The Third Circuit Court of Appeals ruled Thursday that New Jersey’s ban on sexual orientation change efforts (SOCE), also known as ex-gay therapy, is constitutional. This was another defeat for the Liberty Counsel, Alliance Defending Freedom, and NARTH, who argued that the ban inhibits the free speech and religious freedom of therapists who provide the ineffective and harmful treatments.
The Court largely agreed with the district judge’s opinion, but did make one notable distinction. The lower court had defined ex-gay therapy as “conduct,” not speech, even though it consists primarily (if not exclusively) of “talk therapy.” The Third Circuit argued that speech is speech, not conduct, but that doesn’t mean the speech is protected by the First Amendment.
Referring to the Ninth Circuit’s similar decision upholding California’s ban, the panel explained that “a licensed professional’s speech is not afforded the full scope of First Amendment protection when it occurs as part of the practice of a profession.” Professional speech, like commercial speech, can be held to a different level of scrutiny.
“Licensed professionals, through their education and training, have access to a corpus of specialized knowledge that their clients usually do not,” the panel wrote. “Indeed, the value of the professional’s services stems largely from her ability to apply this specialized knowledge to a client’s individual circumstances. Thus, clients ordinarily have no choice but to place their trust in these professionals, and, by extension, in the State that licenses them.”
The Court acknowledged that the State has a vested interest in the well-being of its citizens. “To handcuff the State’s ability to regulate a profession whenever speech is involved” they concluded, “would therefore unduly undermine its authority to protect its citizens from harm.”
Indeed, 92 percent of “survivors” of ex-gay therapy said they experienced harm from their time undergoing SOCE.
The conservative groups representing the ex-gay therapists can appeal to the Supreme Court, but they were not interested in taking up a similar appeal in California.
(HT: Kathleen Perrin.)