2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-13-2015

John Doe v. Governor of New Jersey

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"John Doe v. Governor of New Jersey" (2015). 2015 Decisions. Paper 365.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

Nos. 14-1941, 14-3495

________________

JOHN DOE, by and through Jack Doe and Jane Doe;

JACK DOE, individually and on behalf of his son, John Doe;

JANE DOE, individually and on behalf of her son, John Doe,

Appellants

v.

GOVERNOR OF THE STATE OF NEW JERSEY

GARDEN STATE EQUALITY,

 Intervenor-Defendant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-13-cv-06629)

District Judge: Honorable Freda L. Wolfson

_____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 19, 2015

Before: SMITH, VANASKIE, SLOVITER, Circuit Judges.

(Opinion filed: April 13, 2015)
2

Mary E. McAlister, Esq.

Daniel J. Schmid, Esq.

Liberty Counsel

P.O. Box 11108

Lynchburg, VA 24506

Anita L. Staver, Esq.

Mathew D. Staver, Esq.

Demetrios K. Stratis, Esq.

Liberty Counsel

P.O. Box 540774

Orlando, FL 32854

Counsel for Appellants

Robert T. Lougy, Esq.

Eric S. Pasternack, Esq.

Susan M. Scott, Esq.

Office of Attorney General of New Jersey

P.O. Box 112

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellee

Shireen A. Barday, Esq.

David S. Flugman, Esq.

Frank M. Holozubiec, Esq.

Andrew C. Orr, Esq.

Kirkland & Ellis

601 Lexington Avenue

New York, NY 10022
3

Andrew J. Welz, Esq.

Kirkland & Ellis

655 15th Street, N.W.

Suite 1200

Washington, DC 20005

Counsel for Intervenor-Defendant 
4

________

OPINION OF THE COURT

________

SLOVITER, Circuit Judge.

In King v. Governor of the State of New Jersey, 767 

F.3d 216 (3d Cir. 2014), this court rejected a challenge 

brought by licensed counselors in the State of New Jersey to 

the constitutionality of Assembly Bill A3371 (“A3371”), a 

New Jersey statute banning the provision of “sexual 

orientation change efforts” (“SOCE”) counseling to minors.

A similar challenge to the constitutionality of the same statute 

is before us again, this time by a minor seeking to undergo 

SOCE counseling and by his parents. As in King, and for the 

reasons that follow, we reject the present challenge and will 

affirm the decision of the District Court dismissing 

Appellants’ complaint.1

 

1 The District Court had jurisdiction under 28 U.S.C. § 

1331. Pursuant to 28 U.S.C. § 1291, we have jurisdiction 

over the final order of the District Court dated July 31, 2014 

dismissing Appellants’ complaint. As we recently reaffirmed, 

“[w]e review de novo a district court’s grant of a motion to 

dismiss for failure to state a claim under Federal Rule of Civil 

Procedure 12(b)(6).” Foglia v. Renal Ventures Mgmt., LLC, 

754 F.3d 153, 154 n.1 (3d Cir. 2014). We must “accept as 

true all allegations in the complaint and all reasonable 

inferences that can be drawn from them after construing them 
5

I.

We assume the familiarity of the parties with A3371 

and our opinion in King.

2

 In brief, A3371 provides: 

 

in the light most favorable to the nonmovant.” Id. (internal 

quotation marks and citation omitted). 

Appellants also filed a separate notice of appeal with 

respect to the District Court’s March 28, 2014 letter order, 

which stayed the matter and administratively terminated 

Appellants’ motion for a preliminary injunction. The impetus 

behind the March 28, 2014 letter order was a pending petition 

for a writ of certiorari seeking Supreme Court review of 

Pickup v. Brown, 740 F.3d 1208 (9th Cir.), cert. denied, 134 

S. Ct. 2871 (2014), a Ninth Circuit decision addressing issues 

similar to those raised in the instant case. Appellees contend 

that the District Court’s July 31, 2014 final order dismissing 

the complaint renders the March 28, 2014 letter order moot. 

We agree. See Hankins v. Temple Univ., 829 F.2d 437, 438 

n.1 (3d Cir. 1987) (“Dr. Hankins’ interlocutory appeal from 

the denial of her motion for a preliminary injunction was 

rendered moot by the issuance of the district court’s final 

order on the merits. Therefore, . . . we need not address the 

propriety of the district court’s denial of appellant’s motion 

for preliminary injunctive relief.”). In light of our affirmance 

of the final order of the District Court, we decline to address 

the appeal from the March 28, 2014 letter order, and we will 

dismiss that appeal as moot.

2 A3371 is now codified at N.J. Stat. Ann. §§ 45:1-54, 

55. We continue to refer to the law as A3371 to be consistent 

with the nomenclature used in the parties’ briefs and in King.
6

a. A person who is licensed to provide 

professional counseling . . . shall not 

engage in sexual orientation change 

efforts with a person under 18 years of 

age.

b. 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.
7

N.J. Stat. Ann. § 45:1-55. The New Jersey Legislature (“the 

Legislature”) provided legislative findings regarding the 

potential for harm from SOCE counseling and the lack of 

evidence that such counseling is effective. See N.J. Stat. Ann. 

§ 45:1-54. For example, the Legislature found that:

The American Psychological 

Association convened a Task Force on 

Appropriate Therapeutic Responses to 

Sexual Orientation. The task force 

conducted a systematic review of peerreviewed journal literature on sexual 

orientation change efforts, and issued a 

report in 2009. The task force concluded 

that sexual orientation change efforts 

can pose critical health risks to lesbian, 

gay, and bisexual people, including 

confusion, depression, guilt, 

helplessness, hopelessness, shame, 

social withdrawal, suicidality, substance 

abuse, stress, disappointment, selfblame, decreased self-esteem and 

authenticity to others, increased selfhatred, hostility and blame toward 

parents, feelings of anger and betrayal, 

loss of friends and potential romantic 

partners, problems in sexual and 

emotional intimacy, sexual dysfunction, 

high-risk sexual behaviors, a feeling of 

being dehumanized and untrue to self, a 

loss of faith, and a sense of having 

wasted time and resources[.]

. . . 
8

The American Academy of Child and 

Adolescent Psychiatry in 2012 published 

an article in its journal, Journal of the 

American Academy of Child and 

Adolescent Psychiatry, stating: 

“Clinicians should be aware that there is 

no evidence that sexual orientation can 

be altered through therapy, and that 

attempts to do so may be harmful. There 

is no empirical evidence adult 

homosexuality can be prevented if 

gender nonconforming children are 

influenced to be more gender 

conforming. Indeed, there is no 

medically valid basis for attempting to 

prevent homosexuality, which is not an 

illness.”

Id. The Legislature stated that “New Jersey has a compelling 

interest in protecting the physical and psychological wellbeing of minors . . . and in protecting its minors against 

exposure to serious harms caused by [SOCE].” Id.

In King, the plaintiff counselors challenged A3371 as 

unconstitutional under the First Amendment as an 

abridgement of their rights to free speech and the free 

exercise of religion. 767 F.3d at 222. As to the free speech 

claim, we first determined “that speech occurring as part of 

SOCE counseling is professional speech,” and restrictions on 

professional speech, like those on commercial speech, are 

given intermediate scrutiny. Id. at 233-34. Thus, A3371 was 

“permissible only if it directly advances the State’s 

substantial interest in protecting clients from ineffective or
9

harmful professional services, and is not more extensive than 

necessary to serve that interest.” Id. at 235 (internal quotation 

marks and citation omitted). We rejected the plaintiff 

counselors’ arguments that A3371 constituted content or 

viewpoint discrimination and was, as a result, subject to strict 

scrutiny. Id. at 236-37.

We then determined that A3371 survived intermediate 

scrutiny and was “a permissible prohibition of professional 

speech.” Id. at 240. This was based on our finding that the 

State has an “unquestionably substantial” interest in 

protecting citizens from harmful professional practices, and 

that this interest is even stronger where the citizens protected 

are minors, “a population that is especially vulnerable to such 

practices.” Id. at 237-38. We found that the State met its 

burden of demonstrating that SOCE counseling posed harms 

that were real, not merely speculative. Id. at 238. 

Specifically, we pointed to the legislative record, which 

revealed that various reputable scientific and professional 

organizations have publicly condemned the practice of SOCE 

counseling based on its potential to inflict harm and the lack 

of “credible evidence that SOCE counseling is effective.” Id. 

Finally, in evaluating whether A3371 was more extensive 

than necessary to further the State’s interest, we rejected the 

plaintiff counselors’ argument that requiring “that minor 

clients give their informed consent before undergoing SOCE 

counseling” would serve the State’s objectives just as well. 

Id. at 239-40. We noted that minors are “especially 

vulnerable” and that they might “feel pressured to receive 

SOCE counseling by their families and their communities.” 

Id. at 240.
10

As to the plaintiff counselors’ free exercise claim, we 

concluded that “A3371 is neutral and generally applicable,

and therefore triggers only rational basis review.” Id. at 242-

43. We rejected the argument that the “individualized 

exemptions” for counseling contained in the statute 

“demonstrate that A3371 covertly targets religiously 

motivated conduct.” Id. at 242. Because we had already 

ruled that the statute passed intermediate scrutiny, we 

necessarily concluded that it survived the lower rational basis 

review. Id. at 243.3 

II.

The instant complaint was filed against the Governor 

of the State of New Jersey on November 1, 2013—several 

months before our ruling in King. John Doe, a minor, and his 

parents, Jack and Jane Doe, (collectively “Appellants” or “the 

Does”), who are represented by the same attorneys who 

represented the plaintiff counselors in King, alleged in their 

complaint that A3371 violated their First Amendment right to 

receive information, their First Amendment right to the free 

exercise of religion, and their fundamental parental rights. In 

conjunction with the complaint, Appellants also filed a 

motion for a preliminary injunction seeking to prevent the 

enforcement of A3371 during the pendency of the suit. 

 

3 The complaint also alleged other constitutional 

claims on behalf of the counselors’ minor clients, but we held 

that the plaintiff counselors lacked standing to assert such 

claims. King, 767 F.3d at 244.
11

At the time the complaint was filed, John Doe was a 

fifteen-year-old boy who claimed that he has struggled with 

“unwanted same-sex attractions” and with “confusion about 

[his] gender identity.” App. at 221. These struggles caused 

suicidal thoughts, self-hatred, anxiety, and panic attacks. He 

and his parents aver that they all have “sincerely-held 

religious beliefs” that homosexuality is wrong and sinful. 

App. at 222, 237. John Doe began SOCE counseling in May 

of 2011, which he believes has helped him in that he has 

stopped trying to be feminine, has reduced his same-sex 

attractions, has an improved relationship with his father, and 

has rid himself of his feelings of hopelessness or thoughts of 

suicide. John Doe and his parents wish to continue his SOCE 

counseling. 

On December 6, 2013, Appellees—the Governor of 

the State of New Jersey and Garden State Equity, who 

intervened under the permissive intervention rules—opposed 

the preliminary injunction and moved to dismiss the 

complaint. The District Court administratively terminated the 

motion for the preliminary injunction on March 28, 2014, and 

on July 31, 2014, a few months prior to our decision in King, 

the District Court issued a decision and order dismissing 

Appellants’ complaint. See Doe v. Christie, 33 F. Supp. 3d 

518 (D.N.J. 2014). 

The District Court ruled that Appellants’ First 

Amendment speech claims fail because SOCE counseling is

conduct not speech and A3371 easily surpassed rational basis 

review. Id. at 524-27.4 As to Appellants’ free exercise 

 

4 The District Court had ruled similarly in King, and 

we rejected the conclusion that SOCE counseling was 
12

claims, the Court, explaining that the analysis was the same 

whether the challenger was the client or the counselor, 

dismissed the Does’ free exercise claim because A3371 was 

neutral and generally applicable. Id. at 527-28. Finally, the 

District Court also dismissed Appellants’ claims that were 

premised on their fundamental parental rights. The Court 

explained that the constitutional right of parents to direct the 

upbringing of their children is “not without qualification.” Id.

at 528. The Court concluded that the case-law did not 

support Appellants’ “argument that parents have an 

unqualified right to select medical procedures, e.g., mental 

health treatment practices, for their children.” Id. at 530. 

Appellants filed a timely appeal.

III.

For the reasons stated in our recent decision in King, 

we will affirm the dismissal of the free exercise and right to 

receive information claims. Appellants here raise the same 

challenges to A3371 as were raised by the plaintiff counselors 

in King, and after extensively considering these arguments, 

we upheld the constitutionality of A3371. See 767 F.3d at 

224-40.

The only “new” argument raised by Appellants with 

respect to these claims is that A3371 burdens, not their right 

to speak, but their right to receive information. Specifically, 

 

conduct, not speech. Nonetheless, we ultimately affirmed the 

District Court’s dismissal of the free speech claim, albeit for 

other reasons—namely, that A3371 survived intermediate 

scrutiny that we apply to professional speech restrictions. See 

King, 767 F.3d at 224-40.
13

they argue that “[t]he First Amendment protects the right to 

receive information as a corollary of the right to speak” and 

that “A3371 prevents . . . minors . . . from receiving the 

viewpoint of SOCE counseling from a licensed professional, 

which may be beneficial to those who seek to reduce or 

eliminate their unwanted [same-sex attractions].” Appellants’ 

Br. at 14-15.5

Appellants are correct that the First Amendment 

protects both the speaker and the recipient of information. 

See Va. State Bd. of Pharm. v. Va. Citizens Consumer 

Council, Inc., 425 U.S. 748, 756-57 (1976). However, the 

cases interpreting the First Amendment do not contemplate 

that some speech may be restricted as to the speaker but not 

to the listener. The listener’s right to receive information is 

reciprocal to the speaker’s right to speak. See id.; Bd. of 

Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 

U.S. 853, 867 (1982) (“[T]he right to receive ideas follows

ineluctably from the sender’s First Amendment right to send 

them.”). As we concluded in King, A3371 does not violate 

the counselors’ right to speak, see 767 F.3d at 240, and, as a 

 

5 We stated in King that A3371 did not prevent the 

plaintiff counselors from expressing the viewpoint that samesex attractions are capable of being reduced or eliminated “in 

the form of their personal opinion, to anyone they please, 

including their minor clients. What A3371 prevents Plaintiffs 

from doing is expressing this viewpoint in a very specific 

way—by actually rendering the professional services.” 767 

F.3d at 237. Likewise, our ruling here today will not prevent 

Appellants from obtaining information about SOCE despite 

their inability to receive SOCE counseling from licensed 

counselors in New Jersey.
14

result, it does not violate Appellants’ right to receive 

information. 

Appellants argue that if we were to conclude that their 

rights to receive information are not violated by A3371, we

would be “turn[ing] the First Amendment analysis on its 

head” because it would mean “that Appellants have no right 

to receive information which the State has banned.” 

Appellants’ Reply Br. at 12. But this argument is 

fundamentally flawed. We are not suggesting that Appellants 

do not have the right to receive the information for the reason 

that the legislature enacted A3371, which bars the provision 

of SOCE counseling to minors; rather, Appellants’ right to 

receive the information is not violated because we already 

upheld A3371, which bans the provision of SOCE counseling 

to minors, against a constitutional challenge in King.

IV.

There is one additional claim raised in this case that 

was not at issue in King. Here, Appellants claim that A3371 

violates their fundamental right to direct the upbringing of 

their child. There is no dispute that “the Due Process Clause 

of the Fourteenth Amendment protects the fundamental right 

of parents to make decisions concerning the care, custody, 

and control of their children.” Troxel v. Granville, 530 U.S. 

57, 66 (2000). But this right is not without limits, and the 

State may “[a]ct[] to guard the general interest in [a] youth’s 

well being.” See Prince v. Massachusetts, 321 U.S. 158, 166 

(1944). “[A] state is not without constitutional control over 

parental discretion in dealing with children when their 

physical or mental health is jeopardized.” Parham v. J.R., 

442 U.S. 584, 603 (1979). While the case law supports 
15

Appellants’ argument that parents have decision-making 

authority with regard to the provision of medical care for their 

children, see e.g., id., the case law does not support the 

extension of this right to a right of parents to demand that the 

State make available a particular form of treatment. 

We agree with the reasoning of the Ninth Circuit in 

Pickup v. Brown, a case addressing a challenge to California’s

similar statute prohibiting SOCE counseling to minors. In 

Pickup, the Ninth Circuit referred to decisions holding that 

patients do not have the right to choose specific treatments for 

themselves and stated, “it would be odd if parents had a 

substantive due process right to choose specific treatments for 

their children—treatments that reasonably have been deemed 

harmful by the state—but not for themselves.” 740 F.3d at 

1235-36. The court concluded, “the fundamental rights of 

parents do not include the right to choose a specific type of 

provider for a specific medical or mental health treatment that 

the state has reasonably deemed harmful.” Id. at 1236. We 

agree with this reasoning, and therefore, we will affirm the 

District Court’s dismissal of Appellants’ parental rights 

claims.

V.

For these reasons, we will affirm the July 31, 2014 

decision and order of the District Court dismissing 

Appellants’ complaint in its entirety.