Proposed Order Granting Motion For Temporary Restraining Order - 1

Case 3:13-cv-05038-FLW-LHG Document 5 Filed 08/23/13 Page 1 of 23 PageID: 213
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION 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 (AACC), Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, 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 New Jersey Board of Psychological Examiners, in his official capacity; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants. Case No. 13-cv-5038
PROPOSED ORDER GRANTING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER THIS MATTER is before the Court on a motion for temporary restraining order filed by Plaintiffs, Dr. Tara King, Dr. Ronald Newman, the National Association for Research and Therapy of Homosexuality ("NARTH"), and the American Association of Christian Counselors
Proposed Order Granting Motion for Temporary Restraining Order - 1
("AACC"). The court held oral argument on the motion on ________________ ____, 2013. The court considered the record, including the motion, the complaint, the sworn declarations of the parties, the memorandum of law in support of the motion, and Defendants' responses thereto. It also considered argument from both Plaintiff and Defense Counsel. After due consideration, the court is of the opinion that unless a temporary restraining order is issued, Plaintiffs will suffer serious and irreparable injury for which there is no adequate remedy at law. For the reasons stated in this opinion and order, Plaintiffs' Motion for Temporary Restraining Order is GRANTED. I. FINDINGS OF FACT
Following the New Jersey Legislature's passage of A3371, Defendant Christopher J. Christie, signed the bill into law on or about August 19, 2013. This law went into full effect upon being signed into law. Section 2(a) of A3371 states: A person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the persons professional training for any of these professions, shall not engage in sexual orientation change efforts with a person under 18 years of age. Section 2(b) states: 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.
The law prohibits New Jersey mental health providers from providing any therapy aimed at changing non-heterosexual sexual orientations, including any attempts to eliminate unwanted same-sex attraction, behavior, identity, or sexual orientation (hereinafter sexual orientation change efforts or SOCE). The law fundamentally alters the therapist-client relationship by creating contradictory ethical duties with and trumping client protections in the ethical codes of multiple mental health licensing agencies in New Jersey, including but not limited to the following: General Principle E of the American Psychological Associations Ethical Principles of Psychologists and Code of Conduct (APA Code) includes the following: Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and self-determination. A3371 interferes with the selfdetermination of minors seeking SOCE therapy. Section 1(a) of the American Psychiatric Association Guidelines for Ethical Treatment (APA Guidelines) states, A psychiatrist shall not withhold information that the patient needs or reasonably could use to make informed treatment decisions, including options for treatment not provided by the psychiatrist." A3371 requires psychiatrists to withhold information regarding SOCE therapy that a patient reasonably could use to make informed treatment decisions. Section 1(c) of the APA Guidelines states, A psychiatrist shall strive to provide beneficial treatment that shall not be limited to minimum criteria of medical necessity. A3371 prohibits psychiatrists from providing beneficial SOCE treatment to those patients who willingly consent to and desire such treatment. Opinion 10.01(2) of the American Medical Association Code of Ethics (AMA Code) states, The patient has the right to make decisions regarding the health care that is recommended by his or her physician. Accordingly, patients may accept or refuse any recommended medical treatment. A3371 prohibits medical professionals from allowing their patients to make any decision regarding the availability and benefits of SOCE treatment. A3371 prohibits patients from being able to accept or reject SOCE treatment, even though the fundamental elements of the patient-physician relationship require that the patient have the full range of options. Opinion 10.016 of the AMA Code states, Medical decision-making for pediatric patients should be based on the childs best interest, which is determined by weighing many factors, including effectiveness of appropriate medical therapies, the patients psychological and emotional welfare, and the family situation. When there is legitimate inability to reach consensus about what is in the best interest of the child, the wishes of
the parents should generally receive preference. A3371 removes SOCE therapies from consideration by the physician and the parents regarding the best interest of the child, despite evidence regarding the effectiveness of SOCE. Section A.2.d of the American Counselors Association Code of Ethics (ACA Code) states, When counseling minors or persons unable to give voluntary consent, counselors seek the assent of clients to services, and include them in decision-making as appropriate. Counselors recognize the need to balance the ethical rights of clients to make choices, their capacity to give consent or assent to receive services, and parental or familial legal rights and responsibilities to protect those clients and make decisions on their behalf. A3371 prohibits counselors from respecting the rights of the parents/guardians seeking SOCE for their children. Section B.5.b of the ACA Code states, Counselors are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians over the welfare of their children. A3371 prohibits counselors from respecting the rights of the parents/guardians seeking SOCE for their children. Principle 1.2 of the American Association of Marriage and Family Therapists Code of Ethics (AAMFT Code) provides that all licensed marriage and family therapists obtain informed consent from their patients/clients, which generally requires that the patient/client has been adequately informed of significant information concerning treatment processes and procedures. A3371 prohibits licensed marriage and family therapists from informing their minor patients/clients about an entire course of treatmentSOCE counselingthat might benefit them and help them achieve their goals of eliminating or reducing their unwanted same-sex attractions. Principle 1.8 of the AAMFT Code provides that licensed marriage and family therapists respect the rights of clients to make decisions. A3371 prohibits New Jersey licensed marriage and family therapists from respecting the rights of patients/clients to make the decisions because the State already made the decision for the patient/clienti.e., no one under the age of eighteen can receive SOCE counseling. Section 1.02 of the National Association of Social Workers' Code ("NASW Code") provides that the patients/clients shall have the right to self-determination and that a social worker should only seek to assist the patient/client in achieving their goals. A3371 prohibits New Jersey's social workers from respecting the rights of the patient/client to self-determination by imposing the States determination on the course of their therapy and mandating that only those efforts that seek to affirm same-sex attractions are permissible in the social workers office. Section 1.03 of the NASW Code provides that social workers must provide sufficient information for the patient/client to make an informed decision about their course of care and specifically states that such informed consent must include a discussion of reasonable alternatives. A3371 prohibits social workers from providing information to
patients/clients about the reasonable alternatives available to those patients/clients who desire SOCE counseling. These fundamental alterations to the therapist-client relationship caused by A3371 cannot be justified on the basis of needing to protect children from harm, because all the relevant licensing authorities already prohibit harming children. Moreover, the State has not proved that SOCE is harmful to minors; however, there is ample evidence that A3371 is currently causing immediate and irreparable harm to Plaintiffs and to their clients. Plaintiff Dr. Tara King is the founder the King of Hearts Counseling Center in Brick, New Jersey, which is a Christian counseling center that focuses on counseling from a Biblical perspective. Dr. Kings clinic offers counseling on numerous issues, including post traumatic stress disorder, depression, anxiety, mental difficulties, substance abuse, grief, anger management, eating disorders, co-dependency, sex/love/relationship addictions, and SOCE counseling, which is offered to both minors and adults. Dr. King is a former lesbian who went through SOCE counseling, and believes her life is proof that SOCE counseling can and does work for individuals struggling with unwanted same-sex attractions, behaviors, or identity. (SSA). Dr. Kings SOCE counseling is talk therapy and is no different than any other form of mental health counseling provided by licensed professionals. Dr. King testified before the Legislature, encouraging the Legislature not to ban client centered SOCE talk therapy provided by licensed progessionals. Many of Dr. Kings clients, adults and minors, are Christians and request Christian counseling as part of the SOCE counseling that she provides. A3371 will prohibit Dr. King from practicing her profession and her counseling with these clients according to the sincerely held religious beliefs that both her clients and she have. Dr. King has had clients comment that after SOCE counseling, they
understood exactly the underlying root causes of their unwanted SSA and why they were distressed or anxious because of it. Dr. Ron Newman received a Doctor of Philosophy degree in Psychoeducational Processes from Temple University in 1990, received a Master of Arts degree in Counseling Psychology from Trinity Evangelical Divinity School in 1980, a Bachelors Degree in Psychology from West Virginia University in 1976, and an Associates of Arts degree in Practical Theology from Christ for the Nations Institute in 1978. Dr. Newman has 32 years of experience as a mental health professional and has been a Licensed Psychologist in the State of New Jersey since 1995. Dr. Newman is currently a member of the American Psychological Association (APA), the New Jersey Psychological Association, the Christian Association for Psychological Studies, NARTH, and AACC. He is also currently the Program Director of the International School of Christian Counseling in Lima, Peru, and he has the primary responsibility of developing the educational program for that ministry designed to train Christian counselors in Latin America. Dr. Newman has done similar work in the past, including nineteen trips in the last twenty years to various countries in South America to teach pastors and counselors about effective mental health counseling methods. Dr. Newmans practice is located in two offices at Hammonton, New Jersey and Linwood, New Jersey. Many of his clients come to him because of his Christian identity and their trust that their Christian values and beliefs will be respected in treatment. Dr. Newman has a Biblical worldview, and for clients who seek counseling from a Christian perspective and desire to conform their counseling goals with their sincerely held religious beliefs, he focuses on Biblical integration into the counseling relationship he forms with them.
Part of Dr. Newman's practice involves SOCE counseling, sometimes with minors. As is true with much of his practice, the individuals who seek SOCE counseling from Dr. Newman do so because they have a desire to conform their attractions, behavior, and identity to their sincerely held religious beliefs. Many of these individuals seek to reduce or eliminate their unwanted SSA because their religious beliefs inform them that change is possible. Dr. Newmans experience and opinion also inform him that change is possible. He has personally counseled individuals who have successfully reduced or eliminated their unwanted SSA. Dr. Newman currently has clients who are struggling with issues that would fall under A3371 prohibitions, and the law mandates that he provide only one viewpoint in his counseling with those minor clients. For example, one of Dr. Newman's current minor clients has developed confusion about the clients sexual orientation after engaging in some experimental behavior with a member of the same sex and has raised the issue during counseling sessions with Dr. Newman about whether this makes the client a homosexual. This is a situation where A3371 mandates only one type of counseling. Dr. Newman initiates the process of counseling for his patients, including those minor clients with unwanted SSA, to discover what the client and the parents are hoping to achieve with the counseling and to establish the clients goals. When both the minor client and the parents want SOCE counseling, then Dr. Newman explains to them the nature of such counseling and the types of discussions that are involved in SOCE counseling. He also explains to the client that if at any point in the course of the clients therapy the client decides he or she no longer wants to continue counseling for SSA, then he or she should inform Dr. Newman immediately because the clients counseling should always be based on the goals and objectives of the client. Dr. Newman explains that SOCE counseling has been effective for some people with unwanted
SSA, but that the counseling can sometimes invoke stress or anxiety about past events or root causes. Dr. Newman has counseled a number of individuals for whom SOCE has been effective and successful, and he has also counseled individuals who decided not to change SSA, but still benefitted from the counseling. A3371 prohibits Dr. Newmans clients and all minors in New Jersey from receiving any counseling concerning unwanted SSA and is currently causing Dr. Newman and his clients irreparable injury and harm. Plaintiff NARTH is a professional, scientific organization that offers hope to those who struggle with unwanted homosexuality and same-sex attractions. NARTH disseminates educational information, conducts and collects scientific research, promotes effective therapeutic treatment, and provides international referrals to those who seek its assistance. NARTH is engaged in extensive research concerning individuals who have successfully reduced or eliminated their unwanted SSA or who sincerely desire to do so and the psychological factors that are typically associated with a homosexual lifestyle. NARTH offers scholarly publications and educational information to the general public and makes presentations across the country, hosted by mental health professionals who specialize in what some refer to as SOCE counseling. NARTH advocates for an open discussion of all viewpoints concerning SOCE counseling and its potential benefits or harms to patients. NARTH supports the rights of individuals with unwanted SSA to receive effective psychological care, including SOCE counseling, and the rights of professionals to offer that care. A3371 is currently licensed NARTH members who provide professional counseling in New Jersey from providing SOCE therapy and from disseminating information and providing referrals regarding such therapy. Minor patients currently receiving SOCE therapy from licensed NARTH members in New Jersey would lose the ability to receive such therapy from a licensed
professional and thereby risk suffering emotional harm and regression in their self-determined courses of treatment. A3371 compels NARTH members to choose between violating the law and the ethical codes under which they are licensed, certified, or trained. The American Association of Christian Counselors (AACC) is an international nonprofit professional scientific organization with 50,000 members representing the full spectrum of mental health professionals. AACCs mission is to equip its members with distinctively Christian and clinically sound psycho-educational resources and services that address the whole person and which help individuals move toward personal wholeness, interpersonal competence, mental stability, and spiritual maturity. AACCs members adhere to the ethical value of self-determination and regard this value as a cornerstone principle in the treatment of mental health disorders. Accordingly, AACCs members adhere to the construct that when a clients faith values conflict with other cultural values, such as those expressed by the Legislature in A3371, that ultimately the clientand in the case of a minor, his/her parent or legal guardianhas the moral and ethical right to participate in and determine the appropriate course of care, including alignment with his/her relevant religious beliefs. A3371 is currently prohibiting licensed AACC members who offer SOCE therapy from providing such counsel to their clients or is forcing them to violate their core ethical duty of client self-determination. II. CONCLUSIONS OF LAW
As a threshold matter, parties are entitled to emergency relief if they can establish that they are likely to succeed on the merits, they are likely to suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in their favor, and that the injunction is in the public interest. ACLU v. Ashcroft, 322 F.3d 240, 250 (3d Cir. 2003). After having considered all
the parties submissions and governing precedent, this Court is satisfied that Plaintiffs have established the required factors for emergency relief in the form of a Temporary Restraining Order. For the reasons discussed herein, this court GRANTS Plaintiffs Motion for a Temporary Restraining Order.. A. LIKELIHOOD OF SUCCESS ON THE MERITS A3371 presents a significant number of constitutional infirmities. Plaintiffs have established that A3371 violates the First Amendment because it discriminates against the Counselor Plaintiffs viewpoint and the content of Plaintiffs' speech, is hopelessly vague, and infringes upon the rights of Plaintiffs' clients and their parents. Each of these is discussed in turn. 1. A3371 is a Unconstitutional Viewpoint-Based Restriction on Speech.
It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Id. at 829. In fact, viewpoint-based regulations are always unconstitutional. See, e.g., Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). The Third Circuit has held that "[v]iewpoint discrimination is an anathema to free expression and is impermissible in both public and nonpublic fora. Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.2d 290, 296 (3d Cir. 2011). Indeed, if the government allows speech on a certain subject, it must accept all viewpoints on the
subject . . . even if those that it disfavors or that are unpopular. Id. Moreover, [t]o exclude a group simply because it is controversial or divisive is viewpoint discrimination and a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint is not enough to justify the suppression of speech. Child Evangelism Fellowship of N.J., Inc. v. Stafford Tp. Sch. Dist., 386 F.3d 514, 527-28 (3d Cir. 2004) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969)). A regulation that affects expressive activity, such as A3371s restriction on what mental health professionals can say to patients/clients, is only permissible as long as the regulation is not an effort to suppress the speakers activity due to disagreement with the speakers view. Intl Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992). Much like the law struck down in R.A.V. v. St. Paul, 505 U.S. 377 (1992), where the Court struck down an ordinance that favored a particular point of view, A3371 impermissibly favors one viewpoint in a debate on a very public issue, i.e., therapeutic responses to same-sex attraction. The Eastern District of California considered a law virtually identical to A3371 and enjoined its enforcement as a viewpoint-based regulation of speech. Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012). There, the court noted that laws banning only one particular viewpoint in otherwise permissible talk therapy are impermissible because [r]egardless of the breathing room [the law] may leave for speech about SOCE, when applied to SOCE performed through talk therapy, [the law] will give rise to disciplinary action solely on the basis of what the mental health provider says or the message he or she conveys. Id. (emphasis added). Indeed, when the entire course of counseling is guided by the counselors or clients views on homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about
homosexuality. Id. at 1116 (emphasis added). Moreover, [t]hat messages about homosexuality can be inextricably intertwined with SOCE renders it likely that, along with SOCE treatment, [the law] bans a mental health provider from expressing his or her viewpoints about homosexuality as part of SOCE treatment. Id. at 1117. In a separate case on the same law, a three-judge panel of the Ninth Circuit Court of Appeals issued an injunction pending appeal. See
Pickup v. Brown, No. 12-17681, 2012 WL 6869637 (9th Cir. Dec. 21, 2012).
A3371 is a textbook example of constitutionally impermissible viewpoint discrimination. The legislation explicitly states that a licensed mental health professional shall not tell a client with unwanted SSA that he or she can change through SOCE counseling. On its face, A3371 allows licensed counselors to discuss the subject of sexual orientation, but precludes a particular view on that subject, namely that SSA can change to the benefit of the client. Indeed, A3371 specifically targets SOCE counseling that seeks 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. The perspective that sexual orientation is fixed and immutable, however, may be openly discussed with clients. A3371 seeks to silence only one side of the debate and essentially curtail open and honest inquiry concerning homosexuality or unwanted SSA. A3371 prohibits only one viewpoint, and is thus facially unconstitutional. The viewpoint discrimination becomes even more apparent when A3371 defines what is not included in the definition of SOCE. Specifically, Section 2(b) of A3371 states SOCE 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 persons 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.
Consequently, counselors are free to counsel their clients toward SSA, to provide acceptance, support, and understanding of SSA, or to remain neutral on SSA. What they may not do, however, is discuss possibilities of changing attractions, behaviors, or identityeven when the client and his or her parents desperately desire to reduce or eliminate them. The Supreme Court has not hesitated to facially invalidate laws like A3371 that regulate professions by censoring certain views. See Legal Servs. Corp. v. Valazquez, 531 U.S. 533 (2001); Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011). In Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), the Court addressed a federal limitation on the legal profession that operated in materially the same viewpoint-based manner as does A3371. In Velazquez, the federal regulation prevented legal aid attorneys from receiving federal funds if they challenged welfare laws. Velazquez, 531 U.S. at 537-38. Because the funding condition prohibit[ed] advice or argumentation that existing welfare laws are unconstitutional or unlawful, and thereby excluded certain vital theories and ideas from the lawyers representation, the Court invalidated the regulation on its face. Id. at 547, 549. A3371 regulates licensed mental health counselors in the same constitutionally-proscribed manner by excluding vital theories and ideasnamely, SOCE counselingfrom the licensed counselors therapy options. In Sorrell, pharmacists were prohibited from providing certain information about their professional customers when the use of such information was going to be used for marketing purposes. Sorrell, 131 S. Ct. at 2660. Despite that regulation, pharmacists were permitted to disclose their professional customers information for many purposes other than marketing. Id. The Court noted that nearly all viewpoint-based regulations are unconstitutional and that [t]he First Amendment directs us to be very skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good. Id. at 2670 (quoting 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996)). The regulations in Velazquez and Sorrell were viewpoint-driven, and the same is true with regarding to A3371. A3371 is impermissible viewpoint discrimination of Plaintiffs' viewpoint. 2. A3371 is an Unconstitutional Content-Based Restriction on Speech.
Not only does the law discriminate based on viewpoint, but it also discriminates based on content, and "[r]egulations that permit the Government to discriminate on the basis of the content of the message cannot be tolerated under First Amendment. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) (quoting Reagan v. Time, Inc., 468 U.S. 641, 648-49 (1984)). Rather, a content-based restriction must demonstrate that it passes strict scrutinythat is, it is justified by a compelling government interest and is narrowly drawn to serve that interest. Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2738 (2011). The Defendants claim that A3371 is justified by the States interest in protecting the physical and psychological well-being of minors. Under certain circumstances, states may have a compelling interest in the well-being and protection of children. See Sable Commcns of Cal., Inc. v. F.C.C., 492 U.S 115, 126 (1989). Nevertheless, this purported compelling interest is not alone sufficient to justify A3371, and the government must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994) (Turner I). A3371 cannot satisfy this rigid standard, as the evidence that SOCE counseling is harmful to minors in all circumstances in insufficient as a matter of law. The American Psychological Associations Task Force on SOCE found that sexual minority adolescents are underrepresented in research on evidence-based approaches, and sexual orientation issues in children are virtually unexamined. APA Report at 91. The Report
concluded that there is a dearth of scientifically sound research on the safety of SOCE. Early and recent research studies provide no clear indication of the prevalence of harmful outcomes . . . because no study to date of scientific rigor has been explicitly designed to do so. Id. at 42. The only evidence of harm was anecdotal some individuals reported being harmed by SOCE. Id. at 120. These anecdotes and suspicion simply will not suffice to justify A3371s contentbased discrimination. Playboy Entmt, 529 U.S. at 822. Not only have Defendants neglected to prove any harm, but there are numerous studies that reveal that people can and do successfully change their sexual orientation and eliminate or reduce their unwanted SSA. As Plaintiffs' expert notes, sexual identity, attraction, and behavior have been shown to change substantially across adolescence and young adulthood. Also, some studies have shown that homosexuality as a fixed trait scarcely seemed to exist. Indeed, the reports of fluidity and change in sexual orientation strongly suggests that changes in sexual orientation does take place for some people (and likely more so for youth) and this change can be best described as occurring on a continuum rather than an all-or-nothing experience. Defendants' arguments favoring a compelling interest are undermined by the language of A3371, which allows licensed and certified counselors to engage in SOCE with adults, and allows unlicensed and uncertified counselors to offer SOCE to both, minors and adults. When the government fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993). The State does not have a compelling reason to restrict the content of speech a counselor speaks or a client seeks to hear.
Moreover, A3371 is not the least restrictive means to achieving the government's alleged purpose, as informed consent, which would have undergirded a client's fundamental right to selfdetermination instead of undermining it, is less restrictive than a complete prohibition on licensed counselors providing SOCE to minors who seek such counseling. Additionally, even with a compelling interest in banning an entire mode of therapysuch as SOCEfrom the field of counseling, the State cannot ban that therapy simply to suppress a particular idea. R.A.V., 505 U.S. at 386 (The government may not regulate a [mode of speech] based on hostilityor favoritismtowards the underlying message expressed.). Such a discriminatory motive is revealed where there are other content-neutral substitutes to the regulation. See id. at 395. A3371 is not necessary to prevent harm because all the ethical codes of the relevant professions already prohibit licensed professionals from harming patients. A3371 is not an attempt to prevent harm but is a politically motivated attempt to ascribe negative treatment to a particular viewpoint regarding therapy, particularly SOCE. The fact that children are already protected from harmful and dangerous therapies exposes that the underlying goal of the legislation is not about protecting minors. Instead, that noble and compelling state interest is merely the mirage through which Defendants have attempted to discriminate against and silence the viewpoint of those therapists who believe that SOCE is helpful. Such legislative legerdemain is impermissible. 3. A3371 is Unconstitutionally Vague.
A law is unconstitutionally vague and overbroad if it either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application. Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926).
The States policies must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to take. Id. at 393. Precision of regulation is the touchstone of the First Amendment. NAACP v. Button, 371 U.S. 415, 435 (1963). While all regulations must be reasonably clear, laws which threaten to inhibit the exercise of constitutionally protected expression must satisfy a more stringent vagueness test. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). Thus, a law must give adequate warning of what activities it proscribes and must set out explicit standards for those who apply it. See Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (citing Grayned, 408 U.S. at 108). A3371 fulfills neither requirement, and thus forces licensed mental health professionals to guess at its meaning and differ as to its application both when diagnosing and when engaging in a form of counseling with a minor client. A3371 leaves the licensed counselors guessing where the line of prohibition lies because it does not define or provide any guidance regarding the fundamental operating term, sexual orientation. Identifying a clients sexual orientation is critical for knowing when the A3371s proscriptions are triggered, and the APA Report indicates "sexual orientation identity (i.e., individual or group membership and affiliation, self-labeling) is fluid or has an indefinite outcome. APA Report at vii, 14, 30. Without guidance from the Legislature, a licensed
counselor cannot know when or if he or she has begun to engage in prohibited SOCE. Assuming a licensed counselor can accurately diagnose a clients sexual orientation as understood by A3371, the law still fails to provide sufficient instruction for counselors concerning what they can and cannot say to clients, as the term "sexual orientation change efforts" is vague. The Supreme Court struck down a similarly vague statute that barred employment for any New York teacher who advocates, advises, or teaches the doctrine of
forceful overthrow of government. Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 599 (1967). The Court found that the terms advocates, advises, and teaches were vague because they could be interpreted to cover advocacy in the abstract, the mere advising of the existence of the doctrine, or simply informing ones students about the precepts of Marxism. Id. at 599-600. Similarly, A3371's definition of SOCE fails to provide adequate warning as to what practices constitute prohibited SOCE. It is unclear whether referrals or merely providing information concerning the existence and availability of SOCE counseling would be sufficient to constitute prohibited SOCE. Accordingly, Keyishian mandates A3371s invalidation. A3371 raises additional vagueness concerns because it does not provide instruction on what is prohibited with respect to bisexual or questioning patients, whose sexual orientations are particularly difficult to identify. A licensed professional counselors is uniformed concerning his or her obligation if a minor client enters the office on Monday discussing the unwanted homosexual feelings and relations he had over the weekend, but returns on Thursday discussing heterosexual attractions and relations from the previous night. A3371 provides a licensed counselor no guidance on his or her appropriate response to such a situation. Engaging in discussions that might encourage this hypothetical clients feelings during the Thursday session would involve some practice that might reduce the clients SSA or romantic feelings towards a member of the same gender. A3371 leaves these questions unanswered while potentially subjecting these counselors to loss of their licenses without any clear guidelines. The Constitution simply does not permit such ambiguity. 4. Plaintiffs' Clients' Rights to Receive Information
The First Amendment protects the right to receive information as a corollary of the right to speak. The Fourteenth Amendment guarantees this right, too, against the states. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982); Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Meyer v. Nebraska, 262 U.S. 390 (1923). A3371 deprives Plaintiffs minor clients of this right during counseling sessions because it prohibits licensed counselors from offering SOCE counseling to minors that might help them reduce or eliminate their unwanted SSA. While the government may regulate the receipt of information for various legitimate reasons, it may not do so when its purpose is to suppress certain ideas or viewpoints. See Pico, 457 U.S. at 871-72 (plurality) (Our Constitution does not permit the official suppression of ideas.); id. at 880 (Blackmun, J., concurring) ([O]ur precedents command the conclusion that the State may not act to deny access to an idea simply because state officials disapprove of that idea. . . .). As discussed above, A3371 suppresses the viewpoint that SOCE counseling may be beneficial to minors who seek to reduce or eliminate their unwanted SSA and expresses the States disapproval of such counseling. Because the First Amendment forbids the suppression of particular viewpoints, forbids content-based restrictions on speech, and forbids laws that are vague and overbroad, Plaintiffs are substantially likely to prevail on the merits. B. IMMEDIATE AND IRREPARABLE INJURY The loss of First Amendment freedoms, for even minimal periods of time unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Swartwelder v. McNeilly, 297 F.3d 228, 241-42 (3d Cir. 2002) (same). A citizen who exercises the right to free speech exercises a right that lies at the foundation of free
government. Schneider v. New Jersey, 308 U.S. 147, 165 (1939). Viewpoint-based infringements on the fundamental liberty to speak about SOCE unquestionably constitutes irreparable harm to Plaintiffs and their minor clients, especially when A3371 permits discussion of the topic of sexual orientation and permits the viewpoint that all SSA are to be encouraged and embraced. A3371 bans SOCE counseling and all efforts that are aimed at reducing or eliminating unwanted SSA as an ethical violation and silences counselors who wish to engage in a course of counseling with consenting clients who have sincerely held religious beliefs regarding SSA. Such a prohibition constitutes a deprivation of First Amendment protection currently imposing immediate and irreparable harm on Plaintiffs and their clients. If they violate the A3371's prohibitions, then Plaintiffs are subject to loss of their professional licenses. If they follow A3371s requirements, then Plaintiffs will be subject to sanctions for violating other provisions of their ethical codes mandating that the licensed counselor respect client's the right to selfdetermination and that the counselor not impose an ideology on the clients. Preventing licensed counselors from exercising their First Amendment rights constitutes irreparable harm. Plaintiffs clients are likewise suffering irreparable injury. Plaintiffs clients have lost their First Amendment right to receive medical information, which unquestionably constitutes irreparable harm. Elrod, 427 U.S. at 373; see also New York Times Co. v. United States, 403 U.S. 713 (1971). As discussed above, this constitutional right takes on special importance in the client context because clients cut off from professional advice from licensed counselors are left to make critical medical decisions on their own. Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs. Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2667 (2011). Censoring facts and available
options for assisting a client with his unwanted feelings of distress about a particular issue, whether it be unwanted SSA or some other causing the client distress, is particularly troubling in the medical context where information can save lives. Id. at 2664. A3371 is prohibiting Plaintiffs clients from receiving the course of licensed counseling that is effective and is assisting them in aligning their sexual attractions, behaviors, and identity with their sincerely held religious beliefs. As such, it is currently causing them immediate and irreparable injury.
C. BALANCE OF THE EQUITIES
The Third Circuit has recognized that while injunctions can impinge on a governments interest, the balance favors Plaintiffs in these matters because the government remains free to attempt to enact new regulations that are better tailored to serve [their] interests. Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). In considering the competing claims of injury and the effects of granting and not granting the requested relief on each party, the court finds the weight of the evidence benefits the Plaintiffs. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). Plaintiffs and their clients are currently suffering immediate and irreparable injury and loss of constitutional rights and will continue to suffer such injury so long as A3371 prohibits them providing or receiving SOCE counseling. An injunction in this case will protect the very rights that the Supreme Court has characterized as lying at the foundation of free government of free men. Schneider v. New Jersey, 308 U.S. 147, 151 (1939). The loss of such fundamental freedoms outweighs any interest Defendants might have in halting SOCE counseling, especially given the fact that the basis for the ban is merely anecdotal evidence unsubstantiated by any significant evidence. D. PUBLIC INTEREST The public interest will be served by granting the Plaintiffs' motion. The protection of constitutional rights is of the highest public interest. Elrod, 427 U.S. at 373. Here, the First
Amendment rights of Plaintiffs are entirely eliminated from the field of SOCE counseling with respect to minors. A3371 prohibits any practices that reduce or eliminate SSA, which eliminates Plaintiffs right to discuss available treatment with minor patients desiring to obtain such treatment. Furthermore, it is always in the public interest to prevent the violation of a partys constitutional rights. G & V Lounge, Inc. v. Mich. Liquor Control Commn, 23 F.3d 1071, 1079 (6th Cir. 1994). As to non-parties, the temporary restraining order will preserve the liberties of counselors to provideand parents and minors to choosethe medical care that will best meet their needs, especially those with religious beliefs about SSA. Additionally, granting Plaintiffs' motion will forestall chilling the speech of licensed counselors and will preserve the counselorpatient relationship, which is unquestionably in the public interest. III. CONCLUSION For the foregoing reasons, this Court concludes that Plaintiffs are entitled to a temporary restraining order.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED this ____ day of _________________, 2013, that Defendants, Defendants officers, agents, employees and all other persons acting in active concert with them, are hereby restrained and enjoined from enforcing A3371 against Plaintiffs so that: A. Defendants will not use A3371 in any manner to infringe Plaintiffs constitutional and statutory rights in the counseling of their clients or from offering a viewpoint on an otherwise permissible subject matter; B. Defendants will not use A3371 in any manner to prohibit Plaintiffs from engaging in SOCE treatments with those minor clients who seek such treatment; C. Defendants will not use A3371 to prohibit parents and minors from seeking or receiving SOCE for unwanted same-sex sexual attractions, behaviors, or identity; and
D. Defendants will not use A3371 in any manner to punish Plaintiffs for engaging, referring to, seeking, or receiving SOCE counseling.
_________________________________________ UNITED STATES DISTRICT COURT JUDGE

Proposed Order Granting Motion For Temporary Restraining Order - 1

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_________________________________________ UNITED STATES DISTRICT COURT JUDGE

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