US: NJ Conversion Therapy Ban Challenge Revived

Usually the US Supreme Court’s refusal to review a lower court decision puts an end to the case, but Liberty Counsel, a right-wing religious group that represents psychologists in New Jersey who want to provide conversion therapy to “change” minors from gay to straight, has seized on an opening created by a high court decision last June to revive their constitutional claims. On February 11, the organization petitioned the Supreme Court to effectively reopen the case.

Then-Governor Chris Christie signed the measure into law on August 19, 2013. Liberty Counsel promptly filed suit on behalf of two psychologists and their patients, as well as the National Association for Research and Therapy of Homosexuality (NARTH), and the American Association of Christian Counselors, claiming that the measure violated the constitutional rights of plaintiffs. The work of NARTH and similar organizations has been widely and thoroughly discredited by leading mental health professional groups.

In the original case, District Judge Freda L. Wolfson granted the state’s motion to dismiss Liberty Counsel’s case, finding no constitutional violation. The plaintiffs fared no better before the Third Circuit Court of Appeals, based in Philadelphia, which upheld Wolfson’s ruling in September 2014.

Wolfson found the measure to be a regulation of professional conduct, only incidentally affecting speech. As such, she held that the challenge should be rejected as long as the Legislature had a rational basis for enacting the law. Looking to the legislative history on the law’s enactment, she found that the evidence about the inefficacy and harm of such therapy was sufficient to meet the test.

On appeal, the three-judge panel disagreed with Wolfson to the extent of finding that the ban as applied to “talk therapy” is a content-based regulation of speech, not just a regulation of conduct with an incidental effect on speech. But the appeals court unanimously rejected the plaintiffs’ argument that the statute should be subject to strict scrutiny, under which it would be presumed unconstitutional unless New Jersey could prove that it was narrowly tailored to achieve a compelling state interest.

Instead, wrote Circuit Judge D. Brooks Smith for the panel, the speech involved in providing conversion therapy is “professional speech,” subject to state regulation. Read more via Gay City News