14-672 petitioner's reply

8/9/2019 14-672 Petitioner's Reply

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CASE NO. 14-672 ___________________________________________IN THE SUPREME COURT OF THE UNITED

STATES ____________________________________________TARA KING, PH.D, RONALD NEWMAN,PH.D., et al.,

Petitioners,v.

GOVERNOR OF NEW JERSEY, et al.,Respondents,

GARDEN STATE EQUALITY,Respondent-Intervenor.

____________________________________________On Petition for Writ of Certiorari to the

United States Court of Appeals for the ThirdCircuit

____________________________________________

PETITIONERS’ REPLY BRIEF ____________________________________________Mathew D. Staver(Counsel of Record)

Anita L. StaverHoratio G. MihetLIBERTY COUNSEL PO Box 540774

Orlando, FL 32854(800) [email protected]

Mary E. McAlisterDaniel J. SchmidLIBERTY COUNSEL PO Box 11108Lynchburg, VA 24506(434) 592-7000

[email protected]


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QUESTIONS PRESENTED

New Jersey Assembly Bill No. 3371(“A3371”) makes it unprofessional conduct forany licensed mental health professional toprovide any counseling under anycircumstances that seeks “to change behaviors,gender identity, or gender expressions, or toreduce or eliminate sexual or romanticattractions or feelings toward a person of the

same gender” regardless of the client’s desiresfor such counseling, but permits andencourages counseling that “providesacceptance, support, and understanding” ofsame-sex sexual attractions, behaviors, oridentity and also “counseling for a personseeking to transition from one gender toanother.” N.J. Stat. Ann. § 45:1-55.

This case presents questions of nationalimportance, which have split the circuits andresulted in decisions conflicting with thisCourt’s precedents. The circuit courts of appealare split as to whether a law restricting whatcounselors or healthcare providers may say andwhat clients or patients may hear in theprivacy of the counsel-client or doctor-patientrelationship is speech protected by the First

Amendment. The circuit courts of appeal are

also split over what level of scrutiny should beapplied when reviewing laws that regulatewhat counselors or healthcare providers may


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but not if the client’s self -determined objectiveis to change such attractions, behavior, oridentity is subject to intermediate scrutinyunder the First Amendment, and, if so,whether the law can survive intermediatescrutiny where informed consent can meet thestate’s interest.

4. Whether speech between licensedcounselors or healthcare providers even where

there is no monetary exchange conducted in theprivacy of a counselor-client or doctor-patientrelationship is “professional speech” subject toregulation and the same level of First

Amendment scrutiny as commercial speech.

5. Whether an advocacy organizationsupportive of legislation being challenged infederal court must satisfy the requirements of

Article III standing to intervene as a party-defendant.

TABLE OF CONTENTS

QUESTIONS PRESENTED………

................i

TABLE OF CONTENTS……………

.........

…… iii

TABLE OF AUTHORITIES………........……… v

INTRODUCTION……………………

.......

………1


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iv

LEGAL ARGUMENT …………………........……2

I. THIS COURT SHOULD GRANT

REVIEW TO RESOLVE THE CONFLICT

AMONG THE CIRCUITS CONCERNING THE

LEVEL OF SCRUTINY APPLICABLE TO

COMMUNICATION BETWEEN A DOCTOR

AND PATIENT OR COUNSELOR AND

CLIENT...............................................................2

A. Petitioners Seek Review Of The Lower

Court’s Judgment Concerning The Appropriate

Standard of Review Which Is in Conflict With

Other Circuits………....………………………… 2

B. The Circuits Are In Conflict Concerning

The Appropriate Review Of Restrictions Of

Speech Between A Counselor And Client And A

Doctor And Patient…..……………………………5

II. THIS COURT SHOULD GRANT

REVIEW TO CONFORM THE THIRD

CIRCUIT’S OPINION BELOW TO THIS

COURT’S PRECEDENTS……........………… 11

III. THIS COURT SHOULD GRANT



STANDING REQUIREMENTS OF

DEFENDANT-INTERVENORS…........………14

CONCLUSION……………………

........

……… 15


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TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Mineta ,532 U.S. 967 (2001)………………………............4

Bartnicki v. Vopper , 532 U.S. 514 (2001)..........3

Black v. Cutter Laboratories ,351 U.S. 292 (1956)…………..............................3

Burnett v. Grattan , 468 U.S. 42 (1984)….........8

Conant v. Walters ,309 F.3d 629 (9th Cir. 2002)……...................7, 8

Fisher v. City of Berkeley ,475 U.S. 260 (1986)…..............……………….3, 4

Fry v. Pliler , 551 U.S. 112 (2007)……………….4

Florida Bar v. Went For It, Inc.,515 U.S. 618 (1995)…………………………….5, 7

Hollingsworth v. Perry ,133 S. Ct. 2652 (2013)…………………………...14

Icicle Seafoods, Inc. v. Worthington ,475 U.S. 709 (1986)………………………….........4


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Legal Services Corporation v. Velazquez ,531 U.S. 533 (2001)……………………..11, 12, 13

Minnesota v. Clover Leaf Creamery Co.,449 U.S. 456 (1981).............................................4

McConnell v. FEC , 540 U.S. 93 (2003)............15

Moore-King v. Cnty. of Chesterfield, Va.,708 F.3d 560 (4th Cir. 2013)……………………..8

Nat’l Ass’n for the Advancement of

Psychoanalysis v. Cal. Bd. of Psychology ,228 F.3d 1043 (9th Cir. 2000)……………….9, 10

Nunez v. United States ,554 U.S. 911 (2008).............................................8

Riley v. National Federation of the

Blind of North Carolina, Inc.,487 U.S. 781 (1988)……………………..11, 12, 13

Sorrell v. IMS Health, Inc.,131 S. Ct. 2653 (2011)…………………............…7

Stuart v. Camnitz ,774 F.3d 238 (4th Cir. 2014) …………...…6, 7, 8

Turner Broad. Sys., Inc. v. F.C.C.,

512 U.S. 622 (1994)…..............…………………..3


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Wollschlaeger v. Governor of Florida ,760 F.3d 1195 (11th Cir. 2014) ………...........…8

STATUTES

N.J. Stat. Ann. § 45:-1-54 to 55………….....…i , 1


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INTRODUCTION

This Court’s review is imperative toprotect the fundamental right of licensedcounselors offering or individuals seekingmental health counseling to makedeterminations concerning the mostelementary freedom – the right to self-determination. Respondent fails to diminishthe importance of the Questions Presented by

attempting to limit the breathtaking intrusionand impact of New Jersey Assembly Bill No.3371, codified at N.J. Stat. Ann. § 45:-1-54 to 55(“A3371”).

Contrary to Respondent’s opposition, thelaw (1) infringes the right of licensed mentalhealth professionals to provide competent,consensual counseling carried out via verbalcommunication – speech – in the same manneras every other form of modern mental healthcounseling, (2) tramples the rights ofindividuals to consent to and receive competentcare from a licensed mental health professionaltrained to provide their desired counseling, (3)tramples the fundamental rights of individualsseeking mental health counseling to set theobjectives of their own mental healthcounseling – the right to self-determination ,

and (4) injects the state into sacrosanct area ofthe doctor-patient or client-counselorrelationship to mandate only one message


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concerning same-sex attractions, behaviors, oridentity. This Court must intervene to addressthe conflicts that have developed among thecourts.

LEGAL ARGUMENT

I. THIS COURT SHOULD GRANT



LEVEL OF SCRUTINY APPLICABLE TO

COMMUNICATION BETWEEN A DOCTOR

AND PATIENT OR COUNSELOR AND

CLIENT.

Petitioners seek certiorari concerning thelower court’s judgment regarding the standardof review for restrictions on speech between acounselor and a client, which judgmentconflicts with other circuit courts.

A. Petitioners Seek Review Of The

Lower Court’s Judgment Concerning The

Appropriate Standard of Review Which

Is in Conflict With Other Circuits.

Respondent wrongly suggests thatPetitioners seek this Court’s review of “randomstatements in the lower court’s opinions,”

rather than its judgment and application ofFirst Amendment law. (Respondent’s Brief inOpposition, “Opp.” at 13-14). It is true that this


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Court “reviews judgments, not statements inopinions.” Black v. Cutter Laboratories , 351U.S. 292, 297 (1956). Yet, this unremarkablenotion that forms the basis of Respondent’sopposition does not diminish the grounds uponwhich Petitioners seek review. The conflictsamong the circuits relate to the application ofthe First Amendment to communicationsbetween a counselor and client or doctor andpatient and the level of scrutiny required by the

First Amendment for such speech. Thoseconflicts, and the Questions Presented, fallwithin this Court’s purview and are properlythe subject of review.

While only the judgments of the lowercourts are the proper focus for certiorarireview, the lower court’s application of theappropriate level of scrutiny for reviewinggovernment regulations is a judgment, andthose judgments are frequently the focus of thisCourt’s certiorari review. See, e.g., Bartnicki v.Vopper , 532 U.S. 514, 517 (2001) (“These casesraise the important question concerning thedegree of protection, if any, the First

Amendment provides to speech that disclosesthe contents of an illegally interceptedcommunication.”); Turner Broad. Sys., Inc. v.F.C.C., 512 U.S. 622 (1994) (reviewing what

level of scrutiny was applicable to an FCCrestriction of speech); Fisher v. City ofBerkeley , 475 U.S. 260 (1986) (reviewing the


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levels of scrutiny applicable under the Sherman Act).

This Court frequently reviews theanalysis of a lower court’s opinion to determinethe validity of its judgment by addressing theappropriate standard of review. See, e.g., Fry v.Pliler , 551 U.S. 112, 120-21 (2007) (noting thatcertiorari was granted to determine theappropriate standard of review); Minnesota v.

Clover Leaf Creamery Co., 449 U.S. 456, 461n.6 (1981) (“The standard of review under equalprotection analysis . . . is governed by federalconstitutional, and a state court’s application ofthat standard is fully reviewable in this Courton a writ of certiorari.”).

The lower court’s application of the law inarriving at its judgment is also fully reviewableby this Court. See, e.g., Adarand Constructors,Inc. v. Mineta , 532 U.S. 967 (2001) (“Petitionfor a writ of certiorari granted limited to thefollowing questions: (1) Whether the court ofappeals misapplied the strict scrutiny standard. . .”); Icicle Seafoods, Inc. v. Worthington , 475U.S. 709. 710 (1986) (“We granted certiorari toconsider whether the Court of Appeals appliedthe appropriate standard of review.”).

Petitioners seek review of the lowercourt’s application of the First Amendment tocommunications between a counselor and


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client. Petitioners seek review to address theconflict among the circuit courts concerning theappropriate level of scrutiny applicable toregulations of speech between a counselor andclient or doctor and patient.

B. The Circuits Are In Conflict

Concerning The Appropriate Review Of

Restrictions Of Speech Between A

Counselor And Client And A Doctor And

Patient.

Respondent again attempts to diminishthe central focus of Petitioners’ claims bymischaracterizing the holdings of several casesand claiming that the cases Petitioners relyupon support diminished protection forregulations of speech between a counselor andclient or doctor and patient. Opp. at 14-18. Thisargument ignores the divergent standards ofreview applied by the circuit courts in casesinvolving such speech. This Court’s review isneeded to resolve the conflict concerningregulations of speech that this Court has saidmay be entitled to “the strongest protectionsour Constitution has to offer.” Florida Bar v.Went For It, Inc., 515 U.S. 618, 634 (1995).

The need for this Court’s review to

resolve these conflicts was also furtherindicated during the pendency of this Petition.During the brief period since the Petition was


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filed, the Fourth Circuit issued anotherdecision increasing the conflict among thecircuits concerning the issues presented. Stuartv. Camnitz , 774 F.3d 238 (4th Cir. 2014). InStuart , the law regulated the communicationbetween a doctor and his patient in the contextof abortion counseling. Id. at 256. The FourthCircuit recognized that merely becauseprofessionals are subject to state entrance andlicensing requirements “does not mean that

individuals simply abandon their First Amendment rights when they commencepracticing a profession.” Id. at 247. The courthighlighted the fact that there are divergentopinions from the circuit courts concerning theappropriate scrutiny of professional regulationsof speech. Id. at 248.

The court wrestled with the issue of theappropriate level of scrutiny to apply toregulations of communications between adoctor and patient, and it noted that “[c]ontent-based restrictions on speech typically receivestrict scrutiny.” Id. at 246. It concluded that therestriction was “a content-based regulation of amedical professional’s speech which mustsatisfy at least intermediate scrutiny tosurvive.” Id. at 245 (emphasis added). Whilethe level of scrutiny in Stuart was consistent

with the decision below, the Fourth Circuitapplied that level of scrutiny because it “neednot conclusively determine whether strict


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scrutiny ever applies in similar situations,because in this case ‘the outcome is the samewhether a special commercial speech inquiry ora stricter form of judicial scrutiny is applied.’”Id. at 248 (quoting Sorrell v. IMS Health, Inc.,131 S. Ct. 2653, 2667 (2011)). But, it left openthe possibility that more exacting scrutinycould be required of such regulations, astandard that has been applied in the contextof doctor-patient communications by this Court

and other circuit courts.

The Ninth Circuit answered thatquestion differently when it analyzed aregulation of communications between a doctorand patient, a judgment which conflicts withthe court below. See Conant v. Walters , 309F.3d 629 (9th Cir. 2002). There, the NinthCircuit agreed with this Court’s treatment ofprofessional speech by noting that “professionalspeech may be entitled to the ‘strongestprotection our Constitution has to offer.’” Id. at637 (quoting Florida Bar , 515 U.S. at 634). Asdid the restriction in Stuart and A3371 here,the law at issue in Conant regulated thecommunications between a doctor and hispatient and did “not merely prohibit thediscussion of marijuana,” but “condemn[ed] expression of a particular viewpoint.” Id. As

such, the Ninth Circuit subjected therestriction to strict scrutiny. Id. at 639; see alsoPet. at 23-25. That decision is in conflict with


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the decision below, see Pet. at 21-28, and is alsoin conflict with decisions from the Fourth,Ninth, and Eleventh Circuits. Id.

Respondent also faults Petitioners forciting Wollschlaeger v. Governor of Florida , 760F.3d 1195 (11th Cir. 2014) and Moore-King v.Cnty. of Chesterfield, Va., 708 F.3d 560 (4thCir. 2013), suggesting that those casesemployed a lower standard of review than the

Third Circuit and therefore would not assistPetitioners here. Opp. at 15-18. The lowerstandard of review employed in those cases,however, is not what Petitioners are suggestingis appropriate. The relevant point is that thestandards of review employed in those casesconflict with the standard of review employedby the Third Circuit below and also conflict with the decision from the Ninth Circuit inConant , 309 F.3d at 639 and the Fourth Circuitin Stuart , 774 F.3d at 245.

The “main purpose of [this Court’s]certiorari jurisdiction [is] to eliminate circuitsplits.” Nunez v. United States , 554 U.S. 911,911 (2008) (Scalia, J., dissenting from denial ofcertiorari). Indeed, this Court frequently grantscertiorari “to resolve confusion in the Circuits.”Burnett v. Grattan , 468 U.S. 42, 46 (1984). By

citing cases employing a lower standard ofreview, Petitioners were not advocating forsuch a standard, but merely disclosing that


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there is a pervasive conflict among the circuitcourts concerning the appropriate treatment ofcommunications between a doctor and patientor counselor and client.

Respondent’s opposition continues tofalter by misstating the relevant import ofvarious cases highlighting the split among thecircuits. Opp. at 17 (alleging that Petitioners“incorrectly state the holding of the Ninth

Circuit’s” decision in Nat’l Ass’n for the Advancement of Psychoanalysis v. Cal. Bd. of

Psychology , 228 F.3d 1043 (9th Cir. 2000)(“NAAP ”)). Contrary to Respondent’scontention, NAAP actually exacerbates theconflict among the circuits concerning the First

Amendment scrutiny applicable to regulationsof professional speech. Ironically, Respondentmistakenly faults Petitioners for misstating theholding of NAAP , yet in so doing, focuses on asection of NAAP that is irrelevant toPetitioners’ concerns. Indeed, Respondentargues that Petitioners’ reliance upon NAAP ismisplaced while citing to the Fourteenth

Amendment due process analysis rather thanthe relevant First Amendment scrutiny. Opp.at 17-18 (noting that the Ninth Circuit appliedrational basis scrutiny because psychoanalystswere not a suspect class). Respondent ignores

the circuit split evidenced by the NinthCircuit’s judgment in NAAP .


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The relevant judgment of the NinthCircuit in NAAP , which concerns theappropriate level of scrutiny for viewpoint andcontent-based restrictions on speech, is indirect conflict with the Third Circuit below.See, e.g., NAAP , 228 F.3d at 1055 (“We furtherconclude that California’s licensing scheme iscontent and viewpoint neutral ; therefore it doesnot trigger strict scrutiny.”) (emphasis added);id. (“California’s mental health licensing laws

are content-neutral; they do not dictate whatcan be said between psychologists and patientsduring treatment.”). The obvious implication ofthese statements from the Ninth Circuit is thatif the restriction at issue in NAAP had beencontent-based, then it would have beensubjected to strict scrutiny. That holding, whichis consistent with other Ninth Circuit authorityin Conant , is directly contrary to the decisionbelow. See App. at 38a-39a; see also Pet. at 28-31.

This Court should grant review to resolvethe conflict among the circuits concerning theappropriate level of scrutiny applicable toregulations of speech between a counselor andclient or a doctor and patient. The judgment ofthe Third Circuit below is in direct conflict withthe decisions from the Fourth, Ninth, and

Eleventh Circuits, and this Court’s final judgment on this important question is needed


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to resolve the conflict and reduce the confusionamong the circuit courts.

II. THIS COURT SHOULD GRANT

REVIEW TO CONFORM THE THIRD

CIRCUIT’S OPINION BELOW TO THIS

COURT’S PRECEDENTS

.

Respondent also labors in vain to refutethe remarkable similarity and import of this

Court’s precedent in Legal Services Corporationv. Velazquez , 531 U.S. 533 (2001) and Riley v.National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781 (1988). All thatRespondent could garner in support of itsattempt at distinguishing Velazquez and Rileyis that neither of these cases “concerns ameasure regulating a medical professional’sspeech” and so is not in conflict with theseother cases dealing with professional speech.Opp. at 18. This argument is specious. ThisCourt’s precedent in Velazquez and Riley dealwith the level of scrutiny applicable to content-based regulations of speech by a licensedprofessional, not just a medical professional.

In Velazquez , the restriction at issue“foreclose[d] advice or legal assistance toquestion the validity of statutes under the

Constitution of the United States of America.”Velazquez , 531 U.S. at 544 (emphasis added).The effect of the restriction on professional


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legal services was “to prohibit advice orargumentation that existing welfare laws areunconstitutional or unlawful.” Id. at 547. InRiley , the restriction was again one of speechby a state-licensed professional. Riley , 487 U.S.at 795-96. The relevant point is not the type ofprofessional offering the advice, services, orcounseling, but that the professional servicesare being rendered through speech andtherefore are protected by the First

Amendment. See Velazquez , 531 U.S. at 537-38; Riley , 487 U.S. at 798. The import of thesecases is clear, and the decision below directlycontradicts them.

The only other argument Respondentcould offer in support of its contention that thedecision below is somehow consistent withVelazquez and Riley , rather than in conflictwith them, is that the content-basedrestrictions in those cases impaired theprovision of professional services, rather thanfacilitated them. Opp. at 18-20. This argumentstrains credulity. Indeed, A3371, too, impairsthe ability of licensed mental healthprofessionals to provide competent careconsistent with their clients’ objectives andgoals within the therapeutic alliance. App. at145a-46a.

In Velazquez , the restriction onprofessional speech was designed to “exclude


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certain vital theories and ideas ” and “aimed atthe suppression of ideas thought inimical to theGovernment’s own interest.” Velazquez , 531U.S. at 548-49 (emphasis added). In Riley , thecontent-based restriction impaired the servicesa licensed professional by enhancingmandatory disclosures. Riley , 487 U.S. 795-96.

As Respondent points out, the limitations onprofessional speech in Riley were burdensomeenough they might have driven professionals

from the state because the restrictionsimpaired the ability of its citizens to receivecompetent professional services. Id. at 94.

The same is true here. A3371 limits thecommunication a professional can provide to aconsenting client, despite the client’s objectivesor therapeutic goals. App. at 145a-46a. Despitethe client’s objectives in counseling concerninghis unwanted same-sex attractions, behaviors,or identity, once that subject is presented to alicensed professional, the services thatprofessional is able to render immediatelybecomes severely restricted to only one message

– that of the State’s acceptance, support, andencouragement of such same-sex attractions,behaviors, or identity. Id. The fundamentalprinciple of mental health counseling is thatthe client is able to set the objectives and

direction of his counseling, yet A3371 impairsand indeed eliminates the ability of clients in


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Despite Respondent’s contention, thisCourt did not overrule the cases forming thebasis of the circuit split on this issue. Opp. at21 (falsely noting that this Court determinedthis issue in McConnell v. FEC , 540 U.S. 93,109 (2003)). The circuit split concerningwhether an advocacy organization needsstanding to intervene in defense of legislation itsupported is alive and well, and it should be

resolved by this Court. See Pet. at 34-37.

CONCLUSION

For the foregoing reasons, this Courtshould grant the Petition and resolve theconflicts.

February 18, 2015

Mathew D. Staver Mary E. McAlister(Counsel of Record) Daniel J. Schmid

Anita L. Staver LIBERTY COUNSEL Horatio G. Mihet PO Box 11108LIBERTY COUNSEL Lynchburg, VA 24506PO Box 540774 (434) 592-7000Orlando, FL 32854 [email protected](800) [email protected]

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