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May 08, 2015 Practice Points

"Pray the Gay Away" Stays Illegal in New Jersey

By Nick Kacprowski

On Monday, May 4, 2015, the U.S. Supreme Court declined certiorari in the Third Circuit case King v. Governor of the State of New Jersey, 767 F.3d 216 (9th Cir. 2014), cert. denied, No. 14-672 (May 4, 2015). The case involved a challenge to a New Jersey Statute enacted in 2013 that prohibited licensed counselors from engaging in therapies intended to change a person's sexual orientation for patients under the age of 18 years old.

The appellants and plaintiffs were licensed counselors and founders of Christian counseling centers that provide counseling "from a Biblical perspective" to attempt the reduction or elimination of their client's same-sex sexual attractions. The Third Circuit had rejected the plaintiffs' challenge to the statute, finding that it was a permissible regulation on the plaintiffs' free practice of professional speech and that there was no violation of the plaintiffs' free exercise of religion. The Third Circuit had also held that the plaintiffs lacked standing to assert any constitutional claims on behalf of their minor clients.

The Third Circuit now joins the Ninth Circuit in federal appellate courts that have rejected constitutional challenges to anti-gay conversion therapy laws. The Ninth Circuit upheld a similar law in its 2013 decision in Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) amended and superseded on denial of hearing en banc by 740 F.3d 1208 (9th Cir. 2013), cert. denied, 134 S.Ct. 2871. The Supreme Court rejected certiorari in the Pickup case in 2014. The Third Circuit's reasoning in the King case differed from the Ninth Circuit's in the Pickup case. The Ninth Circuit found that the counselling activity at issue was not speech with First Amendment protection and prohibitions subject to any level of scrutiny, but rather conduct, with prohibitions subject only to a rational basis review. The Third Circuit disagreed with this analysis and held that the counselling was protected speech, but as professional speech, a prohibition was subject to intermediate scrutiny, which the law at issue survived.

Keywords: LGBT, New Jersey, anti-gay conversion therapy, pray the gay away, litigation

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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