PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 14-1941, 14-3495
________________
JOHN DOE, by and through Jack Doe and Jane Doe;
JACK DOE, individually and on behalf of his son, John Doe;
JANE DOE, individually and on behalf of her son, John Doe,
Appellants
v.
GOVERNOR OF THE STATE OF NEW JERSEY
GARDEN STATE EQUALITY,
Intervenor-Defendant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-13-cv-06629)
District Judge: Honorable Freda L. Wolfson
_____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 19, 2015
Before: SMITH, VANASKIE, SLOVITER, Circuit Judges.
(Opinion filed: April 13, 2015)
Mary E. McAlister, Esq.
Daniel J. Schmid, Esq.
Liberty Counsel
P.O. Box 11108
Lynchburg, VA 24506
Anita L. Staver, Esq.
Mathew D. Staver, Esq.
Demetrios K. Stratis, Esq.
Liberty Counsel
P.O. Box 540774
Orlando, FL 32854
Counsel for Appellants
Robert T. Lougy, Esq.
Eric S. Pasternack, Esq.
Susan M. Scott, Esq.
Office of Attorney General of New Jersey
P.O. Box 112
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellee
Shireen A. Barday, Esq.
David S. Flugman, Esq.
Frank M. Holozubiec, Esq.
Andrew C. Orr, Esq.
Kirkland & Ellis
601 Lexington Avenue
New York, NY 10022
2
Andrew J. Welz, Esq.
Kirkland & Ellis
655 15th Street, N.W.
Suite 1200
Washington, DC 20005
Counsel for Intervenor-Defendant
3
________
OPINION OF THE COURT
________
SLOVITER, Circuit Judge.
In King v. Governor of the State of New Jersey, 767
F.3d 216 (3d Cir. 2014), this court rejected a challenge
brought by licensed counselors in the State of New Jersey to
the constitutionality of Assembly Bill A3371 (“A3371”), a
New Jersey statute banning the provision of “sexual
orientation change efforts” (“SOCE”) counseling to minors.
A similar challenge to the constitutionality of the same statute
is before us again, this time by a minor seeking to undergo
SOCE counseling and by his parents. As in King, and for the
reasons that follow, we reject the present challenge and will
affirm the decision of the District Court dismissing
Appellants’ complaint.1
1
The District Court had jurisdiction under 28 U.S.C. §
1331. Pursuant to 28 U.S.C. § 1291, we have jurisdiction
over the final order of the District Court dated July 31, 2014
dismissing Appellants’ complaint. As we recently reaffirmed,
“[w]e review de novo a district court’s grant of a motion to
dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).” Foglia v. Renal Ventures Mgmt., LLC,
754 F.3d 153, 154 n.1 (3d Cir. 2014). We must “accept as
true all allegations in the complaint and all reasonable
inferences that can be drawn from them after construing them
4
I.
We assume the familiarity of the parties with A3371
and our opinion in King.2 In brief, A3371 provides:
in the light most favorable to the nonmovant.” Id. (internal
quotation marks and citation omitted).
Appellants also filed a separate notice of appeal with
respect to the District Court’s March 28, 2014 letter order,
which stayed the matter and administratively terminated
Appellants’ motion for a preliminary injunction. The impetus
behind the March 28, 2014 letter order was a pending petition
for a writ of certiorari seeking Supreme Court review of
Pickup v. Brown, 740 F.3d 1208 (9th Cir.), cert. denied, 134
S. Ct. 2871 (2014), a Ninth Circuit decision addressing issues
similar to those raised in the instant case. Appellees contend
that the District Court’s July 31, 2014 final order dismissing
the complaint renders the March 28, 2014 letter order moot.
We agree. See Hankins v. Temple Univ., 829 F.2d 437, 438
n.1 (3d Cir. 1987) (“Dr. Hankins’ interlocutory appeal from
the denial of her motion for a preliminary injunction was
rendered moot by the issuance of the district court’s final
order on the merits. Therefore, . . . we need not address the
propriety of the district court’s denial of appellant’s motion
for preliminary injunctive relief.”). In light of our affirmance
of the final order of the District Court, we decline to address
the appeal from the March 28, 2014 letter order, and we will
dismiss that appeal as moot.
2
A3371 is now codified at N.J. Stat. Ann. §§ 45:1-54,
55. We continue to refer to the law as A3371 to be consistent
with the nomenclature used in the parties’ briefs and in King.
5
a. A person who is licensed to provide
professional counseling . . . shall not
engage in sexual orientation change
efforts with a person under 18 years of
age.
b. As used in this section, “sexual
orientation change efforts” means the
practice of seeking to change a
person’s sexual orientation, including,
but not limited to, efforts to change
behaviors, gender identity, or gender
expressions, or to reduce or eliminate
sexual or romantic attractions or
feelings toward a person of the same
gender; except that sexual orientation
change efforts shall not include
counseling for a person seeking to
transition from one gender to another,
or counseling that:
(1) provides acceptance, support, and
understanding of a person or facilitates
a person’s coping, social support, and
identity exploration and development,
including sexual orientation-neutral
interventions to prevent or address
unlawful conduct or unsafe sexual
practices; and
(2) does not seek to change sexual
orientation.
6
N.J. Stat. Ann. § 45:1-55. The New Jersey Legislature (“the
Legislature”) provided legislative findings regarding the
potential for harm from SOCE counseling and the lack of
evidence that such counseling is effective. See N.J. Stat. Ann.
§ 45:1-54. For example, the Legislature found that:
The American Psychological
Association convened a Task Force on
Appropriate Therapeutic Responses to
Sexual Orientation. The task force
conducted a systematic review of peer-
reviewed journal literature on sexual
orientation change efforts, and issued a
report in 2009. The task force concluded
that sexual orientation change efforts
can pose critical health risks to lesbian,
gay, and bisexual people, including
confusion, depression, guilt,
helplessness, hopelessness, shame,
social withdrawal, suicidality, substance
abuse, stress, disappointment, self-
blame, decreased self-esteem and
authenticity to others, increased self-
hatred, hostility and blame toward
parents, feelings of anger and betrayal,
loss of friends and potential romantic
partners, problems in sexual and
emotional intimacy, sexual dysfunction,
high-risk sexual behaviors, a feeling of
being dehumanized and untrue to self, a
loss of faith, and a sense of having
wasted time and resources[.]
...
7
The American Academy of Child and
Adolescent Psychiatry in 2012 published
an article in its journal, Journal of the
American Academy of Child and
Adolescent Psychiatry, stating:
“Clinicians should be aware that there is
no evidence that sexual orientation can
be altered through therapy, and that
attempts to do so may be harmful. There
is no empirical evidence adult
homosexuality can be prevented if
gender nonconforming children are
influenced to be more gender
conforming. Indeed, there is no
medically valid basis for attempting to
prevent homosexuality, which is not an
illness.”
Id. The Legislature stated that “New Jersey has a compelling
interest in protecting the physical and psychological well-
being of minors . . . and in protecting its minors against
exposure to serious harms caused by [SOCE].” Id.
In King, the plaintiff counselors challenged A3371 as
unconstitutional under the First Amendment as an
abridgement of their rights to free speech and the free
exercise of religion. 767 F.3d at 222. As to the free speech
claim, we first determined “that speech occurring as part of
SOCE counseling is professional speech,” and restrictions on
professional speech, like those on commercial speech, are
given intermediate scrutiny. Id. at 233-34. Thus, A3371 was
“permissible only if it directly advances the State’s
substantial interest in protecting clients from ineffective or
8
harmful professional services, and is not more extensive than
necessary to serve that interest.” Id. at 235 (internal quotation
marks and citation omitted). We rejected the plaintiff
counselors’ arguments that A3371 constituted content or
viewpoint discrimination and was, as a result, subject to strict
scrutiny. Id. at 236-37.
We then determined that A3371 survived intermediate
scrutiny and was “a permissible prohibition of professional
speech.” Id. at 240. This was based on our finding that the
State has an “unquestionably substantial” interest in
protecting citizens from harmful professional practices, and
that this interest is even stronger where the citizens protected
are minors, “a population that is especially vulnerable to such
practices.” Id. at 237-38. We found that the State met its
burden of demonstrating that SOCE counseling posed harms
that were real, not merely speculative. Id. at 238.
Specifically, we pointed to the legislative record, which
revealed that various reputable scientific and professional
organizations have publicly condemned the practice of SOCE
counseling based on its potential to inflict harm and the lack
of “credible evidence that SOCE counseling is effective.” Id.
Finally, in evaluating whether A3371 was more extensive
than necessary to further the State’s interest, we rejected the
plaintiff counselors’ argument that requiring “that minor
clients give their informed consent before undergoing SOCE
counseling” would serve the State’s objectives just as well.
Id. at 239-40. We noted that minors are “especially
vulnerable” and that they might “feel pressured to receive
SOCE counseling by their families and their communities.”
Id. at 240.
9
As to the plaintiff counselors’ free exercise claim, we
concluded that “A3371 is neutral and generally applicable,
and therefore triggers only rational basis review.” Id. at 242-
43. We rejected the argument that the “individualized
exemptions” for counseling contained in the statute
“demonstrate that A3371 covertly targets religiously
motivated conduct.” Id. at 242. Because we had already
ruled that the statute passed intermediate scrutiny, we
necessarily concluded that it survived the lower rational basis
review. Id. at 243.3
II.
The instant complaint was filed against the Governor
of the State of New Jersey on November 1, 2013—several
months before our ruling in King. John Doe, a minor, and his
parents, Jack and Jane Doe, (collectively “Appellants” or “the
Does”), who are represented by the same attorneys who
represented the plaintiff counselors in King, alleged in their
complaint that A3371 violated their First Amendment right to
receive information, their First Amendment right to the free
exercise of religion, and their fundamental parental rights. In
conjunction with the complaint, Appellants also filed a
motion for a preliminary injunction seeking to prevent the
enforcement of A3371 during the pendency of the suit.
3
The complaint also alleged other constitutional
claims on behalf of the counselors’ minor clients, but we held
that the plaintiff counselors lacked standing to assert such
claims. King, 767 F.3d at 244.
10
At the time the complaint was filed, John Doe was a
fifteen-year-old boy who claimed that he has struggled with
“unwanted same-sex attractions” and with “confusion about
[his] gender identity.” App. at 221. These struggles caused
suicidal thoughts, self-hatred, anxiety, and panic attacks. He
and his parents aver that they all have “sincerely-held
religious beliefs” that homosexuality is wrong and sinful.
App. at 222, 237. John Doe began SOCE counseling in May
of 2011, which he believes has helped him in that he has
stopped trying to be feminine, has reduced his same-sex
attractions, has an improved relationship with his father, and
has rid himself of his feelings of hopelessness or thoughts of
suicide. John Doe and his parents wish to continue his SOCE
counseling.
On December 6, 2013, Appellees—the Governor of
the State of New Jersey and Garden State Equity, who
intervened under the permissive intervention rules—opposed
the preliminary injunction and moved to dismiss the
complaint. The District Court administratively terminated the
motion for the preliminary injunction on March 28, 2014, and
on July 31, 2014, a few months prior to our decision in King,
the District Court issued a decision and order dismissing
Appellants’ complaint. See Doe v. Christie, 33 F. Supp. 3d
518 (D.N.J. 2014).
The District Court ruled that Appellants’ First
Amendment speech claims fail because SOCE counseling is
conduct not speech and A3371 easily surpassed rational basis
review. Id. at 524-27.4 As to Appellants’ free exercise
4
The District Court had ruled similarly in King, and
we rejected the conclusion that SOCE counseling was
11
claims, the Court, explaining that the analysis was the same
whether the challenger was the client or the counselor,
dismissed the Does’ free exercise claim because A3371 was
neutral and generally applicable. Id. at 527-28. Finally, the
District Court also dismissed Appellants’ claims that were
premised on their fundamental parental rights. The Court
explained that the constitutional right of parents to direct the
upbringing of their children is “not without qualification.” Id.
at 528. The Court concluded that the case-law did not
support Appellants’ “argument that parents have an
unqualified right to select medical procedures, e.g., mental
health treatment practices, for their children.” Id. at 530.
Appellants filed a timely appeal.
III.
For the reasons stated in our recent decision in King,
we will affirm the dismissal of the free exercise and right to
receive information claims. Appellants here raise the same
challenges to A3371 as were raised by the plaintiff counselors
in King, and after extensively considering these arguments,
we upheld the constitutionality of A3371. See 767 F.3d at
224-40.
The only “new” argument raised by Appellants with
respect to these claims is that A3371 burdens, not their right
to speak, but their right to receive information. Specifically,
conduct, not speech. Nonetheless, we ultimately affirmed the
District Court’s dismissal of the free speech claim, albeit for
other reasons—namely, that A3371 survived intermediate
scrutiny that we apply to professional speech restrictions. See
King, 767 F.3d at 224-40.
12
they argue that “[t]he First Amendment protects the right to
receive information as a corollary of the right to speak” and
that “A3371 prevents . . . minors . . . from receiving the
viewpoint of SOCE counseling from a licensed professional,
which may be beneficial to those who seek to reduce or
eliminate their unwanted [same-sex attractions].” Appellants’
Br. at 14-15.5
Appellants are correct that the First Amendment
protects both the speaker and the recipient of information.
See Va. State Bd. of Pharm. v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 756-57 (1976). However, the
cases interpreting the First Amendment do not contemplate
that some speech may be restricted as to the speaker but not
to the listener. The listener’s right to receive information is
reciprocal to the speaker’s right to speak. See id.; Bd. of
Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457
U.S. 853, 867 (1982) (“[T]he right to receive ideas follows
ineluctably from the sender’s First Amendment right to send
them.”). As we concluded in King, A3371 does not violate
the counselors’ right to speak, see 767 F.3d at 240, and, as a
5
We stated in King that A3371 did not prevent the
plaintiff counselors from expressing the viewpoint that same-
sex attractions are capable of being reduced or eliminated “in
the form of their personal opinion, to anyone they please,
including their minor clients. What A3371 prevents Plaintiffs
from doing is expressing this viewpoint in a very specific
way—by actually rendering the professional services.” 767
F.3d at 237. Likewise, our ruling here today will not prevent
Appellants from obtaining information about SOCE despite
their inability to receive SOCE counseling from licensed
counselors in New Jersey.
13
result, it does not violate Appellants’ right to receive
information.
Appellants argue that if we were to conclude that their
rights to receive information are not violated by A3371, we
would be “turn[ing] the First Amendment analysis on its
head” because it would mean “that Appellants have no right
to receive information which the State has banned.”
Appellants’ Reply Br. at 12. But this argument is
fundamentally flawed. We are not suggesting that Appellants
do not have the right to receive the information for the reason
that the legislature enacted A3371, which bars the provision
of SOCE counseling to minors; rather, Appellants’ right to
receive the information is not violated because we already
upheld A3371, which bans the provision of SOCE counseling
to minors, against a constitutional challenge in King.
IV.
There is one additional claim raised in this case that
was not at issue in King. Here, Appellants claim that A3371
violates their fundamental right to direct the upbringing of
their child. There is no dispute that “the Due Process Clause
of the Fourteenth Amendment protects the fundamental right
of parents to make decisions concerning the care, custody,
and control of their children.” Troxel v. Granville, 530 U.S.
57, 66 (2000). But this right is not without limits, and the
State may “[a]ct[] to guard the general interest in [a] youth’s
well being.” See Prince v. Massachusetts, 321 U.S. 158, 166
(1944). “[A] state is not without constitutional control over
parental discretion in dealing with children when their
physical or mental health is jeopardized.” Parham v. J.R.,
442 U.S. 584, 603 (1979). While the case law supports
14
Appellants’ argument that parents have decision-making
authority with regard to the provision of medical care for their
children, see e.g., id., the case law does not support the
extension of this right to a right of parents to demand that the
State make available a particular form of treatment.
We agree with the reasoning of the Ninth Circuit in
Pickup v. Brown, a case addressing a challenge to California’s
similar statute prohibiting SOCE counseling to minors. In
Pickup, the Ninth Circuit referred to decisions holding that
patients do not have the right to choose specific treatments for
themselves and stated, “it would be odd if parents had a
substantive due process right to choose specific treatments for
their children—treatments that reasonably have been deemed
harmful by the state—but not for themselves.” 740 F.3d at
1235-36. The court concluded, “the fundamental rights of
parents do not include the right to choose a specific type of
provider for a specific medical or mental health treatment that
the state has reasonably deemed harmful.” Id. at 1236. We
agree with this reasoning, and therefore, we will affirm the
District Court’s dismissal of Appellants’ parental rights
claims.
V.
For these reasons, we will affirm the July 31, 2014
decision and order of the District Court dismissing
Appellants’ complaint in its entirety.
15