrics,

Date Filed: 11/17/2014

Date Filed: 11/17/2014

Procedural History Below.

The King Case.

Date Filed: 11/17/2014

Date Filed: 11/17/2014

The Case At Issue.

Date Filed: 11/17/2014