A federal appeals court on Thursday upheld a New Jersey law signed by Gov. Chris Christie that prohibits “ex-gay” sexual orientation conversation therapy in his state for minors.
In a 74-page decision, a three-judge panel on the U.S. Third Circuit Court of Appeals unanimously determined that the law doesn’t violate freedom of speech or religion under the First Amendment as alleged by “ex-gay” therapy practitioners in his state.
“It is not too far a leap in logic to conclude that a minor client might suffer psychological harm if repeatedly told by an authority figure that her sexual orientation—a fundamental aspect of her identity—is an undesirable condition,” the decision states. “Further, if SOCE counseling is ineffective—which, as we have explained, is supported by substantial evidence—it would not be unreasonable for a legislative body to conclude that a minor would blame herself if her counselor’s efforts failed. Given the substantial evidence with which New Jersey was presented, we cannot say that these fears are unreasonable.”
The decision — which affirms a ruling from the district court — was written by U.S. Circuit Judge David Brookman Smith, an appointee of George W. Bush. Joining him in the decision were U.S. Circuit Judge Thomas Vanaskie, an Obama appointee; and U.S. Circuit Judge Dolores Sloviter, a Carter appointee.
The appeals court makes a slight difference from the district court in the way it upholds the law. The district court determined “ex-gay” therapy shouldn’t be considered speech. The appeals court, on the other hand, decided ex-gay therapy should be considered speech, but is still not protected speech under the U.S. Constitution.
Despite the difference in reasoning with regard to speech, the appeals court agreed entirely with the way the lower court determined the law doesn’t violate freedom of religion.
“Plaintiffs fail to explain how A3371’s focus on the professional status of the counselor or the age of the client belies a concealed intention to suppress a particular religious belief,” the decision says.
The measure was signed into law in August 2013 by Christie, who’s considered a 2016 Republican presidential contender, after it was approved the Democratic-controlled State Legislature. The ban is similar to a law passed in California and other measures that have been introduced in state legislatures throughout the country.
“Ex-gay” therapy is widely discredited by major organizations like the American Psychological Association, the American Psychiatric Association and the Pan American Health Organization.
Wayne Besen, executive director of LGBT group Truth Wins Out, said the decision affirms New Jersey can protect its children “from being damaged for life by charlatans who value ideology over their patients’ lives.”
“Just as physicians must abide by the established best practices of medical science, counselors and psychotherapists must always put their patients’ mental health and welfare first, and that does not include using religious bigotry to justify trying to change a person’s sexual orientation,” Besen said.
The lawsuit was filed by the Liberty Counsel, a social conservative legal group, on behalf of two Christian counselors who practice sexual orientation conversion therapy and two out-of-the-mainstream psychological groups that have endorsed it: the National Association for Research & Therapy of Homosexuality, or NARTH, and the American Association of Christian Counselors.
Now that the decision has been handed down, the Liberty Counsel can seek a re-hearing before the full Third Circuit or petition the U.S. Supreme Court to take up the case. After the U.S. Ninth Circuit of Appeals determined in similar case the law in California was constitutional, the organization took no action.
Mat Staver, founder and chair of the Liberty Counsel, told the Washington Blade via email his organization intends to pursue both avenues to overturn the decision regarding the New Jersey law, citing the difference in legal reasoning between the Third and Ninth Circuits on “ex-gay” therapy bans.
While the Ninth Circuit determined that “ex-gay” therapy isn’t speech, the Third Circuit held that “ex-gay” therapy is speech, even though it still upheld the law as constitutional.
“We will seek review at the Third Circuit but clearly before United States Supreme Court we will file a petition before the High Court because this case sets of a conflict among the Courts of Appeals on the level of protection speech in the professional license context should receive,” Staver said.