On Friday, a federal judge ruled that New Jersey’s new law (A3371) banning ex-gay therapy for minors did not violate the rights of counselors who provide it nor families who seek it. Judge Freda Wolfson, who was appointed by President George W. Bush, explained that even if sexual orientation change efforts (SOCE) are administered through talk therapy, that talk is not automatically protected by the First Amendment. Instead, she argued, the therapy constitutes conduct, and thus the state is within its right to regulate it, particularly if lawmakers have reason to believe it will be harmful to minors.
The suit had been filed by the Liberty Counsel on behalf of NARTH, the so-called National Association for the Research and Therapy of Homosexuality, which acts as a professional network for purveyors of SOCE. Among their arguments was that the definition of “sexual orientation” was too broad, but Wolfson called them out for contradicting themselves. They can’t defend sexual orientation change efforts if they don’t know what “sexual orientation” means:
Plaintiffs also challenge the term sexual orientation,” noting that it is undefined in the statute, and citing the APA Task Force that explained that “same-sex sexual attractions and behavior occur in the context of a variety of sexual orientations . . . and . . . is fluid or has an indefinite outcome.” Plaintiffs reason that because the term “sexual orientation” has subjective and interchanging meanings, its usage in the challenged statute makes the statute vague. I am not persuaded that the term “sexual orientation” is unconstitutionally vague.
Plaintiffs, in their own declarations, demonstrate that they understand what the term sexual orientation means and how that term relates to the conduct prohibited by A3371. Indeed, Plaintiffs are bringing this suit precisely because they wish to engage in SOCE. For Plaintiffs to argue on the one hand that their ability to engage in SOCE is impermissibly restricted by A3371, and on the other hand claim that A3371 is unconstitutionally vague because it fails to define “sexual orientation” strains credulity. Regardless, because I find that a person of ordinary intelligence — let alone Plaintiffs — would understand what the term sexual orientation means, A3371 is not vague for the inclusion of this term.
The ruling mirrors (and refers back to) a similar ruling by the Ninth Circuit, which upheld California’s law against SOCE for minors back in August. That challenge was filed by the same anti-gay groups. Mat Staver of the Liberty Counsel informed the Washington Blade that they had already filed an appeal in New Jersey, but that filing is not yet available.
A second lawsuit similarly representing a New Jersey family seeking ex-gay therapy for their son was recently filed, making similar arguments.
(HT: Kathleen Perrin.)