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N.J.'s Gay Conversion Therapy Ban Making Its Way Through the Courts

By Gabriella Khorasanee, JD on January 15, 2014 | Last updated on March 21, 2019

New Jersey is doing a pretty good job of staying in the national spotlight lately. First it was Hurricane Sandy, then "Bridegate," and now it's making history (along with California) on the gay conversion therapy front.

N.J. Assembly Bill 3371

On August 19, New Jersey became the second state to ban gay conversion therapy for minors. The new law, A3371, prohibits psychologists, therapists and social workers from engaging in gay conversion therapy with minors under 18. The consequence for continuing such practices is the loss of one's license, though it's worth noting that clergy and non-state-licensed professionals are exempted from the grasp of the law.

Days after the law was passed, a lawsuit was filed on behalf of plaintiffs by Liberty Counsel, a group that purportedly advances "religious freedom" but is really just "anti-gay," according to an LGBT website called EDGE. Challenging the law on First Amendment grounds (free religious expression and freedom of speech), the plaintiffs sought summary judgment, and the State made a cross-motion for summary judgment.

Summary Judgment

On November 8, Judge Freda L. Wolfson granted New Jersey's cross-motion for summary judgment in its entirety. The court found plaintiffs' arguments -- that A3371 regulated constitutionally protected speech, and was vague and overbroad -- unconvincing. Likewise, the court found their argument that A3371 violated their right to free exercise equally unconvincing, because the law is on its face neutral and "makes no reference to any religious practice, conduct or motivation."

The Inevitable Appeal

You know what happened next: the plaintiffs filed a notice of appeal to the Third Circuit on November 12.

Last week, the plaintiffs/appellants filed their opening brief with the Third Circuit, essentially raising the same arguments it did at the trial level. Though not binding precedent, it should be noted that the Ninth Circuit held last year that a similar California law banning gay conversion therapy passed constitutional muster. We'll have to wait and see if the Third Circuit agrees.

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