After New Jersey passed its ban on ex-gay therapy for minors last year, two lawsuits were filed challenging the law, one by therapists wishing to continue to practice the harmful treatment and one by a family seeking to continue the treatment for their son. In November, a federal judge ruled against the therapists, and on Thursday, the same judge dismissed the family’s challenge, again upholding the ban.
The ruling somewhat comes out of the blue. The case had been stayed back in March while the U.S. Supreme Court considered whether to take up an appeal in a similar case in California. Last month, the Supreme Court announced it would not be hearing the case, allowing the Ninth Circuit’s ruling upholding California’s similar ban on ex-gay therapy to stand. With that settled, Judge Freda Wolfson now felt it appropriate to issue a decision in this second case.
The plaintiffs in this case made the same arguments that the therapists made in theirs; in fact, they were represented by the same lawyer — Alliance Defending Freedom (ADF) affiliate Demetrios Stratis. ADF is a large conservative legal group committed to restoring “the robust Christendomic theology of the 3rd, 4th, and 5th centuries.”
One claim was that the ban on ex-gay therapy infringes on their freedom of speech, but Wolfson noted that because the treatment consists of talk therapy, the law only regulates the conduct of sexual orientation change efforts (SOCE) and not anybody’s right to free speech. “Plaintiffs conflate information regarding SOCE with SOCE practices engaged in by therapists,” she wrote, clarifying that therapists may still disseminate information about SOCE under the law — they just can’t engage in SOCE itself.
According to the family, the law also infringes upon their free exercise of religion, specifically their belief that changing same-sex attraction or behavior is possible. Wolfson countered that, just as she concluded in the therapists’ case, the ban is “facially neutral with respect to religion” and “does not suppress, target, or single out the practice of any religion because of religious conduct.”
The only new argument put forth in this case was the claim that the law infringes upon the parents’ “due process rights to care for the mental health of their child as they see fit.” Wolfson rejected this claim outright. “Surely, the fundamental rights of parents,” she wrote, “do not include the right to choose a specific medical or mental health treatment that the state has reasonably deemed harmful or ineffective. To find otherwise would create unimaginable and unintentional consequences.”
Wolfson’s decision comes down as a group of former leaders in the ex-gay movement have come out against the harmful treatment. In an open letter, they “join together in calling for a ban on conversion therapy” because it is their “firm belief that it is much more productive to support, counsel, and mentor LGBT individuals to embrace who they are in order to live happy, well-adjusted lives.”
A similar case in New Jersey state court, in which survivors of ex-gay therapy are suing a Jewish ex-gay ministry for consumer fraud, is ongoing.