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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE, ) ) ) ) ) Case No. _______________ ) Plaintiffs, ) v. ) ) CHRISTOPHER J. CHRISTIE, ) Governor of the State of New Jersey, in ) his official capacity, ) ) Defendants. ) PLAINTIFFS’  MOTION  FOR  PRELIMINARY  INJUNCTION   COME NOW Plaintiffs, JOHN DOE, by and through JACK and JANE DOE, JACK DOE, individually and on behalf of JOHN DOE, JANE DOE, individually and on behalf of JOHN  DOE  (collectively  “Plaintiffs”), by and through the undersigned counsel, and pursuant to Rule 65 of the Federal Rules of Civil Procedure and Local Rule 7.1, move this Court to issue a Preliminary Injunction. In support thereof, Plaintiffs state: 1. Following  the  New  Jersey  Legislature’s  passage  of  A3371,  Defendant  Governor  Christie  

signed A3371 on Monday, August 19, 2013, which amended Title 45 of the Revised Statutes of New Jersey, and the law went into effect immediately. (See Compl. Ex. A). 2. A3371 prohibits licensed mental health counselors in New Jersey from engaging in

sexual orientation change efforts (“SOCE”)  with minors. (Id.). 3. Section 2(a) of A3371 states that a person licensed to provide mental health counseling

“shall  not  engage  in  sexual  orientation  change  efforts  with  a  person  under  18  years  of  age.”  (Id.). SOCE is defined as:

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the practice of seeking  to  change  a  person’s  sexual  orientation,  including,  but  not   limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender; except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another, or counseling that: (1) provides acceptance, support, and understanding of a person or facilitates a person’s   coping,   social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (2) does not seek to change sexual orientation. (Id.). 4. Plaintiffs are seeking SOCE counseling to help John Doe achieve his goals of eliminating

his unwanted same-sex attractions and resolving the confusion over his gender identity. (John Doe Decl. ¶ 3; Jane Doe ¶ 15). A3371 is preventing them from obtaining that counseling from a licensed New Jersey counselor. (John Doe Decl. ¶ 3; Jack Doe ¶ 11; Jane Doe ¶ 15). 5. Plaintiff John Doe is a fifteen-year old minor who is seeking SOCE counseling from a

licensed mental health professional in New Jersey. (John Doe Decl. ¶ 3; Jack Doe Decl. ¶ 3; Jane Doe Decl. ¶ 3). John Doe began experiencing confusion concerning his gender identity was when he was approximately nine years old. (John Doe Decl. ¶ 4). 6. Jack and Jane Doe would have frequently hostile arguments early in their marriage, and

they would have them in front of John Doe. Jack Doe had a difficult time conveying his love and support outwardly or expressing it verbally. (Jack Doe Decl. ¶¶ 3-4; Jane Doe Decl. ¶¶ 3-4). He generally spent all of his time focusing on being the provider of the home that he sometimes neglected his other duties, which caused a lot of problems and hurt his son. Jack Doe did not understand the artistic side of his son, so he neglected and ignored him sometimes for not behaving like a typical boy. (Jack Doe Decl. ¶ 3; Jane Doe Decl. ¶ 4). Sometimes he would

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verbalize his lack of understanding, and this caused great pain and hurt on John Doe. (Jack Doe Decl. ¶ 5; Jane Doe Decl. ¶ 5). 7. Because of this family environment, John Doe developed a dislike of boys and men,

thought that boys were stupid because of the harsh words his mother had spoken towards his father, and did not feel like his father accepted him as a younger child. (John Doe Decl. ¶ 4). When he was around ten years old, John Doe began trying to behave like a woman, look like a woman, and affirmatively tried to display female mannerisms and expressions. (Id. ¶ 5). This caused significant psychological distress for John Doe, and he started having frequent thoughts of suicide because of his severe confusion about his gender identity. (John Doe Decl. ¶¶ 3, 7). 8. When John Doe was approximately twelve or thirteen, he began to experience same-sex

attractions and have substantial anxiety, distress, and confusion over those feelings. (Id. ¶ 6). At that time, he began having thoughts of hopelessness and despair. (Id.). He was experiencing significant psychological distress over those feelings, and his thoughts of suicide became nearly a constant. (Id. ¶ 7). John Doe compared himself to other males that he thought were masculine and displayed the typical characteristics of a male, and he did not think that he would ever measure up to that standard. (Id. ¶¶ 5, 6). 9. John   Doe’s   confusion   and   distress   caused   him   great   anxiety, and his obsessive-

compulsive traits became worse than they had ever been. (Id. ¶ 7). John Doe began having panic attacks during the day and was unable to sleep at night due to his severe anxiety. (Id.). At this point, he began to think of killing himself every day, and his depression was severely harming his emotional stability. (Id. ¶ 8). 10. On a family trip to the beach, John Doe tried to fling himself off of the balcony of the

Does’   hotel.   (Jack Doe ¶ 7; Jane Doe ¶ 10). At that point, John Doe finally reached out to his

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parents for help, and Jack and Jane Doe knew they had to help their son with the severe psychological distress that his unwanted same-sex attractions and gender confusion were causing. (Jack Doe Decl. ¶ 8; Jane Doe Decl. ¶ 11). Jack and Jane Doe contacted a professional counselor recommended by the National Association for the Research and Therapy of Homosexuality, which specializes in helping men and boys reduce or eliminate their unwanted same-sex sexual attractions, behaviors, expressions, mannerisms, and identity. (John Doe Decl. ¶ 8; Jack Doe Decl.¶ 8; Jane Doe Decl.¶ 11; Pruden Decl. ¶ 7). 11. John Doe was struggling with nearly all of those things. (John Doe Decl. ¶ 8). He was

having unwanted same-sex attractions. (Id.). He had not engaged in same-sex behaviors, but it had crossed his mind. (Id.). He was trying to suppress any expressions of his masculinity and to display any female mannerisms that he could. (Id.). 12. One of the main reasons John Doe was having such significant psychological distress

over his gender identity confusion and unwanted same-sex attractions was because he has sincerely held religious beliefs that such feelings are unnatural, unhealthy, and sinful. (Id.. ¶ 9). He wanted to live out his religious values and did not want to act out on same-sex attractions that violate his religious beliefs. (Id.). 13. One   of   John   Doe’s   main   goals   in   seeking   SOCE   counseling   was   to resolve his sexual

attractions so that he can act consistently with his religious beliefs. (Id.). His same-sex attractions were causing a great internal conflict with his value system, and he wanted to do something about it. (Id.). 14. Jack and Jane Doe also have sincerely-held religious beliefs that homosexuality is a

sinful and harmful lifestyle. (Jane Doe ¶ 18). They also have sincerely held religious beliefs that parents are required to provide their son with the necessary education to understand Sacred

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Scripture and the teachings of their Catholic Church. (Id.). Jack and Jane Doe believe that assisting their son in receiving the counseling that will help him live consistently with and prioritize his religious beliefs and values above his gender confusion and unwanted same-sex attractions is one aspect of educating him to be able to live virtuously through the fundamental tenets of their faith. (Id.). 15. John Doe started counseling in May of 2011, and he has experienced tremendous benefits

from it. (John Doe Decl. ¶ 10). He now speaks with his normal voice and does not try to suppress the male sound of it, as he had done before. (Id.). He has stopped shaving his body hair to try to look more feminine, and he displays less feminine characteristics, and he has stopped attempting to exhibit female mannerisms. (Id.). Also, John Doe has significantly improved the relationship with his father, and his confidence in his own masculinity is starting to develop and improve. (Id.). 16. As a result of his counseling, John Doe no longer experiences thoughts of suicide or

hopelessness. (Id. ¶¶ 11-13). John Doe no longer has the tremendous psychological distress that he experienced as a result of his unwanted same-sex attractions. (Id.). 17. John Doe has made significant progress toward his goal of eliminating his unwanted

same-sex attractions, but there is still more work to do with his counselor and other counselors. (Id. ¶ 13).  John  Doe’s discussions with his counselor are very helpful, and sometimes just talking about his difficulties makes all the difference in the world to him. (Id.).  John  Doe’s  counseling   sessions involve simply talking about his feelings, anxieties, and confusion that resulted from the unwanted same-sex attractions that he was struggling with and wanted to resolve. (Id.). Talking with his counselor has made his feelings of anxiety and hopelessness go away. (Id.).

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18.

Jack and Jane Doe have also noticed significant benefits from   John   Doe’s   SOCE  

counseling. (Jack Doe Decl. ¶¶ 8-10; Jane Doe Decl. ¶¶ 13-14). They have noticed significant changes in their son, and have found that all of them are positive. (Jack Doe Decl. ¶¶ 8-10; Jane Doe Decl. ¶ 13). They have noticed that their son no longer appears to struggle with the distress and anxiety over his gender confusion, and has made significant progress in eliminating his unwanted same-sex attractions. (Jack Doe Decl. ¶ 8; Jane Doe Decl. ¶ 13). Most importantly, John Doe has not expressed suicidal thoughts to them anymore or threatened to kill himself as he had done prior to his counseling. (Jane Doe Decl. ¶ 13). Based   on   Jack   and   Jane   Doe’s   observations,   they   know   that   these   benefits   are   the   result   of   their   son’s   beneficial   discussions with the counselor. (Jack Doe Decl. ¶ 10; Jane Doe Decl. ¶¶ 16-17). 19. John   Doe’s current counselor is a licensed clinical social worker in New York, but his

counseling does not involve much analysis and discussion of the underlying causes and background information that many licensed psychologists have in this area. (John Doe Decl. ¶ 14; Jack Doe Decl. ¶ 11; Jane Doe Decl. ¶ 15) Because his counseling is more prospective thinking, John   Doe’s counselor informed the Does that their son might benefit from the additional SOCE counseling of a person who engages in conversations dealing with root causes, background information, and other introspective analysis involved in other licensed professionals counseling. (John Doe Decl. ¶ 14; Jack Doe Decl. ¶ 11; Jane Doe Decl. ¶ 15). The counselor made that recommendation based on some of the recent discussions he has had with John Doe, and the Does want to continue to be able to make sure their son receives the best counseling from the best counselors on all aspects of those problems that cause him distress. (Jack Doe Decl. ¶ 11; Jane Doe Decl. ¶¶ 15-16).

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20.

Because of John   Doe’s   counselor’s recommendation, the Does contacted Dr. Ronald

Newman, a licensed psychologist in New Jersey, to attempt to engage one of them for their son. (Jack Doe Decl. ¶¶ 11-12; Jane Doe Decl. ¶ 15). Nevertheless, because of A3371, Dr. Newman informed the Does that he could not help them, and in fact there are now no licensed mental health professionals in New Jersey that can help John Doe with the counseling that he so desperately desires and seeks. (Jack Doe Decl. ¶ 13; Jane Doe Decl. ¶ 15; Newman Dec. ¶ 6). This is causing Plaintiffs significant, immediate, and irreparable injury. 21. A3371  violates  Plaintiffs’  First  and  Fourteenth  Amendment  rights to receive information

and to the free exercise of religion, as  well  as  Plaintiff  parents’  rights  to  oversee   and direct the education and upbringing of their son without undue influence from the government. 22. The balance of harms between Plaintiffs and Defendant  Christie  tips  in  Plaintiffs’  favor,  

and  entry  of  a  preliminary  injunction  is  in  the  public’s  interests. 23. The  reasons  for  granting  Plaintiffs’  Motion  for  a  Preliminary  Injunction  are  more  fully  set  

forth in their Memorandum filed simultaneously herewith. WHEREFORE, Plaintiffs move the Court for entry of a preliminary injunction prohibiting Defendant from enforcing A3371 pending a full trial on this matter, and for such other and further relief to which they may be entitled.

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Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. !""#$%$$% 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 * Application to appear Pro Hac Vice pending

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on November 1,  2013.  Service  will  be  effectuated  by  the  Court’s  electronic  notification   system upon all counsel of record.

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE, ) ) ) ) ) Case No. _________________ ) Plaintiffs, ) v. ) ) CHRISTOPHER J. CHRISTIE, ) Governor of the State of New Jersey, in ) his official capacity, ) ) Defendants. ) PLAINTIFFS’  NOTICE  OF  MOTION  FOR  PRELIMINARY  INJUNCTION HONORABLE JUDGE: PLEASE TAKE NOTICE that on November 1, 2013, Plaintiff will move for this Court to issue a preliminary injunction enjoining Defendant Governor Christie and all New Jersey officials from enforcing New Jersey Assembly Bill No. 3371, which prohibits licensed mental health  counselors  from  engaging  in  what  it  terms  “sexual  orientation  change  efforts”  counseling   with minors under the age of eighteen.

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Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. !""#$%$$% 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 * Application to appear Pro Hac Vice pending

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on November 1, 2013. Service will be effectuated  by  the  Court’s  electronic  notification   system upon all counsel of record.

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

Plaintiffs’  Notice  of  Motion  for  Preliminary  Injunction - 2

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE
Plaintiffs,
v.
) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.- - - - --

CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity,
Defendants.

DECLARATION OF JOHN DOE
I, John Doe, hereby declare as follows: 1. I am under the age of 18 and am a resident of New Jersey. The statements in this

Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration in support of Plaintiffs' Motion for a preliminary

injunction. 3. I am 15 years old, and I began to see a counselor for romantic feelings I was having

toward other boys and men, among other things, which I understand are now prohibited under New Jersey's law, A3371, at least if! get the counseling from a licensed counselor. When I was 13 years old, I began to struggle with and suffer distress because of feeling I was or wanted to be a girl, which I did not fully understand. I was struggling with those thoughts, behaving like a girl and dressing like a girl, and having various girl-like mannerisms. I began to have unwanted

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same-sex attractions and became really frustrated, angry, disappointed, and confused about those feelings as well. At that time, I began to see a counselor for these issues. 4. The first time I remember having confusion about my gender identity was when I was

nine years old. I remember disliking boys and men, thinking that boys were stupid because my mother said bad things to my father. I also did not feel like my father accepted me because I was very artistic and not like the boys he had grown up with. 5. When I was 10, I started feeling like I wanted to commit suicide because I did not like

myself. I thought I would like myself much better if I were a girl. I began to secretly shave my armpits and pubic hair, so I could look more feminine. When my voice began to change, I tried to make it higher because I could not stand how low it was becoming. I hated everything masculine about myself. I thought I would be happy if I could be feminine, so I also took on various female mannerisms and expressions. 6. I began having unwanted same-sex attractions when I was 12 or 13. I remember having

"crushes" on celebrity guys I saw in magazines. It was also at this time that I began having thoughts of hopelessness and despair. I did not understand these feelings, and I began to think that killing myself was the only option to get out of this hopelessness and confusion. 7. I hated myself because I did not feel like I was as good as the guys I saw in the

magazines. These guys were muscular and athletic, and I was not. It was also at this point that my identity and gender confusion were at their worst. I thought that if I were a girl, I would not have to compete with these masculine and athletic boys that I saw in the magazines anymore. I knew I would never be good enough if I remained a boy. My hatred for myself made me feel panicky and caused great anxiety, and my obsessive-compulsive traits became worse than they had ever been. I was having panic attacks during the day, and I had trouble sleeping at night. My

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life was spinning out of control, and I was so depressed. At that point, I was thinking about killing myself nearly all day, every day. My parents knew that I was suicidal, so after an extreme outburst and when they found the pornographic pictures of guys under my mattress, they took me to a new counselor. 8. At that time, my suicidal thoughts were all-consuming. I could not stand having to live

with these conflicting feelings, so I asked my parents if they could help me. My parents agreed to seek help from a professional counselor recommended by the National Association for the Research and Therapy of Homosexuality, which specializes in helping men and boys reduce or eliminate their unwanted same-sex sexual attractions, behaviors, expressions, mannerisms, and identity. Unfortunately for me, I was struggling with nearly all of those things. I was having unwanted same-sex attractions; I had not engaged in same-sex behaviors, but it had crossed my mind; I was trying to suppress expressions of my masculinity and to display female mannerisms instead; and I was in despair and hopelessness over the confusion I was experiencing over my gender identity. 9. After my parents contacted the counselor, we talked to him about his type of counseling

and the various conversations that we would engage in with each other during the counseling. He explained to us his theory of why I was experiencing unwanted same-sex attractions. I have a sincerely held religious belief and conviction that homosexuality is wrong. I wanted to address that value conflict because my same-sex attractions and gender confusion 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 consistently with my religious beliefs. Because of this, and because I did not want to

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experience these same-sex attractions, I wanted my counselor to help me. My parents agreed to permit me to participate in reparative therapy/change therapy with him. 10. I started the counseling in May of 2011, and I can say that I really believe I am

improving. I now speak with my normal voice and do not try to suppress the male sound of it. I have stopped shaving my body hair to try to look more feminine, and I display less feminine characteristics. Also, I definitely have a better relationship with my father, and my own confidence in my masculinity is starting to develop and improve. The best part about the counseling is that I no longer have the feelings of hopelessness that I once had, and I never have thoughts of suicide anymore. 11. I really hope to be able to continue counseling sessions so that I can move further toward

overcoming my same sex attractions and reduce and resolve the confusion that I once had over my gender identity. I would also say that my same-sex attractions have really started to go away, and on a scale of one to ten, I would say they are to the point where they are only three out of ten when it used to be eight out of ten. Every day gets a little better with counseling. I do not experience my unwanted same-sex sexual attractions as frequently as I did before I started my counseling sessions. These counseling sessions have really helped me. 12. I feel like I have hope that someday I might be able to get to the point where I am 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. Before the counseling, I did not ever think any of this was possible and was not sure that I would let myself live long enough to find out. 13. I want to be able to continue to get counseling. I have made progress, but I think there is

still a lot I want to talk about with my counselor to help me reach my goal of eliminating my unwanted same-sex attractions and resolving the underlying issues that once caused my

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confusion over my gender identity. The discussions that my counselor and I engage in during counseling sessions are really helpful, and sometimes just talking about it makes all the difference in the world to me. The only thing we ever did in my counseling sessions was talk about my feelings, anxieties, and confusion that resulted from the unwanted same-sex attractions that I was struggling with and wanted to resolve. Talking with my counselor has really made my feelings of anxiety and hopelessness go away. 14. The counselor I go to now is great, but he told my parents and me that his counseling

does not include some of the therapy that he says could really help me out with my goals. My counselor talks about how I am feeling about things from day to day and how I am continuing to get rid of my unwanted same-sex attractions. My counselor told me that there are also licensed psychologists who do counseling very similar to his, but will also talk with me about some of the things that bothered me when I was younger. My counselor says that the conversations with him have really helped me, but that licensed psychologists know more about other types of counseling and that I will probably like talking to them as much as I like talking to him. I really like my counselor, but I also want to have all of the conversations and counseling necessary to help me achieve my goal of getting rid of my same-sex attractions. I was disappointed when my parents told me that the counselors in New Jersey are not allowed to talk to me about these things anymore. 15. I am very concerned that if I am not able to get all of the different types of counseling

that I really want and need, then I might lose much of the progress that I have made so far in treatment. I believe that if I cannot continue to receive 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 am also afraid that if I cannot

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continue to discuss my confusions and anxieties with a counselor and spend time talking about what struggles I had between sessions concerning my unwanted same-sex attractions, 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. 16. The conversations that I have had in counseling have helped me improve the relationship

between my parents and me. My counselor and I have had many conversations where we talked about my relationship with my parents, and those conversations have helped me restore and repair the problems that I initially had with my mom and dad. I think having additional conversations with a counselor will only strengthen the relationship I have with my mom and dad. 17. I do not understand why my parents and I are not allowed to go to a licensed counselor

here in New Jersey and talk to him about what is causing my anxiety and confusion. Why would anyone tell me I do not have the right to talk to the counselor of my choice about my unwanted same-sex attractions and gender confusion, especially when those feelings gave me such hopelessness that I was constantly thinking about killing myself? Why does it matter to others whether I want to get rid of my unwanted same-sex attractions? Everyone else who has a mental problem that is causing them hopelessness and despair is allowed to talk to their counselor about what is making them think suicide is the only answer, so why do people not want me to be able to do the same thing just because they do not think I should have the religious beliefs that I have? I think everyone should be able to discuss what is bothering them with a licensed counselor, especially when it is something as serious as a problem causing a person to think about killing themselves. My conversations with my counselor prevented me from thinking about killing

Declaration of John Doe - 6

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE
Plaintiffs,
) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. - - - - - -

v.
CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity,
Defendants.

DECLARATION OF JACK DOE
I, Jack Doe, hereby declare as follows:
1.

I am over the age of 18, a resident of the State of New Jersey, and am affected by A3371,

the legislation that is the subject of this action. The statements in this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration in support of Plaintiffs' Motion for a Preliminary

Injunction. 3. I am the father of my 15 year old son, John Doe. Early in my marriage, my wife and I had

many arguments in front of our infant son. I had a difficult time conveying my love and support outwardly or expressing it verbally. I was so focused on being the provider of the home that sometimes I neglected my other duties, and that caused a lot of problems. 4. Wfien 000 Doe was very young and as e grew older, my wife and I would have raging

arguments for hours and well into the night. I hurt her enormously, and she would in tum berate

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me in front of our son. I observed that these arguments had a negative impact on our son's upbringing. 5. In his elementary school years (grades K through 4), our son started playing with dolls.

We thought it was atypical, but did nothing about it. He also tried playing baseball and soccer during these years. He quit soccer after a few weeks, but stuck with baseball for two years, after much prodding from my wife and me. It was readily apparent to us that he did not feel comfortable around other boys, or in playing these sports. He was particularly bad at baseball. When they put him into right field, he would tend to "skip" out to his position and his at-bats were very weak. He also tried Cub Scouts, which did not work out very well, either. He did not have any interest in "boy" activities and could not relate to the other Scouts. Instead of sports and Scouts, which were my interests as a boy, my son spent hours honing his artistic gifts. While he was drawing once I asked, "Why can't you be like all the normal boys and go outside to play sports?" It was very insensitive on my part. I was hung up on "real men" playing typical sports and did not appreciate his wonderful gifts. As a result, there was distance and discord between us, and he moved emotionally closer and closer to his mother. 6. Once our son entered junior high school (grades 5 - 7), we hoped things would get better.

He entered a new school, got involved in the drama club, started swimming on the local swim team, and entered karate tournaments. Even though we thought he was doing better publicly, we observed that privately he was doing worse. He started cutting himself and entertaining thoughts of suicide. Whatever activity he got involved in, he could not relate to other boys and did not perform to his potential. At his core, it appeared to me that our son was in a battle with himself. He felt inadequate as a young man, he was emotionally distanced from me, and he was attracted

Declaration of Jack Doe - 2

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to boys and men who apparently embodied what he thought a boy/man should be. At a particularly low point, he said that he wished God had made him a girl. 7. At age 12, our son's voice began to change with adolescence. It seemed that the deeper

his voice became, the more he tried to make his voice artificially higher, and by the time he turned 13, he began to speak in an obviously artificially high, falsetto voice. At this point, our son began to spiral downward very quickly. We took a trip to Myrtle Beach, and our son shaved his armpits, flushed his underwear down the toilet, and tried to fling himself over the balcony of our hotel room. Then, we returned home to find various pornographic pictures and illustrations of men in various positions under his mattress. 8. This time, we reached out to a good priest friend of ours who introduced us to National

Association for the Research and Therapy of Homosexuality ("NARTH"). Through NARTH, we found a counselor, who happened to be an Orthodox Jew. With our counselor, we began counseling that involved discussions centered around repairing the broken relationship between my son and me as well as helping my son to realize that he is a wonderful young man and much more well-rounded than he gives himself credit for being. We have learned together that there is no such thing as the "perfect man." I have observed that my son, through this journey with his counselor, is moving toward establishing healthy friendships with other teen boys and towards becoming more comfortable and self-confident in his own masculinity. 9. Our son began counseling in May of 2011, which was the spring of his 7th grade year.

Because of that counseling, I have seen our son grow closer to me, begin to embrace his masculinity, and no longer speak of suicide, cutting himself, or wanting to be a girl. He has become actively involved in martial arts and swimming while still pursuing his artistic interests. Our son was voted "Best Team Spirit" two years in a row by his swim team coaches, won

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matches in karate tournaments, had a lead role in his 8th grade play, and earned a scholarship to his Catholic High School. Before he had an opportunity to have discussions with a counselor, he would only draw women, but now our son draws both genders well. 10. In my opinion, based on lengthy first-hand observations, my son has greatly benefited

from his discussions with his counselor, and he has expressed to my wife and I on numerous occasions that there is a lot he still wants to be able to discuss with a counselor. My observations of his dramatic improvement lead me to conclude that he is correct in saying that there is much more that can be gained by further counseling. His conversations with a counselor have been tremendously helpful so far, but he wants, and in my opinion, needs to be able to continue to engage in further counseling. I have observed that my son has improved visibly after discussions with his counselor, and sometimes his simply talking to a counselor has calmed his anxieties, feelings, and confusions regarding his unwanted same-sex attractions. 11. My wife and I have contacted licensed mental health counselors in New Jersey but

because of A3371, there is no one who can engage in this type of counseling with my son. Our current counselor is a licensed clinical social worker in New York, but his counseling does not involve the in-depth analysis and discussion of the underlying causes and background information that many licensed psychologists do in this area. Because his counseling is more prospective thinking, our counselor informed us that our son might benefit from the additional counseling of a person who engages in conversations dealing with root causes, background information, and other introspective analysis offered in other licensed professional counseling. Our counselor made such a recommendation based on some of the recent discussions he has had with our son, and we want to continue to be able to make sure our son receives the best counseling from the best counselors on all aspects of those problems that cause him distress.

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I
Because of that recommendation, we contacted licensed mental health counselors in New Jersey to attempt to engage one of them for our son. Because of A3371, however, there is not anyone who is able to provide such licensed counseling anywhere in our state. 12. Because my wife and I had a negative experience with an unlicensed counselor in the

past, we believe it is crucial that John Doe receive this type of counseling from someone who is licensed, trained, and experienced in this type of work. The unlicensed counselor did not have a proper understanding of the underlying theories behind SOCE counseling, did not know how to properly engage in the discussions that take place during such counseling, and was unable to help my son with his gender confusion and unwanted same-sex attractions. It was not that he was a bad counselor, in my view. but that he did not have the proper understanding and training to effectively engage in SOCE counseling. 13. A3371 forces minors and their families into an even worse situation because it requires

that anyone seeking this type of counseling pursue it with an unlicensed counselor rather than a licensed professional trained in providing such counseling. As we have personally experienced, this ban will cause more hann to minors than allowing them to simpJy pursue conversations and communications with their licensed mental health . counselors about those things that cause them distress and anxiety. 14. I declare under penalty of perjury under the laws of the United States and the State of

New Jersey that the foregoing statements are true and accurate.

Executed this 28th day of October, 2013.

J¥kDOe
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE, Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. _________________

DECLARATION OF RONALD NEWMAN, PH.D. I, Dr. Ron Newman, hereby declare as follows: 1. I am over the age of 18 and am a licensed psychologist in New Jersey. The statements in

this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration   in   support   of   Plaintiffs’   Motion   for   Preliminary  

Injunction. 3. I received a Doctor of Philosophy degree in Psychoeducational Processes from Temple

University in 1990. I received a Master of Arts degree in Counseling Psychology from Trinity Evangelical   Divinity   School   in   1980,   a   Bachelor’s   Degree   in   Psychology   from   West   Virginia   University in 1976, and an Associates of Arts degree in Practical Theology from Christ for the Nations Institute in 1978. I have over 33 years of experience as a mental health professional and have been a Licensed Psychologist (NJ Lic. # 03257) in the State of New Jersey, since 1995. I

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am a Board Certified Professional Christian Counselor through the American Association of Christian Counselors. My Resume is attached to this declaration as Attachment A. 4. I  am  currently  a  member  of  the  American  Psychological  Association  (“APA”),  the  New  

Jersey Psychological Association (NJPA), the Christian Association for Psychological Studies (CAPS), the National Association for Research and Therapy of Homosexuality (NARTH), and the American Association of Christian Counselors (AACC). My practice is located at two offices in Hammonton, New Jersey and Linwood, New Jersey. Many of my clients come to me because of my Christian identity and their trust that their Christian values and beliefs will be respected in treatment. My practice is comprised of approximately 35 - 40 clients per week. Some of my clients actually travel considerable distances to receive the type of counseling that I offer, including some who drive over an hour and a half one way to attend counseling sessions from the perspective that I offer and the expertise I incorporate into their counseling. I counsel individuals and families concerning stress, panic and anxiety, depression, post-traumatic stress disorder, grief, couples/marital counseling, and many other mental health issues that cause people distress, including individuals with unwanted same-sex attractions. I have a Biblical worldview, and 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 which I form with them. 5. Part of my practice involves what is often called sexual orientation change efforts

(“SOCE”)   counseling,   sometimes   with   minors.   As   is   true   with   much   of   my   practice,   the   individuals who seek SOCE counseling from me do so because they have a desire to conform their attractions, behavior, and identity to their sincerely held religious beliefs. Many of these individuals seek to reduce or eliminate their unwanted same-sex attractions because their

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religious beliefs inform them that change is possible. I also believe that change is possible and have personally counseled individuals who have successfully reduced or eliminated their unwanted same-sex attractions, behaviors, or identity. 6. I have been contacted recently by the Plaintiffs in this action seeking to engage a licensed

mental health counselor in New Jersey who can provide SOCE counseling to their son. The Does said that they were seeking a licensed psychologist to assist their son, John Doe, with some of his psychological distress that was rooted in some childhood needs that went unfulfilled and that their current counselor had suggested they contact a licensed counselor who explores and discussed the root causes and symptoms of unwanted same-sex attractions. Because of A3371, I was forced to inform the Does that neither I nor any licensed mental health counselor in New Jersey could engage in SOCE counseling with their son. 7. My first step in the process of counseling for my patients, including those minor clients

with unwanted same-sex attractions, behaviors, or identity is to discover what the patient and the parents  are  hoping  to  achieve  with  the  counseling  and  to  establish  a  client’s  goals.  Mental  health   counseling   should   be   client   centered,   and   the   client’s   goals   and   objectives   must   control   the   counseling relationship. 8. Prior to A3371, when both the minor client and the parents wanted SOCE counseling,

then I explained to them the nature of such counseling. I also explained to the client that if at any point   in   the   course   of   the   client’s   therapy   the   client   decides   he   no   longer   wants   to   continue   counseling for same-sex attractions, behaviors, or identity, then he should inform me immediately  because  the  client’s  counseling  should  always  be  based  on  the  goals  and  objectives   of the client. I explained that SOCE counseling has been effective for some people with unwanted same-sex attractions, behavior, or identity, but that the counseling can sometimes

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invoke stress or anxiety about past events or root causes. I have counseled a number of individuals for whom SOCE has been effective and successful, but I have also counseled individuals who determined that their same-sex attractions, behaviors, or identities were no longer unwanted. Many of the individuals I counseled that decided to stop the SOCE counseling still benefited from the counseling sessions. I declare under penalty of perjury under the laws of the United States and the State of New Jersey that the foregoing statements are true and accurate.

Executed this 27th day of October, 2013.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. ________________

DECLARATION OF JOSEPH NICOLOSI, PH.D. I, Joseph Nicolosi, hereby declare as follows: 1. I am over the age of 18 and am submitting this Declaration as expert testimony on behalf

of NARTH members and the NARTH Board of Directors. The statements in this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I   am   submitting   this   Declaration   in   support   of   Plaintiffs’   Motion   for   a   Preliminary  

Injunction. BACKGROUND 3. I have been a licensed psychologist in California since 1980. I have a Bachelor of Arts

Degree in Psychology from Long Island University. I received my Masters of Arts degree in Psychology from the New School for Social Research and my Doctor of Philosophy in Clinical Psychology from the California School of Professional Psychology. I am the Founder and Clinical Director of Thomas Aquinas Psychological Clinic in Encino, California, which is a clinic providing mental health counseling currently to 135 clients. Ninety percent of those clients

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are individuals struggling with unwanted same-sex attractions, behaviors, and identity, and sixty percent are teenagers. While the Clinic specializes in helping people with unwanted same-sex attractions, behaviors, and identity, the four mental health professionals providing service at the clinic do counsel on any issue for which the client is seeking help. 4. I am one of the three founding members and a former president of the NARTH, which is

a professional, scientific organization that offers hope to those who struggle with same sex attractions by providing information, counseling, research, and referrals. I have published numerous books, articles, and other scholarly works on the topic of homosexuality and the course of treatment for those individuals who seek to reduce or eliminate their unwanted samesex attractions. In my practice, I specialize in the treatment and counseling of males who struggle with unwanted same-sex attractions. 5. In addition to the numerous books and scholarly articles that I have written and the

extensive education I have received in the United States, I have also participated in numerous international training seminars occurring all over the world in places including Germany, Italy, England, Mexico, and Poland. 6. My background and experience in the field of clinical psychology and a list of my

published articles, books, and book chapters are described in my curriculum vitae, which is attached to this Declaration as Exhibit A. DESCRIPTION OF PRACTICE AND INFORMED CONSENT 7. Prior to engaging in SOCE counseling with patients, I and most NARTH members

provide clients with a consent form that outlines the nature of the treatment, the potential benefits and risks, including the fact that some psychotherapists believe that sexual orientation cannot or should not be changed, and informs the client that success in any method of psychotherapy is not

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guaranteed and could potentially be harmful. In my consent form, I explicitly state that I do not, nor does anyone at my clinic, provide gay-affirming treatment and that clients should seek an alternative therapist to help them if that is their stated objective. 8. I  and  most  NARTH  members  also  explain  that  if  at  any  point  in  the  course  of  the  client’s  

therapy, the client decides that he no longer wants therapy for unwanted same-sex attractions, behaviors, or identity, then  he  should  inform  the  counselor  immediately  because  a  client’s  course   of treatment should always be based on his objectives. Related to this, I explain that if the client decides during the course of SOCE counseling that he wants therapy that affirms his same-sex attractions, behaviors, or identity, then it would be best for the client to seek an alternative therapist. 9. I and most NARTH members explain to our clients that the nature of SOCE counseling is

such that many people report benefits from the counseling, but that it can invoke initial feelings of stress and anxiety; that many experience a reduction in same-sex attractions, behaviors, or identity; and that often a person will continue to experience some level same-sex attractions, behaviors, or identity even after therapy. I explain that as with other issues people face in their lives, many people report that their recognition of their heterosexual potential and identity is a lifelong process that continues with them after therapy. 10. My SOCE counseling consists of discussions with the client concerning the nature and

cause of their unwanted same-sex sexual attractions, behaviors, or identity; the extent of these attractions, behaviors, or identity; assistance in understanding traditional, gender-appropriate behaviors and characteristics; and assistance in fostering and developing those genderappropriate behaviors and characteristics.

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11.

Most of the patients with unwanted same-sex sexual attractions, behaviors, or identity

who seek SOCE do so to develop and foster healthy, heterosexual relationships and seek the elimination or reduction of their unwanted same-sex sexual attractions, behaviors, or identity. I have had many clients who, through SOCE counseling, have been able to succeed in reducing their unwanted same-sex attractions, behaviors, or identity and have reported a marked increase in their recognition of their heterosexual potential. 12. I have also had clients who decided that they wanted to remain in the homosexual

lifestyle, but report that SOCE counseling helped them to understand the nature of their homosexual identity and, as a result, were able to better cope with that identity after SOCE counseling. These same clients who decide to remain in the homosexual lifestyle have reported that they experienced no harm as a result of SOCE counseling. THE A3371 SOCE BAN IS NOT SUPPORTED BY THE REPORT OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION TASK FORCE ON APPROPRIATE THERAPEUTIC RESPONSES TO SEXUAL ORIENTATION 13. The underlying foundation for a ban on SOCE as set forth in A3371 is the unfounded

reliance by A3371 proponents upon the Report of the American Psychological Association Task Force  on  Appropriate  Therapeutic  Responses  to  Sexual  Orientation  (the  “APA  Report”). 14. The APA Report, however, has countless methodological flaws and reaches erroneous

conclusions because of the ideological persuasion of the Task Force members who drafted it. The first evidence of the flaws in the methodology behind the APA Report is that it included no practitioners of sexual orientation  change  efforts  (“SOCE”)  counseling.  In  fact,  the  APA  rejected   every practitioner of SOCE counseling that applied for membership on the Task Force. All of the applicants that the APA rejected were prominent scholars in the field of same-sex attractions,

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behaviors, and identity, and SOCE counseling, including A. Dean Byrd, Ph.D., George Rekers, Ph.D., Stanton Jones, Ph.D., Mark Yarhouse, Ph.D., and me. 15. The APA violated long-established scientific principles by intentionally rejecting all

practitioners of SOCE and prohibiting the participation of individuals with differing views, values, and practice. Indeed, the a priori assumptions of the APA Report reveal that it was designed to reach a preordained verdict, which would accept homosexuality as a normal variant of human sexuality and that people should embrace and accept it. Specifically, the APA Report stated that it was accepting as a beginning principle that “[s]ame-sex sexual attractions, behavior, and orientations per se are normal and positive variants of human sexuality.” APA Report at 2. This clearly indicates that the Report was ideologically opposed to and would not even consider any evidence of non-normative causes of homosexuality and would reject any notion that people should seek to change such attractions, behaviors, or identity The scientific methodology used by the Task Force is flawed because the only voices included in the APA Report are well known for their disapproval of any efforts by homosexual individuals to seek change, even when those individuals seek such change in order to live in accordance with their sincerely-held religious or moral beliefs. Even the proponents of anti-SOCE legislation like A3371 attest to the need for objective and unbiased opinion when conducting a study of this nature. 16. The scientific bias of the APA Report is evidenced by four specific factors. First, the

APA Report failed to review the well-documented psychological and medical health risks associated with homosexual and bisexual behavior. Neil E. Whitehead, Homosexuality and CoMorbidity: Research and Therapeutic Implications, The Journal of Human Sexuality II, 156 (2010)   (recent   studies   have   found   “essentially   the   same   suicide   rates”   for   same-sex attracted people in the US as other countries with decades of acceptance of people with same-sex

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attractions, behaviors, or identity) Second, 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. Third, the APA Report did not study individuals who reported success from SOCE counseling, apparently because it considered change unnecessary and undesirable. Fourth, the APA Report elevated the standard for success in treatment for unwanted same-sex attractions, behaviors, or identity, and this standard is far higher than the standard for success applicable to any other course of psychological treatment. Many other courses of treatment also have notorious reputations for resistance to success, specifically courses of treatment for narcissism, borderline personality disorder, and alcohol and drug abuse,  but  there  is  no  debate  about  the  usefulness  of  these  courses  of  treatment.  “The  Task   Force also criticized SOCE studies on the grounds that the studies had high dropout rates. However, many treatment cohorts have high dropout rates; take, for example, a drug and alcohol treatment   program   (Polich,   Armor,   &   Baker,   1981).”   James   E.   Phelan,   et   al.,   A   Critical   Evaluation of the Report of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation, Resolutions, and Press Release, The Journal of Human Sexuality IV, 46 (2012) Nevertheless, the APA Report ignored any potential comparison to these treatment options and also ignored the fact that psychologists continue to engage in these courses of treatment despite their uncertain outcomes. Additionally, these courses of treatment all continue with the blessing of the APA and all of the other professional organizations that criticize SOCE counseling. 17. Proponents of A3371 seek to increase the burden on SOCE counselors by defining

success in any course of treatment as requiring that it must achieve its intended goals all or most of the time. If this standard applied to other forms of psychological treatment, then many widely-

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used and noncontroversial courses of treatment would not qualify as effective. As mentioned in the previous paragraph, there are a number of courses of treatment that have reputations for resistance to success, and no one seeks to apply this heightened standard of near perfection to these courses of treatment. That the APA Report singled out SOCE alone for this absurd standard is itself strong evidence of the bias of its members. Indeed, there would be no effective psychological courses of treatment if all courses of therapy were subjected to the standard espoused by the APA Report. 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  SOCE’s   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.”

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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. 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

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individuals  in  this  category  should  focus  on  “refram[ing]  the  religious  beliefs  to  focus  on  aspec ts of   faith   that   encourage   love   and   acceptance   of   their   child   rather   than   on   a   religion’s   prohibitions.”   21. The APA Report’s  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  APA’s  own  statements).  The  APA’s  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 Report’s   conclusions   because   it   reveals   that   the   APA’s   change   in   position   and   its   assumptions   that   homosexuality is immutable were based on political and social pressure, not concrete scientific evidence. 22. On   page   30,   the   APA   Report   defines   sexual   orientation   as   “an   individual’s   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 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  

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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. 23. Focusing   on   reframing   an   individual’s   religious   beliefs   is   beyond   the   purview   of  

psychological counseling, and it ignores the most fundamental principle of the profession — namely, that the client has the right to self-determination. 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  individual’s  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  person’s  sincere  religious   beliefs,  and  shows  that   A3371 specifically targets those individuals that have religious beliefs opposed to homosexuality.

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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   APA’s   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) 25. IMMEDIATE AND IRREPARABLE HARM CAUSED BY A3371 A3371 will cause immediate and irreparable harm to New Jersey licensed counselors and

clinics that focus on SOCE counseling, in that A3371 will prohibit them from continuing beneficial and successful courses of treatment with minor clients and force licensed counselors to stop speaking about SOCE treatment or risk losing their licenses. This law will immediately and directly  harm  the  counselor’s  right  to  speak  to   and  counsel  clients  in  accordance  with  not  only   the  counselor’s  religious  and  moral  values,  but  with  the  clients’  religious  and  moral  values.  The   law will also immediately and directly  infringe  upon  their  clients’  right  to  receive  information. 26. Moreover,     A3371’s   operative   commencement   will   be   a   shocking   disturbance   to   minor  

clients who are now in counseling. This counseling, which runs afoul of the prohibitions contained in A3371, consists solely of verbal discussion between the counselors and the clients as   individuals,   exploring   the   clients’   feelings   and   helping   them   align   their   feelings   with   their   religious and moral beliefs. After August 19, 2013, a minor client must be informed that all that has been attempted is now illegal and unethical. There can be no further discussion regarding the client’s   own   therapeutic   goals   and   the   therapeutic   relationship   upon   which   those   goals   were  

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based to reduce or eliminate same-sex sexual attractions, behavior, or identity. The therapeutic alliance between the clients and counselors - established at the cost of great time, monetary expense, and trust - will be destroyed. 27. When New Jersey licensed counselors are forced to terminate their SOCE counseling

with minor patients, many of the minors will regress and will suffer adverse health consequences stemming from an inability to address their goal of recognizing their heterosexual potential. 28. Some clients and their parents will have to seek out counselors who are not licensed and

therefore not subject to the dictates of A3371. They might continue to receive the SOCE counseling they desire, but it will be administered by unlicensed professionals. 29. As a clinical psychologist, my experience and opinion inform me that it is important for

SOCE counseling to be engaged in by those therapists who have studied it and understand the benefits and potential risks. 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   Association’s   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. 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

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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. 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. 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 ideology—i.e.,   the   State’s   ideology   condemning   SOCE—be shared  in  the  counselor’s  office. 34. A3371 also presents a significant problem for another element of SOCE practice and

provides no guidance on whether it prohibitions apply to it. Specifically, regarding any YouTube and   other   videos   on   a   counselor’s   website   and   on   other   websites   that   specificall y address the issue of SOCE counseling. These videos have the potential to reach every minor in New Jersey. A3371’s   language   prohibits   all   efforts   that   seek   to   reduce   or   eliminate   same-sex attractions, behaviors, and identity, and it would seem that having videos on the Internet that advocate for SOCE counseling and provide information about where an individual can receive it might be perceived as an effort that seeks to reduce or eliminate same-sex attractions, behaviors, or identity. Counselors do not know whether A3371 requires them to remove all of these videos from their websites, and request that they be removed from others. Also, it is virtually impossible to ensure that all such videos are removed, so if A3371 is found to apply to them, then a

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counselor could inadvertently be subject to disciplinary proceedings because of the viewing of a video that he or she thought had been removed from the Internet. Pamphlets and informative brochures on the websites would likewise pose the same problems. 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 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. In short, A3371 provides no guidance on the seemingly innumerable applications of its prohibitions, which places counselors at constant risk of unknowingly being subject to losing their professional licenses. Their clients will suffer as well, since the counselors will not be able to confidentially counsel them on available options for their undesired same-sex attractions, behaviors, or identity. VAGUENESS OF A3371 AND ERRONEOUS ASSUMPTIONS OF PROPONENTS 33. The  APA  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.”   A3371   prohibits   anyone from under any circumstances engaging in any practice that seeks to reduce or eliminate same-sex sexual attractions, behaviors, or identity or attempts to change sexual orientation. This prohibition is virtually impossible to comply with because it is well understood in the mental health profession, and conceded by the APA 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

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concept  the  APA  Report  concluded  was  “fluid,”  counselors  will  ultimately  be  required  to  guess   at   what   “practices”   would   be   prohibited   under   this   bill.   Since   “sexual   orientation”   includes   pederasty and pedophilia, for example, a counselor counseling a client who has unwanted samesex sexual attractions toward other younger minors or acts on such attractions (behavior), will be prohibited from a course of counseling designed to reduce or eliminate such attractions, behavior, or identity. Furthermore, a counselor may not counsel a minor victim of an adult pederast or pedophile that it is wrong to engage in sexual behavior with an adult of the same-sex. 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 same-sex  attractions,  behaviors,  or  identity.  Is  it  behavior  or  identity  that  defines  his  “gayness”?   Counselors   look   more   deeply   into   the   teenager’s   motivations   and   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   counselor’s   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

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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. 35. Furthermore,   A3371   permits   “education   and   information”   on   SOCE   but   not   the  

“practice”  of   SOCE. When does education and information on SOCE not become the practice of it? For example, a therapist may spend six months educating and informing the client of SOCE and how it might apply to the client. Session after session the therapist may give examples of how   the   client’s   behavior   and   feelings   are   explained   by   SOCE.   What   the   client   says   about   himself  may  prompt  the  counselor  to  respond:  “Well,  SOCE  would  explain  your  behavior  as…”,   but ultimately, the counselor will have to guess as to whether the State of New Jersey would consider such counsel a violation of A3371. At any rate, no matter what the counselor says, the matter will be determined by how the client perceives what the counselor says. A counselor educating about SOCE could likely be perceived as counseling to reduce or eliminate same-sex sexual attractions, behaviors, or identity and thus be in violation of A3371. 36. Despite this lack of clarity in the law itself, proponents of A3371 have previously

attempted to establish an arbitrary and unrealistic   distinction   between   “practices”   of   SOCE,   versus  a  counselor’s  speech.  In  actual  practice  of  psychotherapy,  it  is  impossible  to  distinguish   “practice   of   SOCE”   from   “speech.”   Psychotherapy   is   speech.   The   therapeutic   relationship   is   talking and communication; verbal and non-verbal communication is the essential element of the therapeutic process. Thus, licensed counselors will ultimately be required to guess at whether “practice”  or  “speech”  would  be  prohibited  under  this  law. 37. A3371 is not just about discussions of sexual orientation, but also about discussions

about  a  person’s  behavior  that  is  incongruent  with  a  person’s  religious  or  moral  values.  Licensed  

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counselors   need   the   freedom   to   talk   about   a   client’s   behavior   in   a   manner   that   incorporates   discussions  of  the  client’s  religious  faith  or  values.  Counselors  will  be  forced  to  guess  at  whether   a   discussion   of   behavior   incongruent   with   one’s   beliefs   and   values   is   an   effort   to   reduce   or   eliminate unwanted same-sex attractions, behaviors, or identity, which could include mannerisms or speech under A3371. If a female client wanted to display more assertive male behavior or speech inconsistent with her gender, counselors would be prohibited from encouraging such behavior. The same is true when clients plead with a counselor to help them not to identify with a particular sexual orientation. If counselors are prohibited from such discussions, then their clients will face irreparable harm. OTHER ERRONEOUS FACTUAL ASSUMPTIONS BY PROPONENTS OF A3371 38. Proponents of A3371 continually repeat the shibboleth that the mental health associations

no longer consider homosexuality a mental illness or disorder. That fact is irrelevant since it is the   client’s   distress   with   same-sex attractions, behaviors, or identity and their right to seek treatment to reduce that distress which is the issue. Counseling does not depend on the client having a mental illness. Much of counseling involves stress that is not related to a mental illness. Counseling a client does not send a message or presume that a client has a mental illness. 39. Proponents of A3371 assert that minors face family rejection based on their sexual

orientation, thereby creating especially serious health risks. Family rejection is not a necessary outcome of SOCE. Rather, I and my colleagues who practice SOCE attempt to have parents accept their teen irrespective of their sexual orientation outcome. 40. Proponents of A3371 have made assertions to the effect that there exists no empirical

evidence that providing any type of therapy in childhood can alter adult same-sex orientation. This is irrelevant and not true.

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I declare under penalty of perjury of the laws of the United States and New Jersey that the foregoing statements are true and correct. Executed this 29th day of October, 2013

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE, Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. _______________

PLAINTIFFS’  MEMORANDUM  OF  LAW  IN  SUPPORT  OF  MOTION  FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS TABLE OF CONTENTS..............................................................................................................i TABLE OF AUTHORITIES.......................................................................................................ii INTRODUCTION.........................................................................................................................1 STATEMENT OF FACTS ...........................................................................................................2 ARGUMENT..................................................................................................................................2 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS................................2 A. B. C. A3371  Violates  Plaintiffs’  First  Amendment  Right  to  Receive  Information....3 A3371 Constitutes Impermissible Viewpoint Discrimination...........................8 A3371 in Unconstitutional Content-Based Discrimination..............................15 1. 2. D. A3371 is not justified by a compelling government interest................16 A3371 is not narrowly tailored...............................................................20

A3371 Also Fails Intermediate Scrutiny under O’Brien..................................22 1. 2. 3. Even if A3371 were a restriction on conduct, it regulates expressive conduct and intermediate scrutiny applies............................................23 A3371 does not advance an important government interest................25 A3371 is targeted at the suppression of the message of SOCE............26

E.

A3371 Violates Plaintiffs First Amendment Right to Free Exercise of Religion.............................................................................................................27 1. 2. 3. A3371 is not neutral or generally applicable and is therefore subject to strict scrutiny..........................................................................31 A3371 is subject  to  strict  scrutiny  as  a  violation  of  Plaintiffs’ hybrid rights.............................................................................................34 A3371 cannot withstand strict scrutiny.................................................35 a. A3371 is not justified by a compelling government interest....35

i

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b. F.

A3371 is not narrowly tailored...................................................36

A3371  Violates  Plaintiffs  Jack  and  Jane  Doe’s  Fundamental  Right  to Direct the Upbringing of their Minor Child......................................................37 1. 2. Plaintiffs Jack and Jane Doe have a fundamental right to make mental health care decisions for their child..........................................37 A3371  directly  interferes  with  Plaintiff  Jack  and  Jane  Doe’s  right   to make mental health decisions for their child....................................39

II. III. IV.

PLAINTIFFS ARE SUFFERING IMMEDIATE AND IRREPARABLE INJURY............................................................................................................................41 THE BALANCE OF THE EQUITIES TIPS IN PLAINTIFFS FAVOR...................42 AN INJUNCTION IS IN THE PUBLIC INTEREST..................................................43

CONCLUSION............................................................................................................................44 TABLE OF AUTHORITIES ACLU v. Ashcroft,  322  F.3d  240  (3d  Cir.  2003)………………………………………………2,  43 Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 (1987)……………………………………...42 Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012)… ……………………………………………...22 Bartnicki v. Vopper, 220 F.3d 109 (3d Cir. 1999) ………………………………………………24 Bates v., State Bar of Ariz., 433 U.S. 350 (1977) ………………………………………………...5 Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982)………….3 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004). ……………………………………...32 Brown  v.  Entm’t  Merchants  Ass’n, 131 S. Ct. 2729 (2011) …………………...…….15,  16,  25,  26 Bowen v. Roy, 476 U.S. 693 (1986) ……………………………………………………………..29 Century  Commc’ns  Corp.  v.  FCC, 835 F.2d 292 (D.C. Cir. 1987) ……………………………..17 Child Evangelism Fellowship of N.J., Inc. v. Stafford Tp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004) ………………………………………………………………..…9,  10

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Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) …………passim City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) …………………………….9 City of Ladue v. Gilleo, 512 U.S. 43 (1994) …………………………………………………….19 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) ………………………………………..…passim Conchata Inc. v. Miller, 458 F.3d 258 (3d Cir. 2006) …………………………………………..24 Déjà vu of Nashville, Inc.  v.  Metro.  Gov’t  of  Nashville  &  Davidson  Cnty., 274 F.3d 377 (6th Cir. 2001) ……………………………………………………………………43 Elrod v. Burns, 427 U.S. 347 (1976) ………………………………………………..………41,  43 Emp’t  Div.,  Dep’t  of  Human  Res.  of  Or.  v.  Smith, 494 U.S. 872 (1990) ………..…………..30,  35 Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) …………………………………….……14 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) ………………………………………………………………..……32 Gillette v. United States,  401  U.S.  437  (1971)  ………………………………………………..…29 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) …………………………….22,  28 In re Custody of Smith, 969 P.2d 21 (Wash. 1998) (en banc) ………………………………….38 Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242 (3d Cir. 1992) ………………………………………………………………….3,  4 Lamb’s  Chapel  v.  Ctr.  Moriches  Union  Free  Sch.  Dist., 508 U.S. 384 (1993) …………………..8 Legal Servs. Corp. v. Valazquez, 531 U.S. 533 (2001) ……………………………………...13,  14 Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007) …………………………………………………………………31,  32 Martin v. City of Struthers, 319 U.S. 141 (1943) ………………………………………………...3 Meyer v. Nebraska, 262 U.S. 390 (1923) …………………………………………….3,  37,  39,  40 NAACP v. Button, 371 U.S. 415 (1963) …………………………………………………………20 Parham v. J.R., 442 U.S. 584 (1979). …………………………………………………………...38
Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013), pet.  for  reh’g  and  reh’g  en  banc  pending…...….6,  13,  25

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Pierce  v.  Soc’y  of  Sisters, 268 U.S. 510 (1925) …………………………………………37,  38,  40 Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290 (3d Cir. 2011) ………………………………………………………………………9 Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985) ………………………………..16 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) …………………………………………………20 Reagan v. Time, Inc., 468 U.S. 641 (1984) ……………………………………………………...15 Reno v. Flores, 507 U.S. 292(1993). ……………………………………………………………37 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). …...…………………8,  9 Sable  Commc’ns  of  Cal.,  Inc.  v.  F.C.C., 492 U.S 115 (1989). …………...…………16,  20,  21,  36 Schneider v. New Jersey, 308 U.S. 147(1939). ……………………………………………...41,  43 Sherbet v. Verner, 374 U.S. 398 (1963) …………………………………………………………28 Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991). ……………………………………………………………….……………15 Sorrell v. IMS Health, 131 S. Ct. 2653 (2011) ………...………………………………5,  8,  13,  42 Spence v. Washington, 418 U.S. 405 (1974) ……………………………………………………24 Stanley v. Georgia, 394 U.S. 557 (1969) …………………………………………………………3 Stilp v. Contino, 743 F. Supp. 2d 460 (M.D. Penn. 2010) ……………………………………....43 Swartwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002) ……………..………………………41,  43 Texas v. Johnson, 491 U.S. 397 (1989) ……………………………………………………..23,  24 Tenafly  Eruv  Ass’n,  Inc.  v.  Borough  of  Tenafly, 309 F.3d 144 (3d Cir. 2002) …………..…34,  35 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) …………………………9,  10 Troxel v. Granville, 530 U.S. 57 (2000) ……………………………………………….……37,  38 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ………………………………..……16,  35 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) ………………………………………….16 iv

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United States v. Caronia, 703 F.3d 149 (2d Cir. 2012) …………………………………………..5 United  States  v.  O’Brien, 391 U.S. 367 (1968) ………………..……………………23,  24,  25,  27 United  States  v.  Playboy  Entm’t  Grp., 529 U.S. 803 (2000). ……...……………………16,  17,  25 Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) ……………………………………………………………………3,  4,  5,  6,  7 Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) ……………………………………………...28 Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012) ……………………………………….13 Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177 (3d Cir. 1999). …………………3 Wisconsin v. Yoder, 406 U.S. 205 (1972) ……………………………….………………37,  38,  39 Witt  v.  U.S.  Dep’t  of  Air  Force, 527 F.3d 806 (9th Cir. 2008) ………………………………….25 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ……………………………………40
STATUTES

N.J. Ct. R. 4:74-7A(c) ………………………………………………………………………..8,  27 OTHER SOURCES Chris  Christie  Sings  Ban  on  Gay  ‘Conversion  Therapy,’  Politico.com (Aug. 19, 2013), available at www.politico.com/story/2013/08/chris-christie-gay-conversion-therapy-new-jersey95666.html. ………………………………………………………………………………….38,  39 Matt Barber, ‘Gay’  Lawmaker  to  Christians,  We’ll  Take  Your  Children, OneNewsNow (Aug. 26, 2013), available at www.onenewsnow.com/perspectives/matt-barber/2013/08/26/’gay’lawmaker-to-christians-‘we’ll-take-your-children’……………………………………………...39
Nicholas A. Cummings, Ph.D., Sexual Reorientation Therapy Not Unethical, USA Today (July 30, 2013), available at http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientation-therapy-notunethical-column/2601159/………………………………………………………………………...17 Press  Release,  “Gov.  Christie  Signs  Bill  Banning  Gay  Conversion  Therapy  On  Minors,”  (Aug.  19,  2013)   (available at http://nj.gov/governor/news/news/552013/approved/20130819a.html (last accessed 10/22/13)

……………………………………………………………………………………………………19
Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. (hereinafter  “APA  Report”) …………………………………………………………………passim

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PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION COME NOW Plaintiffs, JOHN DOE, by and through JACK and JANE DOE, JACK DOE, individually and on behalf of JOHN DOE, and JANE DOE, individually and on behalf of JOHN   DOE   (collectively   “Plaintiffs”),   by   and   through   counsel   and   file   this   Memorandum in Support of their Motion for a Preliminary Injunction. INTRODUCTION Defendant Governor Christie signed A3371 on Monday, August 19, 2013. It went into effect immediately. A3371 is an unprecedented and unconstitutional intrusion into the sacrosanct relationship between psychotherapists and their patients. It infringes on the long-standing right of mental health professionals to offer and Plaintiffs to receive counseling consistent with their sincerely   held   religious   beliefs.   It   prohibits   licensed   “mental   health   providers,”   under   threat   of   loss of their professional licenses, under any circumstances, from offering any counsel to a minor to reduce or eliminate unwanted same-sex sexual attractions, behavior, or identity (which A3371 calls  “sexual  orientation  change  efforts”  or  “SOCE”),  regardless  of  whether  Plaintiffs  desperately   seek such counseling and regardless whether a mental health professional believes that the counseling will be beneficial to the client. Plaintiffs are currently suffering imminent and irreparable injury and will continue to suffer injury unless and until A3371 is enjoined. Licensed mental health professionals are prohibited by A3371 from offering beneficial and desired counseling to help Plaintiff John Doe and other minors in New Jersey overcome unwanted same-sex attractions, behaviors, or identity (“SSA”). Such restrictions violate Plaintiffs’  First  Amendment  right  to  receive  information, their right to the free exercise of religion, and the parental rights of Jack and Jane Doe.

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Plaintiffs no longer have the option of receiving SOCE counseling from a licensed professional in New Jersey regardless of how sincere their religious beliefs or how intent they are on reducing or eliminating their unwanted SSA. Plaintiffs are deprived of their right to selfdetermination and cannot receive counseling from a licensed professional consistent with their religious and moral values. The State cannot offer a compelling, or even a rational basis for its sweeping, intrusive legislation, save a politically driven agenda to normalize and even prioritize homosexuality regardless of its consequences or the harm it imposes on John Doe and other minors in New Jersey. STATEMENT OF FACTS Pursuant to Fed. R. Civ. P. 10(c), Plaintiffs hereby incorporate by reference the Statement of Facts set forth in their Motion for a Preliminary Injunction. ARGUMENT Injunctive relief is merited where, as here, Plaintiffs demonstrate a reasonable probability of success on the merits, irreparable injury in the absence of such relief, that the balance of the harms tips in their favor, and that the injunction is in the public interest. ACLU v. Ashcroft, 322 F.3d 240, 250 (3d Cir. 2003). Plaintiffs satisfy this standard, and the preliminary injunction should issue. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. Plaintiffs are likely to succeed on the merits because A3371 represents a gross intrusion into their constitutionally protected  liberties.  A3371  violates  Plaintiffs’  First  Amendment  right  to   receive information, which is the corollary to the right to free speech. It also violates  Plaintiffs’   First Amendment right to the free exercise of religion. Additionally, A3371 violates Plaintiffs Jack   and   Jane   Doe’s   fundamental   right   to   direct   the   upbringing   and   education   of   their   child  

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guaranteed by the Fourteenth Amendment. Plaintiffs are therefore likely to succeed on the merits. A. A3371  Violates  Plaintiffs’  First  Amendment  Right to Receive Information.

The First Amendment protects the right to receive information as a corollary of the right to speak. The Fourteenth Amendment guarantees this right, too, against the states. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982); Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Meyer v. Nebraska, 262 U.S. 390 (1923); see also Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 180 (3d Cir. 1999). A3371 deprives Plaintiffs of this right during counseling sessions because it prohibits licensed counselors from offering SOCE counseling to minors. Such counseling has helped Plaintiff John Doe reduce or eliminate his unwanted SSA. (John Doe Decl. ¶¶ 10, 11, 13). The government may not prevent citizens from receiving ideas or viewpoints that the government disagrees with or opposes. See Pico, 457 U.S. at 871-72   (plurality)   (“Our   Constitution   does   not   permit   the   official   suppression   of   ideas.”);;   id. at 880 (Blackmun, J., concurring)   (“[O]ur   precedents   command   the   conclusion   that   the   State   may not act to deny access to an idea simply because state officials disapprove of that idea.  .  .  .”). The Third Circuit has likewise recognized that the First Amendment forbids laws such as A3371 that prohibit individuals from receiving information they are actively seeking and desire to receive. See Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1252 (3d Cir. 1992) (“[T]he   First   Amendment,   like   other   constitutional   guarantees,   encompasses   the   ‘penumbral’   right to receive information to ensure   its   fullest   exercise.”).   A3371 prevents John Doe and all

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minors in New Jersey from receiving the viewpoint that SOCE counseling from a licensed professional may be beneficial to those minors who seek to reduce or eliminate their unwanted SSA. A3371 also impermissibly expresses   the   State’s   disapproval   of   such   counseling. 1 This government-sanctioned restriction to information and counseling the government disapproves of is   simply   unconstitutional.   “[T]he   First   Amendment   does   not   merely   prohibit   the   government from enacting laws that censor information, but additionally encompasses the positive right of public access to information and ideas.”   Id. at 1255 (emphasis added). Here, A3371 runs far afield of both of these firmly entrenched constitutional principles. Plaintiffs are therefore likely to prevail on the merits. A3371 prevents Plaintiffs from receiving counseling that their counselor has determined will be beneficial to the continued progress of John Doe in reaching his goal of eliminating his unwanted SSA. Plaintiffs’   current   counselor, a licensed social worker in New York, does not provide the in-depth retrospective analysis that is offered by many licensed counselors, and he prefers to keep his counseling focused on the future. (John Doe Decl. ¶ 14; Jane Doe Decl. ¶ 15; Jack Doe Decl. ¶ 11). Nevertheless, the counselor suggested that John Doe would likely benefit from some of the counseling that analyses root causes and background factors in greater depth. Plaintiffs have therefore contacted Dr. Ron Newman, a licensed psychologist in New Jersey, hoping that they could receive the type of counseling that their counselor suggested. (John Doe Decl. ¶ 14; Jane Doe Decl. ¶ 15; Jack Doe Decl. ¶ 11). A3371, however, has made it impossible for Plaintiffs to receive that counseling from any licensed professional in their state. In Virginia State Board of Pharmacy, Virginia banned pharmacists from advertising the prices of prescription drugs. Va. State Bd. of Pharm., 425 U.S. at 752. The stated rationale for the
1

A3371 would permit unlicensed counselors to offer SOCE counseling, however.

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law was to uphold pharmaceutical professionalism against the negative effects of price competition,   but   the   Court   dismissed   that   justification   because   pharmacists’   professional   rules, like the ethical rules governing licensed counselors here, already imposed a high standard of care. Id. at 768-69. The Court determined that the advertisement ban was actually designed to keep   the   public   in   ignorance   of   drug   prices,   prevent   them   from   “following   the   discount,”   and   ultimately insulate ethical pharmacists from unethical ones who could operate at a lower cost. Id. at 769. The Court struck down the law, stating that the First Amendment commands the assumption   that   “information   is   not   in   itself   harmful,   that   people   will   perceive   their   own   best   interests if only they are well enough informed, and that the best means to that end is to open the channels  of  communication  rather  than  to  close  them.”  Id. at 770. The rule articulated in Virginia State Board of Pharmacy—that the First Amendment commands more information, not less—is most pronounced for the medical profession. See Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2664 (2011) (“A  ‘consumer’s  concern  for  the  free   flow of commercial speech often may be far keener than his concern for urgent political dialogue’ . . . That reality has great relevance in the fields of medicine and public health, where information  can  save  lives.”  (quoting   Bates v., State Bar of Ariz., 433 U.S. 350, 364 (1977)); see also United States v. Caronia,   703   F.3d   149,   167   (2d   Cir.   2012)   (“Moreover, in the fields of medicine   and   health,   ‘where   information   can   save   lives,’   it   only   furthers   the   public   interest   to   ensure that decisions about [medical care] are intelligent and well-informed.”)  (quoting   Sorrell, 131 S. Ct. at 2664.); Conant v. Walters, 309 F.3d 629, 636 (9th   Cir.   2002)   (“An   integral   component of the practice of medicine is the communication between a doctor and patient. Physicians   must   be   able   to   speak   frankly   and   openly   to   patients.”). This rule in favor of more information rather than less applies with even greater force here, in the mental health profession,

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where   the   treatment   consists   entirely   in   speech   (“talk   therapy”),   as   opposed   to   the   medical   profession, which involves a significant amount of conduct in the treatment itself. A3371 bears a striking resemblance to the speech restrictions at issue in Virginia State Board of Pharmacy. Va. State. Bd. of Pharm., 425 U.S. at 766-69. It also represents a significant restriction on the First Amendment rights of patients to receive information in a medical context. Conant, 309 F.3d at 637. In Conant, the Ninth Circuit struck down a policy prohibiting doctors from discussing or recommending medical marijuana to their patients. Id. “Only  doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy. Moreover, the policy does not merely prohibit discussion of marijuana; it condemns expression of  a  particular  viewpoint,  i.e.,  that  medical   marijuana  would  likely   help   a  specific  patient.”   Id. A3371 operates almost identically to the policy at issue in Conant. Specifically, only discussions of SOCE counseling that seek to reduce or eliminate unwanted SSA trigger the application of A3371, and only discussion that SOCE counseling can likely benefit a specific minor patient who seeks it is prohibited. A3371 prohibits Plaintiffs from receiving information vital to their mental health decisions, and it should meet the same fate as the policy in Conant.2 Like the advertising ban on prescription drug prices, A3371 assumes that SOCE counseling and related information are per se harmful and attempts to prevent Plaintiffs and others in New Jersey from receiving available counseling by completely closing the channel of counselor-client communication. Additionally, like the federal policy on medical marijuana at issue in Conant,   A3371   diminishes   a   client’s   understanding   of   his   or   her   own   unwanted   SSA, limits the availability of personal choices consistent with the fundamental right of all persons to self-determination, prohibits minors from receiving counseling assisting them in their desire to
2

But see Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013), pet.   for   reh’g   and   reh’g   en   banc pending (interpreting Conant to support broad regulations of the medical profession when aimed at the false distinction between treatment and speech in the mental health context).

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conform their conduct and attractions to their sincerely held religious beliefs, and ultimately renders minors in New Jersey and their parents less able to participate in public debate and influence public policy regarding SOCE. Moreover, A3371 imposes the very harm the State claims it intends to prevent with this bill by forcing John Doe and other minors to seek out unlicensed and untrained counselors who are more likely to inflict irreversible emotional damage by providing counseling not subject to the requirements of mental health licensing boards in New Jersey. (Jane Doe Decl. ¶ 9) (“Because this unlicensed counselor did not share the views as the experts in this area and because he was not sufficiently educated or trained in the specific types of discussions that SOCE counseling usually involves, I was disappointed but not surprised that this unlicensed counselor was not able to help my son with his significant gender confusion and distress about his unwanted same-sex attractions. In fact, my husband and I noticed that our son seemed only to have more distress and more confusion as a result of this unlicensed counselor’s  sessions  with   him.”)   (emphasis   original);;   (Jack Doe Decl. ¶ 12)   (“Because my wife and I had a negative experience with an unlicensed counselor in the past, we know that it is crucial that John Doe receive this type of counseling from someone who is licensed, trained, and educated in this type of  work.”) (emphasis original). Like the laws in Virginia State Board of Pharmacy and Conant, A3371 suppresses information that Plaintiffs have a right to hear. By so doing, A3371 also prevents Plaintiffs from receiving the information and counseling concerning the fact that SSA felt by a given individual may be harmful, may lead to unhappiness, or may not be the only way. It prevents them from receiving the highly qualified and experienced counseling of licensed professionals who are best

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able to provide the information and expertise necessary to help them overcome unwanted SSA. Because A3371 suppresses those ideas, it is unconstitutional. The irrationality of the State’s   unconstitutional   suppression   of   Plaintiffs’ First Amendment rights is made further evident by other provisions regulating the mental health decisions  of  minors  in  New  Jersey.  “[A]ny  minor  14  years  of  age  or  over  may  request  admiss ion to   a   psychiatric   facility,   special   psychiatric   hospital,   or   children’s   crisis   intervention   service   provided the court on a finding that the minor’s request is informed and voluntary enters an order approving   the   admission.”   N.J.   Ct.   R.   4:74-7A(c). Additionally,   “the   minor   may   discharge   himself or herself from the facility in the same manner as an adult who has voluntarily admitted himself   or   herself.”   Id. So, New Jersey finds it perfectly acceptable for John Doe and other minors over 14 years of age to check themselves into and out of psychiatric hospitals where they can be given powerful psychotropic medications, but finds them incapable of deciding to sit down and talk with a licensed mental health counselor to reduce or eliminate his or her unwanted SSA. New Jersey has effectively decreed such a decision per se harmful to that minor, regardless of the lack of concrete and substantial evidence to the contrary, and the State forever prohibits John Doe and all other minors from receiving such counsel from a licensed mental health professional. Logic more unreasonable and irrational as this is difficult to fathom. B. A3371 Constitutes Impermissible Viewpoint Discrimination.

A viewpoint-based restriction on private speech has never been upheld by the Supreme Court or any court. Indeed, a finding of viewpoint discrimination is dispositive. See Sorrell v. IMS Health,  131  S.  Ct.  2653,  2667  (2011).  “It  is  axiomatic  that  the  government  may  not  regulate   speech based on its substantive content or the message it conveys.”   Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). “When   the   government   targets   not   subject  

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matter, but particular views taken by speakers on a subject, the violation of the First Amendment is   all   the   more   blatant.”   Id. at 829. In fact, viewpoint-based regulations are always unconstitutional. See, e.g., Lamb’s  Chapel  v.  Ctr.  Moriches  Union  Free  Sch.  Dist., 508 U.S. 384, 394 (1993) (“‘the  First  Amendment  forbids  the  government  to  regulate  speech  in  ways  that  favor   some  viewpoints  or  ideas  at  the  expense  of  others’” (quoting City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). The Third Circuit has likewise expressed disdain for a government regulation that imposes a restriction on speech  based  solely   on  its   viewpoint.  “Viewpoint   discrimination   is   an   anathema  to  free  expression  and  is  impermissible  in  both  public  and  nonpublic  fora.”   Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290, 296 (3d Cir. 2011).   Indeed,   “if   the   government   allows   speech   on   a   certain   subject,   it   must   accept   all   viewpoints on the subject . . . even   those   that   it   disfavors   or   that   are   unpopular.”   Id. (citations omitted).   Moreover,   “[t]o   exclude   a   group   simply   because   it   is   controversial or divisive is viewpoint   discrimination”   and   a   “mere   desire   to   avoid   the   discomfort   and   unpleasantness   that   always  accompanies  an  unpopular  viewpoint  is  not  enough  to  justify  the  suppression  of  speech.”   Child Evangelism Fellowship of N.J., Inc. v. Stafford Tp. Sch. Dist., 386 F.3d 514, 527-28 (3d Cir. 2004) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969)). A3371 is a textbook example of viewpoint discrimination. The legislation explicitly prohibits licensed counselors from providing, and therefore Plaintiffs from receiving, any information and counseling directing at helping a minor to reduce or eliminate his unwanted SSA. On its face, A3371 allows licensed counselors to discuss the subject of sexual orientation, but precludes a particular view on that subject, namely that SSA can be reduced or eliminated to the benefit of the client. A3371 specifically targets SOCE that seeks to

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“eliminate   or   reduce   sexual   or   romantic   attractions   or   feelings   towards a person of the same gender.”  (Compl.  Ex.  A)  (emphasis  added).   Moreover, A3371 targets the particular viewpoint in favor of SOCE not because it has been definitively proven to be harmful, but instead because it is unpopular. The APA Task Force Report3 concluded that with regard to adults, there was some evidence that SOCE was beneficial, and some evidence that it was harmful. See APA Report at 2-3, 42, 49-50, 120. With regard to children, though, the Task Force noted that there was almost no evidence whatsoever concerning the effects of SOCE on children. Id. at 91. That is why the Report advised that more research was required. Id. at 90. Thus,  A3371’s  blanket  ban  on  SOCE  was  not   based on any hard scientific evidence, but rather on the disapproving opinions of several professional organizations, such as the APA itself. (Compl. Ex. A). That is precisely what the First Amendment forbids: the “mere   desire   to   avoid   the   discomfort   and   unpleasantness   that   always accompanies an unpopular viewpoint.”   Child Evangelism Fellowship of N.J., 386 F.3d 514, 527-28 (quoting Tinker, 393 U.S. at 509). The authors of the primary evidence the State relied upon in enacting A3371, which was the APA Report, reveal that A3371 is aimed at suppressing the viewpoint that Plaintiffs desperately desire   on   SOCE   counseling.   “Although   many   qualified   conservative   psychologists   were   nominated   to   serve   on   the   task   force,   all   of   them   were   rejected.”   (Declaration   of   Christopher  Rosik,  “Rosik  Decl.”  ¶ 3). The reason they were excluded was because the leaders of that  Task  Force  were  ideologically  opposed  to  their  viewpoint.  One  of  the  leaders  stated,  “[w]e   cannot take into account what are fundamentally negative religious perceptions in homosexuality—they   don’t   fit   into   our  world   view.”  (Id.)  (emphasis  added).  “Thus, from the
3

Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. (hereinafter  “APA  Report”)

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outset of the task force, it was predetermined that conservative religious viewpoints would only be acceptable when they fit within their pre-existing  worldview.”  (Id.). Moreover,   the   APA   Report’s   own   statements   indicate   that   it   was   not   going to be objective in its analysis and that any viewpoint contrary to the a priori assumption that same-sex attractions were good and normal would not be accepted. See APA Report at 2 (framing the entire  analysis  of  the  Report  with  the  assumption  that  “[s]ame-sex sexual attractions, behavior, and  orientations  per  se  are  normal   and  positive  variants   of  human  sexuality.”).   Beginning  with   this assumption obviously reveals that the APA Report would not lend any credence to evidence of non-normative causes of homosexuality and would reject any notion that people should seek to   change   such   attractions,   behaviors,   or   identity.   (Declaration   of   Joseph   Nicolosi,   “Nicolosi   Decl.”   ¶   15)   The   State   merely   adopted   the   viewpoint   of   those   ideologically   opposed   to   SOCE   counseling,   and   impermissibly   discriminated   against   Plaintiffs’   right   to   receive   information   on   SOCE counseling. A3371 should therefore be enjoined. In addition, the statute permits a licensed professional to   counsel   a   client   “to   transition   from one gender to another.”  But,  if  the  client’s  gender  identity,  mannerisms,  or  expression  differ   from   the   client’s   biological   sex   and   the   client’s   feelings   are   unwanted – meaning he does not want to transition from a male identity to a female identity – but instead the client wants to “change”  his  female  gender  identity,  mannerisms,  or  expression  to   conform to his biological sex, then the counseling is forbidden. Similarly, the statute permits the counseling of a client to affirm homosexual attractions, but prohibits counseling a minor to change unwanted SSA. Under no circumstances may a licensed counselor counsel a minor client to change unwanted SSA. Nor may the counselor counsel the minor client to change unwanted opposite sex mannerisms, expressions, or identity, even when the client wants to change them.

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A3371   purportedly   seeks   to   “protect   ...   lesbian,   gay,   bisexual,   and   transgender   youth.”   (Id.). By explicitly mentioning LGBT youth, A3371 clearly aims to ban only counsel that seeks to change SSA. That this is the actual meaning of A3371 is beyond peradventure, because it includes no less than thirteen legislative findings and/or declarations, eleven of which expressly decry efforts to change non-heterosexual sexual orientations (i.e. homosexual or bisexual). (Id. at 2-5).   Despite   the   State’s   adamant   assertions   that   attempting   to   change   a   minor’s   sexual   attractions, behavior, expressions, mannerisms, or gender identity is harmful, not one legislative finding explicitly opposes counsel seeking to change heterosexual attractions. (Id.). A3371’s   definitions   further confirm that only non-heterosexual SOCE counseling is precluded,   as   SOCE   “does   not include counseling that: (1) provides acceptance, support, and understanding of   clients   or   facilitation   of   persons’   coping,   social support, and identity exploration and development, including sexual orientation-neutral intervention to prevent or address unlawful conduct or unsafe sexual practices, and (B) do not seek to change sexual orientation.”  (Id. at 5) (emphasis added). Consequently, Plaintiffs and other minors may receive information and counseling directing them toward or encouraging SSA, to  “provide  acceptance,  support,  and  understanding,”   to counsel minors to transition from one gender to another, or to remain neutral. Nevertheless, they have no professional avenue to seek concerning the possibility of changing unwanted SSA – even when that is precisely what that minor desperately seeks. (Id.). The viewpoint of those licensed counselors whose professional judgment leads them to believe that homosexual desires or behavior are destructive to some of their minor clients with unwanted SSA or that their clients might be better served by choosing SOCE is silenced and censored, and therefore prohibits Plaintiffs from receiving this viewpoint.

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Last year, an Eastern District of California court considered a law virtually identical to A3371 and enjoined its enforcement as a viewpoint-based regulation of speech. Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012), rev’d, Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013), pet.   for   reh’g   and   reh’g   en   banc   pending. There, the court noted that a law banning only one particular  viewpoint  in  otherwise  permissible  talk  therapy  is  impermissible  because  “[r]egardless   of the breathing room [the law] may leave for speech about SOCE, when applied to SOCE performed through talk therapy, [the law] will give rise to disciplinary action solely on the basis of what the mental health provider says or the message he or she conveys.”  Id. (emphasis added). Indeed,  when  the  entire   course  of   counseling  is   guided  by  the  counselor’s  or  client’s  views   on   homosexuality,   “it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality.”   Id. at  1116  (emphasis  added).  Moreover,  “[t]hat  messages  about  homosexuality   can be inextricably intertwined with SOCE renders it likely that, along with SOCE treatment, [the law] bans a mental health provider from expressing his or her viewpoints about homosexuality   as   part   of   SOCE   treatment.”   Id. at 1117. While that decision was reversed, the rationale  of  the  Ninth   Circuit’s  decision  was  flawed  and  is   being  considered  for  a  rehearing  or   rehearing en banc.4 The Supreme Court and several other courts have invalidated professional regulations when those regulations would limit what a professional could say, and thereby limit what information a client or patient could receive. See Sorrell, 131 S. Ct. 2653 (2011); Legal Servs. Corp. v. Valazquez, 531 U.S. 533 (2001); Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). In

4

Pickup v. Brown, No. 12-17681, Dkt. 121 (9th Cir. 2013) (ordering responses on Petition for Rehearing and Rehearing En Banc). 13

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these cases, the courts recognized the axiomatic truth that the government is not permitted to impose its viewpoint on speakers or prohibit individuals from receiving information. In Velazquez, the High Court addressed a federal limitation on the legal profession that operated in materially the same viewpoint-based manner as does A3371. The regulation in Velazquez prevented legal aid attorneys from receiving federal funds if they challenged welfare laws. Velazquez, 531 U.S. at 537-38.  The  effect  of  this  funding  condition  was  to  “prohibit  advice   or   argumentation   that   existing   welfare   laws   are   unconstitutional   or   unlawful,”   and   thereby   exclude   certain   “vital   theories   and   ideas”   from   the   lawyers’   representation.   Id. at 547-48. The Court invalidated the regulation on its face. Id. at 549. In Conant, several physicians and their patients brought a First Amendment challenge to a federal policy that punished physicians for communicating with their patients about the benefits or options of marijuana as a potential treatment. Conant, 309 F.3d at 633. The Ninth Circuit noted   that   “[a]n integral component of the practice of medicine is the communication between a doctor and a patient. Physicians must be able to speak frankly and openly to patients. That need has been recognized by courts through the application of the common law doctor-patient privilege.”   Id. at 636 (emphasis added). Indeed, physicians must have this ability to allow patients to receive all of the information relevant to their choice. Far from being a First Amendment orphan, the court noted that such professional speech “may  be  entitled  to  the  strongest  protection  our  Constitution  has  to  offer.”   Conant, 309 F.3d at 637 (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995)).The court held that the ban impermissibly regulated physician speech based on viewpoint because  the  “policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient .”   Id. at 637-38

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(emphasis added). “Such condemnation of particular views is especially troubling in the First Amendment  context,”  especially  when  they  limit a patient’s access to critical information. Id. A3371 operates almost identically to the federal policy enjoined in Conant. Just as the policy in Conant prohibited physicians from speaking about the benefits of marijuana to a suffering patient, so A3371 prohibits clients from receiving beneficial information in SOCE counseling that might help them alleviate their psychological distress caused by unwanted SSA or gender confusion. Both policies express governmental preference for the message it wanted individuals to receive over the information that a medical professional thought beneficial or that a client desperately sought. Both should suffer the same constitutional demise. C. A3371 Is Unconstitutional Content-Based Discrimination.

Even if A3371 were not viewpoint-based, which it is, but only a content-based restriction on what information Plaintiffs are able to receive, it still could not withstand strict scrutiny. A3371 unquestionably restricts the content of speech regarding SOCE counseling. As such, A3371  is  presumptively  invalid  and  can  only  be  upheld  if  New  Jersey  “can  demonstrate  that  it   passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly  drawn  to  serve  that  interest.”   Brown  v.  Entm’t  Merchants  Ass’n, 131 S. Ct. 2729, 2738 (2011). Indeed, the notion that a content-based restriction on speech is presumptively unconstitutional  is  “so  engrained  in  our  First  Amendment  jurisprudence  that  last  term  we  found  it   so   ‘obvious’   as   to   not   require   explanation.”   Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115-16   (1991).   “Regulations   that   permit   the   Government   to   discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.”   Id. at 116 (quoting Reagan v. Time, Inc., 468 U.S. 641, 648-49 (1984)).

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Furthermore,  “[i]t  is  rare  that  a  regulation  restricting  speech  because  of  its  content  will  ever  be   permissible.”   United  States  v.  Playboy  Entm’t  Grp., 529 U.S. 803, 818 (2000). The burden is on the State to prove it satisfies strict scrutiny, but the State cannot meet that burden here. Id. at 813. 1. A3371 is not justified by a compelling government interest.

The Legislature claims that A3371 was enacted to meet a compelling interest   “in   protecting the physical and psychological well-being  of  minors.”  (Compl.  Ex.  A,  § 1(m)). Under certain circumstances, states may have a compelling interest in the well-being and protection of children. See  Sable  Commc’ns  of  Cal.,  Inc.  v.  F.C.C., 492 U.S 115, 126 (1989). Nevertheless, to simply claim the Act is intended to serve that broadly stated interest is not alone sufficient to justify A3371 and its prohibition on the information Plaintiffs are entitled to receive in the counselor’s   office,   and   the   government   “must   demonstrate   that   the   recited   harms   are   real,   not   merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material  way.”  Turner Broad. Sys., Inc. v. FCC,  512  U.S.  622,  664  (1994)  (“Turner I”). This   Court   must   answer   the   “question   [of]   whether   the   legislative   conclusion   was   reasonable  and  supported  by  substantial  evidence  in  the  record.”   Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 211 (1997) (citing Turner I, 512 U.S. at 665-66).  “When  the  Government  defends   a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more  than  simply  ‘posit  the  existence  of  the  disease  sought  to  be  cured.’”   Turner I, 512 U.S. at 664 (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). The State “must  specifically  identify  an  actual  problem in  need  of  solving.”  Brown, 131 S. Ct. at 2736. Additionally, when the government seeks to infringe on the fundamental rights of Plaintiffs to receive information,   it   “must   present   more   than   anecdote   and   suspicion.”   Playboy Entm’t,   529   U.S.   at   822.   “[S]peculative   fears   alone   have   never   been   held   sufficient   to   justify  

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trenching   on   first   amendment   liberties.”   Century   Commc’ns   Corp.   v.   FCC, 835 F.2d 292, 300 (D.C. Cir. 1987) (holding that government claims that are not based on substantial evidence are “more   speculative   than   real”).   A3371   cannot   satisfy   this   rigid   standard,   as   the   evidence   that   SOCE counseling is harmful to minors in all circumstances is insufficient as a matter of law. As shown above, the  American  Psychological  Association’s  Task  Force  on  SOCE  found   “some  evidence”  of  both alleged harm and benefits produced by SOCE. See APA Report at 2-3, 42, 49-50,   120.   It   noted   that   “sexual minority adolescents are underrepresented in research on evidence-based approaches, and sexual orientation issues in children are virtually unexamined.”   Id. at  91.  (emphasis  added).  The  Report  concluded  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.”  Id. at 42 (emphasis added). Anecdotes   and   suspicions   simply   will   not   suffice   to   justify   A3371’s   content-based discrimination. Playboy  Entm’t, 529 U.S. at 822.  The  insufficiency  of  Defendants’  justifications   is evidenced by the fact that many mental health professionals, including Dr. Nicholas Cummings, the former President of the American Psychological Association, acknowledge that many people successfully change their unwanted SSA.5
5

Nicholas A. Cummings, Ph.D., Sexual Reorientation Therapy Not Unethical, USA Today (July 30, 2013), available at http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientation-therapy-notunethical-column/2601159/ (noting that he personally saw hundreds of patients that successfully changed their unwanted SSA and that thousands of patients who decided to stay a homosexual improved their lives as a result of his counseling). Dr.  Nicholas  went  on  to  state:  “Contending that all same-sex attraction is immutable is a distortion of reality. Attempting to characterize all sexual reorientation therapy as ‘unethical’   violates   patient   choice   and   gives   an   outside   party   a   veto   over   patients’   goals   for   their   own   treatment. A political  agenda  shouldn’t  prevent  gays  and  lesbians  who  desire  to  change  from  making  their   own decisions. ... [A]ccusing professionals from across the country who provide treatment for fully informed persons seeking to change their sexual orientation of perpetrating a fraud serves only to stigmatize  the  professional  and  shame  the  patient.”  Id.

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There are numerous studies that establish or at least suggest that people can and do successfully change their sexual orientation and eliminate or reduce their unwanted SSA. (Rosik Dec. ¶¶ 27-36); (Nicolosi Decl. ¶¶ 13-24).  “As  summarized  by  Ott  et  al.  (2013),  reported   sexual identity, attraction, and behavior have been shown to change substantially across adolescence and young adulthood.”  (Rosik  Decl. ¶ 27)  (emphasis   added).  Also,  “[o]ne  major   findings of Laumann, Gagnon, et al. study, which even surprised the authors, was that homosexuality as a fixed trait scarcely seemed to exist.”   (Id. ¶ 28) (emphasis added). The most troubling part of A3371 is that it prevents what some studies have shown to progress naturally  unless  interfered  with  by  extraneous  factors,  in  this  case  New  Jersey’s   legislature. (Id. ¶ 27). Indeed,   “[i]t   appears   the most common natural course for a young person who develops a non-heterosexual sexual identity is for it to spontaneously disappear unless that process is discouraged or interfered with by extraneous factors.”  (Id.) (emphasis added). A3371, far from actually furthering a compelling government interest to protect minor is in fact harmful to minors. (Nicolosi Decl. ¶¶ 25-35). The  government’s  alleged  interest  here  is  contradicted  by  the  APA itself, which is one of the  organizations  cited  as  supporting  the  alleged  “consensus.”  The  APA  has  conceded: 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 influence 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. (Id. ¶ 40)   (emphasis   added).   “[E]vidence   of   fluidity   and   change   in   sexual   orientation   strongly   suggests that change in the dimensions of sexual orientation does take place for some people

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(and likely more so for youth) and this change is best conceptualized as occurring on a continuum and not as an all-or-nothing  experience.”  (Id. ¶ 38) (emphasis added). Contrary  to  the  State’s  contentions  and  the  Governor’s  personal  belief  that  homosexuals   are born that way,6 “sexual  orientation  is  by  no  means  comparable  to  a  characteristic  such  as  race   or   biological   sex   which   are   thoroughly   immutable.”   (Id. ¶ 43).   “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.”  ( Id.). Indeed, the APA Report concedes that sexual orientation is not a fixed trait and explicitly stated that sexual orientation   is   “fluid” and   often   has   “an   indefinite   outcome.”   APA   Report   at   vii (emphasis added). The continued availability of SOCE counseling by unlicensed counselors further reveals that A3371 is not supported by a compelling interest. A3371 prohibits licensed counselors from SOCE with minors, but the same counselor can counsel adults. Unlicensed counselors can offer SOCE to minors and adults. At a minimum, A3371 is underinclusive. City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994) (holding that exemptions permitting the same harm as that alleged in the prohibited speech can show a regulation is impermissibly underinclusive and designed to suppress only particular content or viewpoint).   At   worst,   it   proves   the   State’s   interest   is   not   compelling.   If   the   government   “fails   to   enact   feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the  restriction  is  not  compelling.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47  (1993).  “[A] law  cannot   be  regarded   as  protecting  an  interest   ‘of  the  highest  
6

See Press  Release,  “Gov. Christie Signs Bill Banning Gay Conversion Therapy On Minors ,”  (Aug.  19,   2013) (available at http://nj.gov/governor/news/news/552013/approved/20130819a.html (last accessed 10/22/13).

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order’  . . . when  it  leaves  appreciable  damage  to  that  supposedly  vital  interest  unprohibited.”   Id. at 547. Here, the State has banned licensed counselors, who have far greater expertise by training, experience, and qualifications than unlicensed counselors, but have given unlicensed counselors, who have significantly less expertise, free rein to counsel minors however they deem fit. A3371 not only fails to satisfy strict scrutiny, it also fails even to meet minimal rational basis standards. It is, in a word, irrational at its core. 2. A3371 is not narrowly tailored.

Even  if  Defendants  could  articulate  a  compelling  interest  for  A3371’s  total  prohibition  on   Plaintiffs’  right  to  receive  information on change counseling, which they cannot, A3371 would still   fail   strict   scrutiny   because   it   is   not   narrowly   tailored.   “It   is   not   enough   to   show   that   the   Government’s  ends  are  compelling;;  the  means  must  be  carefully  tailored  to  achieve  those  ends.”   Sable  Commc’ns, 492 U.S. at 126. Even if the State could ban an entire mode of therapy—such as SOCE counseling—from the field of counseling, it could not do so simply to suppress a particular idea. R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992)  (“The  government  may  not   regulate   a   [‘mode   of   speech’]   based   on   hostility—or favoritism—towards the underlying message  expressed.”).  As  shown  above,  A3371 was based on such favoritism, and there are other content-neutral alternatives to the regulation. See id. at  395  (“The  existence  of  adequate  contentneutral   alternatives   thus   ‘undercut[s]   significantly’   any   defense   of   such   a   statute,   casting   considerable  doubt  on  the  government’s  protestations that  the  ‘asserted  justification  is  in  fact  an   accurate  description  of  the  purpose  and  effect  of  the  law.’”)  (citations  omitted).  “Because  First   Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”   NAACP v. Button, 371 U.S. 415, 433 (1963). Narrow tailoring requires

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that a regulation achieve the  government’s  interest  “without  unnecessarily  interfering  with  First   Amendment  freedoms.”  Sable  Commc’ns, 492 U.S. at 126. A3371 is not necessary to prevent harm because all of the ethical codes of the professions engaging in this form of counseling – which apply only to licensed counselors -- already prohibit practices that actually harm patients. Specifically, Section 3.04 of the APA Code,   “Avoiding   Harm,”   requires   that   “[p]sychologists   take   reasonable   steps   to   avoid   harming   their   clients/patients   .   .   .   and   to   minimize   harm   where   it   is   foreseeable   and   unavoidable.”   (Pruden Decl. ¶ 5). Section A.4.a of the ACA Code states:   “Counselors   act   to   avoid harming their clients.”   (Id.). Section 1(c) of the American Psychiatric Association Guidelines states   that   “[a]   psychiatrist shall strive to provide beneficial   treatment   .   .   .   .”   (Id.). Violations of these ethical codes are treated as unprofessional conduct and subject licensed professionals to discipline by their respective licensing boards. Principle 1 of the American Association of Marriage and Family  Therapy’s  Ethics  Code states  that  “[m]arriage  and  family  therapists  advance  the  welfare of   families   and   individuals.”   (Id.). Certainly, the mandate that marriage and family therapists advance the welfare of their clients would be violated by a counselor who engages in a course of counseling that is harmful to the client. A3371, however, is not an attempt to prevent harm, but is in truth a politically motivated attempt to harm one group of professionals who hold a particular viewpoint regarding counseling, particularly SOCE counseling, and an effort to prohibit those counselors from providing any information or counseling on the fact that SOCE can and does help people reduce or eliminate their unwanted SSA. The fact that children are already protected from harmful and dangerous therapies – at least from licensed counselors (these ethical rules do not apply to unlicensed counselors, whom A3371 leave unregulated, and to whom A3371 drives minors who

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desire to receive SOCE) – reveals   that   Defendants’   underlying   goal   is   not   about   protecting   minors. They are already protected by these ethical rules. Instead, the asserted state interest is merely the guise under which Defendants are attempting to discriminate against, and silence, the viewpoint of those professionals who believe that SOCE is helpful and prevent minors from receiving information and counseling espousing that viewpoint. Informed consent, which is the touchstone of professional counseling,  and  a  client’s  right   to self-determination, undercuts any alleged interest of the State because mandating informed consent  would  be  a  less  restrictive  means  to  achieve  the  State’s  alleged goal in preventing harm to clients. When legislation virtually identical to A3371 was being debated in California, several mental   health   organization   recognized   there   that   this   type   of   “legislation   is   attempting   to   undertake an unprecedented restriction   on   psychotherapy.”   (See Compl. Ex. B, Letter to California Legislature from California mental health organizations, at 1). These mental health organizations proposed informed consent language that would have been much more narrowly tailored than the unprecedented intrusion into the relationship between counselor and client, but it was rejected. (Id.). A complete ban on SOCE counseling or a viewpoint regarding SSA is not the least restrictive means to achieve any governmental interest. Total prohibitions on constitutionally   protected   speech   are   “hardly   an   exercise   of   narrow   tailoring.”   Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). Such extreme measures are invalid and should be enjoined. D. A3371 Also Fails Intermediate Scrutiny under O’Brien.

The  government  may  not  prohibit  pure  speech  under  the  guise  of  calling  it  “conduct.”  In   Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010), the Supreme Court addressed the constitutionality  of  a  federal  law  that  forbade  giving  “training”  or  “expert  advice  or  assistance”  

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to foreign terrorists. Id. at 2715. The government there, as the State does here, argued that the prohibition was  permissible  because  it  pertained  only  to  “conduct,”  not  speech.   Id. at 2723. The Supreme Court unanimously and emphatically rejected that argument, holding that the law was a content-based regulation on speech and therefore subject to strict scrutiny: “[The prohibition] regulates speech on the basis of its content. Plaintiffs want to speak to [designated terrorist organizations], and whether they may do so under [the law] depends on what they say.” Id.(emphasis added).7 In the same way, here Plaintiffs want to receive information from licensed mental health professionals, and whether they may do so depends on what those professionals say. As such, A3371 is a content-based regulation on speech, and subject to strict scrutiny. Even if this Court were to categorize SOCE as conduct, however (which it should not), it is nonetheless at a minimum expressive conduct subject to intermediate scrutiny under United States   v.   O’Brien. Under that standard, A3371 cannot withstand scrutiny because it is not supported by a substantial government interest, it is directly related to the suppression of the speech Plaintiffs are seeking to receive, and it imposes a far greater restriction than necessary. 1. Even if A3371 were a restriction on conduct, it regulates expressive conduct and intermediate scrutiny applies.

The   Supreme   Court   has   recognized   “that   conduct   may   be   sufficiently   imbued   with   elements   of  communication   to   fall  within  the  scope  of  the  First   and   Fourteenth   Amendments.”   Texas v. Johnson, 491 U.S. 397, 404  (1989).  “In  deciding  whether  particular  conduct  possesses   sufficient communicative elements to bring the First Amendment into play, we have asked whether  ‘an  intent  to  convey  a  particular  message  was  present,  and  [whether]  the  likelihood  was  

7

Although only six justices joined the majority opinion in Holder, all nine justices agreed that, as applied to the plaintiffs, the prohibition was a restriction on speech, not conduct. See id. at 2723–24; id. at 2734 (Breyer, J., dissenting).

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great that the   message   would   be   understood   by   those   who   viewed   it.’”   Id. at 406-07 (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)). It is beyond peradventure that Plaintiffs are seeking this counseling because they know that the SOCE counselors intend to convey the message that minors struggling with unwanted SSA can eliminate or reduce them. Mental health counselors would not engage in this type of counsel if they did not intend to communicate the message that change is possible. In fact, their clients seek them out precisely because of that message. (Newman Decl. ¶ 8). Additionally, it is certain that Plaintiffs understand the message, as the message is their sole reason for seeking SOCE counseling. If this Court were to find that A3371 regulates primarily conduct, then it is at least expressive conduct, which must satisfy the heightened standard of intermediate scrutiny. “[W]hen  ‘speech’  and  ‘nonspeech’  elements  are  combined  in  the  same  course  of  conduct,   a sufficiently important governmental interest in regulating the nonspeech element can justify incidental  limitations  on  First  Amendment  freedoms.”   United  States  v.  O’Brien, 391 U.S. 367, 376 (1968).8 “‘[C]onduct  that  is  intended  to  be  communicative  and  that,  in  context,  would   reasonably be understood by   the   viewer   to   be   communicative’   is   ‘symbolic   expression,’   otherwise  known  as  expressive  conduct.”   Bartnicki v. Vopper, 220 F.3d 109, 120 (3d Cir. 1999). “Where.   .   .   a   regulation   burdens   expression   but   is   content-neutral, we apply the intermediate scrutiny standard enunciated by the Supreme Court in United  States  v.  O’Brien.”  Conchata Inc. v. Miller, 458 F.3d 258, 267 (3d Cir. 2006). Because the communication involved in SOCE is obviously   expressive,   A3371   can   survive   only   “if   it   furthers   an   important   or   substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater
A3371 imposes more than an incidental restriction on constitutionally protected speech. It imposes a complete prohibition on protected speech.

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than  is  essential  to  the  furtherance  of  that  interest.”   O’Brien, 391 U.S. at 377. The State cannot satisfy this burden. 2. A3371 does not advance an important government interest.

First, A3371 does not advance an important government interest. A3371 is grounded solely on political ideology. (Compl. Ex. A). A3371 was also based on the APA Report (which was itself politically and ideologically biased), which found that insufficient evidence existed to conclude SOCE was harmful to adults, and that there was no evidence regarding minors. APA Report at 42, 91. Indeed, the APA Report concluded that there was evidence to support benefits produced by SOCE. Id. at 2-3, 42, 49-50,  120.  The  APA  Report  also  acknowledged  that  “sexual   orientation   issues   in   children   are   virtually   unexamined.”   Id. at 91. This record is utterly insufficient to support a ban on SOCE generally, let alone a ban on SOCE to minors in particular. The basis for supporting an important government interest cannot be speculative or anecdotal. See  Witt  v.  U.S.  Dep’t  of  Air  Force, 527 F.3d 806, 819 (9th Cir.  2008)  (“hypothetical,   post-hoc   rationalizations”   are   insufficient   to   establish   an   important   government   interest);;   Playboy   Entm’t,   529   U.S.   at   822   (“the   government   must   present   more   than   anecdote   and   suspicion”).  “No  doubt  a  State  possesses  legitimate power to protect children from harm . . . but that does not include a free floating power to restrict ideas to which children may be exposed.”   Brown  v.  Entm’t   Merchants  Ass’n, 131 S. Ct. 2729, 2736 (2011) (citations omitted) (emphasis added). The   State’s alleged interest in protecting children is unsupported by evidence of harm. Mere disagreement with the viewpoint that unwanted SSA can be changed – even disagreement by several professional organizations -- is insufficient as a matter of law to justify a complete ban
9

Tellingly, in the decisions that have upheld bans on SOCE counseling, the courts have wrongly applied only rational basis review. See, e.g., Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013).

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on the expressive communications that Plaintiffs seek to receive and licensed counselors in New Jersey seek to provide.   “Speech   that   is   neither   obscene   as   to   youths   nor   subject   to   some   other   legitimate proscription cannot be suppressed solely to protect the young from ideas or images the legislative   body   thinks   unsuitable   for   them.”   Id. A political objection to a certain message the legislature and the homosexual lobby finds disagreeable cannot suffice as an important government interest, especially when such legislative animus is unsupported by the evidence. 3. A3371 is targeted at the suppression of the message of SOCE.

The prohibition of speech is not an incidental part of A3371. It is the very heart of A3371. SOCE has never been a violation of any of the long-standing ethical standards governing the mental health profession, and  the  same  organizations  purporting  to  represent  the  “consensus”   that it is per se harmful fail to ban it anywhere in their ethical codes. Indeed, there are no instances of ethical violations by any practitioners  of  SOCE,  and  not  one  of  the  “leading”  mental   health organizations has ever expressed anything more than an ideological opposition to this type of counseling. (Compl. Ex. A). No counseling association bans SOCE. Even the most comprehensive review of SOCE found only that it may cause some harm, but those reports of harm were counterbalanced by reports of benefits. APA Report at 2-3, 42, 49-50. This sparse record will not suffice for such a harsh and overbroad ban prohibiting Plaintiffs from receiving the counseling they so desperately seek. By explicitly singling out SSA, transitioning from one gender to another, and LGBT youth, A3371 clearly aims to ban only the message that seeks to change non-heterosexual sexual orientations. (Compl. Ex. A). That this is the actual intent of A3371 cannot be seriously doubted. A3371 is targeted at any counsel to a minor under any circumstance that seeks to change SSA regardless  of  the  client’s  goals  and  objective  in  the  therapeutic alliance with his or

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her counselor. As the language of the bill makes clear,  A3371’s  sole  aim  is  the  suppression  of  the   message communicated in SOCE counseling with minors seeking to reduce or eliminate unwanted SSA. That A3371 is intended to suppress that particular message is made even more evident by the timing of its passage. SOCE practitioners have provided SOCE for decades without any attempt to prohibit them from doing so. Many of the ideological position statements referenced in A3371 and the APA Report upon which it is based have also been around for years (See A3371 at ¶¶ 1(d)(g) (1994 statement of AMA), 1(d)(h) (1997 statement of NASW), 1(d)(i) (1999 statement of American Counseling Association), yet only in the last few months have there been any attempts to ban SOCE. If the alleged harm occasioned by this counseling has been clear for years, as the State claims, then it is curious why there have never been any findings of ethical violations, lawsuits against the practitioners of SOCE by injured clients, or any efforts to ban the practice until now. And the New Jersey Legislature had previously determined that minors 14 years and older could consent to any counsel without the parents consent, and that included SOCE, at least until the passage of A3371. N.J. Ct. R. 4:74-&A(c). So, now minors can consent to any counsel they choose, whether or not their parents object, except SOCE -- even with the consent of their parents. This is patently absurd. The restriction on speech occasioned by A3371 is more than incidental, and thus the O’Brien intermediate test should not apply. A3371 is viewpoint-based and ipso facto unconstitutional. But  even  if  the  regulation  were  merely  incidental  to  the  alleged  “conduct”  and   O’Brien   did apply, A3371 does not and cannot survive intermediate scrutiny. It should therefore be enjoined. E. A3371  Violates  Plaintiffs’  First  Amendment  Right  to  Free  Exercise  of   Religion. 27

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A3371 unconstitutionally infringes on the First Amendment rights of Plaintiffs to seek counseling consistent with their sincerely held religious beliefs that change is possible and desirable. Plaintiff John Doe is prohibited from receiving and Plaintiffs Jack and Jane Doe are prohibited from assisting their son with receiving counseling consistent with their sincerely held religious beliefs and from directing the upbringing of their children in accordance with those beliefs. A3371 imposes a substantial burden on the religious beliefs of Plaintiffs because Plaintiffs have no options in seeking SOCE counseling from those licensed professionals who are best able and most experienced at providing such counseling. Instead, Plaintiffs are forced to elevate what the State has determined is an appropriate ideology over their own sincerely held religious beliefs about something as fundamental as their personal identity. This is the very essence of a substantial burden on religion. Sherbet v. Verner, 374 U.S. 398, 404 (1963); Washington v. Klem,  497  F.3d  272,  278  (3d  Cir.  2007)  (“the Supreme Court has stated in its Free Exercise Clause jurisprudence that a substantial burden exists   when   a   follower   is   forced   ‘to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept  work,  on  the  other  hand’”) (quoting Sherbert, U.S. at 404). A3371 also impose a substantial burden on Plaintiffs because of its improper intrusion into their fundamental right to self-determination. Plaintiffs have sincerely held religious beliefs that homosexuality is a harmful and sinful lifestyle and against the fundamental tenets of their faith. (John Doe Decl. ¶ 9)   (“I have a sincerely held religious belief and conviction that homosexuality is wrong . . . I want to resolve my sexual attractions so that I act consistently with my religious beliefs.”);;  (Jane  Doe  Decl.  ¶ 18) (“my husband and I also have sincerely held religious beliefs that homosexuality is a sinful and harmful lifestyle”). Additionally, A3371 infringes on Plaintiffs Jack and J ane   Doe’s   sincerely 28

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held religious beliefs concerning the education of their child and their fundamental rights to direct the upbringing and education of their child. (Id.)  (“My husband and I also have sincerely held religious beliefs that we should provide our son with the necessary education to understand Sacred Scripture, as well as the teachings of our Catholic Church. We believe that assisting him in receiving the counseling . . . is one aspect of educating him to be able to live virtuously through the fundamental  tenets  of  our  faith.”). A3371 infringes upon those religious beliefs. “The   principle   that   government   may   not   enact   laws   that   suppress   religious   belief   or   practice  is   so  well  understood  that  few  violations  are  recorded  in   our  opinions.”   Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,  508  U.S.  520,  523  (1993).  “Although  a  law  targeting   religious beliefs as such is never permissible . . . if the object of the law is to infringe upon or restrict practices because of their religious motivation,   the   law   is   not   neutral.”   Id. at 533 (citations   omitted).   Facial   neutrality   is   not   always   sufficient.   In   some   instances,   “[f]acial   neutrality is not determinative. The Free Exercise Clause . . . extends beyond facial discrimination.   The   Clause   ‘forbids   subtle   departures   from   neutrality,’   .   .   .   and   ‘covert   suppression  of  particular  religious  beliefs.’”   Id. at 534 (quoting Gillette v. United States, 401 U.S. 437, 452 (1971) and Bowen v. Roy,  476  U.S.  693  (1986)).  Moreover,  “[t]he  Free  Exercise  Clause   protects  against  government  hostility  which  is  masked,  as  well  as  overt.”  Id. A3371 displays outright hostility towards religious views of those who seek SOCE counseling to elevate their sincerely held religious beliefs above their sexual attractions. Relevant evidence of neutrality includes, inter alia,   “the   historical   background   of   the   decision   under challenge, the specific series of events leading to the enactment or official policy in question,   and   the   legislative   or   administrative   history.”   Lukumi, 508 U.S. at 543. All of these considerations point to the APA Report, which the State used as its chief source of evidence for

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enacting A3371. The APA Report observed that “conservative  Christian  men”  “predominated”  in   the recent research on SOCE, APA Report at   45,   and   that   “religious   beliefs   that   consider   homosexuality  sinful  or  unacceptable”  was  a  frequent  factor  leading  clients  to  choose  to  undergo   SOCE. Id. at 46. Indeed, the APA Report found that the conflicts between faith and same-sex sexual attraction “appear  to  involve  significant  stress  due  to  the  struggle  to  live  life  congruently   with  their  religious  beliefs,”  and  sometimes  leads  to  a  “crisis  of  faith.”  Id. at 46-47. The response of the Task Force to the very real and intense emotional stress occasioned by this conflict between faith and sexual desire is revealing. One of the leaders of the Task Force stated,  “[w]e  cannot  take  into  account  what  are  fundamentally  negative religious perceptions of homosexuality—they   don’t   fit   into   our   world   view.”   (Rosik Decl. ¶ 3). “It appears that the APA operated with a litmus test when considering task force membership—the only views of homosexuality that were targeted are those that uniformly endorsed same-sex behavior as a moral good.”   (Id.). Rather than facilitate the resolution of the conflict between faith and sexual desire  in  a  manner  respectful  of  the  clients’  faith,  A3371  precludes  any  attempts  to  reorder  one’s   sexual attractions in alignment with his faith and instead requires   that   one’s   beliefs   be   changed to align with his unwanted SSA. Thus, there is a strong inference that the A3371 is targeted specifically at those individuals who believe change in possible and whose sincerely held religious views inform them that change is possible. Although neutral laws of general applicability receive deferential treatment, Emp’t  Div.,   Dep’t  of  Human  Res.  of  Or.  v.  Smith,  494  U.S.  872,  879  (1990),  “[a]  law  failing  to  satisfy  these   requirements must be justified by a compelling government interest and must be narrowly tailored  to  advance  that  interest.”   Lukumi, 508 U.S. at 531-32. A3371 is not neutral or generally

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applicable and  “must  undergo  the  most  rigorous  of  scrutiny.” Id. at  546.  Such  a  law  “will survive strict scrutiny only in rare cases.”  Id. (emphasis added). A3371 fails strict scrutiny. 1. A3371 is not neutral or generally applicable and is therefore subject to strict scrutiny.

A3371   is   directed   only   at   counseling   that   offers   to   “reduce   or   eliminate   sexual   or   romantic attractions or feelings toward a person  of  the  same  gender.”  (Compl. Ex. A). The desire for this kind of counseling is most often founded upon sincerely held religious beliefs such as those of Plaintiffs, as shown above. As such, the law disproportionately affects those motivated by religious belief. Plaintiffs’ desire to seek and receive of SOCE counseling from a licensed mental health professional is religiously motivated. A3371 exempts counseling (1) for minors seeking to transition from one gender to another, (2) for minors struggling with or confused about heterosexual attractions, behaviors, or identity, (3) that facilitates exploration and development of same-sex attractions, behaviors, or identity, (4) for individuals over the age of 18 who are seeking to reduce or eliminate same-sex attractions, behaviors, or identity, and (5) provided by unlicensed counselors. These individualized exemptions subject A3371 to heightened scrutiny. The allowance of individualized or categorical exemptions from the general prohibitions of the statute demonstrates that A3371 is not neutral or generally applicable. See Lukumi, 508 U.S. at 536-38. Laws that target substantially similar conduct but unevenly proscribe the conduct purporting to cause   the   harm   constitute   an   impermissible   “religious   gerrymander.”   Id. unconstitutionally imposes  such  a  gerrymander  on  Plaintiffs’  free  exercise  rights. “The   unequal   treatment   of   equally   detrimental   behaviors   [causes]   the   violation   of   the   Free   Exercise   Clause.”   Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 265 (3d Cir. 2007). “[T]he Free Exercise jurisprudence of the Supreme Court and of 31 A3371

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this Court teaches that the relevant comparison for purposes of a Free Exercise challenge to a regulation is between its treatment of certain religious conduct and the analogous secular conduct that has a similar  impact  on  the  regulation’s aims.”  Id. at 265 (emphasis original). A law fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated. Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004) (Alito, J.) (emphasis added). In Blackhawk, the Third Circuit found heightened scrutiny proper because the statutes at issue created individualized and categorical exemptions, just as A3371 does here, that undermined the State’s  asserted  interest in prohibiting certain conduct. Blackhawk, 381 F.3d at 211-12; see also Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999) (Alito, J.) (noting that when the government makes value judgments that exempt certain individuals for secular reasons but not for religious reasons, the regulation is subject to strict scrutiny). A3371 permits SOCE counseling for individuals who seek to change sexual orientation towards homosexuality or bisexuality. (Compl. Ex. A). Not one legislative finding in A3371 opposes counsel seeking to change heterosexual sexual orientations. (Id.). In fact, A3371 specifically targets those individuals who seek SOCE  to  “eliminate  or  reduce  sexual  or  romantic   attractions or feelings towards a person of the same gender.”   (Id.). (emphasis added). A3371 exempts counseling that affirms homosexual attractions while preventing Plaintiffs from seeking counsel from a licensed mental health professional that is aimed at helping those minors who desire to change homosexual   attractions.   A3371   also   exempts   counseling   that   “facilitates   exploration   or   development”   of   same-sex attractions, behaviors, or identity. The law exempts

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counsel that seeks to change away from heterosexuality towards homosexuality but bans counsel that seeks to change away from homosexuality towards heterosexuality. A3371 also permits counseling for individuals seeking to transition from one gender to another. (Id.). This is certainly a significant change in sexual orientation or identity, especially for a minor, yet A3371 exempts it and indeed encourages it. ( Id.). The law has therefore made a value judgment that change in one direction (towards homosexuality) is fine but change in another direction (towards heterosexuality) is harmful.   If   “change”   of   sexual   orientation   or   gender   identity   is   “harmful,”   then   the   premise   should   hold   true   no   matter   which   direction   the   change is directed. The fact that change in one direction is permitted but change in the other direction is banned reveals that the law does not serve its alleged purpose; it is undercut by the exemptions. A3371 completely prohibits SOCE counseling for those who, like Plaintiff John Doe, seek to reduce or eliminate their unwanted SSA, even when they seek such counseling out of their sincerely held religious beliefs and fundamental desire to conform their attractions, behaviors, and identity to their sincerely held religious beliefs. (John Doe Decl. ¶ 9)  (“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 consistently with my religious beliefs.”). A3371 also continues to allow minors to receive SOCE counseling from unlicensed counselors, which also undermines  the  State’s purported  interest  in  preventing  SOCE’s  alleged   harm. If SOCE is harmful if offered by a licensed therapist, then it is harmful if offered by an unlicensed therapist who likely has little or no training in the area. And if it is harmful for a 17 year old minor, it is harmful for an 18-year old who has reached majority. The State cannot ban

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what it erroneously deems is harmful in one setting while allowing the same alleged harm to go unregulated in a slightly different setting. Moreover, the State is actually creating harm where none exists by forcing minors to get counsel from those who lack expertise. Indeed,  Plaintiffs’  experience  with  unlicensed  counselors   reveals that the State has actually created more harm for those minors seeking SOCE counseling. (Jack Doe Decl. ¶ 12)   (“The unlicensed counselor did not have a proper understanding of the underlying theories behind SOCE counseling, did not know how to properly engage in the discussions that take place during such counseling, and was unable to help my son with his gender confusion and unwanted same-sex attractions.”);;   (id. ¶ 13)   (“A3371 forces minors and their families into an even worse situation because it requires that anyone seeking this type of counseling pursue it with an unlicensed counselor rather than a licensed professional trained in providing such counseling. As we have personally experienced, this ban will cause more harm to minors than allowing them to simply pursue conversations and communications with their licensed mental health counselors about those things that cause them distress and anxiety.”)   (emphasis original). A3371 is not neutral or generally applicable and is therefore subject to the most exacting constitutional scrutiny. 2. A3371 is subject to strict scrutiny as a violation of Plaintiffs’ hybrid rights.

Even laws that are neutral and generally applicable are subject to strict scrutiny when they  implicate  more  than  one  constitutional  right.  “Strict  scrutiny  may  also  apply  when  a  neutral,   generally applicable   law   incidentally   burdens   rights   protected   by   ‘the   Free   Exercise   Clause   in   conjunction with other constitutional protections, such as freedom of speech and of the press, or the   rights   of   parents   to   direct   the   education   of   their   children.’”   Tenafly Eruv   Ass’n,   Inc.   v.  

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Borough of Tenafly, 309 F.3d 144, 165 n.26 (3d Cir. 2002) (quoting Emp’t   Div., 494 U.S. at 881). Here, there are undeniable bases upon which to find hybrid-rights violations. A3371 violates Plaintiffs’ First Amendment rights by restricting the availability of counseling options that are consistent with Plaintiffs’ sincerely held religious beliefs and information that Plaintiffs are constitutionally entitled to receive. (John Doe Decl. ¶ 9); (Jane Doe Decl. ¶ 18). Additionally, A3371 infringes on Plaintiffs   Jack   and   Jane   Doe’s fundamental rights to direct the upbringing and education of their child. (Jane Doe Decl. ¶ 18); (Compl. ¶¶ 126-33). When   combined   with   Plaintiffs’ free exercise claims, these constitutional violations subject A3371 to strict scrutiny under the hybrid rights claim. See  Emp’t  Div., 494 U.S. at 881. 3. A3371 Cannot Withstand Strict Scrutiny.

A3371 is not neutral or generally applicable and infringes on Plaintiffs’ free exercise and hybrid rights, so it must by justified by a compelling government interest and narrowly tailored. Lukumi, 508 U.S. at 531-32. A3371 fails that test. a. A3371 is not justified by a compelling government interest.

As the above discussion demonstrates, A3371 is not justified by a compelling government interest.10 Here, the  government  “must  demonstrate  that  the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material   way.”   Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994) (emphasis added). Yet,  “sexual orientation issues in children are virtually unexamined.” APA Report at 91. Moreover, the evidence of harm is based on mere anecdotes from individuals who self report. For this reason, the APA Report noted that its conclusions were quite limited due to the
10

See supra Section I.C.1.

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fact   that   “there   is   a   dearth   of   scientifically   sound   research   on   the   safety   of   SOCE.”   Id. at 41. Such unsupported and anecdotal reports of harm are insufficient to establish a compelling government interest  justifying  infringement  on  Plaintiffs’  rights  to  the  free  exercise  of  religion.   The exemptions noted above also undermine any alleged governmental interest. b. A3371 is not narrowly tailored.

A narrowly tailored regulation is one that achieves   the   government’s   interest   “without unnecessarily interfering with First Amendment freedoms.”   Sable  Commc’ns  of  Cal.,  Inc.  v.   FCC, 492 U.S 115, 126 (1989) (emphasis added). A complete prohibition on Plaintiffs’  right  to   seek SOCE counseling from a licensed professional under any circumstances is not the least restrictive means. A complete ban can hardly meet the least restrictive means test, especially when the main source relied upon by the State (the APA Report) acknowledges there is evidence that SOCE is beneficial to some who seek such counsel and the only evidence of alleged harm is at best anecdotal, and it must be underscored—there is no research on minors. See, e.g., APA Report at 3, 42, 49, 53. Certainly, if there is evidence of benefit from such counseling, then especially for minors who seek such counseling to align their sexual identity to their sincerely held religious beliefs, a complete prohibition on such counseling is unwarranted. Indeed, Plaintiffs have experienced significant benefits from the SOCE counseling that they have engaged in with a licensed counselor and testify that there has been no harm from such counseling. (Jane Doe Decl. ¶ 13 (“we have noticed significant changes in our son, and all of them are positive”)   (emphasis   added); (id. ¶ 17) (“The relationship between our son and the two of us has significantly improved since he started counseling. . . . We have seen the counseling benefit our son, and we

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have not seen any harm resulting from the counseling. He appears much happier and less withdrawn and depressed since he began counseling.”) (emphasis added). Informed consent, not a total ban, is a less restrictive and better means to protect the interest of the state and the Plaintiffs. Informed consent is the cornerstone of good counseling. If the client is fully informed and seeks change counsel to align his or her stress with religious values, then the client should have that right. (See Compl. Ex. B). A total ban collides with the Plaintiffs’  free  exercise of religion, and therefore Plaintiffs are likely to succeed on the merits. F. A3371  Violates  Plaintiffs  Jack  and  Jane  Doe’s  Fundamental Right to Direct the Upbringing of their Minor Child.

Parents are vested with the care, custody, and control of their children. That guarantee is enforceable against the states through the Fourteenth Amendment. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972); Pierce   v.   Soc’y   of   Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). A3371 tramples upon this most basic right by preventing parents from caring for the mental health of their children as they see fit. Because A3371 intrudes upon a fundamental right, strict scrutiny applies. See Reno v. Flores, 507 U.S. 292, 301-02 (1993). Because the State cannot satisfy this high burden, Plaintiffs are likely to succeed on the merits of their case 1. Plaintiffs Jack and Jane Doe have a fundamental right to make mental health decisions for their child.

The interest of parents in the care, custody, and control of  their  children  “is  perhaps  the   oldest   of   the   fundamental   liberty   interests   recognized   by   this   Court.”   Troxel, 530 U.S. at 65 (discussing nine seminal cases dealing with this parental liberty   interest).   “The   history   and   culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing  of  their  children.” Yoder, 406 U.S. at 232. American  jurisprudence  “historically  has  

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reflected Western . . . concepts of the family as a unit with broad parental authority over minor children.”  Parham v. J.R., 442 U.S. 584, 602 (1979). It cannot be questioned that parents enjoy a fundamental discretion to bring up their children as they see fit. Troxel,   530   U.S.   at   66.   “This   primary role of the parents . . . is now established beyond debate as an enduring American tradition.”  Yoder, 406 U.S. at 232. The  words  “care,  custody,  and  control”  encompass  decisions  relating  to  the  mental  health   of   the   child,   for   parents   have   “a   ‘high   duty’   to recognize symptoms of illness and to seek and follow  medical  advice.”   Parham, 442 U.S. at 602. Parents direct the destiny of their children and inculcate moral standards in them. Yoder, 406 U.S. at 233; Pierce, 268 U.S. at 535. Certainly, these responsibilities  include  selecting  a   course   of  therapy,   for  it  is   “parents   .  .  .  [who]  choose   whether  to  expose  their  children  to  certain  people  or  ideas.”   In re Custody of Smith, 969 P.2d 21, 31 (Wash. 1998) (en banc), aff’d  sub  nom. Troxel v. Granville, 530 U.S. 57, 63 (2000). “Simply   because   the   decision   of   a   parent   is   not   agreeable   to   a   child   or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the   [S]tate.”   Parham, 442 U.S. at 603 (emphasis added). Rather, parents have authority to select medical procedures and otherwise decide what is best for their child,   and   “[n]either   state   officials nor federal courts are equipped to review such parental decisions.”   Id. at 603-604. A3371 deliberately and explicitly infringes upon this right. Yet, the main sponsor of A3371 thinks  that  SOCE  is  “an  invidious  form  of  child  abuse”, and stated that the State should take children away from parents who allow their children to seek SOCE counseling for their psychological distress. See   Chris   Christie   Sings   Ban   on   Gay   ‘Conversion   Therapy,’   Politico.com (Aug. 19, 2013), available at www.politico.com/story/2013/08/chris-

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christie-gay-conversion-therapy-new-jersey-95666.html.

11

There is no proof of any harm

befalling children engaging in SOCE therapy, and therefore not a modicum of evidence to support the irreparable harm the Legislature has intentionally visited upon parents. In fact, Plaintiffs’   testimony   reveals   just   the   opposite,   which   is   that   John   Doe   has   experienced   significant benefit from his SOCE counseling. (John Doe. Decl. ¶ 13)  (“The discussions that my counselor and I engage in during counseling sessions are really helpful, and sometimes just talking about it makes all the difference in the world to me.”); (Jane Doe Decl. ¶ 13  (“we have noticed significant changes in our son, and all of them are positive”)  (emphasis  added). 2. A3371 directly interferes  with  Plaintiffs  Jack  and  Jane  Doe’s  right  to   make mental health decisions for their child.

The  Supreme  Court  has  not  hesitated  to  uphold  the  right  to  direct  the  upbringing  of  one’s   child over state laws that would deprive parents of that right. This has been true even in the context  of  public  education,  which  is  at  “the  very  apex  of  the  function  of  the  State.”   Yoder, 406 U.S. at 213. In Meyer v. Nebraska,   the   Court   upheld   “the   power   of   parents to control the education  of  their  own.”  Meyer, 262 U.S. at 401. At issue there was a Nebraska statute that made it  illegal  to  teach  “languages,  other  than  the  English  language  .  .  .  [ until] the pupil . . . passed the Eighth   grade.”   Id. at 397. The statute effectively prevented parents from hiring a teacher to instruct their children in German and penalized teachers who did so. Id. at 396. The Court facially voided the law, holding that the  state’s  intrusion  on  parental  rights  could  not  be  justified: No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to

11

Matt Barber, ‘Gay’  Lawmaker  to  Christians,  We’ll  Take  Your  Children, OneNewsNow (Aug. 26, 2013), available at www.onenewsnow.com/perspectives/matt-barber/2013/08/26/’gay’lawmaker-to-christians-‘we’ll-take-your-children’   (quoting   New   Jersey   Assemblyman   Tim   Eustace). 39

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conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state. Id. at 403. The  Supreme  Court  similarly  held  that  an  Oregon  law  that  required  “every   parent . . . of a child  between  8  and  16  years  to  send  him  to  a  public  school”  was  an  invalid  effort  to  homogenize   the   state’s   youth   with   a   government-preferred form of education. See Pierce   v.   Soc’y   of   the   Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 535 (1925). [W]e think it entirely plain that the [law] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. Id. at 535 (emphasis added). A3371 operates in an unconstitutional manner because it prevents Plaintiffs Jack and Jane Doe from choosing a specific form of counseling—SOCE counseling—for their son by muzzling every licensed mental health professional in New Jersey. Indeed, the prohibition is comprehensive, as it applies to all licensed mental health professionals who are the most qualified and experienced to provide this type of counseling to those parents and minors who seek it. (Jack Doe Decl. ¶ 11)  (“Because of A3371, however, there is not anyone who is able to provide such licensed counseling anywhere in our state.”) (emphasis original); (John Doe Decl. ¶ 14)  (“I was disappointed though because my parents told me that the counselors in New Jersey are not allowed to talk to me about these things anymore.”). The breadth of A3371 reveals that New Jersey is doing nothing more than attempting  to  “prescribe what shall be orthodox,” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), by ensuring that Plaintiffs may only

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receive help from licensed professionals that affirms non-heterosexual sexual orientations. The Constitution does not give New Jersey that power. Just   as   Nebraska   and   Oregon   “foreclosed   the   opportunity”   of   parents   to   choose   professional foreign language training or private education for their children, so too has New Jersey foreclosed the opportunity of Plaintiffs and other parents in New Jersey to choose SOCE counseling for their children from a licensed professional qualified to provide it to those who seek it. If the former intrusions into parental rights are unconstitutional in the public school context, where the State’s   interest   is   at   its   apex,   then   A3371’s intrusions are certainly impermissible in the context of private counseling sessions chosen by parents to benefit their children. Plaintiffs are substantially likely to prevail on the merits, and A3371 should be enjoined. II. PLAINTIFFS ARE SUFFERING IMMEDIATE AND IRREPARABLE INJURY. “The   loss   of   First   Amendment   freedoms,   for   even   minimal   periods   of   time,   unquestionably   constitutes   irreparable   injury.”   Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Swartwelder v. McNeilly, 297 F.3d 228, 241-42 (3d Cir. 2002) (same). A citizen who exercises   the   right   to   free   speech   exercises   a   right   that   “lies   at   the   foundation   of   free   government.”   Schneider v. New Jersey, 308 U.S. 147, 165 (1939). Viewpoint-based infringements on that fundamental liberty, such as A3371 here, therefore unquestionably constitute irreparable harm to Plaintiffs. A3371 prohibits Plaintiff John Doe from receiving information and counseling for his unwanted SSA and gender identity confusion, but it would permit him to receive the opposite form of counseling pushing him towards such feelings and confusion. This unquestionably constitutes viewpoint discrimination in the right to receive information. A3371 silences licensed

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counselors who wish to engage in a course of counseling with consenting minor clients that aligns   with   the   clients’   sincerely   held   religious   beliefs.   Such   a   prohibition   constitutes   a   deprivation of those   minors’   First Amendment rights and imposes immediate and irreparable harm on Plaintiffs and their clients. Plaintiffs have lost their First Amendment right to receive medical information. As discussed above, this constitutional right takes on special importance in the patient-client context because patients cut off from professional advice are left to make critical medical decisions on their  own.  “Facts,  after  all,  are  the  beginning  point  for  much  of  the  speech  that  is  most  essential   to  advance  human  knowledge  and  to  conduct  human  affairs.”   Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2667 (2011). Censoring facts and available options for assisting a client with his unwanted feelings of distress about a particular issue, whether it be unwanted SSA or some other cause of distress, is particularly troubling in the medical context “where   information   can   save   lives.”   Id. at 2664. A3371 prohibits Plaintiffs from receiving the counseling they deem most effective in assisting them to align their sexual attractions, behaviors, and identity with their sincerely held religious beliefs. As such, it is currently causing them immediate and irreparable injury. Plaintiffs therefore satisfy the second prong of the preliminary injunction analysis. III. THE  BALANCE  OF  EQUITIES  TIPS  IN  PLAINTIFFS’  FAVOR. In analyzing the third Winter element, the court  must  “balance  the  competing  claims  of   injury and must consider the effect on each party of the granting or withholding of the requested relief.”   Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). Plaintiffs are currently suffering immediate and irreparable injury and loss of constitutional rights and will continue to suffer such injury so long as A3371 prohibits receiving SOCE counseling. An injunction in this case   will   protect   the   very   rights   that   the   Supreme   Court   has   characterized   as   “lying at the

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foundation  of  free  government  of  free  men.”   Schneider v. New Jersey, 308 U.S. 147, 151 (1939). The loss of such fundamental freedoms outweighs any interest Defendants might have in halting SOCE counseling, especially given the fact that the basis for the ban is merely anecdotal evidence unsubstantiated by any scientific facts. By contrast, the State has suffered no injury. See Déjà vu of Nashville, Inc.  v.  Metro.  Gov’t  of  Nashville  &  Davidson  Cnty., 274 F.3d 377, 400 (6th Cir.   2001)   (if   a   plaintiff   “shows   a   substantial   likelihood   that   the   challenged   law   is   unconstitutional, no substantial harm to others can be said to inhere in   its   enjoinment”).   The   Third  Circuit  has  recognized  that  while  injunctions  can  impinge  on  a  government’s  interest,  the   balance favors Plaintiffs because the government remains free to attempt to enact new regulations  “that  are  better  tailored  to  serve  [their]  interests.”   Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). The same is true here, and the injunction should issue. IV. AN INJUNCTION IS IN THE PUBLIC INTEREST. The public interest will be served by granting the injunction. The protection of constitutional rights is of the highest public interest. Elrod v. Burns, 427 U.S. 347, 373 (1976). Indeed,   “the   public   interest   is   best   served   by   eliminating   unconstitutional   restrictions.”   Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). Additionally, there is simply no interest in the protection or enforcement of unconstitutional laws. See ACLU v. Ashcroft, 322 F.3d   244,   250   n.11   (3d   Cir.   2003).   “[I]t   is   incontrovertible   that   ‘curtailing   constitutionally   protected speech will not advance the public   interest.’”   Stilp v. Contino, 743 F. Supp. 2d 460, 470 (M.D. Penn. 2010) (quoting ACLU v. Reno, 217 F.3d 162, 180 (3d Cir. 2000)). Here, because A3371 is unconstitutional viewpoint discrimination,  violates  Plaintiffs’  free  exercise  and   parental rights, and unconstitutionally chills the rights of Plaintiffs receive counseling consistent with their religious beliefs, there is no public interest in maintaining or enforcing its prohibitions.

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CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant their Motion for a Preliminary Injunction. Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. !""#$%$$% 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 * Application to appear Pro Hac Vice pending

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on November 1,  2013.  Service  will  be  effectuated  by  the  Court’s  electronic  notification   system upon all counsel of record.

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE, Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. _________________

PLAINTIFFS’  MOTION  FOR LEAVE TO FILE EXCESS PAGES COME NOW, Plaintiffs, by and through counsel and file this Motion for Leave to File Excess Pages. Plaintiffs are a minor child and the parents of that minor child who are bringing constitutional challenges to New Jersey Assembly Bill No. 3371 (“A3371”), which prohibits licensed mental health counselors from providing sexual orientation change efforts counseling that Plaintiffs are seeking and have the right to obtain. In support hereof, Plaintiffs show the Court as follows: 1. This is complex litigation involving substantial First and Fourteenth Amendment

questions concerning free speech, free exercise, and parental rights. 2. A3371 represents an unprecedented and breathtakingly broad expansion of government

control into the fundamental relationship between mental health counselors and their clients, and the voluminous and complex nature of the issues presented in challenging this law are such that this   Court’s   current   restriction   on   a   party’s   opening   brief   is   inadequate   to   sufficiently   address   Plaintiffs’  injuries.

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3.

Plaintiffs are  mindful  of  the  Court’s  time  and  resources  and  have  attempted  to  address  the  

numerous issues as efficiently as possible.

Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. !""#$%$$% 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 * Application to appear Pro Hac Vice pending

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on November 1,  2013.  Service  will  be  effectuated  by  the  Court’s  electronic notification system upon all counsel of record.

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN DIVISION JOHN DOE, by and through JACK DOE and JANE DOE, JACK DOE, individually and on behalf of his son, JOHN DOE, JANE DOE, individually and on behalf of her son JOHN DOE, Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. _________________

PLAINTIFFS’  PROPOSED  ORDER THIS MATTER is before the Court on a motion for preliminary injunction filed by Plaintiffs, Jack and Jane Doe and their minor son John Doe. The Court held oral argument on the motion on ____, 2013. The Court considered the record, including the motion, the complaint, the sworn declarations of the parties, and the memorandum of law in support of the motion. It also considered argument from both Plaintiff and Defense counsel. After due consideration, the Court is of the opinion that unless a preliminary injunction is issued, Plaintiffs will continue to suffer serious and irreparable injury for which there is no adequate remedy at law. For the reasons stated  in  this  opinion  and  order,  Plaintiffs’  motion  for  preliminary  injunction  is  GRANTED.   I. FINDINGS OF FACT

Following the New Jersey Legislature’s  passage  of  A3371, Defendant, Governor Christie, signed it into law on August 19, 2013. The law went into effect immediately upon being signed. Section 2(a) of A3371 states:

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A person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person   who   performs   counseling   as   part   of   the   person’s   professional   training   for   any of these professions, shall not engage in sexual orientation change efforts with a person under 18 years of age. Section 2(b) states: As used in this section,  “sexual  orientation  change  efforts” means the practice of seeking   to   change   a   person’s sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender; except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another, or counseling that: (1) provides acceptance, support, and understanding of a person or   facilitates   a   person’s coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (2) does not seek to change sexual orientation. The law prohibits New Jersey mental health providers from providing any therapy aimed at changing non-heterosexual sexual orientations, including any attempts to eliminate unwanted same-sex attraction, behavior, identity, or sexual orientation (hereinafter “sexual orientation change efforts” or “SOCE”). The law fundamentally alters the therapist-client relationship by creating trumping fundamental rights of clients and client protections in the ethical codes of multiple mental health licensing agencies in New Jersey, including but not limited to the following: General   Principle  E  of  the  American  Psychological   Association’s  “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 self-determination.”   A3371   interferes   with   the   selfdetermination of minors seeking SOCE therapy. Section 1(a) of the American Psychiatric Association Guidelines for Ethical Treatment (“APA  Guidelines”)  states,  “A  psychiatrist  shall  not  withhold  information  that  the  patient   needs or reasonably could use to make informed treatment decisions, including options for treatment not provided by the psychiatrist.” A3371 prevent patients from receiving

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the fundamental information regarding SOCE therapy that they reasonably could use to make informed treatment decisions. 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.”  A3371   prevents Plaintiffs from receiving information necessary to make any decision regarding the availability and benefits of SOCE treatment. A3371 prohibits patients from being able to accept or reject SOCE treatment from licensed professionals most qualified to provide it, even though the fundamental elements of the patient-physician relationship require that the patient have the full range of options. Opinion  10.016  of  the  AMA  Code  states,  “Medical  decision-making for pediatric patients should   be   based   on   the   child’s   best   interest,   which   is   determined   by   weighing many factors,   including   effectiveness   of   appropriate   medical   therapies,   the   patient’s   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.”  A3371  removes  SOCE  therapies  from   consideration by the physician and the parents regarding the best interest of the child, despite evidence regarding the effectiveness of SOCE. Section A.2.d   of   the   American   Counselor’s   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 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.”   A3371 prohibits Plaintiffs and other minors seeking SOCE from having their rights and interests respected by their counselor merely because of the course of counseling they desire to receive. 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.”  A3371   prevents Plaintiffs and other minors in New Jersey seeking SOCE counseling from having their value and cultural interests respected and it deprives Plaintiff parents of their inherent responsibility and right to direct the upbringing of their minor child, including their choice of counseling for their son. Principle 1.2 of the American Association of Marriage and Family Therapists Code of Ethics  (“AAMFT  Code”)  provides  that  all  licensed  marriage  and  family  therapists  obtain   informed consent from their patients/clients, which generally requires that the patient/client “has   been   adequately   informed of significant information concerning treatment   processes   and   procedures.”   A3371   prohibits   licensed   marriage   and   family   therapists from informing their minor patients/clients about an entire course of

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treatment—SOCE counseling—that might benefit them and help them achieve their goals of eliminating or reducing their unwanted same-sex attractions. Principle 1.8 of the AAMFT Code provides that licensed marriage and family therapists “respect   the   rights   of   clients   to   make   decisions.”   A3371   Plaintiffs and other minors seeking SOCE counseling in New Jersey from having their counselor respect their fundamental rights to make the decisions concerning their desired course of counseling, because the State already made the decision for the patient/client—i.e., no one under the age of eighteen can receive SOCE counseling. Section 1.02 of the National   Association   of   Social   Workers’   Code   (“NASW Code”) provides that the patients/clients shall have the right to self-determination and that a social worker should only seek to assist the patient/client in achieving their goals. A3371 prohibits   New  Jersey’s social workers from respecting the rights of the patient/client to self-determination   by   imposing   the   State’s   determination   on   the   course   of   their   therapy   and mandating that only those efforts that seek to affirm same-sex attractions are permissible  in  the  social  worker’s  office. Section 1.03 of the NASW Code provides that social workers must provide sufficient information for the patient/client to make an informed decision about their course of care and specifically states that such informed consent must include a discussion of reasonable alternatives. A3371 prevents Plaintiffs from receiving the information necessary and pertinent to their mental health counseling decisions by imposing a gag order on licensed social workers concerning the viewpoint that unwanted same-sex attractions, behaviors, or identity can change. . These fundamental alterations to the therapist-client relationship caused by A3371 cannot be justified on the basis of needing to protect children from harm, because all the relevant licensing authorities already prohibit harming children. Moreover, the State has not proved that SOCE is harmful to minors; however, there is ample evidence that A3371 is currently causing immediate and irreparable harm to Plaintiffs and to their clients. Plaintiff John Doe is a fifteen-year old minor who is seeking SOCE counseling from a licensed mental health professional in New Jersey. John Doe began experiencing confusion concerning his gender identity was when he was approximately nine years old. Because of a difficult  family  environment  involving  frequent  arguments  between  his  parents  and  his  mother’s   treatment and statements about men, John Doe developed a dislike of boys and men. He thought

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that boys were stupid because of the harsh words his mother had spoken towards his father, and did not feel like his father accepted him as a younger child. When he was around ten years old, John Doe began trying to behave like a woman, look like a woman, and affirmatively tried to display female mannerisms and expressions. This caused significant psychological distress for John Doe, and he started having frequent thoughts of suicide because of his severe confusion about his gender identity. When John Doe was approximately twelve or thirteen, he began to experience same-sex attractions and have substantial anxiety, distress, and confusion over those feelings. At that time, he began having thoughts of hopelessness and despair. He was experiencing significant psychological distress over those feelings, and his thoughts of suicide became nearly a constant. John Doe compared himself to other males that he thought were masculine and displayed the typical characteristics of a male, and he had trouble thinking that he would ever measure up to the standard that he thought other boys met. John  Doe’s  confusion  and  distress  caused  him  great   anxiety, and his obsessive-compulsive traits became worse than they had ever been. He began having panic attacks during the day and was unable to sleep at night due to his severe anxiety. At this point, he began to think of killing himself every day, and his depression was severely harming his emotional stability. John  Doe’s  psychological  distress  and  thoughts of suicide hit a peak on a family trip to the   beach,   where   he   tried   to   fling   himself   off   of   the   balcony   of   the   Does’   hotel.   At   that   point,   John Doe finally reached out to his parents for help, and Jack and Jane Doe knew they had to help their son with the severe psychological distress that his unwanted same-sex attractions and gender confusion were causing. Jack and Jane Doe contacted a professional counselor recommended by the National Association for the Research and Therapy of Homosexuality,

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which specializes in helping men and boys reduce or eliminate their unwanted same-sex sexual attractions, behaviors, expressions, mannerisms, and identity. One of the main reasons John Doe was having such significant psychological distress over his gender identity confusion and unwanted same-sex attractions was because he has sincerely held religious beliefs that such feelings are unnatural, unhealthy, and sinful. He desires to live out his religious values and does not want to act out on same-sex attractions that violate his  religious  beliefs.  One  of  John  Doe’s  main  goals  in  seeking  SOCE  counseling  was   to resolve his sexual attractions so that he can act consistently with his religious beliefs. His same-sex attractions were causing a great internal conflict with his value system, and he wanted to do something about it. Jack and Jane Doe also have sincerely-held religious beliefs that homosexuality is a sinful and harmful lifestyle, and their sincerely held religious beliefs inform them that parents are required to train up a child in the ways of Holy Bible and the teachings of their church. Jack and Jane Doe believe that assisting their son in receiving the counseling that will help him live consistently with and prioritize his religious beliefs and values above his gender confusion and unwanted same-sex attractions is one aspect of training him up in the way he should go and educating him in the fundamental tenets of their faith. John Doe started counseling in May of 2011, and he has experienced tremendous benefits from it. He now speaks with his normal voice and does not try to suppress the male sound of it, as he had done before. He has stopped shaving his body hair to try to look more feminine and display more feminine characteristics, and he has stopped attempting to exhibit female mannerisms. Also, John Doe has significantly improved the relationship with his father, and his confidence in his own masculinity is starting to develop and improve. As a result of his counseling, John Doe no longer experiences thoughts of suicide or hopelessness. John Doe no

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longer has the tremendous psychological distress that he experienced as a result of his unwanted same-sex attractions. John Doe has made significant progress toward his goal of eliminating his unwanted same-sex attractions, but he desire to continue to work with his counselor on his issues. As is true of much therapy for people, John  Doe’s  discussions  with his counselor are very helpful. Indeed, he recognizes that sometimes just talking about his difficulties makes all the difference in   the  world   to   him.  John  Doe’s  counseling  sessions  involve  simply  talking  about   his   feelings,   anxieties, and confusion that resulted from the unwanted same-sex attractions that he was struggling with and wanted to resolve. Jack and   Jane   Doe   have   also   noticed   significant   benefits   from   John   Doe’s   SOCE   counseling. They have noticed significant changes in their son, and have found that all of them are positive. They have noticed that their son no longer appears to struggle with the distress and anxiety over his gender confusion, and has made significant progress in eliminating his unwanted same-sex attractions. Most significant among the changes that the Does have noticed with their son is that John Doe never expresses suicidal thoughts to them anymore or threatens to kill himself as he had done frequently prior to his counseling. John   Doe’s current counselor is a licensed clinical social worker in New York, but his counseling does not involve much analysis and discussion of the underlying causes and background information that many licensed psychologists do in this area. Because his counseling is more prospective thinking, John   Doe’s counselor informed the Does that their son might benefit from the additional SOCE counseling of a person who engages in conversations dealing with root causes, background information, and other introspective analysis involved in other licensed professionals counseling. The counselor made that recommendation based on some of the recent discussions he has had with John Doe, and the Does want to continue to be able to

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make sure their son receives the best counseling from the best counselors on all aspects of those problems that cause him distress. Because of John  Doe’s  counselor’s recommendation, the Does contacted Dr. Ronald Newman, a licensed psychologist in New Jersey, to attempt to engage one of them for their son. Nevertheless, because of A3371, Dr. Newman informed the Does that he could not help them, and in fact there are now no licensed mental health professionals in New Jersey that can help John Doe with the counseling that he so desperately desires and seeks. II. CONCLUSIONS OF LAW As a threshold matter, parties are entitled to emergency relief if they can establish that they are likely to succeed on the merits, they are likely to suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in their favor, and that the injunction is in the public interest. ACLU v. Ashcroft, 322 F.3d 240, 250 (3d Cir. 2003). After having considered all the   parties’   submissions   and   governing   precedent,   this   Court   is   satisfied   that   Plaintiffs   have   established the required factors for emergency relief in the form of a Preliminary Injunction. For the reasons discussed herein, this court GRANTS Plaintiffs’  Motion  for a Preliminary Injunction. A. Likelihood of Success on the Merits.

Plaintiffs   are   likely   to   succeed   on   the   merits   because   A3371   violates   Plaintiffs’   First   Amendment right to receive information, which is the corollary to the right to free speech. It also violates   Plaintiffs’   First   Amendment   right   to   free   exercise   of   religion.   Additionally,   A3371   violates  Plaintiffs  Jack  and  Jane  Doe’s  fundamental  right  to  direct  the  upbringing  and  education   of their child guaranteed by the Fourteenth Amendment. Plaintiffs are therefore likely to succeed on the merits. 1. A3371  Violates  Plaintiffs’  Right  to  Receive  Information.

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The First Amendment protects the right to receive information as a corollary of the right to speak. The Fourteenth Amendment guarantees this right, too, against the states. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982); Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); see also Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 180 (3d Cir. 1999). A3371 deprives Plaintiffs of this right during counseling sessions because it prohibits licensed counselors from offering SOCE counseling to minors that has helped Plaintiff John Doe reduce or eliminate his unwanted SSA. The government may not prevent citizens from receiving ideas or viewpoints that the government disagrees with or opposes. See Pico, 457 U.S. at 871-72   (plurality)   (“Our   Constitution does not permit the official suppression of ideas.”). The Third Circuit has likewise recognized that the First Amendment forbids laws, such as A3371, which prohibit individuals from receiving information they are actively seeking and desire to receive. See Kreimer v. Bureau of Police for Town of Morristown,   958   F.2d   1242,   1252   (3d   Cir.   1992)   (“[T]he   First   Amendment,  like  other  constitutional  guarantees,  encompasses  the  ‘penumbral’  right  to  receive   information to ensure   its   fullest   exercise.”).   A3371 prevents John Doe and all minors in New Jersey from receiving the viewpoint that SOCE counseling from a licensed professional may be beneficial to those minors who seek to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity. A3371 also impermissibly expresses   the   State’s   disapproval   of   such   counseling. This government-sanctioned restriction to information and counseling the government  disapproves  of  is  simply  unconstitutional.  “[T]he  First  Amen dment does not merely prohibit the government from enacting laws that censor information, but additionally encompasses the positive right of public access to information and ideas .”   Id. at 1255

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(emphasis added). Here, A3371 runs far afield of both of these firmly entrenched constitutional principles. Plaintiffs are therefore likely to prevail on the merits. A3371 impermissibly prevents Plaintiffs from receiving counseling that their counselor has determined will be beneficial to the continued progress of John Doe in reaching his goal of eliminating his unwanted same-sex attractions and gender confusion.   Plaintiffs’   current   counselor, a licensed social worker in New York, does not provide the in-depth retrospective analysis that is offered by many licensed counselors, and he prefers to keep his counseling focused on the future. Because their counselor suggested that John Doe might benefit from some of the counseling that analyses root causes and background factors in greater depth, Plaintiffs contacted Dr. Ron Newman, a licensed psychologists in New Jersey, hoping that they could receive the type of counseling that their counselor suggested. A3371, however, has made it impossible for Plaintiffs to receive that counseling from any licensed professional in their state. This result is contrary to the demands of the Constitution, and therefore unconstitutionally infringes  on  Plaintiffs’  First  Amendment  right  to  receive  information. 2. A3371 is Unconstitutional Viewpoint Discrimination.

A viewpoint-based restriction on private speech has never been upheld by the Supreme Court or any court. Indeed, a finding of viewpoint discrimination is dispositive. See Sorrell v. IMS Health,  131  S.  Ct.  2653,  2667  (2011).  “It  is  axiomatic  that  the  government  may  not  regulate   speech   based   on   its   substantive   content   or   the   message   it   conveys.”   Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995).   “When   the   government   targets   not   subject   matter, but particular views taken by speakers on a subject, the violation of the First Amendment is   all   the   more   blatant.”   Id. at 829. In fact, viewpoint-based regulations are always unconstitutional. See, e.g., Lamb’s  Chapel  v.  Ctr.  Moriches  Union  Free  Sch.  Dist., 508 U.S. 384,

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394 (1993) (“‘the  First  Amendment  forbids  the  government  to  regulate  speech  in  ways  that  favor   some  viewpoints  or  ideas  at  the  expense  of  others’” (quoting City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). Because the First Amendment protects the right to receive information as a corollary to  the  right  to  speak,  A3371’s  restrictions  on  speech  may  not   be based on the viewpoint espoused in the information sought to be received. A3371 blatantly violates this principle. A3371 is a textbook example of viewpoint discrimination. The legislation explicitly prohibits licensed counselors from providing, and therefore Plaintiffs from receiving, any information and counseling directing at helping a minor to reduce or eliminate his unwanted same-sex attractions, behaviors, or identity. A3371 allows licensed counselors to discuss the subject of sexual orientation, but precludes a particular view on that subject, namely that same-sex attractions, behaviors, or identity can be reduced or eliminated to the benefit of the client. A3371  specifically  targets  SOCE  that  seeks  to  “eliminate   or reduce sexual or romantic attractions or feelings towards a person of the same gender.”   Moreover, the statute permits a licensed professional to   counsel   a   client   “to   transition   from one gender to another.”  But,  if  the  client’s  gender  identity,  mannerisms,  or  expression  differ   from   the   client’s   biological   sex   and   the   client’s   feelings   are   unwanted – meaning he does not want to transition from a male identity to a female identity – but instead the client wants to “change”  his  female  gender  identity,  mannerisms,  or  expression  to   conform to his biological sex, then the counseling is forbidden. Similarly, the statute permits the counseling of a client to affirm homosexual attractions, but prohibits counseling a minor to change unwanted same-sex attractions, behaviors, or identity. Under no circumstances may a licensed counselor counsel a minor client to change unwanted same-sex attractions, behaviors, or identity. Nor may the

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counselor counsel the minor client to change unwanted opposite sex mannerisms, expressions, or identity, even when the client wants to change them. A3371’s   definitions   further confirm that only non-heterosexual SOCE counseling is precluded,   as   SOCE   “does   not include counseling that: (1) provides acceptance, support, and understanding of   clients   or   facilitation   of   persons’   coping,   social   support,   and   identity   exploration and development, including sexual orientation-neutral intervention to prevent or address unlawful conduct or unsafe sexual practices, and (B) do not seek to change sexual orientation.”   Consequently, Plaintiffs and other minors may receive information and counseling directing them toward or encouraging same-sex attractions, behaviors, or identity, to   “provide   acceptance,   support,   and   understanding,”   to counsel minors to transition from one gender to another, or to remain neutral. Nevertheless, they have no professional avenue to seek concerning the possibility of changing unwanted same-sex attractions, behaviors, or identity – even when that is precisely what that minor desperately seeks. (Id.). The viewpoint of those licensed counselors whose professional judgment leads them to believe that homosexual desires or behavior are destructive to some of their minor clients with unwanted same-sex attractions or that their clients might be better served by choosing SOCE is silenced and censored, and therefore prohibits Plaintiffs from receiving this viewpoint. These prohibitions are explicitly viewpoint based simply cannot withstand constitutional scrutiny.   A3371   impermissibly   infringes   on   counselors   right   to   speak   and   therefore   a   minor’s   right to receive information, and does so based solely on the viewpoint that same-sex attractions, behaviors, or identity can be changed. The Constitution forbids such a restriction. 3. A3371 is an Unconstitutional Content-Based Restriction.

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Even if A3371 were merely content and not viewpoint-based, Defendant still would be unable to satisfy the exacting scrutiny required by the First Amendment for content-based restrictions. United   States   v.   Playboy   Entm’t   Grp., 529 U.S. 803, 813 (2000). To survive such scrutiny, Defendant would have to show that A3371 is narrowly tailored to achieve a compelling government interest and is the least restrictive means of achieving that interest. Id. The general rule is that the right of expression prevails, even where no less restrictive alternative exists. Id. Under certain circumstances, states may have a compelling interest in the well-being and protection of children. See   Sable   Commc’ns   of   Cal.,   Inc.   v.   F.C.C., 492 U.S 115, 126 (1989). When the government seeks to restrict speech “[i]t must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994)) (emphasis added). Indeed, the notion that a content-based restriction on speech is presumptively unconstitutional  is  “so  engrained  in  our  First  Amendment jurisprudence that last term we found it so   ‘obvious’   as   to   not   require   explanation.”   Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115-16   (1991).   “Regulations   that   permit   the   Government   to   discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.”   Id. at 116 (quoting Reagan v. Time, Inc., 468 U.S. 641, 648-49 (1984)). Furthermore,  “[i]t  is  rare  that  a  regulation  restricting  speech  because  of  its  content  will  ever  be   permissible.”  United  States  v.  Playboy  Entm’t  Grp., 529 U.S. 803, 818 (2000). A3371 relies principally on a 2009 report issued by the American Psychological Association   Task   Force   on   Appropriate   Therapeutic   Responses   to   Sexual   Orientation   (“Task   Force”), but this report focused on adults—not minors. Moreover the authors found “some  

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evidence”   of   both   harm   and   benefits produced by SOCE. See Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009) at 2-4, 42, 49-50 (emphasis added), available at

http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (last visited October 1, 2012). Ultimately, the Report was inconclusive regarding harm: [R]esearch 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. Id. at 90 (emphasis added). The  only  “evidence”  of  harm  the  Task  Force  discovered  was   some anecdotal   testimony   of   “some   individuals  [who]  reported   being   harmed   by   SOCE.” Id. at 120. Such  “evidence”  is  insufficient  for  A3371’s  far-reaching prohibitions. Indeed, “the  government   must present more than anecdote and supposition”  to  support  its  burden   of proof. Playboy, 529 U.S. at 822. Defendant failed to meet that burden, and A3371 must fall because of that failure. Even if the State could show a compelling interest in banning an entire mode of therapy—such as SOCE—from the field of counseling, it could not do so simply to suppress a particular idea. R.A.V., 505 U.S. at  386  (“The  government  may  not  regulate  a  [‘mode  of  speech’]   based on hostility—or favoritism—towards   the   underlying   message   expressed.”).   Such   a   discriminatory motive is revealed where there are other content-neutral substitutes to the regulation. See id.at 395. A3371 is not necessary to prevent harm because all of the ethical codes of the professions engaging in this form of counseling already prohibit practices that actually harm patients. Specifically, Section 3.04 of the APA Code,   “Avoiding   Harm,”   requires   that   “[p]sychologists   take reasonable steps to avoid harming their clients/patients . . . and to minimize harm where it is foreseeable  and  unavoidable.”  Section  A.4.a  of  the  ACA  Code states:  “Counselors  act  to  avoid   harming   their   clients   .   .   .   .”   Section   1(c)   of   the   American Psychiatric Association Guidelines Order Granting Preliminary Injunction - 14

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states  that  “[a]  psychiatrist  shall  strive  to  provide beneficial treatment  .  .  .  .”   Violations of these ethical codes are treated as unprofessional conduct and subject licensed professionals to discipline by their respective licensing boards. Principle 1 of the American Association of Marriage   and   Family   Therapy’s   Ethics   Code states   that   “[m]arriage   and   family   therapists   advance the welfare of   families   and   individuals.”   Certainly,   the   mandate   that   marriage   and   family therapists advance the welfare of their clients would be violated by a counselor who engages in a course of counseling that is harmful to the client. A3371, however, is not an attempt to prevent harm, but is in truth a politically motivated attempt to harm one group of professionals who hold a particular viewpoint regarding counseling, particularly SOCE counseling, and an effort to prohibit those counselors from providing any information or counseling on the fact that SOCE can and does help people reduce or eliminate their unwanted same-sex attractions, behaviors, or identity. The fact that children are already protected from harmful and dangerous therapies reveals that the State’s underlying goal is not about protecting minors. They are already protected by these ethical rules. Instead, the asserted state interest is merely the guise under which A3371 attempts to discriminate against, and silence, the viewpoint of those professionals who believe that SOCE is helpful and prevent minors from receiving information and counseling espousing that viewpoint. Informed  consent,  which  is  the  touchstone  of  professional  counselors,  and  a  client’s  right   to self-determination, undercuts any alleged interest of the State because mandating informed consent  would  be  a  less  restrictive  means  to  achieve  the  State’s  alleged  goal  in  preventing  harm   to clients. A complete ban on SOCE counseling or a viewpoint regarding same-sex attractions, behaviors, or identity is not the least restrictive means to achieve any governmental interest. Total prohibitions on constitutionally protected   speech   are   “hardly   an   exercise   of   narrow  

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tailoring.”   Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). Such extreme measures as A3371 simply cannot survive the demands of the First Amendment. 4. A3371  Violates  Plaintiff  Jack  and  Jane  Doe’s  Parental Rights.

Parents are vested with the care, custody, and control of their children. That guarantee is enforceable against the states through the Fourteenth Amendment. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972); Pierce   v.   Soc’y   of   Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). SB 1172 infringes upon this basic right by preventing parents from caring for the mental health of their children as they see fit. Parham v. J.R.,  442  U.S.  584,  602  (1979)  (The  words  “care,  custody,  and   control”  include  the  “high  duty  to  recognize  symptoms  of  illness  and  to  seek  and  follow  medical   advice.”  SB  1172’s  sponsor,  Senator  Ted  Lieu  concedes  as  much:  “The  attack  on  parental  rights   is exactly  the  whole  point  of  the  bill  because  we  don’t  want  to  let  parents  harm  their  children.”   See Kim Reyes, Controversy Follows Effort to Ban Gay Conversion Therapy, Orange Cnty. Reg., July 27, 2012, at 2. Because the Bill intrudes upon a fundamental right, strict scrutiny applies. See Reno v. Flores, 507 U.S. 292, 301-02 (1993); Fields v. Palmdale Sch. Dist., 427 F.3d  1197,  1208  (9th  Cir.  2005)  (“Governmental  actions  that  infringe  upon  a  fundamental  right   receive  strict  scrutiny.”)  Defendants  cannot  satisfy this high burden. The  Supreme  Court  has  not  hesitated  to  uphold  the  right  to  direct  the  upbringing  of  one’s   child over state laws that would deprive parents of that right. This has been true even in the context  of  public  education,  which  is  at  “the  very  apex  of  the  function  of  the  State.”   Yoder, 406 U.S. at 213. In Meyer, the Court facially voided a Nebraska statute that outlawed teaching “languages,  other  than  the  English  language”  because  the  statute  prevented  parents  from  hiring  a   teacher to instruct their children in German. Id. at 396-97. Two years later, the Court held that an

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Oregon  law  requiring  children  to  attend  public  school  violated  the  parents’  constitutional  rights   to direct the upbringing and education of their children. See Pierce, 268 U.S. at 535. A3371 operates in the same unconstitutional manner because it prevents parents from choosing a specific form of counseling—SOCE therapy—for their children by muzzling every mental health professional in the state. Just as Nebraska and Oregon “foreclose[ed]   the   opportunity”  of  parents  to  choose  professional  foreign  language  training  or  private  education  for   their children, so too has New Jersey foreclosed the opportunity of its parents—and in particular, Plaintiffs Jack and Jane Doe—to choose professional SOCE therapy for their children. If the former intrusions into parental rights are unconstitutional in the public school context, where the state’s  interest  is  at  its  apex,  then  the  latter  intrusions  are  certainly  impermissible  in  the  context   of private counseling sessions chosen by parents to benefit their children. 5. A3371  Violates  Plaintiffs’  Right  to  Free  Exercise  of  Religion.

A3371 unconstitutionally infringes on the First Amendment rights of Plaintiffs to seek counseling consistent with their sincerely held religious beliefs that change is possible and desirable. Plaintiff John Doe is prohibited from receiving and Plaintiffs Jack and Jane Doe are prohibited from assisting their son with receiving counseling consistent with their sincerely held religious beliefs and from directing the upbringing of their children in accordance with those beliefs. A3371 imposes a substantial burden on the religious beliefs of Plaintiffs because Plaintiffs have no options in seeking SOCE counseling from those licensed professionals who are best able and most experienced at providing such counseling. Instead, Plaintiffs are forced to elevate what the State has determined is an appropriate ideology over their own sincerely held religious beliefs about something as fundamental as their personal identity. This is the very essence of a substantial burden on religion. Sherbet v. Verner, 374 U.S. 398, 404 (1963);

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Washington v. Klem,  497  F.3d  272,  278  (3d  Cir.  2007)  (“the Supreme Court has stated in its Free Exercise Clause jurisprudence that a substantial burden exists   when   a   follower   is   forced   ‘to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on  the  other  hand’”) (quoting Sherbert, U.S. at 404). A3371 also impose a substantial burden on Plaintiffs because of its improper intrusion into their fundamental right to self-determination. Plaintiffs have sincerely held religious beliefs that homosexuality is a harmful and sinful lifestyle and against the fundamental tenets of their faith. Plaintiff parents also have sincerely held religious beliefs that they are to train up our child in the way he should go according to the Holy Bible and the teachings of our church. A3371 infringes upon those religious beliefs. “The   principle   that   government   may   not   enact   laws   that   suppress   religious   belief   or   practice  is   so  well  understood  that  few  violations  are  recorded  in   our  opinions.”   Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,  508  U.S.  520,  523  (1993).  “Although  a  law  targeting   religious beliefs as such is never permissible . . . if the object of the law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.”   Id. at 533 (citations   omitted).   Facial   neutrality   is   not   always   sufficient.   In   some   instances,   “[f]acial   neutrality is not determinative. The Free Exercise Clause . . . extends beyond facial discrimination.   The   Clause   ‘forbids   subtle   departures   from   neutrality,’   .   .   .   and   ‘covert   suppression   of   particular   religious   beliefs.’”   Id. at 534 (quoting Gillette v. United States, 401 U.S. 437, 452 (1971) and Bowen v. Roy,  476  U.S.  693  (1986)).  Moreover,  “[t]he  Free  Exercise   Clause protects against government  hostility  which  is  masked,  as  well  as  overt.”  Id. A3371 displays outright hostility towards religious views of those who seek SOCE counseling to elevate their sincerely held religious beliefs above their sexual attractions. For

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considerations of the motivation   behind   those   enacting   A3371,   this   Court   looks   to   the   “the   historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history. ”   Lukumi, 508 U.S. at 543. Those consideration are found in the APA Report, which the State used as its chief   source   of   evidence   for   enacting   A3371.   The   APA   Report   observed   that   “conservative   Christian   men”   “predominated”   in   the   recent   research   on   SOCE,   APA Report at 45, and that “religious   beliefs   that   consider   homosexuality   sinful   or   unacceptable”   was   a   frequent   factor   leading clients to choose to undergo SOCE. Id. at 46. Indeed, the APA Report found that the conflicts between faith and same-sex sexual attraction  “appear  to  involve  significant  stress  due  to   the  struggle  to  live  life  congruently  with  their  religious  beliefs,”  and  sometimes  leads  to  a  “crisis   of  faith.”  Id. at 46-47. There were also accounts on behalf of the members of the Task Force that religious conceptions of SOCE counseling could not and should not be taken into account when studying its efficacy. Indeed, some of those members seemed to mandate an outright acceptance of homosexuality as a moral good as a precondition to acceptances of the Task Force. These indication clearly evidence an overt hostility towards any religious beliefs to the contrary. Although neutral laws of general applicability receive deferential treatment, Emp’t  Div.,   Dep’t  of  Human  Res.  of  Or.  v.  Smith, 494 U.S. 872, 879  (1990),  “[a]  law  failing  to  satisfy  these   requirements must be justified by a compelling government interest and must be narrowly tailored  to  advance  that  interest.”   Lukumi, 508 U.S. at 531-32. A3371 is not neutral or generally applicable and  “must  undergo  the  most  rigorous  of  scrutiny.” Id. at  546.  Such  a  law  “will survive strict scrutiny only in rare cases.”   Id. (emphasis added). As demonstrated above, A3371 fails strict scrutiny. 6. A3371  Also  Violates  Plaintiffs’  Hybrid  Rights  Under  the  First   Amendment.

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Even laws that are neutral and generally applicable are subject to strict scrutiny when they  implicate  more  than  one  constitutional  right.  “Strict  scrutiny  may  also  apply  when  a  neutral,   generally applicable law incidentally burdens rights protected   by   ‘the   Free   Exercise   Clause   in   conjunction with other constitutional protections, such as freedom of speech and of the press, or the   rights   of   parents   to   direct   the   education   of   their   children.’”   Tenafly   Eruv   Ass’n,   Inc.   v.   Borough of Tenafly, 309 F.3d 144, 165 n.26 (3d Cir. 2002) (quoting Emp’t   Div., 494 U.S. at 881). Here, there are undeniable bases upon which to find hybrid-rights violations. A3371   violates   Plaintiffs’   First   Amendment   rights   by   restricting   the   availability   of   counseling options that   are   consistent   with   Plaintiffs’   sincerely   held   religious   beliefs   and   information that Plaintiffs are constitutionally entitled to receive. Additionally, A3371 infringes on  Plaintiffs  Jack  and  Jane  Doe’s  fundamental   rights   to   direct   the  upbringing  and  education of their  child.  When  combined  with  Plaintiffs’  free  exercise  claims,  these  constitutional  violations   subject A3371 to strict scrutiny under the hybrid rights claim. See  Emp’t  Div., 494 U.S. at 881. As demonstrated above, A3371 cannot withstand such scrutiny, as it is neither supported by a compelling interest nor narrowly tailored. B. Plaintiffs Are Suffering Immediate and Irreparable Injury.

“The   loss   of   First   Amendment   freedoms,   for   even   minimal   periods   of   time,   unquestionably constitutes irreparable   injury.”   Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Swartwelder v. McNeilly, 297 F.3d 228, 241-42 (3d Cir. 2002) (same). A citizen who exercises   the   right   to   free   speech   exercises   a   right   that   “lies   at   the   foundation   of   free   government.”   Schneider v. New Jersey, 308 U.S. 147, 165 (1939). Viewpoint-based infringements on that fundamental liberty, such as A3371 here, therefore unquestionably constitute irreparable harm to Plaintiffs.

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A3371 prohibits Plaintiff John Doe from receiving information and counseling for his unwanted same-sex attractions and gender identity confusion, but it would permit him to receive the opposite form of counseling pushing him towards such feelings and confusion. This unquestionably constitutes viewpoint discrimination in the right to receive information. A3371 silences licensed counselors who wish to engage in a course of counseling with consenting minor clients  that  aligns  with  the  clients’  sincerely  held  religious  beliefs.  Such  a  prohibition  constitutes   a deprivation of those  minors’   First Amendment rights and imposes immediate and irreparable harm on Plaintiffs and their clients. Plaintiffs have lost their First Amendment right to receive medical information. As discussed above, this constitutional right takes on special importance in the patient-client context because patients cut off from professional advice are left to make critical medical decisions on their  own.  “Facts,  after  all,  are  the  beginning  point  for  much  of  the  speech  that  is  most  essential   to advance human  knowledge  and  to  conduct  human  affairs.”   Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2667 (2011). Censoring facts and available options for assisting a client with his unwanted feelings of distress about a particular issue, whether it be unwanted same-sex attractions, behaviors, or identity or some other cause of distress, is particularly troubling in the medical  context  “where  information  can  save  lives.”   Id. at 2664. A3371 prohibits Plaintiffs from receiving the counseling they deem most effective in assisting them to align their sexual attractions, behaviors, and identity with their sincerely held religious beliefs. As such, it is currently causing them immediate and irreparable injury. Plaintiffs therefore satisfy the second prong of the preliminary injunction analysis. C. The Balance of the Equities Favors the Injunction.

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In analyzing the third Winter element,  the  court  must  “balance  the  competing  claims  of   injury and must consider the effect on each party of the granting or withholding of the requested relief.”   Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). Plaintiffs are currently suffering immediate and irreparable injury and loss of constitutional rights and will continue to suffer such injury so long as A3371 prohibits receiving SOCE counseling. An injunction in this case   will   protect   the   very   rights   that   the   Supreme   Court   has   characterized   as   “lying   at   the   foundation  of  free  government  of  free  men.”   Schneider v. New Jersey, 308 U.S. 147, 151 (1939). The loss of such fundamental freedoms outweighs any interest Defendants might have in halting SOCE counseling, especially given the fact that the basis for the ban is merely anecdotal evidence unsubstantiated by any scientific facts. By contrast, the State has suffered no injury. See Déjà vu of Nashville, Inc.  v.  Metro.  Gov’t  of  Nashville  &  Davidson  Cnty., 274 F.3d 377, 400 (6th Cir.   2001)   (if   a   plaintiff   “shows   a   substantial likelihood that the challenged law is unconstitutional,   no   substantial   harm   to   others   can   be   said   to   inhere   in   its   enjoinment”).   The   Third  Circuit  has  recognized  that  while  injunctions  can  impinge  on  a  government’s  interest,  the   balance favors Plaintiffs in these matters because the government remains free to attempt to enact  new  regulations  “that  are  better  tailored  to  serve  [their]  interests.”   Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). The same is true here, and the injunction should issue. D. The Injunction Will Serve the Public Interest.

The public interest will be served by granting the injunction. The protection of constitutional rights is of the highest public interest. Elrod v. Burns, 427 U.S. 347, 373 (1976). Indeed,   “the public   interest   is   best   served   by   eliminating   unconstitutional   restrictions.”   Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). Additionally, there is simply no interest in the protection or enforcement of unconstitutional laws. See ACLU v. Ashcroft, 322

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F.3d   244,   250   n.11   (3d   Cir.   2003).   “[I]t   is   incontrovertible   that   ‘curtailing   constitutionally   protected   speech   will   not   advance   the   public   interest.’”   Stilp v. Contino, 743 F. Supp. 2d 460, 470 (M.D. Penn. 2010) (quoting ACLU v. Reno, 217 F.3d 162, 180 (3d Cir. 2000)). Here, because A3371 is unconstitutional viewpoint discrimination,  violates  Plaintiffs’  free  exercise  and   parental rights, and unconstitutionally chills the rights of Plaintiffs receive counseling consistent with their religious beliefs, there is no public interest in maintaining or enforcing its prohibitions. III. CONCLUSION For  the  foregoing  reasons,  the  Plaintiffs’  Motion  for  a  Preliminary  Injunction  prohibiting   Defendants from enforcing A3371 is hereby GRANTED.

________________________________________ UNITED STATES DISTRICT COURT JUDGE

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on November 1, 2013. Service will be effectuated  by  the  Court’s  electronic  notification   system upon all counsel of record.

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

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