December 9, 2014 at 1:19 am EST | by Chris Johnson
Supreme Court asked to review N.J. ‘ex-gay’ therapy ban
Mat Staver, Liberty Council, gay news, Washington Blade

Mat Staver, chair of the Liberty Counsel, is calling on the Supreme Court to review New Jersey’s ban on “ex-gay” therapy. (Photo by Gage Skidmore).

Marriage isn’t the only the LGBT issue the U.S. Supreme Court may consider in the immediate future: An anti-gay group has petitioned justices to review a decision upholding New Jersey’s ban on “ex-gay” therapy for minors.

In a 38-page petition, Mat Staver, president of the Liberty Counsel, and other attorneys urge justices to review a decision from the U.S. Third Circuit Court of Appeals finding New Jersey’s prohibition of sexual orientation conversion therapy passes constitutional muster.

The petition was filed Dec. 3, according to the Supreme Court’s website, but obtained Monday by the Washington Blade. A response to the filing is due Jan. 5.

Staver, who’s been challenging the law in court, says justices should review the decision because federal appeals courts that have reviewed state bans on “ex-gay” have created a circuit split by upholding them as constitutional through different reasoning.

“The federal circuits are in conflict on the same law regarding whether counselor-client or doctor-patient counsel is speech subject to First Amendment protection,” Staver writes. “The resolution of the First Amendment status of speech or communication between a counselor and client or a doctor and patient is an important question that should be resolved by this Court.”

The questions presented before the Supreme Court are whether a law banning “ex-gay” therapy implicates the right to free speech under the First Amendment; whether the speech that constitutes such therapy can be subject to regulation; and whether an advocacy organization supporting a law challenged in court satisfies Article III requirements for standing to defend the law. Garden State Equality, a New Jersey statewide LGBT group, is a named defendant in the case alongside the State of New Jersey.

In addition to the Third Circuit, the U.S. Ninth Circuit Court of Appeals has upheld the ban on “ex-gay” therapy to minors in California as constitutional. But the courts differ on determining whether sexual orientation conversation therapy is speech. The Ninth Circuit determined that “ex-gay” therapy isn’t speech, but the Third Circuit, even though it upheld the ban on such practices, determined “ex-gay” therapy is speech.

It remains to be seen whether the court will grant a writ of certiorari to review the New Jersey case, known as King v. New Jersey. In June, the Supreme Court refused to hear litigation challenging the ban on “ex-gay” therapy in California.

Sexual therapy conversion therapy is widely discredited by major organizations like the American Psychological Association, the American Psychiatric Association and the Pan American Health Organization.

Last week, the D.C. City Council approved a similar ban on “ex-gay” therapy by unanimous vote. D.C. Mayor Vincent Gray has said he will sign the measure into law before leaving office, although opponents of the bill say they’ll continue their fight.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

1 Comment
  • Thank you, Chris, for your great reporting. I think this is one battle that is only in its beginning stages. If there's any doubt as to the harm, Bryan Christopher's "ex-gay" survivor memoir, "Hiding from Myself" brilliantly illuminates the toll this "treatment" can take on the human soul. Should religious snake oil be protected? Even when it's shown to be harmful?

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