You are on page 1of 34

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 1 of 34 PageID: 1359

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION 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, 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. Case No. 3:13-cv-05038

PLAINTIFFS MOTION OBJECTING TO THE COURTS DISPENSING WITH PLAINTIFFS SUPPORTING DECLARATIONS AND EVIDENCE, DISPENSING WITH EVIDENTIARY MOTIONS, AND MOTION TO DEEM CERTAIN FACTUAL ALLEGATIONS ADMITTED BY THE STATE COME NOW Plaintiffs, by and through the undersigned counsel, and file this Motion Objecting to the Courts Dispensing with Plaintiffs Supporting Declarations and Evidence,
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 1

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 2 of 34 PageID: 1360

Dispensing with Evidentiary Motions, and Motion to Deem Certain Factual Allegations Admitted by the State. INTRODUCTION Plaintiffs challenge New Jersey Assembly Bill No. 3371 (A3371) both facially and as applied against them, their counseling, and their clients. (Dkt. 1, Compl. 181-267). In support of both their facial and as-applied challenges, Plaintiffs submitted Declarations providing sworn testimony concerning how A3371 violates Plaintiffs and their clients First Amendment rights to free speech and free exercise of religion, and parental rights. (See Dkt. 3-1 to 3-6, Declarations of Tara King, Ronald Newman, David Pruden, Christopher Rosik, Joseph Nicolosi, and Eric Scalise); (Dkt. 33-1 to 33-6, Rebuttal Declarations of Christopher Rosik, Ronald Newman, and Judith Reisman, and Declarations of John Doe, Jack, Doe, and Jane Doe). Those declarations provide highly relevant information dispositive of Plaintiffs facial and as applied constitutional challenges to A3371. Plaintiffs object to this Court dispensing with Plaintiffs evidentiary declarations and evidence. During the October 1, 2013, hearing, Plaintiffs understood this Court to suggest that the submitted declarations and evidence were not necessary to the determination of this case. This Court subsequently entered a Minute Order Entry (Dkt. 46) terminating all of the motions concerning the evidence before the Court. Plaintiffs hereby object to dispensing with all of the relevant evidence and move that this Court reconsider its Order and dispensing of the evidence. Plaintiffs constitutional challenges cannot be decided without consideration of the specific and highly relevant testimony of Plaintiffs Declarations, much of which is undisputed on the dispositive issues of this case. During the hearing, this Court asked counsel for the Plaintiffs about certain factual matters of the case, including but not limited to, what is the sexual
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 2

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 3 of 34 PageID: 1361

orientation change efforts (SOCE) counseling offered by the Plaintiff counselors. These, and other questions regarding the facts of the case, are addressed in Plaintiffs declarations submitted in support of Summary Judgment. This is all the more reason Plaintiffs declarations must be considered. To further address this Courts questions concerning Plaintiffs facial and as-applied challenges, Plaintiffs hereby submit the following citations to Plaintiffs testimony addressing (1) the nature of SOCE counseling, (2) the undisputed fact that no party before this Court practices aversive techniques, (3) the ability of Plaintiffs and other counselors to refer clients to unlicensed counselors without violating other provisions of their ethical codes, (4) the fact that A3371 puts counselors into an irresolvable conflict and forces them to violate their ethical codes, (5) that the term sexual orientation is not wholly well-understood, even among mental health professionals practicing in the area of SOCE counseling, (6) the fact that A3371 has the primary effect of inhibiting the free exercise of religions of the Plaintiffs, and Plaintiffs clients, which include the parents and their minor children, and (7) that the evidence before this Court fails to demonstrate that SOCE causes harm to minors. FACTUAL MATTERS WITH SPECIFIC CITATIONS The Nature of SOCE Counseling 1. At the October 1, 2013, hearing, this Court raised questions concerning the nature of

SOCE counseling and stated that it was unclear what Plaintiff counselors do in such counseling, including inquiries into the specific type of communication (i.e., speech) that occurs during such counseling. In essence, this Court inquired into what counselors say in this counseling and the nature of the conversation when a minor seeks such counseling. Plaintiffs undisputed testimony specifically provides the answers to this Courts inquiry. For ease of reference and to highlight
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 3

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 4 of 34 PageID: 1362

the pertinent testimony this Court should consider in deciding Plaintiffs converted Motio n for Summary Judgment, Plaintiffs provide the following specific citations:1 Declaration of Dr. Tara King (Dkt. 3-1, King Decl. 12) (SOCE counseling is talk therapy. It is no different than any other form of mental health counseling. . . . The SOCE counseling that I practice is simply the traditional psychodynamic process of looking at root causes, childhood issues, developmental factors, and other thing that cause a person to present with all types of physical, mental, emotional, or psychological issues that in turn cause them distress. This type of counseling is insight-oriented, just like every other modern form of mental health counseling.). Declaration of Dr. Ronald Newman (Dkt. 3-2, Newman Decl. 7) (for those clients who seek counseling from a Christian perspective and desire to conform their counseling goals with their sincerely held religious beliefs, I focus on Biblical integration in the counseling relationships.). Declaration of Dr. Joseph Nicolosi (Dkt. 3-5, Nicolosi Decl. 10) (My SOCE counseling consists of discussions with the client concerning the nature and cause of their unwanted same-sex attractions, behaviors, or identity; the extent of these attractions, behaviors, or identity; assistance in understanding traditional, gender-appropriate behaviors and characteristics; and assisting and fostering and developing those genderappropriate behaviors and characteristics.). (Id. 37) (A3371 bans SOCE, which is not just about discussions of sexual orientation, but also about discussions about a persons behavior that is incongruent with a persons religious or moral values. Licensed counselors need the freedom to talk about a clients behavior in a manner that incorporates discussions of the clients religious faith or values.). Plaintiffs Counsel is Talk Therapy Not Outdated Aversive Techniques 2. Additionally, this Court stated that not every SOCE practitioner was before the Court in

this case, so the Court could not assume that other counselors do not use aversive techniques.2
1

In providing these citations, Plaintiffs are merely highlighting the relevant testimony already in the record before this Court and have pulled the s pecific quotations specifically from Plaintiffs Declarations.
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 4

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 5 of 34 PageID: 1363

However, the undisputed evidence is that Plaintiffs use only talk therapy and even the States declaration admits that aversive therapy has not been used in decades. (See Dkt. 29-3, Drescher Decl. 14). Moreover, this case involves an as applied challenge in addition to a facial challenge. Thus, what the Plaintiffs do is highly probative to the as applied challenge. It is undisputed that Plaintiffs engage only in talk therapy or speech. For ease of reference and to highlight the pertinent testimony, Plaintiffs provide the following specific citations: Declaration of Dr. Tara King (King Decl. 12) (The parade of horribles of aversion techniques, such as electroshock treatments, pornographic viewing, nausea-inducing drugs, etc. are unethical methods of treatment that have not been used by any ethical and licensed mental health professional in decades.). Declaration of David Pruden (Dkt. 3-3, Pruden Decl. 12) (The Legislature and supporters of A3371 have consistently attempted to tie practices that had been used in the distant past with the practices that NARTH members currently use. NARTH members do not engage in any of the practices that the supporters of A3371 refer to as aversion practices, including electric shock treatments, nausea and vomiting inducing medicine, or shame aversion. These types of techniques have been irrelevant in psychotherapy for decades, and it is illogical to attempt to bring these antiquated practices into the discussion of modem practices involving SOCE. The attempt of supporters of A3371 to lump modem therapeutic techniques with these unethical practices is inaccurate and does not describe the therapy currently engaged in with clients by NARTH members.) (emphasis added). Rebuttal Declaration of Dr. Christopher Rosik (Dkt. 33-1, Rosik Rebuttal Decl. 23) ([C]ontemporary SOCE is only talk therapy and no longer utilizes such outdated [aversive] practices.).

The Ninth Circuit also recognized what Plaintiffs undisputed testimony reveals here, which is that every party before this Court practices only talk therapy. See Pickup v. Brown, No. 12-17681, 2013 WL 4564249, *1 (9th Cir. Aug. 29, 2013) (The Plaintiff mental health providers in these cases use only non-aversive techniques.) (emphasis added). Pickup clearly stated: The record shows that Plaintiffs who are licensed mental health providers practice SOCE only through talk therapy. Id. at 8 n.5 (emphasis added). The same is true here.
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 5

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 6 of 34 PageID: 1364

(Id. 24) (More broadly, Defendants experts and mental health associations repeatedly associate electric shock, nausea inducing drugs, and other aversive interventions with SOCE, sometimes acknowledging that these interventions have long been abandoned by the psychological professions (e.g., Haldeman Decl., paragraph 8). What they fail to report (Drescher is a welcomed exception here) is that such aversive interventions were quite accepted at the time within psychology and applied to a wide variety of clinical issues. Mentioning only SOCE in the context of past aversive techniques risks creating an inaccurate and prejudicial impression of SOCE interventions as historic outliers when this in fact is far from the truth.) (emphasis original). Declaration of Dr. Jack Drescher (Submitted by the State) (Dkt. 29-3, Drescher Decl. 13) (The use of psychoanalytic and behavior therapy in SOCE was prevalent through the 1960s and early 1970s. Behavior therapists used a variety of aversion treatments, including electric shock treatments, nausea-inducing drugs and having an individual snap an elastic band around the wrist when the individual became aroused to same-sex erotic images or thoughts. (APA Report at 22). Some cognitive therapists attempted to change thought patterns using hypnosis or by redirecting thoughts and reframing desires, but these efforts were generally not successful. (See id.)) (emphasis added). (Id. 14) (specifically noting that Plaintiffs do not engage in aversive techniques but merely talk therapy). Declaration of Dr. Douglas Haldeman (Submitted by Garden State Equality) (Dkt. 30-3, Haldeman Decl. 8) (some of the most notorious aversive change therapies have largely fallen into disfavor, ... some practitioners have continued to engage in other types of SOCE.). Plaintiff Counselors Cannot Refer Clients to Unlicensed Counselors 3. Defendants mischaracterized the ability of Plaintiffs and other licensed mental health

counselors in New Jersey to refer minors seeking SOCE counseling to other unlicensed counselors. It should be noted that the Act is silent on this issue, as was the facial language in Pickup. This Court referred to the Ninth Circuit case of Pickup suggesting that licensed counselors can refer to unlicensed counselors. However, the Pickup finding was dependent upon a specific narrowing construction offered by the State during oral argument at the trial court for that determination; no such unequivocal narrowing construction has been offered by the State
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 6

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 7 of 34 PageID: 1365

here. Furthermore, as Plaintiffs counsel advised the Court during the hearing, Plaintiffs cannot ethically refer to an unlicensed counselor under A3371 and existing ethical codes. Plaintiffs declarations address this issue. Plaintiffs provide the following specific citations: Declaration of Dr. Tara King (King Decl. 17) (citing the ACA Code and stating that Section A.11.d mandates that when mental health counselors refer a client to a different practitioner for some course of counseling, that the referring professional ensure that appropriate clinical and administrative processes are completed and open communication is maintained with both clients and practitioners. A3371 forces me to violate this provision as well, because I will no longer have any option of referring a client to an appropriate licensed mental health professional.) (emphasis added). Declaration of Dr. Ronald Newman (Newman Decl. 12) (A3371 would also prohibit me from making referrals . . . .). Declaration of David Pruden (Pruden Decl. 10) (A3371 also provides no guidance concerning whether NARTH members can refer a client to an unlicensed counselor who can engage in SOUCE counseling with them without violating some ethical standard. . . . NARTH members have an ethical duty to monitor the progress of any referral while still counseling the client on other issues during the counselor-client relationship. It appears the bill would require members not to refer any client to a person who could practice SOCE because it might be a practice that seeks to reduce or eliminate someones unwanted same-sex attractions, behaviors, or identity.). Declaration of Dr. Joseph Nicolosi (Nicolosi Decl. 30) (A3371 will cause New Jersey counselors to violate Section 3.10 of the American Psychological Associations Ethics Code (APA Code) because they will be prohibited from even discussing a course of treatment, SOCE, that is part of the information that they are ethically required to provide to their clients. Counselors would also be prohibited from even referring a client who wants to discuss SOCE therapy to a professional who can provide it.). (Id. 35) (Additionally, it is completely uncertain about whether a simple referral would constitute an effort seeking to reduce or eliminate same-sex attractions, behaviors, or identity that would violate A3371. Informing someone
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 7

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 8 of 34 PageID: 1366

that such SOCE counseling is available at another location by another individual not subject to A3371 seems like it could be a violation, but A3371 provides no guidance on this matter, so a counselor is again faced with a dilemma of how to exercise his or her professional judgment.). Rebuttal Declaration of Dr. Ronald Newman (Dkt. 33-2, Newman Rebuttal Decl. 13) (In my 33 years of clinical practice, I have helped many minors and adults work through anxieties and depressions related to their unwanted same-sex attractions. While under this law, I will not even be able to refer potential clients to a non-licensed (religious) counselor, as it can be perceived as a sexual orientation change effort.) (emphasis original). (Id. 23) (My private psychology practice for over fifteen years, as well as the practices of other faith-based licensed professionals, have been built on referrals from the clergy and a wide range of Christian sources, and would be irreparably harmed if referrals from those sources were to cease. The fact that clergy are excluded from this law is irrelevant, since they refer to professionals in more difficult cases or where expertise is needed, such as with unwanted same-sex attraction.). A3371 Forces Plaintiff Counselors and Other Counselors to Violate Their Ethical Codes 4. Defendants mischaracterized the ability of Plaintiffs and other licensed mental health

counselors in New Jersey to comply with A3371 without violating other provisions of their respective ethical codes. But, A3371 places licensed mental health professionals in an irresolvable conflict and puts them on a collision course with an ethical violation. Plaintiffs provide the following citations: Declaration of Dr. Tara King (King Decl. 15) (A3371 would prohibit professional counselors from even discussing available treatment options that might help alleviate a clients unwanted same-sex attractions, behaviors, or identity because a client might subsequently view even a simple discussion of SOCE counseling as an effort to reduce or eliminate his or her unwanted same-sex attractions, behaviors, or identity and subject the counselor to ethical charges and violations . A3371 will force counselors to violate a fundamental principle of informed consent. Section A.2 of the American Counseling Association Code of Ethics (ACA Code) states that all patients need adequate information about the counseling process, and that the client has the freedom to choose the counseling relationship.
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 8

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 9 of 34 PageID: 1367

A3371 will force me to violate this principle because it will prohibit me from even discussing the availability of SOCE counseling. Discussing my personal story, the availability of SOCE counseling, or the notion that I believe change is possible could be considered an effort to change a clients sexual orientation, which would subject me to professional ethics violations. A3371 will therefore silence me in my counseling sessions and prohibit me from sharing my personal story with my clients and helping those who seek the change that I was able to achieve.) (emphasis added). (Id. 16) (A3371, however, will force me to commit an ethical violation by imposing a certain ideologyi.e., the governments ideology against SOCE counselingon all my patients who seek SOCE treatment because A3371 only permits counselors to affirm same-sex attractions. It arguably precludes counselors from even telling clients with unwanted same-sex attractions that there is help available. A3371s mandate that I impose the governments ideology regarding same-sex attractions is a direct violation of Section A.4.b of the ACA Code, which mandates that mental health counselors avoid imposing values that are inconsistent with counseling goals. A3371 forces me to ignore the clients values when those values and sincerely held religious beliefs inform the client that change is possible and that SOCE counseling is an effective method to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity.) (emphasis added). (Id. 17) (A3371 also forces me to violate Section A.11 of the ACA Code. Section A.11.a states that [c]ounselors do not abandon or neglect clients in counseling. A3371 mandates that I abandon my clients who seek to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity because I will no longer be able to provide the counseling that my clients desire.) (emphasis added). Declaration of Dr. Ronald Newman (Newman Decl. 12) (Complying with A3371 would cause me to violate Section 3.10 of the American Psychological Associations Ethics Code (APA Code), which requires that I provide a patient with all information necessary to make an informed decision concerning a particular course of available counseling. It would also cause me to infringe General Ethical Principle E of the APA Code requiring that I ensure the patient the freedom to make a self-determined choice concerning his therapy. A3371 will cause me to violate those provisions because its prohibits me from providing detailed information to my clients about the available forms of counseling, including SOCE, so that the clients decision to choose a particular form of counseling is properly informed. A3371 would also prohibit me from making referrals to other licensed counselors who can provide SOCE. However, failure to comply with A3371 will subject me to possible disciplinary action.).
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 9

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 10 of 34 PageID: 1368

(Id. 13) (Because A3371 forces me to violate one of my current ethical obligations or violate A3371, which would also be an ethical violation, the law is certain to cause irreparable harm to my practice by putting my professional license in jeopardy without providing any clear understanding of how to comply with all of the requirements of the counseling profession while still providing the type of counseling that is consistent with my minor patients sincerely held religious beliefs.). (Id. 14) (A3371 will also cause me to violate Section 3.06 of the APA Code by causing me to enter into a relationship where my objectivity is called into question, especially since A3371 mandates that only one ideologyi.e., the governments ideology concerning SOCEbe shared in the counselors office regardless of the patients sincerely held religious beliefs, desires, or counseling goals.) (emphasis added). Declaration of Dr. Joseph Nicolosi (Nicolosi Decl. 30) (The practice of giving detailed information to minor clients and their parents satisfies the ethical requirements that a counselor provide all of the information that is reasonable for the client to make an informed decision concerning their individual course of treatment and that facilitates the autonomous client decision-making process. A3371 will cause New Jersey counselors to violate Section 3.10 of the American Psychological Associations Ethics Code (APA Code) because they will be prohibited from even discussing a course of treatment, SOCE, that is part of the information that they are ethically required to provide to their clients. Counselors would also be prohibited from even referring a client who wants to discuss SOCE therapy to a professional who can provide it.) (emphasis added). (Id. 31) (Compliance with A3371 will force New Jersey counselors to violate the informed consent mandates of Section 3.10 of the APA Code and probably also infringe ethical requirement outlined in General Principle E of the APA Code that a counselor allow the patient complete freedom to make a self-determined choice concerning his therapy. However, providing clients with unwanted same-sex attractions, behaviors, or identity with the treatment they desire automatically constitutes and ethical violation under A3371.) (emphasis added). (Id. 32) (Because of this impossible Catch-22, A3371 is certain to cause irreparable harm to the practice of New Jersey counselors by putting their professional license in jeopardy no matter how they proceed, and with no guidelines on how to resolve the conflict between A3371 and the ethical codes.). (Id. 33) (A3371 will also cause New Jersey counselors to violate Section 3.06 of the APA Code by causing them to enter into a relationship where their objectivity is called into question because A3371 mandates that only one
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 10

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 11 of 34 PageID: 1369

ideologyi.e., the States ideology condemning SOCEbe shared in the counselors office.) (emphasis added). Declaration of Dr. Eric Scalise (Dkt. 3-6, Scalise Decl. 11) (The AACCs members follow the time-honored and foundational ethical value of client self-determination. A3371 directly and significantly undermines what is considered as a cornerstone principle in mental health counseling. This principle can be found in the language of the ethical codes of notable professional member organizations such as the American Psychological Association (APA), the American Counseling Association (ACA), and the American Association of Marriage and Family Therapists (AAMFT), to name a few.). Complaint and Ethical Codes (Dkt. 1, Complaint 29) (General Principle E of the American Psychological Associations Ethical Principles of Psychologists and Code of Conduct (APA Code) includes the following: Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and selfdetermination.) (emphasis added). (Id. 33) (Section 3.04 of the APA Code, Avoiding Harm, further states: Psychologists take reasonable steps to avoid harming their clients/patients . . . and to minimize harm where it is foreseeable and unavoidable.). (Id. 36) (Section 1(c) of the APA Guidelines states: A psychiatrist shall strive to provide beneficial treatment that shall not be limited to minimum criteria of medical necessity.). (Id. 38) (Opinion 10.01(2) of the American Medical Association Code of Ethics (AMA Code) states: The patient has the right to make decisions regarding the health care that is recommended by his or her physician. Accordingly, patients may accept or refuse any recommended medical treatment.) (Id. 41) (Opinion 10.016 of the AMA Code states: Medical decision-making for pediatric patients should be based on the childs best interest, which is determined by weighing many factors, including effectiveness of appropriate medical therapies, the patients psychological and emotional welfare, and the family situation. When there is legitimate inability to reach consensus about what is in the best interest of the child, the wishes of the parents should generally receive preference.). (Id. 44) (Section A.2.d of the American Counselors Association Code of Ethics (ACA Code) states: When counseling minors or persons unable to give voluntary consent, counselors seek the assent of clients to services, and include
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 11

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 12 of 34 PageID: 1370

them in decision-making as appropriate. Counselors recognize the need to balance the ethical rights of clients to make choices, their capacity to give consent or assent to receive services, and parental or familial legal rights and responsibilities to protect those clients and make decisions on their behalf.). (Id. 45) (Section B.5.b of the ACA Code states: Counselors are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians over the welfare of their children.). (Id. 47) (Section A.4.a of the ACA Code states: Counselors act to avoid harming their clients, trainees, and research participation and to minimize or to remedy unavoidable or unanticipated harm.). (Id. 50) (Principles 1 and 1.2 of the American Association of Marriage and Family Therapists Code of Ethics (AAMFT Code) provide that all licensed Marriage and Family Therapists shall advance the welfare of families and individuals and shall obtain informed consent from their clients, which generally requires that the client has been adequately informed of significant information concerning treatment processes and procedures.). (Id. 52) (Principle 1.8 of the AAMFT Code provides that licensed marriage and family therapists respect the rights of clients to make decisions.). (Id. 55) (Section 1.01 of Code of Ethics of the National Association of Social Workers (NASW Code) states that it is a social workers primary responsibility to promote the well-being of their clients.). (Id. 57) (Section 1.02 of the NASW Code provides that the clients shall have the right to self-determination and that a social worker should only seek to assist the client in achieving his or her goals and objectives for the counseling.). (Id. 59) (Section 1.03 of the NASW Code provides that social workers must provide sufficient information for the client to make an informed decision about his or her course of care and specifically states that such informed consent must include a discussion of reasonable alternatives.) (emphasis added). A3371 Substantially Burdens Plaintiffs Free Exercise of Religion 5. This Court raised questions concerning how A3371 implicates the free exercise of

religion of Plaintiffs and Plaintiffs clients, which include parents and their minor children. Plaintiffs declarations provide highly relevant testimony concerning how A3371 violates their rights to free exercise of religion. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 12

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 13 of 34 PageID: 1371

U.S. 520, 533-34 (1993), the Supreme Court noted that facial neutrality is not always determinative, because the First Amendment prohibits subtle departures from neutrality, and it covers suppression of religious beliefs that is masked as well as overt. Id. The legislature relied on the APA Report, concerning which the declarations and the APA Report reveal an intent to significantly discriminate against religion and religious beliefs of those seeking to change unwanted same-sex attractions, behavior, or identity. For ease of reference and to highlight the pertinent testimony concerning A3371s violation of the Free Exercise Clause, Plaintiffs provide the following citations: Declaration of Dr. Tara King (King Decl. 14) (Many of my clients . . . are Christians and request Christian as part of the SOCE counseling that I provide. A3371 will prohibit me from practicing my profession and my counseling with these clients according to the sincerely held religious beliefs that both my clients and I have.) (emphasis added). Declaration of Dr. Ronald Newman (Newman Decl. 8) (Many of these individuals seek to reduce or eliminate their unwanted same-sex attractions because their religious beliefs inform them that change is possible.). Declaration of Dr. Christopher Rosik (Dkt. 3-4, Rosik Decl. 3) (Although many qualified conservative psychologists were nominated to serve on the task force, all of them were rejected. This fact was noted in a book co-edited by a past-president of the APA (Yarhouse, 2009). The director of the APAs Lesbian, Gay and Bisexual Concerns Office, Clinton Anderson, offered the following defense: We cannot take into account what are fundamentally negative religious perceptions of homosexualitythey dont fit into our world view (Carey, 2007). It appears that the APA operated with a litmus test when considering task force membershipthe only views of homosexuality that were tolerated are those that uniformly endorsed same-sex behavior as a moral good. Thus from the outset of the task force, it was predetermined that conservative or religious viewpoints would only be acceptable when they fit within their pre-existing worldview. One example of this is the Reports failure to recommend any religious resources that adopt a traditional or conservative approach to addressing conflicts between religious beliefs and sexual
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 13

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 14 of 34 PageID: 1372

orientation. This bias can hardly be said to respect religious diversity and had predictable consequences for how the task force addressed its work.) (emphasis added). (Id. 49) (SOCE typically occurs when client desire to live within the boundaries of their conservative religious values and beliefs.) (emphasis added). (Id. 65) (Clients often pursue psychological care for [various] psychological difficulties due to deeply held religious and moral beliefs . . . .) (emphasis added). Declaration of Dr. Joseph Nicolosi (Nicolosi Decl. 19) (On page 18, the APA Report implies that by striving to live a life consistent with their religious values, people with same-sex attractions, behaviors, or identity must deny their true sexual selves. This further implies that individuals with sincerely-held religious beliefs that lead them to seek a reduction or elimination of their unwanted same-sex attractions, behaviors, or identity will not experience organismic wholeness, self-awareness, and mature development of their personal identity. Those religious individuals who seek to live in conformity to their religious values are assumed to experience a constriction of their true selves because of a religiously imposed behavioral control. This false distinction, created by the APA Report, ignores the desire of many clients to live in congruence with the fundamental tenets of their sincerely held religious and moral beliefs. For these individuals, the values they hold because of their religious beliefs are viewed as guideposts and sources of inspiration that help guide them on their pursuit of wholeness, and wholeness for these people can only be achieved by living in congruence with their religious beliefs.). (Id. 20) (The APA Report seeks to diminish the beliefs of these individuals by suggesting that religious beliefs should be reconstructed to align with their unwanted same-sex attractions, behaviors, or identity rather than working to conform their sexual attractions, behaviors, or identity to their religious beliefs. On pages 72-73, the APA Report recognizes that many clients seek SOCE counseling because of their religious beliefs. On page 58, the APA Report then states that therapy is a process of uncovering and deconstructing dominant worldviews and assumptions with conflicted clients that enable them to redefine their attitudes toward their spirituality and sexuality. The APA Report ignores the fact that many people desire to elevate their religious beliefs above any unwanted same-sex attractions, behaviors, or identity and that they seek counseling to assist them with this goal. The APA Report states that counseling for individuals in this category should focus on refram[ing] the religious beliefs to focus on aspects of faith that encourage love and acceptance of their child rather than on a religions prohibitions.) (emphasis added).
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 14

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 15 of 34 PageID: 1373

(Id. 23) (Focusing on reframing an individuals religious beliefs is beyond the purview of psychological counseling, and it ignores the most fundamental principle of the professionnamely, that the client has the right to selfdetermination. A3371 explicitly states that it is relying on the conclusions of the APA Report and the proponents and drafters of A3371 focus solely on the conclusions of it and other studies that are methodologically flawed. This reveals the flaws of A3371 and specifically shows that it is aimed at reframing an individuals religious perspectives deemed antiquated or discriminatory and imposing an ideology on those individuals that do not wish to live in conformity with the view espoused by A3371 and the APA. The APA Report also states on page 19 that prejudices directed at individuals because of their religious beliefs and prejudice derived or justified by religion are harmful to individuals, society, and international relations. (emphasis added). This further reveals that the APA Report and A3371 attempt to elevate sexual orientation above a persons sincere religious beliefs, and shows that A3371 specifically targets those individuals that have religious beliefs opposed to homosexuality.). (Id. 37) (A3371 is not just about discussions of sexual orientation, but also about discussions about a persons behavior that is incongruent with a persons religious or moral values. Licensed counselors need the freedom to talk about a clients behavior in a manner that incorporates discussions of the clients religious faith or values.). Declaration of Dr. Eric Scalise (Scalise Decl. 16) (A3371 places prospective clients in an untenable double bind when receiving [SOCE] counseling, especially when their religious values may inform and direct their behavior, expressions, and identity in a manner contrary to same-sex attractions. Furthermore, A3371 may, in fact, represent actual harm to the client because it does not allow the licensed treating practitioner to address these competing value systems, leaving the client with no means to process the potential inner conflict.). (Id. 17) (A3371 moves far beyond its original intent to protect minor clients and represents a reckless infringement on the religious liberties of anyone needing counseling in this area.). (Id. 18) (When a client's faith values may be in conflict with other cultural values, especially as they may pertain to the language found in A3371, that ultimately the client-and in the case of a minor, his/her parent or legal guardianhas the moral and ethical right to participate in and determine the appropriate course of care, including alignment with his/her relevant religious beliefs.) Rebuttal Declaration of Dr. Ronald Newman
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 15

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 16 of 34 PageID: 1374

(Newman Rebuttal Decl. 8) (The religious organizations teach that people have the right of self-determination and the responsibility to control their behavior within the boundaries established by their teachings. Most religions have a holy book, such as the Torah or Bible, which conservative believers look to for their belief system and how to live their lives. The freedom to believe a diversity of things about God, morality, etc., is part of what defines us as a nation. This freedom is now being severely challenged by this law. A3371 attacks the right of parents to practice their religious faith and teach their children the boundaries they understand to be healthy for them.) (emphasis added). (Id. 9) (A3371 also denies the rights of individuals to choose therapy with someone who understands the tenets of their faith and can counsel in a manner that is culturally sensitive to their faith subculture. It also hinders my ability to practice my faith and work with clients who desire assistance in applying the most effective therapeutic tools to help them align their behavior with their deeply held religious belief systems.). (Id. 21) (Since the majority of my clients come to me because they are seeking counseling that integrates a Christian worldview, my psychology practice would suffer irreparable harm if I were no longer able to counsel in a manner consistent with a conservative Christian faith. No parent would refer a minor child if they believed I could only address issues of sexuality in a gay affirming manner without regard to their belief system.) (emphasis added). Rebuttal Declaration of Dr. Christopher Rosik (Rosik Rebuttal Decl. 4) (The majority of Link Care Centers clients come to the facility because of its Christian identity and their trust that their Christian values and beliefs will be represented in treatment.). (Id. 26) (I practice in an explicitly faith-based counseling center where a high percentage of clients present with deeply held traditional religious beliefs and values and have sought out clinicians who they believe are highly familiar with their faith community and can understand and affirm their religiously-based moral and value frameworks.). (Id. 29) (Even more alarmingly, Haldeman states, Respecting client autonomy does not mean that clients with strong religious beliefs that include, for example, disapproval of homosexual behavior, should be permitted to elect to undergo SOCE (paragraph 24, lines 1-3). Surely this is a statement that in the context of A3371 can only be taken to mean the religious beliefs and values of minor clients and their parents, if disapproving of homosexual behavior, are to be summarily overridden by the State. Haldeman concludes his declaration by asserting that true self-determination is accomplished when the patients false assumption are corrected (paragraph 26, lines 6-7), which in the context of his argument must include clients false religious assumptions about the moral status
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 16

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 17 of 34 PageID: 1375

of homosexual behavior. From my vantage point, such religious reeducation is outside the scope of the psychological disciplines and is the far more dangerous precedent as regards a clinicians preferred outcome for the therapeutic encounter.) (emphasis original). (Id. 30) (Herek takes a more nuanced position on this subject that nonetheless still flirts with a similar line of reasoning when he equates the acceptance of a non-affirming moral evaluation of homosexual behavior as implicit self-stigma, which is a back door manner of denying any possibility for client autonomy and self-determination in SOCE. While I concur with Herek that the influence of external pressures and social norms should be carefully evaluated among clients presenting for SOCE, I reject the assertion that the pursuit of SOCE is by definition such self-stigma. This can only be the case if sexual orientation identities are to be universally prioritized over religious identities when sexual attractions and religious values conflict, which could conceivably constitute a form of religious discrimination.). (Id. 31) (In my experience, it is far more common that clients who pursue SOCE first and foremost perceive their same-sex attractions as a religious and/or moral problem and only rarely as a mental disorder. This once again seems to indicate that prohibiting the provision of SOCE to these minors and their parents can be considered a form of religious discrimination that does not respect their autonomy and self-determination in choosing their preferred form of psychological care.) (emphasis original). (Id. 48) (Within this ideological restricted environment, A3371 represents the triumph of advocacy interests over science. This law seriously and without genuine scientific warrant infringes upon the rights and religious liberties of many minors and their parents to participate in their preferred therapeutic approach. And it prevents the rights of licensed therapists to exercise their professional judgment in providing SOCE. The stakes for professional and parental rights and religious liberties could not be higher, and I therefore ask this court to reject A3371.) (emphasis original). Declaration of John Doe (Dkt. 33-4, John Doe Decl. 10) (My religious belief and conviction is that homosexuality is wrong. I wanted to address that value conflict because my same-sex attractions are contrary to the religious values that I hold. I want to live out my religious values and do not want to act out on same-sex attractions that violate my religious beliefs. I want to resolve my sexual attractions so that I act in conformity with my religious beliefs. Because of this, and because I did not want to experience these same-sex attractions, I talked with my parents about having my therapist help me. My parents agreed to permit me to participate in reparative therapy with him.) (emphasis added).
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 17

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 18 of 34 PageID: 1376

Declaration of Dr. Jack Drescher (Submitted by the State) (Drescher Decl. 11) (individuals who experience self-stigma or who desire to change their sexual orientation because it conflicts with other beliefs and values can benefit from other therapeutic interventions that do not have the goal of making them heterosexual.). Declaration of Dr. Douglas Haldeman (Submitted by Garden State Equality) (Haldeman Decl. 24) (Respecting client autonomy does not mean that clients with strong religious beliefs that include, for example, disapproval of homosexual behavior, should be permitted to elect to undergo SOCE. Regardless of a clients religious beliefs, it is inappropriate for a competent therapist to offer a purported treatment that does not work and creates a significant risk of serious harm. A competent therapist treating a client with strong religious beliefs assists the client in understanding the source and emotional consequences of any conflicts between experience and belief, and in negotiating a healthy life course in light of accurate knowledge about what can be changed and what cannot). (Id. 26) (true self-determination is accomplished when the patients false assumptions are corrected and the individual is allowed to make truly informed decisions about his life) (emphasis added). Declaration of Dr. Gregory Herek (Submitted by Garden State Equality) (Dkt, 30-5, Herek Decl. 45) ([I]ndividuals who experience self-stigma or who desire to change their sexual orientation because it conflicts with other beliefs and values can benefit from other therapeutic interventions that do not have the goal of making them heterosexual.). The APA Task Force Report (APA Report at 3) (The vast majority of people who participated in the early studies were adult White males, and many of these individuals were courtmandated to receive treatment. In the research conducted over the last 10 years, the population was mostly well-educated individuals, predominantly men, who consider religion to be an extremely important part of their lives and participate in traditional or conservative faiths (e.g., The Church of Jesus Christ of Latter-Day Saints, evangelical Christianity, and Orthodox Judaism).) (emphasis added). (Id. at 73) (the few studies in the literature on religious adolescents seeking psychotherapy related to sexual orientation suggest that such distress is most likely to occur among adolescents in families for whom a religion that views homosexuality as sinful and undesirable is important.) (emphasis added).
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 18

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 19 of 34 PageID: 1377

(Id. at 18) (noting that [a]ffirmative and multicultural models of LGB psychology give priority to organismic congruence (i.e., living with a sense of wholeness in ones experiential self) and comparing this the other spectrum of religions give priority to telic congruence (i.e., living consistently within ones valuative goals.). (Id. at 55) (For instance, although many religious individuals desired to live their lives consistently with their values, primarily their religious values, we concluded that telic congruence grounded in self-stigma and shame was unlikely to result in psychological well-being (Beckstead & Morrow, 2004; Glassgold, 2008; Gonsiorek, 2004; Haldeman, 2004; Mark, 2008; Shidlo & Schroeder, 2002).). (Id. at 19) (the resolution states that faith traditions have no legitimate place arbitrating behavioral or other sciences (line 432) or to adjudicate empirical scientific issues in psychology (line 432) (quoting APA Resolution on Religious, Religion-Related, and/or Religion-Derived Prejudice (2008).) (emphasis added). (Id. at 58) (Buchanan et al. (2001), using a narrative therapy approach, described a process of uncovering and deconstructing dominant worldviews and assumptions with conflicted clients that enabled them to redefine their attitudes toward their spirituality and sexuality (cf. Bright, 2004; Comstock, 1996; Graham, 1997; Yarhouse, 2008).) (emphasis added). (Id.) (Acceptance of the presence of same-sex sexual attractions and sexual orientation paired with exploring narratives or reframing cognitions, meanings, or assumptions about sexual attractions have been reported to be helpful.) (emphasis added). (Id.) (For clients with strong values (religious or secular) an MMHP may wish to incorporate techniques that positive meaning making an active process through which people revise or reappraise.) (emphasis added). (Id. at 59) (Additionally, connecting the client to core and overarching values and virtues, such as charity, hope, forgiveness, gratitude, kindness, and compassion, may refocus clients on the more accepting elements of their religion, which may provide more self-acceptance, direction, and peace, rather than on their religions rejection of homosexuality.). (Id.) (Altering the meaning of suffering and the burden of being conflicted as spiritual challenges rather than as divine condemnation (Glassgold, 2008; Hall & Johnson, 2001) and believing that God continues to love and accept them, because of or despite their sexual orientation, may be helpful in resolving distress (Graham, 1997; Ritter & ONeill, 1989, 1995). For some, reframing spiritual struggles not only as a crisis of faith but also as an opportunity to increase faith or delve more deeply into it may be productive.) (emphasis added).
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 19

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 20 of 34 PageID: 1378

Sexual Orientation is Not Well Understood 6. Defendants frequently mischaracterized the mental health professions understanding of

sexual orientation, and this Court questioned whether sexual orientation was vague. When this Court stated that Plaintiffs practice in this area, counsel for Plaintiffs pointed out that many of the members of AACC do not, and those who do addresses how this is vague in application. As the evidence before this Court demonstrates, the understanding of the term sexual orientation is vague and is not completely understood by the mental health community. Declaration of David Pruden (Pruden Decl. 10) (A3371s prohibition is virtually impossible to comply with because it is well understood in the mental health profession and conceded by the APA Task Force Report, that sexual orientation is difficult to define and encompasses a number of factors, including behavior, practices, identity, and attractions. Given that this prohibition specifically deals with a concept the APA Task Force Report concluded was fluid, many NARTH members will be required to guess at what practices would be prohibited under the law .) (emphasis added). Declaration of Dr. Christopher Rosik (Rosik Decl. 16) (A fairer rendering of the literature [the APA Report] reference[s] in this regard would appear to be that this research is so methodologically flawed that one cannot make any conclusive statements concerning the applicability of developmental factors in the origin of homosexuality. Thus by the task forces own methodological standards, the literature they cite fails to support or rule out a role for these potential developmental influences in the genesis of sexual orientation.) (emphasis original). (Id. 35) (Savin-Williams and Ream observed that, The instability of same-sex attraction and behavior (plus sexual identity in previous investigations) presents a dilemma for sex researchers who portray non-heterosexuality as a stable trait of individuals (p. 393). They acknowledged that developmental processes are involved even as they focused mostly on problems with measurement. The reality of such spontaneous changes in sexual orientation among teenagers is not in accord with a bill whose defenders contend sexual orientation is a universally enduring trait.) (emphasis original).

Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 20

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 21 of 34 PageID: 1379

(Id. 36) (A3371s intent for a blanket prohibition on SOCE for all minors with unwanted same-sex attractions and behaviors is akin to doing heart surgery with a chainsaw in its inability to address the complex realities of sexual orientation. For example, a study by Herek et al. (2010) reported that only 7% of gay men reported experiencing a small amount of choice about their sexual orientation and slightly more than 5% reported having a fair amount or great deal of choice. Lesbian woman reported rates of choice at 15% and 16%, respectively. It is worth noting that these statistics, which are not inconsequentially small, do suggest that sexual orientation is not immutable for all people and again suggest the plausibility that modification of same-sex attractions and behaviors could occur in SOCE for some individuals. Even more important, however, are the findings for bisexuals: 40% of bisexual males and 44% of bisexual females reported having a fair amount or great deal of choice in the development of their sexual orientation. This is in addition to 22% of male bisexuals and 15% of female bisexuals who reported having at least a small amount of choice about their sexual orientation. Other studies confirm the particular instability of a bisexual sexual orientation (Savin-Williams, Joyner, & Rieger, 2012). These numbers create a significantly different impression about the enduring nature sexual orientation than the picture often painted by proponents of A3371. At a minimum, such data suggest that proponents of A3371 would have done better to exclude bisexuality from the scope of this bill. If such a large minority of individuals (albeit mostly bisexuals) experience a selfdeterminative choice as being involved in the development of their sexual orientation, why would it not be conceivable that SOCE might augment this process for some individuals with unwanted same-sex attractions and behaviors?) (emphasis original). (Id. 39) (Moreover, such fluidity and change makes clear that simple causative genetic or biological explanations are inappropriate. The later development of same-sex attractions and behaviors is not determined at birth and there is no convincing evidence that biology is decisive for many if not most individuals. The American Psychiatric Association has observed that, to date there are no replicated scientific studies supporting any specific biological etiology for homosexuality (American Psychiatric Association, 2013). Peplau et al. (1999) earlier summarized, To recap, more than 50 years of research has failed to demonstrate that biological factors are a major influence in the development of womens sexual orientationContrary to popular belief, scientists have not convincingly demonstrated that biology determines womens sexual orientation.) (emphasis original). (Id. 40) (There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 21

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 22 of 34 PageID: 1380

that nature and nurture both play complex roles. (APA, 2008a; emphases added)) (emphasis original). (Id. 43) (Causatively, then, sexual orientation is by no means comparable to a characteristic such as race or biological sex which are thoroughly immutable. Thus, while same-sex attractions may not be experienced as chosen, it is reasonable to hold that they can be subject to conscious choices such as those which might be facilitated in SOCE. Same-sex attractions and behaviors are not strictly or primarily determined by biology or genetics and are naturalistically subject to significant change, particularly in youth and early adulthood.) (emphasis original). (Id. 63) (The normative occurrence of spontaneous change in sexual orientation among youth, the nontrivial degree of choice reported by some in the development of sexual orientation, and the questionable blanket application of the literature on stigma and discrimination to SOCE further bring into question the appropriateness of A3371. Sexual orientation is not a stable and enduring trait among youth, and this lends plausibility to the potential for professionally conducted SOCE to assist in change in unwanted same-sex attraction and behaviors with some minors.) (emphasis added). Declaration of Dr. Joseph Nicolosi (Nicolosi Decl. 16) (the APA Report failed to consider the factors associated with the development of homosexual attractions and merely assumed that homosexuality is as developmentally normal as heterosexuality. Yet, the APA Report would concede that the causes of homosexuality are unknown.). (Id. 21) (The APA Reports position is based on the unproven assumption that homosexuality is inborn and immutable. See Journal of Human Sexuality IV at 57 (noting that the APA Report based its conclusions on an a priori assumption that homosexuality is inborn and therefore immutable which is unsupported by the APAs own statements). The APAs position dates back to the 1970s when on the basis of emerging scientific evidence and encouraged by the social movement for ending sexual orientation discrimination, the American Psychological Association and other professional organizations affirmed that homosexuality per se is not a mental disorder. See APA Report at 11. This undermines the basis for A3371 and the APA Reports conclusions because it reveals that the APAs change in position and its assumptions that homosexuality is immutable were based on political and social pressure, not concrete scientific evidence.). (Id. 22) (On page 30, the APA Report defines sexual orientation as an individuals patterns of sexual, romantic, and affectional arousal and desire for other persons based on those persons gender and sexual characteristics. The APA Report does not define sexual orientation as enduring, which reveals that these definitions are not based on any universally recognized or consistently
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 22

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 23 of 34 PageID: 1381

applied scientific standard. Additionally, on page two, the APA Report recognized that [s]ame-sex sexual attractions and behavior occur in the context of a variety of sexual orientations and sexual orientation identities, and for some, sexual orientation identity (i.e., individual or group membership and affiliation, self-labeling) is fluid or has an indefinite outcome. Given the mental health professions inability to provide a concrete definition of sexual orientation, there is potentially no limit to what could fall into its definition . The vagueness in the understanding itself of what is encompassed by sexual orientation results in a variety of understandings of its meaning, and includes pederasty, which is a homosexual relationship between a young man and a pubescent boy outside his immediate family, or pedophilia, or a host of other paraphilias or fetishes. This presents a difficult problem for a licensed counselor tasked with complying with A3371 when the definition of sexual orientation is fluid and vague. In any event, A3371 provides no definition of sexual orientation, leaving counselors to guess as to the meaning intended by the statute.) (emphasis added). (Id. 24) (The assertions of A3371 proponents are based on the unsubstantiated belief that same-sex attractions, behaviors, or identity are the result of biology. The general position of A3371 proponents that sexual orientation is tied to physiological drives and biological systems that are beyond the conscious choice contradicts the APAs own public-disseminated information regarding sexual orientation and etiology, which says: There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles. (APA, 2008b, p.2).). (Id. 33) (sexual orientation is difficult to define and encompasses a number of factors, including behavior, practices, identity, and attractions.) (emphasis added). (Id. 34) (There are multiple meanings of sexual orientation among licensed mental health professionals. But how is one to define the gay adolescent? We might reasonably assume that the best way to determine if a teen is gay is by what the teen says about himself. Proponents of A3371 would agree that if a teen says he is gay, he is gay. But are we to believe him? What is the credibility of a teenager who, according to the new law, cannot be believed if he says his homosexual feelings do not represent his deepest sense of self, and he wants to change? How are we to define a teenager who has same-sex attractions, behaviors, or identity but does not believe his sexual behavior makes him gay? He believes that deep down he is a heterosexual, but has samesex attractions, behaviors, or identity. Is it behavior or identity that defines his gayness? Counselors look more deeply into the teenagers motivations and
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 23

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 24 of 34 PageID: 1382

recognize that any self-label may represent a variety of motivations that do not necessarily define his true sexual identity. A3371 would prohibit this inquiry, if the counselors intent is to effect change in sexual orientation, whatever that may be. Moreover, same-sex sexual attractions, behaviors, and identity among minors often diminish or disappear spontaneously. It would be unethical for a licensed counselor to tell the client who is experiencing temporary unwanted same-sex sexual attractions, behaviors, or identity that such attractions, behavior, or identity is something the client should embrace. In not helping the client eliminate or reduce such attractions, behavior, or identity, the counselor might be pushing the client toward homosexuality, when in fact the client is heterosexual and merely experiencing a temporary period of homosexual attractions.) (emphasis added). Declaration of Eric Scalise (Scalise Decl. 15) (Many AACC members do not routinely offer SOCE counseling or rarely do, because they do not consider themselves to be competent by virtue of education, training, and experience regarding these related issues. Nevertheless, they will still likely encounter clients, including minor clients, within their other areas of specialty who are facing unwanted same-sex sexual attraction, behavior, or identity. These members are not inherently versed in the research literature or SOCE as are other professionals who may regularly counsel in this area. Nevertheless, as counselors trained to work in accordance with a clients values, beliefs, and right to self-determination, they may consequently address sexual orientation as defined herein, but will not necessarily understand the definition or terms or reach of A3371. When these members engage a client regarding either attraction, behavior, identity or any area of gender expression (including mannerisms or speech), they will likely violate the law and be disciplined under A3371.) (emphasis added). (Id. 20) (Many AACC members do not practice SOCE counseling exclusively, or in some cases, at all. Nevertheless, these counselors will be subject to the same prohibitions that experts in sexual orientation counseling face. The APA Task Force Report revealed that not even the experts in this area universally agree on a definition of sexual orientation. The Task Force Report concluded that [s]ame-sex sexual attractions occur in the context of a variety of sexual orientations and sexual orientation identities, and for some, sexual orientation identity (i.e., individual or group membership and affiliation, self-labeling) is fluid or has an indefinite outcome. This places a tremendous burden on AACC members, who though lacking expertise in this field, are still at risk of loss of their professional license when a minor client raises the issue of unwanted samesex attractions, behavior or identity in a counseling session that was not originally understood to be prohibited counseling. These AACC members will be left to speculate as to exactly what counsel is prohibited by A3371, as well as the definition of sexual orientation and how to apply A3371 to any number of questions that arise when minor clients clearly choose for their attractions,
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 24

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 25 of 34 PageID: 1383

behaviors, or identity to conform to their religious or moral values despite any unwanted sexual attractions, behaviors, or identity.) (emphasis added). Declaration of Dr. Gregory Herek (Submitted by Garden State Equality) (Herek Decl. 14) (The factors that cause an individual to become heterosexual, homosexual, or bisexual are not currently well understood. Widely differing accounts of the origins of adult sexual orientation have been proposed but no single theory enjoys unequivocal empirical support. There may be multiple developmental pathways to adult sexual orientation rather than a single cause. Given the current lack of definitive knowledge about why some individuals develop a heterosexual orientation, others become homosexual, and still others become bisexual, many social and behavioral scientists regard sexual orientation as being shaped by a complex interaction of biological, psychological, and social forces. They often differ, however, on the relative importance they assign to each.) (emphasis added). (Id. at 15 n.31) (The Task Force noted that sexual orientation has not been assessed in a uniform way across studies. Some studies operationally defined it in terms of attraction (using self-reports or physiological measures), whereas others assessed self-reported sexual behavior, and others assessed self-labeling or identity. Some research reports did not include any explanation of how sexual orientation was measured.) (emphasis added). There is No Concrete Proof of Harm 7. Defendants frequently referenced and explicitly mischaracterized the purported

consensus regarding the efficacy of SOCE and its alleged harm to minors. Indeed, the primary evidence relied upon by the State specifically refutes any alleged consensus and specifically notes that there are no conclusive studies on whether SOCE is harmful to minors. Moreover, the undisputed testimony before this Court specifically notes that there is significant benefit to such counseling for those who seek it and have desired to change. Plaintiffs provide the following citations: Declaration of Dr. Tara King (King Decl. 5) (I am a former lesbian who went through SOCE counseling, and my life is proof that SOCE counseling can and does work for individuals struggling with unwanted same-sex attractions, behaviors, or identity. In my opinion, based on my training, experience, and personal life story, SOCE
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 25

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 26 of 34 PageID: 1384

counseling is an effective method to assist people who struggle with unwanted same-sex attractions, behaviors, or identities and who desire to conform their attractions, behaviors, and identities to their sincerely held religious beliefs.) (emphasis added). (Id. 9) (I have been changed and reformed from that lifestyle for 23 years now. Because I knew that change was possible for people struggling with unwanted same-sex attractions, behaviors, or identities, and the peace and emotional, mental and spiritual health that results from successful change, I wanted to use my skills in education and counseling to begin to help those individuals who were struggling just as I had struggled. I founded the King of Hearts Counseling Center to establish a place where I could assist people with many different mental health issues, but also to help individuals who struggle with unwanted same-sex attractions, behaviors, or identity.). Declaration of Dr. Christopher Rosik (Rosik Decl. 5) (The six studies deemed by the task force to be sufficiently methodologically sound to merit the focus of the Report targeted samples that would bear little resemblance to those seeking SOCE today and used long outdated methods that no current practitioner of SOCE employs. This brings into question the Reports willingness to move beyond scientific agnosticism (i.e., that we do not know the prevalence of success or failure in SOCE) to argue affirmatively that sexual orientation change is uncommon or unlikely. The Report seems to affirm two incompatible assertions: a) we do not have credible evidence on which to judge the likelihood of sexual orientation change and b) we know with scientific certainty that sexual orientation change is unlikely. However, the absence of conclusive evidence of effectiveness is not logically equivalent to positive evidence of ineffectiveness (Altman & Bland, 1995). (Id. 6) (There are places in the Report that do seem to acknowledge that, given their methodological standards, we really cannot know anything scientifically definitive about the efficacy of or harms attributable to SOCE. For example, the Report states, Thus, we cannot conclude how likely it is that harm will occur from SOCE (APA, 2009, p. 42). Similarly the Report observes, Given the limited amount of methodologically sound research, we cannot draw a conclusion regarding whether recent forms of SOCE are or are not effective (APA, p. 43). Similarly, [T]here are no scientifically rigorous studies of recent SOCE that would enable us to make a definitive statement about whether recent SOCE is safe or harmful and for whom (APA, p. 83; cf. p. 67, 120).) (emphasis original). (Id. 11) (The Shildo and Schroeder (2002) and Schroeder and Shidlo (2003) results thus are based on a non-representative sample likely to be heavily biased in the direction of retrospectively reporting negative therapy experiences, some of which occurred decades ago. The task force appears to have ignored the warnings
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 26

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 27 of 34 PageID: 1385

from the studys authors: The data presented in this study do not provide information on the incidence and prevalence of failure, success, harm, help, or ethical violations in conversion therapy (Shildo & Schroeder, 2002, p. 250, emphases in the original). It is difficult to understand how this research can be cited without qualification or context as demonstrating likely harm from SOCE conducted by licensed medical and mental health professionals. Again, what we can say with confidence is that some SOCE clients report harm and others report benefit and we do not know from the literature how often either outcome occurs. While harm may occur with any form of psychological care, the evidence provided in this study is essentially nothing more than unverifiable hearsay. This is hardly a legitimate ground for legal prohibition.) (emphasis original). (Id. 12) (The APA and other professional bodies that utilize this Report are negligent if not fraudulent in giving a technically true warning that SOCE may potentially cause harm but failing to do so within the broader context that this warning certainly applies to all forms of psychological care for any and all forms of presenting problems or concerns. For example, regardless of theoretical orientation or treatment modality, some psychological or interpersonal deterioration or other negative consequences appear to be unavoidable for a small percentage of clients, especially those who begin therapy with a severe initial level of disturbance (Lambert & Ogles, 2004, p. 117). Clients who experience significant negative counter-transference or whose clinicians may lack empathy or underestimate the severity of their problem may also be at greater risk for deterioration (Mohr, 1995).). (Id. 13) (Furthermore, it must be remembered that, on average, persons with same-sex attraction already experience and/or are at greater risk for experiencing a number of medical and mental health difficulties prior to participating in any SOCE (Whitehead & Whitehead, 2010). This makes it extremely difficult to disentangle psychological distress directly attributable to SOCE from that which preceded commencement of SOCE. And since SOCE commonly involves helping clients become more aware of the stress and distress in their lives in order to manage or alleviate them, as do many approaches to mental health care, persons who leave therapy prematurely may have an increased awareness or experience of their (pre-) existing stress and distress. Thus, they may feel worse as a consequence of not having allowed therapy sufficient time to help resolve the difficulties. Anecdotal personal stories of harm certainly cannot scientifically establish the proportion of distress derived directly from SOCE, and high quality research that might be able to distinguish such causation simply does not exist.) (emphasis added). (Id. 18) (Contra to the repeated claims of the Report that it is an established scientific fact that no empirical studies or peer-reviewed research supports theories attributing same-sex sexual orientation to family dysfunction or trauma (APA, 2009, p. 86), there currently exists recent, high quality, and large-scale studies that provide empirical evidence consistent with the theory that
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 27

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 28 of 34 PageID: 1386

familial or traumatic factors potentially contribute to the development of sexual orientation (Bearman & Bruckner, 2002; Francis, 2008, Frisch & Hviid, 2006; Roberts, Glymour, & Koenen, 2013; Wilson & Widom, 2009). Despite their significant relevance for scientific discussions on the etiology of same-sex attractions, these studies were ignored by the task force. It is perfectly reasonable to believe that not offering professional SOCE to some minors with unwanted same-sex attractions and behaviors who seek such care may actually harm them by not helping them deal with what is one of the possible consequences of sexual molestation and abuse.) (emphasis added). (Id. 62) (As the task force noted, the prevalence of success and harm from SOCE cannot be determined at present. Anecdotal accounts of harm, which are a focal point of attention by supporters of A3371, cannot serve as a basis for the blanket prohibition of an entire form of psychological care, however meaningful they may be on a personal level. While such hearsay evidence is not nothing, it is negligent if not fraudulent that APA and other professional organizations accept such unverified claims that experiences of SOCE were harmful while dismissing much better documented claims that experiences of SOCE were beneficial, and were not harmful (Phelan, Whitehead, & Sutton, 2009). Indeed, it is not difficult to find counterbalancing anecdotal accounts of benefit from SOCE (see http://www.voices-of-change.org/). Furthermore, accounts of harm cannot tell us if the prevalence of reported harm from SOCE is any greater than that from psychotherapy in general, where research demonstrates 5-10% of clients report deterioration while up to 50% experience no reliable change during treatment (Hansen, Lambert, & Forman, 2002; Lambert & Ogles, 2004).) (emphasis original). (Id. 64) (Any genuine harm that results from SOCE practice with minors can most appropriately be remedied by the application of ethical principles of practice, including informed consent, and addressed through the existing oversight functions of state regulatory boards and state mental health associations. It is questionable and unlikely that the tangible, prosecutable harms from SOCE are as widespread as A3371 sponsors claim. If such harms did exist, why have we heretofore not seen SOCE practitioners losing their licenses and mental health association memberships in droves? A3371 is a legislative overreach that takes an overly broad and absolute approach to SOCE harm and success despite evidence suggesting age, gender, and non-heterosexual sexual orientation differences in the experience and degree of change in sexual orientation. In particular, it is fair to ask whether bisexual and mostly heterosexual youth are well served by A3371, a distinction this law does not make.). Declaration of Dr. Joseph Nicolosi (Nicolosi Decl. 11) (I have had many clients who, through SOCE counseling, have been able to succeed in reducing their unwanted same-sex
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 28

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 29 of 34 PageID: 1387

attractions, behaviors, or identity and have reported a marked increase in their recognition of their heterosexual potential.) (emphasis added). (Id. 18) (The APA Report flatly contradicts many points that specifically refute the assertions made by proponents of A3371. On page two, the APA Report states that none of the recent research, which are all studies from 1999-2007, meet the methodological standards for determining the efficacy, safety, or dangers of SOCE counseling. This undermines the assertions of proponents of A3371 that SOCE counseling is harmful to minors. Just as the research allegedly fails to prove SOCEs efficacy, the APA Report concedes it fails to prove any concrete harm. See Journal of Human Sexuality IV at 57-58. Furthermore, on page 25, the APA Report concedes that there needs to be more research and analysis of the potential benefits or dangers of SOCE counseling. In fact, on page 42, the APA Report specifically found that there was a dearth of information based on sound scientific research concerning the safety of SOCE counseling. The dearth of scientific study prevents blanket assertions by proponents of A3371 that SOCE counseling is in fact harmful to minors and should therefore be prohibited. This is reinforced on page 44 of the APA Report, which states that [b]ecause of the lack of empirical research in this area, the conclusions must be viewed as tentative. Indeed, on page 11, the APA Report admitted that recent research cannot provide conclusions regarding efficacy or safety.) (emphasis added). Declaration of John Doe (John Doe Decl. 11) (I have been seeing this therapist since May of 2011, and I can really say I am improving. I now have a normal guy voice, I dont shave my body hair anymore, and I definitely have a better relationship with my father. I do not have thoughts of suicide anymore and my confidence as a guy is starting to build.) (emphasis original). (Id. 12) (I really look forward to the counseling sessions so that I can move further towards overcoming my same sex attractions. I would also say that my Same-Sex Attraction is lessening to the point where its only three out of 10 when it used to be eight out of 10. Every day gets a little better with therapy. I just do not experience my unwanted same-sex sexual attractions as frequently as I did before I started my counseling sessions with my therapist. The counseling sessions have really helped me.). (Id. 13) (I feel like I now have hope that someday I might be able to get to the point where Im living a happy single life. I might even be able to get to the point when I can live a happy married life, when I am old enough.). (Id. 14) (I want to be able to continue to go to my counseling sessions with my therapist. I have made progress, but I still need more therapy to help me toward my goal of eliminating my unwanted same-sex attractions.).
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 29

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 30 of 34 PageID: 1388

(Id. 15) (I am very concerned that if my therapist is not allowed to continue to provide my counseling, then I might lose much of the progress that I have made so far in treatment. I believe that if he is not allowed to continue to provide my counseling, then I will begin to experience the same feelings of confusion and awkwardness that we have worked so hard to reduce and eliminate, and may even begin to have thoughts of suicide again. I also believe that if my therapist is not allowed to continue to provide my counseling, then I will begin to experience my unwanted same-sex attractions more often than I do and that I will have a harder time dealing with them and with the conflict between those attractions and my religious beliefs.). (Id. 16) (I really want to emphasize that the counseling has significantly improved the relationship between my parents and me. I think additional counseling will only strengthen that relationship. I do not think that the rights of my parents to get therapy for me should be taken away. I think I should have the right to get this therapy. I think everyone should have the freedom to pursue whats right for them.). Declaration of Dr. Jack Drescher (Submitted by the State) (Drescher Decl 22) (there is little study of SOCE in minors.) (APA Report at 72). The APA Task Force Report (APA Report at 120) (To date, the research has not fully addressed age, gender, gender identity, race, ethnicity, culture, national origin, disability, language, and socioeconomic status in the population of distressed individuals.). (Id. at 91) ([S]exual minority adolescents are underrepresented in research on evidence-based approaches, and sexual orientation issues in children are virtually unexamined.) (emphasis added). (Id. at 2) (None of the recent research (1999-2007) meets methodological standards that permit conclusions regarding efficacy or safety.) (emphasis added). (Id. at 42) (We conclude that there is a dearth of scientifically sound research on the safety of SOCE. Early and recent research studies provide no clear indication of the prevalence of harmful outcomes . . . because no study to date of scientific rigor has been explicitly designed to do so.) (emphasis added). (Id. at 90) (research on SOCE (psychotherapy, mutual self-help groups, religious techniques) has not answered basic questions of whether it is safe or effective and for whom. . . . [R]esearch into harm and safety is essential.) (emphasis added).
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 30

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 31 of 34 PageID: 1389

(Id. at 3) (Some individuals perceived that they had benefitted from SOCE.). (Id.) (Other individuals reported that SOCE was helpfulfor example, it helped them live in a manner consistent with their faith. Some individuals described finding a sense of community through religious SOCE and valued having others with whom they could identify.) (emphasis added). (Id.) (some individuals modified their sexual orientation identity (i.e., individual or group membership and affiliation, self-labeling) and other aspects of sexuality (i.e., values and behavior)). (Id. at 42) (other recent studies document that there are people who perceive that they have benefited from it.) (Id.) (These reports of perceptions of harm are countered by accounts of perceptions of relief, happiness, improved relationships with God, and perceived improvement in mental health status, among other reported benefits.). (Id. at 43) (We found that nonaversive and recent approaches to SOCE have not been rigorously evaluated. Given the limited amount of methodologically sound research, we cannot draw a conclusion regarding whether recent forms of SOCE are or are not effective (Id. at 49) (For instance, participants reporting beneficial effects in some studies perceived changes to their sexuality, such as in their sexual orientation, gender identity, sexual behavior, sexual orientation identity (Beckstead, 2001; Nicolosi et al., 2000; Schaeffer etal., 2000; Spitzer, 2003; Throckmorton & Welton,2005), or improving nonsexual relationships with men (Karten, 2006)) (emphasis added). (Id.) (Some participants of SOCE reported what they perceived as other positive values and beliefs underlying SOCE treatments and theories.). (Id. at 53) (These individuals report a range of effects from their efforts to change their sexual orientation, including both benefits and harm. The benefits include social and spiritual support, a lessening of isolation, an understanding of values and faith and sexual orientation identity reconstruction.). Facts This Court Should Deem Admitted 8. Plaintiffs also note that this Court is considering cross-motions for summary judgment

without Defendants ever filing an Answer to Plaintiffs Complaint, nor was there ever any motion or order granting leave for an extension of time to respond to Plaintiffs Complaint. As such, to
Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 31

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 32 of 34 PageID: 1390

the extent not denied, Defendants have admitted Plaintiffs allegations. See Fed. R. Civ. P. 8(b)(6); see also Charles Novins, Esq. O.C. v. Cannon, No. 09-5354, 2010 WL 3522793, *2 (D.N.J. Sept. 2, 2010) (If an allegation not relating to the amount of damages if not denied, and a responsive pleading was required, the allegation is considered admitted.). Additionally, Defendants failed to respond to Plaintiffs Statement of Material Facts, so they too are deemed admitted to the extent not denied. Hooks v. Schultz, No. 09-5627, 2010 WL 415316 (D.N.J. Jan. 29, 2010) (noting that if party fails to respond to a movants statement of material facts, [t]he Court will deem all of [the movants] facts to be undisputed); Handron v. Sebelius, 669 F. Supp. 2d 490, 494 (D.N.J. 2009) (failure to respond to movants statement of material facts not in dispute results in those facts being undisputed); Kimberly v. Borough of W. Newton, No. 08-603, 2010 WL 231789, *2 (W.D. Penn. Jan. 12, 2010) (although Plaintiffs filed a brief in opposition to defendants motion for summary judgment, they failed to respond to defendants concise statement of undisputed material facts . . . Thus, all of defendants facts are deemed admitted.). Moreover, the State Defendant has not objected to any of Plaintiffs declarations or to any of Plaintiffs recitation of Undisputed Facts, and their Statement of Material Facts does not create a dispute as to the dispositive evidence cited in Plaintiffs evidentiary declarations. Thus, Plaintiffs evidence is deemed admitted. CONCLUSION For the forgoing reasons, Plaintiffs respectfully request that this Court take the following actions: A. Consider all of Plaintiffs undisputed declarations and evidence as part of this Courts consideration of Summary Judgment; and

Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 32

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 33 of 34 PageID: 1391

B. Deem that all facts not responded or objected to by Defendants, as admitted pursuant to Fed. R. Civ. P. 8(b)(6), particularly against the State which failed to file an Answer and failed to object to Plaintiffs Statement of Undisputed Facts C. Grant such other relief to which Plaintiffs may be entitled. Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991 Mathew D. Staver* Stephen M. Crampton* Daniel J. Schmid* Liberty Counsel Attorneys for Plaintiffs P.O. Box 11108 Lynchburg, VA 24502 Tel. 434-592-7000 Fax: 434-592-7700 court@LC.org *Admitted Pro Hac Vice Attorneys for Plaintiffs

Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 33

Case 3:13-cv-05038-FLW-LHG Document 50 Filed 10/11/13 Page 34 of 34 PageID: 1392

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on October 11, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel of record.

/s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991

Plaintiffs Motion Objection to the Courts Dispensing with Supporting Declarations and Evidence and Motion to Deem Certain Factual Allegations Admitted by the State - 34