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Media Alerts - Tara King v. Governor of the State of New Jersey - Third Circuit
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September 15, 2014
  Tara King v. Governor of the State of New Jersey - Third Circuit
Headline: Third Circuit rules that New Jersey law that prohibits professional counselors from trying to change the sexual orientation of minors is constitutional

Area of Law: Constitutional

Issues Presented: Does a New Jersey statute that prohibits counselors from engaging in "sexual orientation change efforts" with individuals younger than 18 violate the First Amendment?

Brief Summary: New Jersey passed a law that prohibited professional counselors from trying to change the sexual orientation ("sexual orientation change efforts" or "SOCE") of individuals under 18 years of age. This law was challenged by counselors who wanted to engage in such activities on the grounds that the law violated both the free speech and religion clauses of the First Amendment. The Third Circuit Court of Appeals held that the law did not violate the First Amendment of the Constitution because the Frist Amendment allows for certain limits on speech by licensed professionals. Likening it to commercial speech, the Court said the law was entitled to an intermediate level of scrutiny. Under that standard, the law was constitutional because it "directly advances" the government's interest in protecting minors from SOCE counseling, which has been shown to be harmful. The Court also rejected the appellants' argument that the law violated the First Amendment on religious freedom grounds by saying that the law is neutral and generally applicable and does not reference any religion or religious belief. The Court affirmed the District Court's decision that the New Jersey prohibiting SOCE counseling to minors does not violate the First Amendment.

Extended Summary: The New Jersey legislature enacted a law that prohibits licensed professional counselors from engaging in "sexual orientation change efforts" ("SOCE") with individuals under the age of 18. The legislature determined that it had a compelling interest in protecting the physical and psychological well-being of its minors. The legislature cited research that SOCE counseling poses a significant risk of harm to minors and can lead to low self-esteem, depression, and even suicide. Counselors who previously engaged in SOCE counseling filed suit claiming that the statute violated their First Amendment right to free speech and to free exercise of their religion. The District Court rejected the Plaintiffs' First Amendment claims on the basis that SOCE counseling should be categorized as conduct and therefore is not protected by the First Amendment.

The Third Circuit agreed with the District Court's ruling, but not with its reasoning. The Third Circuit dismissed the trial court's conclusion that any SOCE counseling session should be categorized as "conduct" and not speech, thereby denying it First Amendment protection. The verbal communication that occurs during counseling is speech and should be given protection under the First Amendment. The real question, however, is how much protection it should receive. Because counselors administering SOCE counseling are licensed by the state and are participating in a professional relationship with their clients, the Court found that the level of protection afforded their speech is diminished.

The Third Circuit likened professional speech to commercial speech, which has been given an intermediate level of protection rather than the strict level of protection from governmental interference provided to personal speech. The main reason commercial speech has been granted less protection is that there is a long, well accepted history of governmental regulation of commercial speech for the purpose of protecting the safety and economic well-being of the public. The Court found that the same is true of professional speech. Accordingly, the government can regulate professional speech if that regulation directly advances the State's substantial interest in protecting citizens. Because the New Jersey legislature had uncovered substantial evidence that banning SOCE was necessary to protect minors from a serious risk of harm to their physical and psychological well-being, the Court concluded that the law banning SOCE counseling to minors satisfied the burden of intermediate scrutiny and was therefore constitutional.

The Court was careful to point out that regulation of speech by a licensed professional was permissible only in certain forums. The Court's holding was not meant to limit a professional from speaking in a public place or from speaking in a private conversation outside the strictures of his or her profession. Instead the Court limited the effect of its decision to a professional providing personalized services to a client based on the professional's knowledge and judgment.

Finally, the Third Circuit determined that the law did not violate the First Amendment on religious freedom grounds. The plaintiffs argued that the statute targeted counseling that is generally religious in nature. The Court looked to determine whether the statute was "neutral" and "generally applicable." The statute was found to have no mention of religion and did not target any religiously motivated conduct and therefore only triggered rational basis scrutiny. Under rational basis, the Court decided that the New Jersey statute did not violate the Plaintiffs' free exercise of their religion. The Court affirmed the District Court's decision.
To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/134429p.pdf

Panel: Smith, Vanaskie, and Sloviter, Circuit Judges

Argument Date: July 9, 2013

Date of Issued Opinion: September 11, 2014

Docket Number: No. 13-4429

Decided: Affirmed

Case Alert Author: Shanna Lafferty

Counsel: Mary E. McAllister, Esq., Daniel J. Schmid, Esq., Anita L. Staver, Esq., Demetrios K. Stratis, Esq., Counsel for the Appellants and Robert T. Lougy, Esq., Eric S. Pasternack, Esq., Susan M. Scott, Cousel for the Appellee and Shireen A. Barday, Esq., David S. Flugman, Esq., Andrew C. Orr, Andrew Bayer, Esq., Shannon P. Minter, Esq., Christopher S. Stoll, Esq., Amy Whelan, Esq., Counsel for Intervenor Appellee and Mordechai Biser, Esq., Ronald D. Coleman, Esq., Goetz Fitzpatrick, Esq., Jonathan C. Dalton, Esq., Kristy K. Marino, Esq., Eileen R. Ridley, Esq., Suman Chakraborty, Esq., Curtis C. Cutting, Esq., Hayley J. Gorrenberg, Esq., Lisa A. Linsky, Esq., Sandford J. Rosen, Esq., Tanya E. Kalivas, Esq., Emily B. Goldberg, Esq., Amicus Appellee

Author of Opinion: Judge Smith

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 09/15/2014 09:04 AM     3rd Circuit  

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