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d

14-672
IN THE

Supreme Court of the United States


TARA KING, ED. D. individually and on behalf of her patients;
RONALD NEWMAN, PH. D., individually and on behalf of his
patients; NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF
HOMOSEXUALITY, (NARTH); AMERICAN ASSOCIATION OF CHRISTIAN
COUNSELORS,
Petitioners,
(Caption continued on inside cover)
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION

SHANNON P. MINTER
CHRISTOPHER F. STOLL
DAVID C. CODELL
NATIONAL CENTER FOR
LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, California 94102
(415) 392-6257
MICHAEL GLUCK
ANDREW BAYER
GLUCKWALRATH LLP
428 River View Plaza
Trenton, New Jersey 08611
(609) 278-3900

DAVID S. FLUGMAN
Counsel of Record
FRANK M. HOLOZUBIEC
ANDREW C. ORR
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
david.flugman@kirkland.com

Attorneys for Respondent Garden State Equality

v.
GOVERNOR OF THE STATE OF NEW JERSEY; ERIC T. KANEFSKY,
DIRECTOR OF THE NEW JERSEY DEPARTMENT OF LAW AND PUBLIC
SAFETY: DIVISION OF CONSUMER AFFAIRS, in his official capacity;
MILAGROS COLLAZO, EXECUTIVE DIRECTOR OF THE NEW JERSEY
BOARD OF MARRIAGE AND FAMILY THERAPY EXAMINERS, in her
official capacity; J. MICHAEL WALKER, EXECUTIVE DIRECTOR OF
THE N EW J ERSEY B OARD OF P SYCHOLOGICAL E XAMINERS , in his
official capacity; PAUL JORDAN, PRESIDENT OF THE NEW JERSEY
STATE BOARD OF MEDICAL EXAMINERS, in his official capacity;
and GARDEN STATE EQUALITY,
Respondents.

i
TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . .

PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CORPORATE DISCLOSURE
STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PRELIMINARY STATEMENT . . . . . . . . . . . . . .

COUNTERSTATEMENT OF THE CASE . . .

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . .

B. Proceedings Below. . . . . . . . . . . . . . . . . . .

10

REASONS FOR DENYING


THE PETITION . . . . . . . . . . . . . . . . . . . . . . . . . .

13

I.

THERE IS NO CIRCUIT
CONFLICT REGARDING THE
CONSTITUTIONALITY OF
STATUTES SUCH AS A3371
WHICH PROHIBIT LICENSED
MENTAL HEALTH PROFESSIONALS
FROM ENGAGING IN SEXUAL
ORIENTATION CHANGE EFFORTS
WITH MINORS . . . . . . . . . . . . . . . . . . . . . .
13

II. THERE IS NO CIRCUIT CONFLICT


ON ANY OTHER ISSUE THAT
WARRANTS THIS COURTS
REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

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ii
PAGE

III. THE THIRD CIRCUITS DECISION


IS CONSISTENT WITH THIS
COURTS PRECEDENTS . . . . . . . . . . .

18

IV. THIS IS NOT AN APPROPRIATE


CASE FOR DEMARCATING
ARTICLE III STANDING
REQUIREMENTS FOR
INTERVENOR-DEFENDANTS . . . .

20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23

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iii

Cases:

TABLE OF AUTHORITIES

PAGE(S)

Black v. Cutter Labs.,


351 U.S. 292 (1956) . . . . . . . . . . . . . . . . . . . . . .

13

California v. Rooney,
483 U.S. 307 (1987) . . . . . . . . . . . . . . . . . . . . . .

13

Chevron, U.S.A., Inc. v. Nat. Res.


Def. Council, Inc.,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . 14, 15
Conant v. Walters,
309 F.3d 629 (9th Cir. 2002) . . . . . . . . . . . . 16, 17
Dept of Commerce v. U.S. House of Reps.,
525 U.S. 316 (1999) . . . . . . . . . . . . . . . . . . . . . .

22

Diamond v. Charles,
476 U.S. 54 (1986) . . . . . . . . . . . . . . . . . . . . . . .

22

Dir., Office of Workers Comp. Programs,


U.S. Dept of Labor v. Perini N.
River Assocs.,
459 U.S. 297 (1983) . . . . . . . . . . . . . . . . . . . . . .

22

Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) . . . . . . . . . . . . . . . . . . .

22

Jennings v. Stephens,
135 S. Ct. 793 (2015) . . . . . . . . . . . . . . . . . . . . 13, 15
King v. Christie,
981 F. Supp. 2d 296 (D.N.J. 2013)
affd sub nom. King v. Governor of
New Jersey, 767 F.3d 216
(3d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12

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iv
PAGE(S)

King v. Governor of New Jersey,


767 F.3d 216 (3d Cir. 2014) . . . . . . . . . . . . passim
Legal Servs. Corp. v. Velazquez,
531 U.S. 533 (2001) . . . . . . . . . . . . . . . . . . . . . . 18, 19
Lowe v. S.E.C.,
472 U.S. 181 (1985) . . . . . . . . . . . . . . . . . . . . . .

15

Mausolf v. Babbitt,
85 F.3d 1295 (8th Cir. 1996) . . . . . . . . . . . .

21

McConnell v. Fed. Election Commn,


540 U.S. 93 (2003)
overruled on other grounds by Citizens
United v. Fed. Election Commn,
558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . .

21

Moore-King v. Cnty. of Chesterfield, Va.,


708 F.3d 560 (4th Cir. 2013) . . . . . . . . . . . .

15

Natl Assn for Advancement of


Psychoanalysis v. Cal. Bd. of Psychology,
228 F.3d 1043 (9th Cir. 2000). . . . . . . . . . . 17, 18
Pickup v. Brown,
740 F.3d 1208 (9th Cir.), cert. denied,
134 S. Ct. 2871, cert denied sub. nom
Welch v. Brown, 134 S. Ct. 2881
(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13, 17
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . 3, 16
Riley v. Natl Fedn of the Blind of N.C., Inc.,
487 U.S. 781 (1988) . . . . . . . . . . . . . . . . . . 18, 19, 20

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v
PAGE(S)

S. Christian Leadership Conference v. Kelley,


747 F.2d 777 (D.C. Cir. 1984) . . . . . . . . . . .
21
Vill. of Arlington Heights v. Metro.
Housing Dev. Corp.,
429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . . . .

22

Watson v. Maryland,
218 U.S. 173 (1910) . . . . . . . . . . . . . . . . . . . . . .

Wollschlaeger v. Governor of Fla.,


760 F.3d 1195 (11th Cir. 2014) . . . . . . . . . 14, 16
Statutes
N.J. S TAT . A NN . 45:1. . . . . . . . . . . . . . . . . . . . . . passim
N.J. S TAT . A NN . 45:14B . . . . . . . . . . . . . . . . . . . .

N.J. S TAT . A NN . 45:14BB . . . . . . . . . . . . . . . . . .

10

N.J. S TAT . A NN . 45:15BB . . . . . . . . . . . . . . . . . .

N.J. S TAT . A NN . 45:8B . . . . . . . . . . . . . . . . . . . . .

N.J. S TAT . A NN . 45:9 . . . . . . . . . . . . . . . . . . . . . . .

Omnibus Consolidated Rescissions and


Appropriations Act of 1996,
Pub. L. No. 104-134, 504(a)(16),
110 Stat. 132153 . . . . . . . . . . . . . . . . . . . . . . . .

18

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vi
PAGE(S)

Other Authorities
American Psychological Association Task
Force on Appropriate Therapeutic
Responses to Sexual Orientation,
R EPORT OF THE A MERICAN
P SYCHOLOGICAL A SSOCIATION
T ASK F ORCE ON A PPROPRIATE
T HERAPEUTIC R ESPONSES TO
S EXUAL O RIENTATION (2009) . . . . . . . . . . .

Rules
Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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QUESTIONS PRESENTED
1. Whether a state law prohibiting statelicensed mental health professionals from
engaging in the practice of sexual orientation
change efforts with minors under the age of
eighteen violates the freedom of speech
guaranteed by the First Amendment to the United
States Constitution as incorporated against the
states by the Fourteenth Amendment.
2. Where plaintiffs unsuccessfully challenge a
state statute in federal district court, and then
seek appellate review in a federal court of appeals
and certiorari review in this Court, and where
state official defendants present evidence and/or
arguments in defense of the statute at each stage
of the federal judicial proceedings, whether
federal courts must nevertheless determine that
intervenor-defendants independently demonstrate
Article III standing in order for the intervenordefendants to present argument and evidence in
support of the state statute.
PARTIES
Petitioners are Tara King, Ph.D., Ronald
Newman, Ph.D., the National Association for
Research and Therapy of Homosexuality, and the
American Association of Christian Counselors.
Respondents are the Governor of the State of
New Jersey; Eric T. Kanefsky, Director of the New
Jersey Department of Law and Public Safety:
Division of Consumer Affairs; Milagros Collazzo,
Executive Director of the New Jersey Board
of Marriage and Family Therapy Examiners;

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2
J. Michael Walker, Executive Director of the New
Jersey Board of Psychological Examiners; Paul
Jordan, President of the New Jersey State Board
of Medical Examiners; and Garden State Equality.
CORPORATE DISCLOSURE STATEMENT
Garden State Equality is a not-for-profit
corporate organization with no parent corporation.
No publicly held company owns 10% or more of
Garden State Equalitys stock.
PRELIMINARY STATEMENT
New Jersey Assembly Bill A3371, codified into
law at N.J. S TAT . A NN . 45:1-54 et seq. (referred
to herein as A3371) is a regulation of statelicensed professionals of the sort that is consistent
with the First Amendment under the precedents
of this Court, as both federal courts of appeals to
have considered such measures have agreed.
A3371 does one thing: it prohibits mental health
professionals who hold themselves out as
competent specialists by virtue of their stategranted licenses from engaging in a practice that
the State of New Jersey has determined to be both
ineffective and potentially harmfulnamely, the
practice of attempting to alter the sexual
orientation of minor patients through a process
known as sexual orientation change efforts.
This Court long has recognized the broad
authority of states to regulate the medical and
mental health professions in order to ensure that
patients, who typically are at a distinct
informational disadvantage, receive competent

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3
and scientifically credible care. Indeed, this Court
held more than a century ago that [t]here is
perhaps no profession more properly open to such
regulations than that which embraces the
practitioners of medicine. Watson v. Maryland,
218 U.S. 173, 176 (1910). This bedrock principle
applies with equal force to cases, like this one,
where the purported care is being delivered not
through a scalpel but, rather, through speech. See
Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 884 (1992) (noting that speech is part of the
practice of medicine, [and is] subject to reasonable
licensing and regulation).
The professional speech implicated by A3371
falls well within the ambit of the States
regulatory authority. To be clear: A3371 does not
in any way diminish what anyone, including any
licensed mental health professional, may say in
the public arena. It does not prohibit anyone from
expressing their personal opinion or viewpoint
about efforts to alter sexual orientation, including
licensed mental health professionals expressing
such an opinion to their minor clients. Instead,
A3371 solely regulates medical treatments that
involve certain direct, personalized speech by
licensed mental health professionals to their
patients.
Petitioners contend that this Courts review is
warranted on the ground that the federal Courts
of Appeals are divided on questions of First
Amendment law and intervention. None of the
alleged conflicts, however, warrants this Courts
review.
Petitioners first argue that the circuits are in
conflict as to whether the First Amendment

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4
applies to speech between counselor and client or
doctor and patient. Pet. at 8 (capitalization
modified). 1 There is no need for this Court to
review that issue here, however, because the
Third Circuit in this case agreed with Petitioners
that the First Amendment applies to the speech at
issue in this case, while nonetheless upholding the
law. (See Section I, infra.)
Petitioners also argue that the circuits are in
conflict as to the appropriate level of scrutiny
applicable to speech between counselor and client
or doctor and patient. Pet. at 20 (capitalization
modified). That the Third Circuit upheld A3371
after subjecting it to a higher degree of scrutiny
than the Ninth Circuit applied in upholding a
similar California statute, see Pickup v. Brown,
740 F.3d 1208 (9th Cir.), cert. denied, 134 S. Ct.
2871, cert denied sub. nom Welch v. Brown, 134 S.
Ct. 2881 (2014), however, does not justify this
Courts review of the Third Circuits judgment.
(See Section II, infra.) Nor is there any merit to
Petitioners argument that the Third Circuits
decision to employ intermediate scrutiny also
directly conflicts with decisions of this Court. Pet.
at 31-32. Neither of the two cases cited by
Petitioners in support of this supposed conflict are
relevant here because, unlike in this case, the
regulations at issue in the cited cases impaired,
rather than promoted, the provision of competent
professional services and are, thus, inapposite.
(See Section III, infra.)
1

Citations to Pet. refer to the Petition for Writ of


Certiorari filed on December 3, 2014 by Petitioners
(Appellants below), and citations to App. refer to the
Appendix to the Petition.

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Petitioners finally argue that the circuits are in
conflict on the recurring question of whether an
advocacy group supportive of legislation must
satisfy the requirements of Article III standing to
intervene as a party in defense of that legislation.
Pet. at 34. But this Court repeatedly has noted
that courts need not assess the standing of a
particular party where, as here, other parties on
the same side unquestionably have standing.
Here, there is no dispute that the State of New
Jersey has standing to defend its challenged
statute, has done so, and continues to do so.
Moreover, the intervenors here were appellees in
the court of appeals and thus did not themselves
invoke the appellate jurisdiction of the federal
courts. There is therefore no need for this Court to
review any question regarding intervenor
standing. (See infra at Section IV.)
Because Petitioners can offer no compelling
reasons as to why this Court should grant their
request for a writ of certiorari, see Sup. Ct. R. 10,
the Court should deny the Petition.
COUNTERSTATEMENT OF THE CASE
A. Background
New Jersey enacted A3371 in 2013 by wide,
bipartisan margins based on its finding that
sexual orientation change efforts are ineffective
and carry significant risk of harm. App. at 5a-6a.
In reaching that conclusion, the New Jersey
Legislature relied on the views of the leading
medical and mental health organizations in the
field that sexual orientation change efforts are
ineffective, dangerous, and can lead to depression,

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6
guilt, helplessness, hopelessness, shame, social
withdrawal, suicidality, [and] substance abuse,
among other effects. Id. at 6a (citing American
Psychological Association Task Force on Appropriate
Therapeutic Responses to Sexual Orientation,
R EPORT OF THE A MERICAN P SYCHOLOGICAL
A SSOCIATION T ASK F ORCE ON A PPROPRIATE
THERAPEUTIC RESPONSES TO SEXUAL ORIENTATION
50 (2009)); id. at 138a-146a.
1. The New Jersey Legislatures Finding That
Being Gay Is Not An Illness
The New Jersey Legislature recognized the
modern medical communitys understanding that
being lesbian, gay, or bisexual is not a disease,
disorder, illness, deficiency, or shortcoming and
that major professional associations of mental
health practitioners and researchers in the United
States have recognized this fact for nearly 40
years. Id. at 139a. In light of the fact that being
gay is not a disease, the Legislature further
acknowledged the views of the leading mental
health organizations that attempts to cure
homosexuality by changing an individuals sexual
orientation are unsupported by any scientific or
medical rationale. Id. at 139a-145a.
2. The New Jersey Legislatures Finding That
Sexual Orientation Change Efforts Are
Ineffective And Potentially Harmful
In concluding that sexual orientation change
efforts are ineffective, the New Jersey Legislature
also relied on the judgments of independent
professional organizations that possess specialized
knowledge and experience concerning such
efforts, and which have spoken with [ ] urgency
and solidarity regarding their conclusion that

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7
sexual orientation change efforts are ineffective,
and present risks of serious harm. Id. at 43a. The
court below agreed that substantial evidence
supported the New Jersey Legislatures conclusion
that such efforts are ineffective. Id. at 44a-45a.
For example, the American Academy of Child and
Adolescent Psychiatry found that there is
[neither] evidence that sexual orientation can be
altered through therapy, no[r] any medically
valid
basis
for
attempting
to
prevent
homosexuality, which is not an illness. Id. at
144a. The National Association of Social Workers
similarly concluded that [n]o data demonstrates
that reparative or conversion therapies are
effective. Id. at 143a. Numerous other such
organizations have also concluded that there is no
credible evidence that [sexual orientation change
efforts] counseling is effective. Id. at 43a (citing
id. at 138a-146a).
In addition to the prevailing medical view that
sexual orientation change efforts are not effective,
the New Jersey Legislature also relied on
substantial evidence that those practices can
cause serious harm. Specifically, the Legislature
relied on a legislative record demonstrat[ing] that
over the last few decades a number of well-known,
reputable professional and scientific organizations
have publicly condemned the practice of [sexual
orientation change efforts], expressing serious
concerns about its potential to inflict harm. Id. at
42a. For example, the American Psychological
Association has warned that sexual orientation
change efforts can pose critical health risks
to lesbian, gay, bisexual, and transgender
individuals, including confusion, depression,
guilt, helplessness, hopelessness, shame, social

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withdrawal, [and] suicidality, among other
negative consequences. Id. at 6a (citing id. at
139a-140a). The American Academy of Child and
Adolescent Psychiatry similarly has concluded
that efforts to change individuals sexual
orientation can undermine self-esteem,
connectedness and caring, [which are] important
protective factors against suicidal ideation and
attempts. Id. at 144a. The New Jersey
Legislature considered and relied upon these
professional organizations conclusions, as well as
similar statements from a host of other leading
organizations. See id. at 141a-144a; see also id. at
5a (noting that the legislature [ ] cited reports,
articles, resolutions, and position statements from
reputable mental health organizations opposing
sexual orientation change efforts).
The Legislature also relied upon research
demonstrating that the risks of harm are
especially great for minors. It cited research
concluding that gay, lesbian, and bisexual young
adults who experienced high levels of family
rejection in adolescence based on their sexual
orientation were 8.4 times more likely to report
having attempted suicide and 5.9 times more
likely to report high levels of depression than
peers from families reporting no or low levels of
rejection. Id. at 144a-145a. The court below
recognized that the New Jersey Legislatures
empirical judgment on the potential harm to
minors was highly plausible, noting that [i]t is
not too far a leap in logic to conclude that a minor
client might suffer psychological harm if
repeatedly told by an authority figure that her
sexual orientationa fundamental aspect of her
identityis an undesirable condition. Id. at 44a.

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In light of the findings of these leading medical
and mental health organizations, the cited
research, and the testimony presented to its
committees, the Legislature determined that New
Jersey has a compelling interest in protecting the
physical and psychological well-being of minors
and protecting them from serious harms caused
by sexual orientation change efforts. Id. at 145a.
3. The Statute
Against this backdrop, both houses of the New
Jersey Legislature passed A3371 by wide margins
and, on August 19, 2013, New Jersey Governor
Chris Christie signed A3371 into law. The statute
prohibits persons licensed to provide professional
counseling under Title 45 of the Revised Statutes
from performing sexual orientation change efforts
on minors. N.J. S TAT . A NN . 45:1-55(a). Such
licensed professionals include psychiatrists, licensed
practicing psychologists, certified social workers,
licensed clinical social workers, licensed social
workers, licensed marriage and family therapists,
certified psychoanalysts, and persons who perform
counseling as part of their professional training for
any of these professions. Id.
The practitioners in each of the professions
covered in the statute operate under the oversight
of a board or committee that is charged with
protecting the public by setting standards for
examination and licensing, and reviewing and
approving applications for licensure. See N.J. STAT.
A NN . 45:9-1 to -27.9 (physicians and surgeons,
including psychiatrists); N.J. STAT. ANN. 45:8B1 to -50 (marriage and family therapists); N.J.
STAT. ANN. 45:8B-34 to -50 (professional
counselors); N.J. S TAT . A NN . 45:15BB-1 to -13
(social workers); N.J. STAT. ANN. 45:14B-1 to -46

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10
(psychologists); N.J. STAT. ANN. 45:14BB-1 to -12
(state certified psychoanalysts). The Legislature
granted each board uniform investigative and
enforcement authority and established uniform
standards for license revocation, suspension, and
disciplinary proceedings for all of the licensees and
registrants under their respective jurisdictions. See
N.J. STAT. ANN. 45:1-14, -15.
B. Proceedings Below
On August 22, 2013, Petitioners filed a
Complaint and Motion for a Temporary Restraining
Order and Preliminary Injunction in the United
States District Court for the District of New
Jersey (the District Court), seeking injunctive
and declaratory relief on the grounds that one or
more provisions of the Constitution prohibits New
Jersey from enforcing N.J. STAT. ANN. 45:1-55.
App. at 66a. At Petitioners request, and with the
State Respondents consent, the District Court
converted Petitioners motion for preliminary
injunction into a summary judgment motion. Id.
On September 6, 2013, Respondent Garden State
Equality filed a motion to permissively intervene as
a party defendant pursuant to Federal Rule of Civil
Procedure 24(b). One week later, on September 13,
2013, Garden State Equality filed an opposition to
Petitioners then-converted motion for summary
judgment and its own cross-motion for summary
judgment. The State Respondents filed a similar
opposition and motion that same day.
On October 1, 2013, the District Court held oral
argument on the motions, and on November 8,
2013 issued an Order and Opinion denying
Petitioners motion for summary judgment,
granting Respondents cross-motion for summary

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11
judgment, and granting Garden State Equalitys
motion to intervene. Id. at 134a. With respect to
Petitioners free speech claim, the court
concluded that A3371 regulates conduct, not
speech, id. at 100a, and was thus subject to
rational basis review, which the court concluded
A3371 satisfied, id. at 118a. The District Court
also rejected Petitioners arguments that Garden
State Equality must satisfy the standing
requirements of Article III in order to intervene as
a defendant, and found that Garden State
Equality satisfied all of the requirements to
intervene as a party defendant. Id. at 80a.2
Petitioners timely appealed to the United States
Court of Appeals for the Third Circuit. After briefing
was complete, the court heard oral argument on July
9, 2014. Several weeks later, on July 30, 2014, the
court requested supplemental briefing regarding the
role of the professional speech doctrine in the case.
King v. Governor of the State of New Jersey, No. 134429, Doc. 003111694096 (3d Cir. 2013). The parties
filed supplemental briefs on August 5, 2014, and the
court of appeals issued its decision on September 11,
2014, affirming the constitutionality of A3371. App.
at 1a-61a.
The Third Circuit rejected Petitioners claim
that A3371 violated their free speech rights, albeit
under a different rationale than the one used by
the District Court. The Third Circuit held that (1)
A3371 regulated speech by licensed professionals;
(2) as such, A3371 was subject to intermediate
2

The District Court also dismissed several other


claims, including a free exercise of religion claim and a claim
for violation of parental rights. The Third Circuit affirmed the
District Courts dismissal of these claims, and Petitioners do
not challenge that portion of the Third Circuits decision here.

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12
scrutiny; and (3) A3371 passed muster under that
standard. Recognizing that in the realm of
professional speechparticularly by medical
professionalsclients ordinarily have no choice
but to place their trust in these professionals, and,
by extension, in the State that licenses them, and
that the value of [a] professionals services stems
largely from her ability to apply [ ] specialized
knowledge to a clients individual circumstances,
the court recognized that the State possessed
greater latitude to restrict speech by professionals
in order to protect the well-being of its citizens.
Id. at 28a-29a. Thus, the court held, the State
[has] regulatory authority over licensed
professionals stem[ming] from its duty to protect
the clients of these professionals as well as its
interest in protecting its citizens from ineffective
or harmful professional services. Id. at 35a.
Holding that professional speech of the sort
regulated by A3371, like commercial speech, was
subject to intermediate scrutiny, the court of
appeals explained that A3371 is constitutional if it
directly advances the States interest in
protecting its citizens from harmful or ineffective
professional practices and is no more extensive
than necessary to serve that interest. Id. at 35a.
Finding that A3371 satisfied that standard, the
Third Circuit rejected Petitioners free speech
claims. Id. at 46a. The court of appeals also held
that Garden State Equality need not meet the
standing requirements of Article III in order to
participate as an intervenor-defendant. Id. at 60a.

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13
REASONS FOR DENYING THE PETITION
I. THERE IS NO CIRCUIT CONFLICT
REGARDING THE CONSTITUTIONALITY
OF STATUTES SUCH AS A3371 WHICH
PROHIBIT LICENSED MENTAL HEALTH
PROFESSIONALS FROM ENGAGING IN
SEXUAL ORIENTATION CHANGE EFFORTS
WITH MINORS.
Only two courts of appeals, the Third and Ninth
Circuits, have addressed the constitutionality of
statutes prohibiting licensed therapists from
engaging in sexual orientation change efforts with
minors, and both courts have concluded that such
statutes are constitutional. See App. at 46a
(A3371 is a permissible prohibition of professional
speech.); Pickup, 740 F.3d at 1222 ([Californias]
SB 1172, as a regulation of professional conduct,
does not violate the free speech rights of [sexual
orientation change efforts] practitioners or minor
patients . . . ); see also Pet. at 11 ([T]he laws at
issue in these cases are identical in virtually every
operative provision.). While the Third and Ninth
Circuits reached the same conclusion by applying
different levels of scrutiny (intermediate and
rational basis, respectively), that does not create a
conflict that warrants this Courts review, given
that [t]his Court, like all federal appellate courts,
does not review lower courts opinions, but their
judgments. See Jennings v. Stephens, 135 S. Ct.
793, 799 (2015) (emphasis in original); California
v. Rooney, 483 U.S. 307, 311 (1987) (This Court
reviews judgments, not statements in opinions.)
(quoting Black v. Cutter Labs., 351 U.S. 292, 297
(1956)). Accordingly, this Court considers, in
appropriate cases, whether a Court of Appeals

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14
legal error resulted in an erroneous judgment on
the validity of a measure.3 Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842
(1984). Because the Third and Ninth Circuitsthe
only circuits to have considered the issuehave
agreed that statutes prohibiting licensed therapists
from engaging in sexual orientation change efforts
with minors survive First Amendment scrutiny,
there is no circuit conflict warranting granting of
the Petition.4
II. THERE IS NO CIRCUIT CONFLICT ON
ANY OTHER ISSUE THAT WARRANTS
THIS COURTS REVIEW.
Similarly, there is no need for this Court to grant
the Petition in order to decide any other issue,
including the level of scrutiny applicable to
regulations of speech by healthcare professionals
and their clients. While Petitioners point to
different articulations by the Third, Fourth, Ninth,
and Eleventh Circuits of the appropriate level of
such scrutiny, the cases to which the Petition cites
are in agreement that a professionals speech
warrants lesser protection . . . when it is used to
provide personalized services to a client based on
the professionals expert knowledge and judgment.
App. at 30a; Wollschlaeger v. Governor of Fla., 760
F.3d 1195, 1218 (11th Cir. 2014) (holding that the
permissibility of a regulation depends on whether
3

As explained below, the Third Circuit correctly


applied this Courts precedents in upholding the
constitutionality of A3371 and, thus, there is no legal error
for this Court to correct. (See Section III, infra.)
4

Because A3371 survives under the more rigorous


intermediate scrutiny standard, the statute would survive
rational basis review, as well.

15
the professional is exercis[ing] judgment on behalf
of the client in the light of the clients individual
needs and circumstances) (quoting Lowe v. S.E.C.,
472 U.S. 181, 232 (1985) (White, J., concurring in
the result)); Moore-King v. Cnty. of Chesterfield, Va.,
708 F.3d 560, 569 (4th Cir. 2013) (holding that the
permissibility of a regulation depends on whether
the speaker is providing personalized advice in a
private setting to a paying client or instead engages
in public discussion and commentary).
First, there is no basis for Petitioners
contention that the Fourth Circuits decision in
Moore-King represent[s] a direct split of
authority with the Third Circuits decision below.
Pet. at 25. In Moore-King, the Fourth Circuit
upheld municipal registration and tax regulations
applicable to fortune-telling and, in the course of
its opinion, distinguished regulation of fortunetelling from regulation of the medical profession.
708 F.3d at 570. In any event, the Petitions
complaint about the Fourth Circuits decision in
Moore-King is that the Fourth Circuits level of
scrutiny in Moore-King was more lenient than the
intermediate scrutiny that the Third Circuit
applied here. Petitioners fail to point to anything
in Moore-King that suggests the Third Circuits
judgment should have come out differently in the
present case; Petitioners thus fail to demonstrate
that resolving any conflict between the Third and
Fourth Circuits would redound to Petitioners
benefit. See Jennings, 135 S. Ct. at 799; Chevron,
467 U.S. at 842.
Nor is there any conflict between the Third
Circuits decision below and the Eleventh Circuits
decision in Wollschlaeger that warrants review by
this Court. The Petition erroneously describes the

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16
Eleventh Circuit in Wollschlaeger as having held
that speech between counselor and client or doctor
and patient in the context of a professional
relationship is entitled to no constitutional
protection. Pet. at 22. The Eleventh Circuit held no
such thing in Wollschlaeger. Rather, although the
Eleventh Circuit in that case concluded that a
Florida statute prohibiting physicians from inquiring
or recording information about patients firearm
ownership where not relevant to medical care or
safety imposed at most only an incidental burden
on physician speech and thus survived a facial
attack, the Eleventh Circuit expressly left open the
possibility of an as-applied First Amendment
challenge to the statute. See Wollschlaeger, 760 F.3d
at 1203, 1204, 1217 n.12. Although the Petition (and
the dissent in Wollschlaeger, id. at 1239 (Wilson, J.,
dissenting)), describe the Eleventh Circuit as having
applied rational basis review, Pet. at 27, what the
Eleventh Circuit actually heldquoting from the
plurality opinion in Caseywas that the Florida
statute was a regulation of professional conduct that
implicates physicians speech only as part of the
practice of medicine, subject to reasonable licensing
and regulation, and does not offend the First
Amendment. Wollschlaeger, 760 F.3d at 1220
(emphasis added) (quoting Casey, 505 U.S. at 884
(plurality opinion)).
Finally, the Petitions efforts to justify this Courts
review by contending that Ninth Circuit precedents
other than Pickup are in conflict with the Third
Circuits decision below are unavailing. The Petition
first erroneously describes the Third Circuits
decision as being in direct conflict with the Ninth
Circuits decision in Conant [v. Walters, 309 F.3d 629,
639 (9th Cir. 2002)], which applied strict scrutiny to

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17
regulations of speech between doctor and patient.
Pet. at 23. In Conant, the Ninth Circuit upheld an
injunction prohibiting the federal government from
enforcing a policy that threatened to punish doctors
for communicating with their patients about the
medical use of marijuana. 309 F.3d at 632. The Ninth
Circuit itself in Pickup did not regard Conant as
requiring strict scrutiny of measures prohibiting
licensed therapists from engaging in sexual
orientation change efforts with minors, as Petitioners
here argue. Rather, in upholding Californias statute
barring such practices, the Ninth Circuit observed
that Californias statute, unlike [the federal
marijuana policy] in Conant . . . allows discussions
about treatment, recommendations to obtain
treatment, and expressions of opinions about [sexual
orientation change efforts] and homosexuality.
Pickup, 740 F.3d at 1229. The same is true of New
Jerseys A3371, and Conant therefore presents no
conflict with the Third Circuits decision here.
Nor is there any merit to the Petitions argument
that the Ninth Circuits decision in National
Association for Advancement of Psychoanalysis v.
California Board of Psychology, 228 F.3d 1043 (9th
Cir. 2000) (NAAP), is in conflict with the Third
Circuits decision below. See Pet. at 30-31. In NAAP,
the Ninth Circuit upheld Californias mental health
professional licensing requirements against First
Amendment challenges. Indeed, the Petitions
suggestion that the Ninth Circuits NAAP holding
requires that courts subject laws such as A3371 to
strict scrutinythereby creating a conflict with the
Third Circuit hereincorrectly states the holding of
the Ninth Circuits NAAP decision, which applied
rational basis review to the licensing requirements
at issue in that case. See NAAP, 228 F.3d at 1049

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18
(Because psychoanalysts are not a suspect class
entitled to heightened scrutiny, we must examine
whether the licensing scheme implicates any
fundamental right. We hold that it does not.).
In sum, the Petition has not demonstrated that
this case presents any circuit conflict that
warrants resolution by this Court.
III. THE THIRD CIRCUITS DECISION IS
CONSISTENT WITH THIS COURTS
PRECEDENTS.
Petitioners also argue that [t]he Third Circuits
decision to employ intermediate scrutiny also
directly conflicts with decisions of this Court in
Legal Services Corp. v. Velazquez, 531 U.S. 533
(2001), and Riley v. National Federation of the Blind
of North Carolina, Inc., 487 U.S. 781 (1988). Pet. at
31-32. Neither of those cases, however, concerns a
measure regulating a medical professionals speech
as part of the provision of treatment or services to
her patient, and, thus, the Third Circuits decision
is not in conflict with either case. Rather, whereas
this Courts decisions in both Velazquez and Riley
struck down laws that impaired the provision of
competent professional services, the court of appeals
here upheld A3371 based on the States interest in
protecting its citizens from ineffective or harmful
professional services. App. at 35a.
In Velazquez, this Court struck down a provision of
a statute prohibiting the distribution of federal funds
by a congressionally-created legal services non-profit
corporation for any organization that initiates legal
representation or participates in any other way, in
litigation, lobbying, or rulemaking, involving an
effort to reform a Federal or State welfare system.

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19
531 U.S. at 538 (quoting Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Pub.
L. No. 104-134, 504(a)(16), 110 Stat. 132153).
This Court held that the restriction operates to
insulate current welfare laws from constitutional
scrutiny and certain other legal challenges, a
condition implicating central First Amendment
concerns, and was thus invalid. Id. at 547.
As the Third Circuit below explained, the law in
Velazquez, was subject to more demanding
scrutiny because it was not enacted pursuant to
the States interest in protecting its citizens from
ineffective or harmful professional services. App.
at 35a. To the contrary, this Court found that the
statute in Velasquez actually had the opposite
effect: it impaired the quality of professional legal
representation because, under the law, attorneys
from organizations receiving federal funds could
not advise the courts of serious questions of
statutory validity. Velazquez, 531 U.S. at 545.
That disability, the Court held, is inconsistent
with the proposition that attorneys should present
all the reasonable and well-grounded arguments
necessary for proper resolution of the case. Id.
(emphasis added). Any comparison between
Velazquez and this case is thus misplaced.
Nor is the Third Circuits decision inconsistent
with Riley. In Riley, this Court struck down a
North Carolina regulation of professional non-profit
fundraisers that (1) limited the fees that they could
charge their client organizations; (2) required the
fundraisers to disclose the percentage of gross
receipts passed along to the organizations; and (3)
mandated that the fundraisers obtain licenses. 487
U.S. at 784-86. Although this Court applied strict
scrutiny in reaching its conclusion, the statute at

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20
issue had the effect of impairing the provision of
professional services, rendering inapt any
comparisonlet alone any conflictwith the Third
Circuits decision upholding A3371s protection of
professional standards. In particular, this Court
found that the three provisions at issue in Riley (1)
might well drive professional fundraisers out of
North Carolina, or at least encourage them to cease
. . . representing certain charities (primarily
small or unpopular ones), id. at 794 (fee limiting
provision); (2) will almost certainly hamper the
legitimate efforts of professional fundraisers and
necessarily discriminate[ ] against small or
unpopular charities, id. at 799 (disclosure
provision); and (3) created delay during the
pendency of licensing applications, thus
compel[ling] the speakers silence, id. at 802
(licensing provision). Such impairment of the
provision of competent professional services stands
in stark contrast with A3371, which protects
vulnerable patients through reasonable regulation
of professional standards in order to further the
competent delivery of mental health care. As such,
there is no conflict between the Third Circuits
decision and this Courts decision in Riley.
IV. THIS IS NOT AN APPROPRIATE CASE
FOR DEMARCATING ARTICLE III
STANDING
REQUIREMENTS
FOR
INTERVENOR-DEFENDANTS.
Petitioners also urge this Court to hear this case
to resolve the conflict among the circuits concerning
the recurring question of whether an advocacy group
supportive of challenged legislation must satisfy the
requirements of Article III standing to intervene as
a party in defense of that legislation. Pet. at 34. But

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21
this broad issue need not be resolved here because
the original parties to this action, all of whom are
still active litigants, unquestionably have standing.
Under such circumstances, this Court previously has
declined to address whether an intervenor must
possess Article III standing. See McConnell v. Fed.
Election Commn, 540 U.S. 93, 109 (2003) overruled
on other grounds by Citizens United v. Fed. Election
Commn, 558 U.S. 310 (2010).
In McConnell, this Court held that when an
intervenor-respondents position is identical to
the [respondents], and the respondent has met
the requirements of Article III standing, the Court
need not address the standing of the [intervenorrespondent]. 540 U.S. at 233. Here, Garden State
Equality seeks to defend the constitutionality of
A3371, and thus maintains the exact same position
as the State Respondents. Thus, just as in
McConnell, the question of Garden State
Equalitys standing is not relevant to the jurisdiction
of the federal courts in this case.
In support of their argument regarding a
conflict among the courts of appeals, Petitioners
rely on only two cases, both of which were decided
before McConnell. Pet. at 34-37 (citing Mausolf v.
Babbitt, 85 F.3d 1295 (8th Cir. 1996); S. Christian
Leadership Conference v. Kelley, 747 F.2d 777
(D.C. Cir. 1984)). Moreover, both cases are
distinguishable because the proposed intervenors
in those cases did not advance the same position
as that of a plaintiff or defendant with Article III
standing. See Mausolf, 85 F.3d at 1298 (the
original defendants interest in promoting
recreational activity and tourism in the Park . . .
may be adverse to the [proposed intervenors]
conservation interests); S. Christian Leadership

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22
Conference, 747 F.2d at 778 (proposed intervenor
sought to challenge a judgment accepting the
parties settlement agreement).
Garden State Equalitys position is consistent
with this Courts longstanding practice of not
deciding whether additional parties satisfy Article
III standing where it is clear that at least one of
the parties seeking to invoke federal jurisdiction
has standing. See, e.g., Dir., Office of Workers
Comp. Programs, U.S. Dept of Labor v. Perini N.
River Assocs., 459 U.S. 297, 305 (1983) (noting
that the presence of one party with standing
assures that an admittedly justiciable
controversy is now before the Court); Dept of
Commerce v. U.S. House of Reps., 525 U.S. 316,
330 (1999) (holding that the presence of one party
with standing is sufficient for purposes of Article
III); Vill. of Arlington Heights v. Metro. Housing
Dev. Corp., 429 U.S. 252, 263-64 & n.9 (1977)
(same). It is only where an intervenor seeks itself
to invoke federal jurisdiction or to establish
adversitywithout the presence of a party in
interest invoking such jurisdiction or establishing
such adversitythat the intervenor would need to
satisfy Article III standing. See Diamond v.
Charles, 476 U.S. 54, 64 (1986); see also
Hollingsworth v. Perry, 133 S. Ct. 2652, 2661
(2013). This is not such a case.

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23
CONCLUSION
For the foregoing reasons, the Court should
deny the Petition for writ of certiorari.
Dated: February 4, 2015
Respectfully submitted,
DAVID S. FLUGMAN
Counsel of Record
FRANK M. HOLOZUBIEC
ANDREW C. ORR
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
david.flugman@kirkland.com
SHANNON P. MINTER
CHRISTOPHER F. STOLL
DAVID C. CODELL
NATIONAL CENTER FOR
LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, California 94102
(415) 392-6257
MICHAEL GLUCK
ANDREW BAYER
GLUCKWALRATH LLP
428 River View Plaza
Trenton, New Jersey 08611
(609) 278-3900
Attorneys for Respondent
Garden State Equality

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