November 01, 2014

Statute Prohibiting Counseling on Minors' Sexual Orientation Was Constitutional

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

King v. State, 2014 WL 4455009 (3rd Cir.).

State statute prohibiting counseling efforts aimed at changing minors’ sexual orientation did not violate free speech. While the statute did regulate speech, the legislature had a substantial justification based on the consensus of the medical community that the counseling could be harmful and the law was tailored to only professional speech, surviving intermediate scrutiny. 

In 2013, the New Jersey legislature passed a statute that prohibited licensed counselors from engaging in efforts to advise minor clients under age 18 regarding changing their sexual orientation (referred to as ‘sexual orientation change efforts’ (SOCE)). While the law did not contain specific penalties, a counselor could face licensing board action for violating the statute. 

Plaintiffs, a group of individuals and organizations that provide counseling to clients seeking to reduce or eliminate same-sex attractions, brought suit against the governor and other executives in New Jersey’s federal district court. They alleged the prohibition infringed on their First and Fourteenth Amendment rights to free speech and exercise of religion. 

The plaintiffs asserted the counseling in question involved ‘talk therapy’ exclusively. This might involve exploring underlying motivations for attraction, attempting to encourage opposite sex attraction, and discussing religious content. 

The district court held the statute regulated conduct, not speech, and dismissed the plaintiffs’ free speech claim. The district court held that, regarding free exercise, the law generally applied and had a rational basis of protecting minors’ well-being. It therefore dismissed the free exercise claim. The plaintiffs appealed. 

The Court of Appeals for the Third Circuit affirmed. The Third Circuit first considered the free speech claim. Contrary to the district court the court found the communication in the SOCE counseling did involve constitutional speech. However, since the SOCE in question involved professional licensed counseling services, the degree of constitutional protection afforded was diminished. The court concluded the appropriate standard was intermediate scrutiny. The state would need to have a substantial interest in infringing on the speech, and that intrusion would need to be appropriately tailored. 

The court examined precedent around the ability of states to regulate professional practices. It noted that states have been given latitude to regulate speech is in the course of delivering health care services. These limitations on speech were appropriate when they were intended to protect individuals from harm. By virtue of acting in a professional capacity, clients should be able to trust that their counselors are acting within recognized medical and psychological norms. 

The court concluded that the SOCE speech was professional in nature and did not deserve full free speech protections. The statute did not prohibit counselors from discussing homosexual behaviors or change efforts publicly, rather it prohibited them from attempting to change minors’ sexual orientation in private or group counseling. 

Next the court examined the strength of the interest the state sought to advance. The court summarized the legislative history of the statute, noting the legislature had examined research showing a professional consensus that SOCE were ineffective and could be psychologically harmful. Further, the legislature had relied on the policy statements of a number of reputable national medical and psychological organizations that warned of ‘serious’ risks of SOCE, including depression, anxiety, and self-destructive and suicidal behavior.

The court noted the interest was more substantial since it sought to protect minors, who were more vulnerable to the harms of SOCE. The court therefore found the state had a substantial interest it sought to advance in enacting the legislation. 

Next the court examined whether the statute was sufficiently tailored to protect the interest. Plaintiffs argued that the aims of the legislation could be accomplished less intrusively by obtaining informed consent from minors before proceeding with SOCE. 

The court did not find this persuasive since youth especially might feel pressured by family or community to consent despite opposing the counseling. The court concluded the statute was a permissibly tailored regulation of speech. 

The plaintiffs also argued that prohibiting SOCE violated their freedom of religion. The court analyzed whether the law targeted religiously motivated conduct on its face or as applied. First, the statute made no reference to any religion, and was thus neutral on its face. Second, the court concluded the plaintiffs failed to explain how the statute, through its focus on professional counseling, sought to suppress a particular religious belief. 

The court held the statute was neutral, applied generally, and triggered only rational basis review. For the same reasons the statute survived intermediate scrutiny regarding speech, the law was justified under rational basis.