The 3rd U.S. District Court of Appeals in Philadelphia has upheld the constitutionality of legislation by the New Jersey Legislature that bans the use of conversion therapy on minors.
However, the reasoning the court used in upholding the new law may present an avenue for a successful appeal to the U.S. Supreme Court, since it differs from the thinking the 9th District Circuit Court of Appeals in San Francisco employed when it upheld the constitutionality of a similar bill enacted by the California Legislature in 2012.
In its ruling, the 3rd District took exception to a lower court’s decision that characterized verbal communications during therapy sessions as “conduct,” not “speech” protected by the First Amendment.
U.S. District Court Judge Freda Wolfson, who had earlier upheld the New Jersey law, used the legal reasoning advanced by the decision in the California case that held the law regulates conduct, not speech.
The appeals court said New Jersey may regulate speech by licensed professionals to protect citizens from harm, as this statute does. But it held that communications that occurs during counseling is “speech” for purposes of the First Amendment. It added that speech in the practice of a licensed profession, particularly involving physical or mental health, is not fully protected.
“Prohibitions of professional speech are constitutional only if they directly advance the state’s interest in protecting its citizens from harmful or ineffective services,” the court said. Demetrios Stratis, a plaintiff’s attorney in the New Jersey case, said the rulings’ contrast could prove significant.
“Those differences could be a reason for the Supreme Court to take this up,” he told The Associated Press.
Mat Staver, the founder of Liberty Counsel, who brought the action against the New Jersey law, said, “The laws banning counseling in this area are simply unconstitutional violations of free speech. We will not stop fighting until these laws are relegated to the dustbins of history.”
The organization is asking the U.S. Supreme Court to hear the case. The Supreme Court earlier turned down Liberty Counsel’s plea for a hearing in the California case. New Jersey and California are the only states to outlaw the use of conversion therapy on those younger than 18. Many other states have considered such laws, but none have enacted similar bans.
Other plaintiffs in the New Jersey case were the National Association for Research and Therapy of Homosexuality and the American Association of Christian Counselors.