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No. 13-4429 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT TARA KING, ED.D., et al., Plaintiffs-Appellants, v. CHRISTOPHER J. CHRISTIE, et al., Defendants-Appellees, and GARDEN STATE EQUALITY, Defendant-Intervenor-Appellee Appeal from the United States District Court for the District of New Jersey (Honorable Freda L. Wolfson) OPPOSITION OF INTERVENOR-DEFENDANT-APPELLEE GARDEN STATE EQUALITY TO PLAINTIFFS-APPELLANTS MOTION FOR INJUNCTION PENDING APPEAL SHANNON P. MINTER CHRISTOPHER F. STOLL AMY WHELAN NATIONAL CENTER FOR LESBIAN RIGHTS 870 MARKET STREET, SUITE 370 SAN FRANCISCO, CA 94102 TELEPHONE: (415) 392-6257 FACSIMILE: (415) 392-8442 MICHAEL GLUCK ANDREW BAYER GLUCK WALRATH LLP 428 RIVER VIEW PLAZA TRENTON, NJ 08611 TELEPHONE: (609) 283-3900 FACSIMILE: (609) 278-3901 FRANK HOLOZUBIEC DAVID S. FLUGMAN BRETT J. BROADWATER SHIREEN A. BARDAY ANDREW C. ORR KIRKLAND & ELLIS LLP 601 LEXINGTON AVENUE NEW YORK, NY 10022 TELEPHONE: (212) 446-4800 FACSIMILE: (212) 446-4900 ANDREW J. WELZ KIRKLAND & ELLIS LLP 655 FIFTEENTH STREET, NW WASHINGTON, D.C. 20005 TELEPHONE: (202) 879-5000 FACSIMILE: (202) 879-5200

COUNSEL FOR DEFENDANT-INTERVENOR-APPELLEE GARDEN STATE EQUALITY

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES .....................................................................................ii INTRODUCTION .....................................................................................................1 ARGUMENT.............................................................................................................4 I. APPELLANTS MOTION SHOULD BE DENIED BECAUSE APPELLANTS HAVE NOT SHOWN THAT MOVING FIRST IN THE DISTRICT COURT WOULD HAVE BEEN IMPRACTICABLE. ..............4 APPELLANTS CANNOT SATISFY THE STANDARD FOR GRANTING THE EXTRAORDINARY REMEDY OF AN INJUNCTION PENDING APPEAL. .........................................................................................................5 A. B. APPELLANTS HAVE NOT SHOWN IRREPARABLE HARM. ......6 APPELLANTS HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS. .............................................................9 1. The District Court Correctly Held That A3371 Is Subject To Rational Basis Review And Easily Satisfies That Standard. .....................................................................................9 The Speech Cases On Which Appellants Rely Are Inapposite..................................................................................13 Although Appellants Cannot Show That SOCE Constitutes Inherently Expressive Conduct Triggering Intermediate Scrutiny Under OBrien, A3371 Would Survive Scrutiny Under That Standard.....................................15

II.

2. 3.

C.

APPELLANTS DO NOT SATISFY THE REMAINING INJUNCTION FACTORS. .................................................................17

CONCLUSION........................................................................................................19 CERTIFICATION OF BAR MEMBERSHIP.........................................................21 CERTIFICATE OF SERVICE AND ECF COMPLIANCE...................................22

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TABLE OF AUTHORITIES Page Cases Agency for Intl Dev. v. Alliance for Open Society Intl, Inc., 133 S. Ct. 2321 (2013)........................................................................................14 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ..............................................................................6 Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), affd 532 U.S. 514 (2001)....................................11 Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010)...............................................................................10 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) ..............................................................................13 Conchatta Inc. v. Miller, 458 F.3d 258 (3d Cir. 2006) ...............................................................................17 Conestoga Wood Specialties Corp. v. Secy of U.S. Dept of Health & Human Servs., No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 8, 2013) ......................2, 5 Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524 (3d Cir. 2011), cert. denied, 132 S. Ct. 2773 (2012) ...................12 Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004) .................................................................................5 Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001)............................................................................................15 Mitchell v. Clayton, 995 F.2d 772 (7th Cir. 1993) ................................................................................8 Montanye v. Wissahickon Sch. Dist., 218 F. Appx 126 (3d Cir. 2007) ........................................................................16 Natl Assn for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) ............................................................................10 ii

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New York v. Ferber, 458 U.S. 747 (1982)............................................................................................17 NutraSweet Co. v. Vit-Mar Enter., Inc., 176 F.3d 151 (3d Cir. 1999) .............................................................................2, 5 Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) ..........................................................10, 12, 13, 16 Pickup v. Brown, No. 12-17681, 2012 WL 6869637 (9th Cir. Dec. 21, 2012) ................................6 Pickup v. Brown, No. 2:12CV02497KJMEFB, 2012 WL 6021465 (E.D. Cal. Dec. 4, 2012) .....................................................................................16 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)......................................................................................10, 11 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)............................................................................................14 Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006)..............................................................................................15 Sable Commcns of California, Inc. v. F.C.C., 492 U.S. 115 (1989)............................................................................................12 Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011)........................................................................................14 Spence v. State of Wash., 418 U.S. 405 (1974)............................................................................................16 Texas v. Johnson, 491 U.S. 397 (1989)............................................................................................16 Thomas v. Collins, 323 U.S. 516 (1945)............................................................................................14 Torres v. Davis, 506 F. Appx 98 (3d Cir. 2012), cert. denied, 134 S. Ct. 84 (2013) ................2, 4

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Townley v. Miller, 693 F.3d 1041 (9th Cir. 2012) ..............................................................................5 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994)............................................................................................11 United States v. OBrien, 391 U.S. 367 (1968)................................................................................15, 16, 17 United States v. Wecht, 537 F.3d 222 (3d Cir. 2008) .................................................................................4 Watson v. Maryland, 218 U.S. 173 (1910)............................................................................................17 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)..................................................................................................5 Statutes N.J. Admin. Code, 13:42-10:4................................................................................7 N.J.S.A. 45:1-54......................................................................................1, 9, 13, 18 N.J.S.A. 45:1-55......................................................................................................1 Rules Fed. R. App. P. 8....................................................................................................2, 4

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INTRODUCTION Appellants Motion for Injunction Pending Appeal seeks an order from this Court that would permit state-licensed mental health providers in New Jersey to engage in efforts to change the sexual orientations of minor patients while this appeal is pending. Appellants have failed to establish that they are entitled to such extraordinary relief. Based on a broad consensus of the leading medical and counseling professional associations, the New Jersey Legislature found that sexual orientation change efforts (SOCE) by licensed mental health providers pose a severe risk of harm to patients without any reason to believe that they convey a benefit. The Legislature therefore enacted, and Defendant Governor Christopher Christie signed into law, a measure to protect minors from such harmful practices by mental health providers: New Jersey Assembly Bill Number 3371 (A3371), codified as N.J.S.A. 45:1-54, 45:1-55. The statute bars licensed mental health providers from practicing SOCE on minor patients, based on the Legislatures findings that SOCE poses critical health risks to lesbian, gay, and bisexual people, including . . . social withdrawal, suicidality, [and] substance abuse. N.J.S.A. 45:1-54(b). A3371 took effect on August 19, 2013 and has been law in New Jersey for nearly four months. In this lawsuit challenging the constitutionality of A3371, the District Court for the District of New Jersey (Wolfson, J.) rejected all of Appellants

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constitutional challenges to A3371 in a thorough opinion and summary judgment order. Appellants filed this appeal and now seek the extraordinary remedy of an injunction preventing New Jersey from enforcing A3371 while this appeal is pending. For numerous reasons, Appellants are not entitled to such an injunction. First, Appellants did not comply with the requirement of Federal Rule of Appellate Procedure 8(a) that they seek a temporary injunction in the district court in the first instance unless moving first in the district court would be impracticable. Fed. R. App. P. 8(a)(2)(A)(i). Appellants have not shown that this narrow exemption applies, and Appellants failure to comply with Rule 8(a) requires denial of their motion. Torres v. Davis, 506 F. Appx 98, 102 (3d Cir. 2012), cert. denied, 134 S. Ct. 84 (2013). (See infra Section I.) Second, Appellants motion also fails because Appellants do not meet the particularly high bar for obtaining an injunction pending appeal in this Court, which requires that a movant establish each of the four required factors for injunctive relief, without application of any sliding scale that would essentially excuse a movant from meeting all four requirements. Conestoga Wood Specialties Corp. v. Secy of U.S. Dept of Health & Human Servs., No. 13-1144, 2013 WL 1277419, at *1 (3d Cir. Feb. 8, 2013); see also NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). Appellants request for an injunction fails at the outset because they cannot show that they would suffer any irreparable harm from complying with the statute; indeed, their allegations of harm are deficient in

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multiple respects, including that they lack standing to assert harms on behalf of parties not before the Court, that their proffered evidence does not support their allegations, and that their asserted harms are neither irreparable nor capable of being remedied by this Court. (See infra Section II.A.) Appellants also fail to show a likelihood of success on the merits. Appellants base their request for an injunction pending appeal solely on their claim that the statute violates their rights to free speech under the First Amendment, not based on any other claims included in their complaint.1 As the district court correctly held, A3371 is subject to rational basis review and easily survives under that standard. (See District Court Opinion at 40, 51, Civ. Action No. 13-cv-5038, 2013 WL 5970343 (D.N.J. Nov. 8, 2013) (Exhibit A to Appellants Motion for Injunction Pending Appeal) (hereinafter, Opinion) at 40.) Moreover, even if A3371 were subject to intermediate scrutiny, as argued by Appellants, the statute would satisfy that standard as well. (See infra Section II.B.) Finally, Appellants cannot establish that granting preliminary relief will not result in even greater harm to the nonmoving party and that the public interest favors such relief. (See infra Section II.C.) Because Appellants have not established even one of the necessary factors, much less all of them, the Court should deny their motion.
1

The District Court also granted summary judgment on Appellants claims that A3371 is vague and overbroad and violates the Free Exercise Clause and the hybrid rights doctrine, and concluded that Appellants lack standing to assert claims on behalf of their minor patients and the parents of those patients. See Opinion at 20-22. 3

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ARGUMENT I. APPELLANTS MOTION SHOULD BE DENIED BECAUSE APPELLANTS HAVE NOT SHOWN THAT MOVING FIRST IN THE DISTRICT COURT WOULD HAVE BEEN IMPRACTICABLE. Federal Rule of Appellate Procedure 8(a)(1)(C) requires appellants to move first in the district court before seeking an injunction pending appeal in the Court of Appeals unless the movant can show that moving first in district court would be impracticable, Fed. R. App. P. 8(a)(2)(A)(i). Failure to comply with this rule is a sufficient basis to deny a request for such an injunction. See Torres, 506 F. Appx at 102. Appellants make no showing of impracticability, but instead assert that seeking such relief in the District Court would be incredibly futile, as there is no chance that court would have granted it. Appellants Fed. R. App. P. 8(a)(1) Reply, Doc. No. 003111466073, at 3. That explanation simply reflects Appellants prediction of the likely result of proceeding in the district court, not the impracticality of doing so. Rule 8 does not allow movants to bypass the district court simply because they think they will lose there. Allowing parties to move initially in the Court of Appeals whenever they predict an undesirable result in the district court would eviscerate key benefits of the rule: allowing the district court to make factual determinations, if necessary, and providing district courts an opportunity to make further modifications to their own rulings. United States v. Wecht, 537 F.3d 222, 245 n.44 (3d Cir. 2008). Accordingly, Courts of Appeals

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have allowed first review in the district courts to be avoided only in rare and urgent circumstances.2 No such circumstances are present here. II. APPELLANTS CANNOT SATISFY THE STANDARD FOR GRANTING THE EXTRAORDINARY REMEDY OF AN INJUNCTION PENDING APPEAL. [T]he standard for obtaining a stay pending appeal is essentially the same as that for obtaining a preliminary injunction. Conestoga, 2013 WL 1277419 at *1. In order to obtain this extraordinary remedy never awarded as of right, Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008), Appellants bear the burden of demonstrating each of four requisite elements: (1) a likelihood of success on the merits; (2) that [they] will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). In this Court, injunctions pending appeal are rarely granted, because in [the Third Circuit] the bar is set particularly high. Conestoga, 2013 WL 1277419, at *1. The Third Circuit has rejected the sliding scale standard employed in other courts of appeals, id. at *2, and a movants failure to establish any of the four elements warrants denial of the requested relief. See NutraSweet, 176 F.3d at 153.

See, e.g., Townley v. Miller, 693 F.3d 1041, 1043 (9th Cir. 2012) (Reinhardt, J., concurring) (appellants excused from first requesting stay pending appeal in district court where district court delayed ruling on underlying motion with expressed intent to evade appellate review). 5

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As shown below, Appellants fall far short of establishing any of the four mandatory elements, let alone all of them. A. APPELLANTS HAVE NOT SHOWN IRREPARABLE HARM.

Appellants motion should be denied outright because Appellants have not shown, and cannot show, that they will experience irreparable harm if this Court denies their motion for an injunction pending appeal.3 As an initial matter,

Appellants have not demonstrated any urgency that would warrant the extraordinary relief of an injunction pending appeal. Appellants agreed to have

their preliminary injunction motion in this case converted into a summary judgment motion to be briefed with a cross-motion for summary judgment, and A3371 has now been in effect for nearly four months. Appellants have not shown that any irreparable harm has occurred during this time when A3371 has been in effect. Moreover, Appellants argument that they will be in violation of professional ethical standards for which they could also face disciplinary action if they continue to comply with A3371 while this appeal is pending, Mot. at 4-5, is

Appellants note, see Mot. at 16 n. 3, that the Ninth Circuit entered an injunction pending appeal in a challenge to Californias statutory ban on SOCE. See Pickup v. Brown, No. 12-17681, 2012 WL 6869637 (9th Cir. Dec. 21, 2012). There is nothing relevant to Appellants motion here that this Court can glean from the Ninth Circuits one-sentence order in Pickup because the Ninth Circuit, unlike this Circuit, has continued after Winter to use a sliding scale or serious questions approach to preliminary injunctions and injunctions pending appeal. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). 6

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not credible.

For example, the New Jersey Administrative Codes regulatory

provisions governing psychologists provide that [a] licensee shall meet professional responsibilities to the Board, to other regulatory authorities, and to the public as determined by accepted standards of practice, law or rules. Admin. Code 13:42-10:4 (emphasis added). N.J.

Because New Jerseys own

regulations require licensees to comply with laws, there is no reason to believe that the New Jersey Board of Psychological Examiners, enforcing these regulatory provisions, would subject any licensee to discipline for complying with A3371. Indeed, Appellants have presented no evidence or argument demonstrating that any type of licensed professional would be subject to discipline for doing so. To the extent that Appellants have questions or concerns about the interplay between a New Jersey statute and standards of practice that New Jersey expects licensed professionals to follow, Appellants may seek clarification through state channels. Indeed, licensed professionals often have questions about how their various obligations interact, but such questions do not provide a basis for a federal court to pick one of those obligations and enjoin its enforcement (absent a showing that the provision is likely invalid under federal law). Certainly, Appellants cannot meet their burden of showing irreparable harm simply by raising abstract questions about the interplay of various state requirements as such questions do not demonstrate that they will suffer any harm.

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Appellants also contend that A3371 causes harm to their clients rights to receive SOCE. See Mot. at 18. But Appellants lack Article III standing to advance the claims of their minor clients. See Opinion at 20-22. Moreover, Appellants have offered no evidence that any New Jersey minorlet alone any of their clientshas been injured by A3371. Although Appellants have submitted a declaration from John Doe, a minor who has been receiving SOCE, the declaration of Jane Doe, the mother of John Doe, states that John Doe has been receiving SOCE since May 2011long before A3371s enactmentfrom a Licensed Clinical Social Worker in New York, and that she, her husband, and John Doe are all happy with [their] current therapist. See Jane Doe Decl. 2, 14 (emphasis added). Their New York therapist, of course, is not subject to A3371 when

practicing outside New Jersey. Accordingly, the declarations of John Doe and Jane Doe provide no evidence of harm, much less irreparable harm, likely to occur because of A3371s enforcement during this appeal. Nor have Appellants shown that any other minors are likely to suffer irreparable harm from the enforcement of A3371. Patients generally do not have a constitutional right to receive a particular form of health care. See Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993) ([A] patient does not have a constitutional right to obtain a particular type of treatment or to obtain treatment from a particular provider if the government has reasonably prohibited that type of treatment or provider.). Appellants have not shown that SOCE is the only form of

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treatment from which minors might benefit, or indeed that SOCE provides any benefit at all that could not be obtained through other forms of treatment. Rather, the assertions by Appellants and their declarants that lack of access to SOCE might harm some minors is contrary to the conclusions of the leading mainstream mental health organizations. Those organizations have concluded that other forms of treatment are available to address issues concerning sexual orientation in ways that are respectful of patients religious beliefs, cultural backgrounds, and social situations. See, e.g., N.J.S.A. 45:1-54(c)-(e). Finally, while Appellants note that denial of important constitutional rights can constitute irreparable injury, that fact does not aid Appellants here because, as discussed in the next section, their constitutional claims lack merit. B. APPELLANTS HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS.

Appellants have not shown a likelihood of success on the merits of their claim that A3371 violates their First Amendment free speech rights to free speech. Regardless of whether A3371 is subject to rational basis review, as the District Court correctly concluded, or intermediate scrutiny, as Appellants urge here, A3371 passes constitutional muster. 1. The District Court Correctly Held That A3371 Is Subject To Rational Basis Review And Easily Satisfies That Standard.

The district court correctly rejected Appellants argument that the treatments they wish to administer to minor patients constitute pure speech entitled to the 9

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highest level of First Amendment protection. Indeed, appellate courts uniformly have rejected the argument, urged by Appellants here, that state regulation of talk therapy is subject to heightened First Amendment review simply because the treatment is provided by means of speech. As the Ninth Circuit observed in upholding a law virtually identical to A3371 just three months ago, [m]ost, if not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment. Pickup v. Brown, 728 F.3d 1042, 1055 (9th Cir. 2013); see also Natl Assn for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1054 (9th Cir. 2000) (That psychoanalysts employ speech to treat their clients does not entitle them, or their profession, to special First Amendment protection.); Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658, 667 (1st Cir. 2010) (Simply because speech occurs does not exempt those who practice a profession from state regulation[.]). As the Supreme Court has held, when speech is part of the practice of medicine, [it is] subject to reasonable licensing and regulation by the State. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992)

(plurality opinion) (rejecting First Amendment challenge to state law requiring doctors to provide certain information to patients seeking abortions) (emphasis added).4

While the plurality opinion in Casey was signed by only three Justices, an additional four Justices agreed that the applicable standard for evaluating 10

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There is no merit to Appellants contention that A3371 discriminates based on the content or viewpoint of protected speech because it concerns a particular type of treatment. [L]aws that by their terms distinguish favored speech from disfavored speech on the basis of its ideas or views expressed are content-based[,] in contrast to laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). Here, the Legislature enacted A3371 because it determined that SOCE is ineffective and puts minors at risk of significant harms. The law bans those practices regardless of any views or ideas a licensed counselor might seek to express by engaging in those practices. The statute does not prevent therapists from discussing their views about SOCE, sexual orientation, or any other topic, whether with their minor patients or with anyone else.5 As such, A3371 does not suppress speech based on its viewpoint or message, but instead neutrally regulates professional practices for the important purpose of protecting minors health and safety.

a regulation of speech in the context of the practice of medicine was a reasonableness standard. Id. at 967-68 (Rehnquist, C.J., White, J., Scalia, J., Thomas, J., concurring in part and dissenting in part).
5

Appellants citation to Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), affd 532 U.S. 514 (2001), is misplaced, as that case concerned what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. 532 U.S. at 517. A3771 does not prevent the disclosure or communication of any information. 11

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The district court correctly relied on these established principles in subjecting A3371 to rational basis review. As that court recognized,

[Appellants] argument . . . taken to its logical end . . . would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Opinion at 37. Such a result, the court explained, runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals. Id. Here, as in Pickup, Appellants have not cited any case in which a court has applied strict scrutiny to the regulation of a medical or mental health treatment. Pickup, 728 F.3d at 1056 n.6. Like the California statute at issue in Pickup, A3371 regulates only mental health treatment and therefore is subject to rational basis review. Having found that rational basis review applies, the District Court correctly found A3371 constitutional. [U]nder rational basis review, the challenged [state action] must be upheld if it is rationally related to a legitimate state interest. Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 556 (3d Cir. 2011), cert. denied, 132 S. Ct. 2773 (2012). It is beyond debate that the State has an interest in protecting vulnerable groups. Opinion at 49; see also Pickup, 728 F.3d at 1057. Indeed, the interest in protecting the physical and psychological wellbeing of minors is compelling. Sable Commcns of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989). Here, after extensive hearings, the New Jersey Legislature

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relied upon the medical consensus that (1) SOCE is ineffective and puts patients at risk of serious harms; and (2) homosexuality is not a disease or condition that warrants treatment. See N.J.S.A. 45:1-54 1(a)-(m); accord Opinion at 49-50 (chronicling the legislative findings). The Legislatures express reliance on the conclusions of the nations leading medical and mental health organizations, as well as the other evidence before it, is more than sufficient to satisfy rational basis review. Cf. Pickup, 728 F.3d at 1057 (concluding that the legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using SOCE on persons under 18 based on the overwhelming consensus . . .that SOCE was harmful and ineffective). 2. The Speech Cases On Which Appellants Rely Are Inapposite.

Rather than address the body of case law that properly governs this case namely, decisions involving a states power to regulate medical professionals Appellants invoke judicial decisions about laws restricting protected speech in contexts far removed from state regulations of medical practice.6 For example,

The only case Appellants cite that concerns the regulation of medical treatments is Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), which invalidated a federal policy that punished doctors merely for recommending medical marijuana to their patients. But as the Pickup panel explained, unlike Californias law barring the use of SOCE on minor patients, the policy in Conant raised free speech concerns only because it prohibited speech wholly apart from the provision of actual treatment. 728 F.3d at 1055 (emphasis in original). Like the California law, A3371 does not prohibit speech wholly apart from the provision of actual treatment, and, as such, Conant is equally inapplicable here. 13

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Appellants cite to Agency for Intl Dev. v. Alliance for Open Society Intl, Inc., 133 S. Ct. 2321, 2327 (2013) (AID), a case that involved a law requiring organizations receiving federal funds to combat HIV/AIDS to explicitly agree with the Governments policy to oppose prostitution and sex trafficking. Id. In contrast, A3371 does not require licensed therapists to agree with or to express a particular view regarding SOCE or any other topic; rather, A3371 bars licensed therapists from subjecting minors to the practice of SOCE. Similarly, the law challenged in Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011), prevented the disclosure of information in pharmacy records to companies who wished to use the information for marketing purposes. Id. at 2662. In contrast, as the district court correctly concluded in rejecting Appellants reliance on this and similar cases below, A3371 does not seek to regulate the conveying of information, only the application of a particular therapeutic method. Opinion at 39. Appellants reliance on Thomas v. Collins, 323 U.S. 516 (1945) and other cases involving government suppression of speech in public forums is also inapt. In Thomas, the Supreme Court struck down a Texas statute that had been applied to punish a labor organizer from giving a public speech urging workers to join a union. Id. at 532 (holding that state regulations of labor unions must not trespass upon the domain set apart for free speech and free assembly). Similarly, in Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), the Supreme Court struck down a policy that discriminated against the expression of

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religious viewpoints in university-funded student publications. In contrast, A3371 does not restrict the views licensed counselors may express in the public arenaor indeed, in any forum. Opinion at 26 (Nothing in the plain language of A3371 prevents licensed professionals from voicing their opinions on the appropriateness or efficacy of SOCE, either in public or private settings.).7 3. Although Appellants Cannot Show That SOCE Constitutes Inherently Expressive Conduct Triggering Intermediate Scrutiny Under OBrien, A3371 Would Survive Scrutiny Under That Standard.

Appellants alternative argument that A3371 should be subjected to the intermediate scrutiny analysis established in United States v. OBrien, 391 U.S. 367 (1968), fails as well. For a conduct regulation such as A3371 to trigger First Amendment protection, the conduct must be inherently expressive. It is not enough that the person engaging in the conduct thereby intends to express an idea. Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 66 (2006). In deciding whether particular conduct possesses sufficient

communicative elements to bring the First Amendment into play, courts must ask

Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), similarly has no bearing on this case. In Velazquez, the Supreme Court held that a law barring legal services attorneys from challenging federal welfare laws violated the First Amendment because the law was enacted in order to suppress ideas that the government found threatening to its own interests. Id. at 548-49. A3371 was not enacted to suppress particular viewpoints or ideas but to protect minors from ineffective and unsafe treatments. Cf. Opinion at 63 (holding that there can be no serious doubt that the Legislature enacted A3371 because it found that SOCE poses critical health risks to minors). 15

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whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it. Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. State of Wash., 418 U.S. 405, 41011 (1974)); Montanye v. Wissahickon Sch. Dist., 218 F. Appx 126, 130 (3d Cir. 2007) (same). The practices barred by A3371 do not meet this test and therefore do not trigger intermediate scrutiny. Unlike burning a flag and similar conduct analyzed under intermediate scrutiny, the purpose of providing mental health treatment is not to convey a particular message; nor is provision of mental health treatment likely to be seen as such by the patient or by others. See Opinion at 44 (SOCE counseling is not like other forms of conduct traditionally found to be inherently expressive . . . .); see also Pickup v. Brown, No. 2:12CV02497KJMEFB, 2012 WL 6021465, at *10 (E.D. Cal. Dec. 4, 2012) (collecting cases and holding that [c]ourts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct). The purpose of providing medical or mental health care is to treat patients, not to convey the therapists chosen message. But even if intermediate scrutiny did apply, A3371 still easily passes muster. Under the OBrien test, a regulation is constitutional only if (1) it is within the constitutional power of the Government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First

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Amendment freedoms is no greater than is essential to the furtherance of that interest. Conchatta Inc. v. Miller, 458 F.3d 258, 267 (3d Cir. 2006) (quoting OBrien, 391 U.S. at 377). Here, there can be no question that the state has the power to regulate medicine or that the protection of minors from dangerous medical treatment is important or substantial. See Watson v. Maryland, 218 U.S. 173, 176 (1910); New York v. Ferber, 458 U.S. 747, 756-57 (1982). Moreover, as explained above, the states interest is unrelated to the suppression of expression, and A3371 is narrowly tailored to prohibit only the act of engaging in SOCE with minors by licensed mental health providers. In sum, Appellants offer no reason to think that this Court will reach a different conclusion regarding the merits than the conclusion that the district court reached in its careful decision after full briefing and argument and have not shown that they are likely to prevail on the merits of their free speech claim. C. APPELLANTS DO NOT INJUNCTION FACTORS. SATISFY THE REMAINING

Appellants fare no better in their ability to establish either of the other factors necessary to obtain an injunction pending appeal. First, Appellants cannot show that greater harm will not result to the other parties were the Court to enjoin enforcement of A3371 pending appeal. In asking this Court to issue such an injunctionsuspending A3371s bar on licensed mental health providers in New Jersey from subjecting minors to SOCEAppellants essentially ask this Court to overlook or to discount the findings of the New Jersey Legislature and the leading 17

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associations of healthcare professionals that SOCE can pose critical health risks to lesbian, gay, and bisexual people, including . . . social withdrawal, suicidality, [and] substance abuse, N.J.S.A. 45:1-54(b), and that [t]he potential risks of [SOCE] are great, including depression, anxiety and self-destructive behavior. N.J.S.A. 45:1-54(d)(2). If the law is enjoined pending appeal, gay, lesbian, bisexual, and transgender minors in New Jersey, including members of Garden State Equality or their children, no longer will be protected from the potentially life-threatening harms which these professional associations and the State of New Jersey have determined may result from SOCE. Moreover, the prejudice that State Defendants would suffer from the granting of an injunction is greater than the harm that Appellants allege that they will experience in the absence of an injunction. The State of New Jersey employs many licensed professionals who are subject to the requirements of A3371. Those providers currently have clear instructions that SOCE is not an appropriate or permitted treatment for minors. An injunction prohibiting A3371s enforcement has the potential to create confusion among licensed mental health providers, including many state employees, as to whether they may engage in SOCE with minors. That potential for confusion is far greater than the purported uncertainties that Appellants assert that they will experience if A3371 continues in force. Second, Appellants cannot show that the public interest favors the enjoining of A3371 pending appeal. Appellants have made no showing that can stand up to

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the Legislatures findings, based on a broad medical consensus of all relevant leading professional associations, that providing SOCE poses a severe risk of harm without any reason to expect that it may convey a benefit. All leading medical organizations agree that heterosexuality, homosexuality, and bisexuality are not disorders, and the public interest is powerfully served by enforcement of A3371s prohibition of SOCE directed toward minors. Enjoining enforcement of A3371 would put vulnerable youth at risk of severe harm and is contrary to the public interest. CONCLUSION For the foregoing reasons, Garden State Equality respectfully requests that the Court deny Appellants motion for injunction pending appeal.

Dated: December 9, 2013

Respectfully submitted, /s Frank Holozubiec FRANK HOLOZUBIEC NY BAR NO. 2068278 DAVID S. FLUGMAN BRETT J. BROADWATER SHIREEN A. BARDAY ANDREW C. ORR KIRKLAND & ELLIS LLP 601 LEXINGTON AVENUE NEW YORK, NEW YORK 10022 TELEPHONE: (212) 446-4800 FACSIMILE: (212) 446-4900 ANDREW J. WELZ KIRKLAND & ELLIS LLP 655 FIFTEENTH STREET, NW 19

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WASHINGTON, D.C. 20005 TELEPHONE: (202) 879-5000 FACSIMILE: (202) 879-5200 SHANNON P. MINTER CHRISTOPHER F. STOLL AMY WHELAN NATIONAL CENTER FOR LESBIAN RIGHTS 870 MARKET STREET, SUITE 370 SAN FRANCISCO, CALIFORNIA 94102 TELEPHONE: (415) 392-6257 FACSIMILE: (415) 392-8442 MICHAEL GLUCK ANDREW BAYER GLUCKWALRATH LLP 428 RIVER VIEW PLAZA TRENTON, NEW JERSEY 08611 TELEPHONE: (609) 283-3900 FACSIMILE: (609) 278-3900 ATTORNEYS FOR DEFENDANTINTERVENOR-APPELLEE GARDEN STATE EQUALITY

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CERTIFICATION OF BAR MEMBERSHIP Pursuant to Local Rule 28.3(d) and 46.1(e), the undersigned counsel certifies that he is a member of the bar of this Court. /s Frank Holozubiec FRANK HOLOZUBIEC NY BAR NO. 2068278 KIRKLAND & ELLIS LLP 601 LEXINGTON AVENUE NEW YORK, NEW YORK 10022 TELEPHONE: (212) 446-4800 FACSIMILE: (212) 446-4900

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CERTIFICATE OF SERVICE AND ECF COMPLIANCE I hereby certify that on this 9th day of December, 2013: (1) I caused the Opposition of Intervenor-Defendant-Appellee Garden State Equality to PlaintiffsAppellants Motion for Injunction Pending Appeal (the Brief) to be filed electronically via the Courts CM/ECF system and to be served upon all counsel of record via Notice of Docket Activity through the Courts electronic filing system and that all counsel of record are electronic filing users; and (2) a virus check was performed on the Brief, no viruses were found, and that the antivirus software used was Microsoft Forefront Endpoint Protection Version 2.1.1116.0.

/s Frank Holozubiec FRANK HOLOZUBIEC NY BAR NO. 2068278 KIRKLAND & ELLIS LLP 601 LEXINGTON AVENUE NEW YORK, NEW YORK 10022 TELEPHONE: (212) 446-4800 FACSIMILE: (212) 446-4900

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