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Pickup v. Brown Ruling

Pickup v. Brown Ruling

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Published by scprweb
Lawsuit brought by Liberty Counsel on behalf of NARTH, Joseph Nicolosi, and others, challenging California’s ban on so-called “reparative therapy” for minors.
Lawsuit brought by Liberty Counsel on behalf of NARTH, Joseph Nicolosi, and others, challenging California’s ban on so-called “reparative therapy” for minors.

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Published by: scprweb on Dec 04, 2012
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12/04/2012

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1234567891011121314151617181920212223242526IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF CALIFORNIADAVID H. PICKUP, et al.,Plaintiffs, No. 2:12-CV-02497-KJM-EFBvs.EDMUND G. BROWN, et al.,ORDEDefendants./Plaintiffs seek to enjoin Senate Bill (SB) 1172 from taking effect on January 1,2013. The bill prohibits licensed mental health professionals in California from engaging insexual orientation change efforts (“SOCE”) with minors. Plaintiffs, who are therapists, parentsand minors, contend SB 1172 violates their First and Fourteenth Amendment rights. Their motion came on for hearing on November 30, 2012. Plaintiffs were represented by Matt Staver in oral argument, and additionally in the courtroom by Daniel Schmid and Stephen Crampton.Defendants were represented by Deputy Attorney General Alexandra Gordon. Amicus EqualityCalifornia was represented by David Dinielli and Michelle Friedland in oral argument, and alsoin the courtroom by Bram Alden, Christopher Stoll, Lika Miyake and Shannon Minter. After careful consideration of the arguments made in the briefs and at argument, and having reviewedthe relevant legal authority, the court finds plaintiffs are not likely to prevail on the merits so as
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Case 2:12-cv-02497-KJM-EFB Document 80 Filed 12/04/12 Page 1 of 44
 
1234567891011121314151617181920212223242526to prevail at this stage of the litigation. For the reasons explained below, plaintiffs’ motion isDENIED.I.PROCEDURAL HISTORYPlaintiffs in this case are David Pickup, Christopher Rosik, Ph.D., Joseph Nicolosi, Ph.D., and Robert Vazzo, all licensed mental health professionals; the NationalAssociation for Research and Therapy of Homosexuality (NARTH); the American Associationof Christian Counselors (AACC); Jack and Jane Doe 1, on behalf of minor John Doe 1; and Jack and Jane Doe 2, on behalf of minor John Doe 2. John Does 1 and 2 are patients of Dr. Nicolosi(Decl. of Jack Doe 1 ¶ 10, ECF
1
28-5; Decl. of Jack Doe 2 ¶¶ 13-14, ECF 28-5). Plaintiffs namethe following defendants: Governor Edmund G. Brown, Jr.; Anna Caballero, Secretary of theState and Consumer Services Agency of California; Kim Madsen, Executive Officer of theCalifornia Board of Behavioral Sciences; Michael Erickson, Ph.D., President of the CaliforniaBoard of Psychology; and Sharon Levine, President of the Medical Board of California.Plaintiffs’ complaint, filed on October 4, 2012, challenges SB 1172, which addsthree provisions to California’s Business and Professions Code. The new law provides that amental health provider, as defined by the statute, shall not “engage in sexual orientation changeefforts with a person under 18 years of age.” Sexual orientation change efforts are defined as“any practices . . . that seek to change an individual’s sexual orientation.” Plaintiffs assert sixconstitutional claims, alleging SB 1172 violates: (1) the therapists’ right to free speech and theminors’ right to receive information under the First Amendment; (2) the therapists’ right toliberty of speech and the minors’ right to receive information under Article I § 2(a) of theCalifornia Constitution; (3) the parents’ and minors’ right to free exercise of religion; (4) the parents’ and minors’ right to free exercise and enjoyment of religion under Article I, § 4 of theCalifornia Constitution; (5) the Jack and Jane Does’ parental rights under the First and
1
ECF refers to “Electronic Case Filing,” and the number following it is the docketnumber of the document referenced.
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Case 2:12-cv-02497-KJM-EFB Document 80 Filed 12/04/12 Page 2 of 44
 
1234567891011121314151617181920212223242526Fourteenth Amendment; and (6) the Jack and Jane Does’ parental rights under Article I, § 7 of the California Constitution.
(See generally
ECF 1.)On October 19, 2012, Equality California filed a motion to intervene as a partydefendant. (ECF 24.) Plaintiffs have opposed the motion and Equality California has filed areply. (ECF 56, 72.) The motion to intervene is resolved by separate order.On October 23, 2012, plaintiffs filed the pending amended motion for a preliminary injunction. (ECF 29.) Defendants have opposed the motion and plaintiffs have fileda reply. (ECF 48, 60.)On November 21, 2012, the court granted Equality California’s request to file anamicus brief and to participate in oral argument on the motion for a preliminary injunction.(ECF 67.) Equality California filed its amicus brief on November 21, 2012. (ECF 70.)II. BACKGROUND ON SOCE
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As passed by the Legislature, SB 1172 seeks to regulate therapy known as “sexualorientation change efforts,” or SOCE (pronounced “s
ǀ
sh”). “The phrase
 sexual orientationchange efforts
(SOCE) encompasses a variety of methods, including techniques derived from psychoanalysis, behavioral therapy, and religious and spiritual counseling. These techniquesshare the common goal of changing an individual's sexual orientation from homosexual toheterosexual.” (ECF 52 ¶ 26 (emphasis in original).)
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This background is drawn from the filings by both parties. The parties have objected to portions of the evidence submitted by their opponents. (
See
ECF 50, 64, 76.) Generally,declarations and evidence supporting a preliminary injunction motion need not conform to thestandards for a summary judgment motion or to the Federal Rules of Evidence.
Welker v.Cicerone
, 174 F. Supp. 2d 1055, 1059 n. 2 (C.D. Cal. 2001),
abrogated on other groundsby Flint v. Dennison
, 488 F.3d 816 (9th Cir. 2007);
 see also
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§ 2949(2d ed. 1995) (“[I]nasmuch as the grant of a preliminary injunction is discretionary, the trialcourt should be allowed to give even inadmissible evidence some weight when it is thoughtadvisable to do so in order to serve the primary purpose of preventing irreparable harm before atrial can be had.”). Because the court’s decision here would be the same whether all or none of the contested evidence is admissible, the court does not rule on objections at this stage of thelitigation.
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Case 2:12-cv-02497-KJM-EFB Document 80 Filed 12/04/12 Page 3 of 44

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