14-672 GSE's Opposition

8/9/2019 14-672 GSE's Opposition

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14-672

IN THE

Supreme Court of the United States

T ARA K ING, ED. D. individually and on behalf of her patients;

RONALD NEWMAN, PH. D., individually and on behalf of his

patients; N ATIONAL A SSOCIATION FOR RESEARCH AND THERAPY OF

HOMOSEXUALITY , (NARTH); A MERICAN A SSOCIATION OF CHRISTIAN

COUNSELORS, Petitioners,

(Caption continued on inside cover )

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION

d

SHANNON P. MINTER

CHRISTOPHER F. STOLL

D AVID C. CODELL

N ATIONAL CENTER FOR

LESBIAN RIGHTS

870 Market Street, Suite 370

San Francisco, California 94102

(415) 392-6257

MICHAEL GLUCK

A NDREW B AYER

GLUCK W ALRATH LLP

428 River View Plaza

Trenton, New Jersey 08611

(609) 278-3900

D AVID S. FLUGMAN

Counsel of Record

FRANK M. HOLOZUBIEC

A NDREW C. ORR

K IRKLAND & ELLIS LLP

601 Lexington Avenue

New York, New York 10022

(212) 446-4800

[email protected]

Attorneys for Respondent Garden State Equality


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—v.—

GOVERNOR OF THE STATE OF NEW JERSEY ; ERIC T. K ANEF SKY ,

DIRECTOR OF THE NEW JERSEY DEPARTMENT OF L AW AND PUBLICS AFETY : DIVISION OF CONSUMER A FFAIRS, in his official capacity;

MILAGROS COLLAZO, EXECUTIVE DIRECTOR OF THE NEW JERSEY

BOARD OF M ARRIAGE AND F AMILY THERAPY EXAMINERS, in her

official capacity; J. MICHAEL W ALKE R, EXECUTIVE DIRECTOR OF

THE NEW JERSEY BOARD OF PSYCHOLOGICAL EXAMINERS, in his

official capacity; P AUL JORDAN, PRESIDENT OF THE NEW JERSEY

STATE BOARD OF MEDICAL EXAMINERS, in his official capacity;

and G ARDEN STATE EQUALITY ,

Respondents.


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ii

PAGE

III. THE THIRD CIRCUIT’S DECISIONIS CONSISTENT WITH THISCOURT’S PRECEDENTS . . . . . . . . . . . 18

IV. THIS IS NOT AN APPROPRIATECASE FOR DEMARCATING

ARTICLE III STANDINGREQUIREMENTS FORINTERVENOR-DEFENDANTS . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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iii

Black v. Cutter Labs.,351 U.S. 292 (1956) . . . . . . . . . . . . . . . . . . . . . . 13

California v. Rooney,

483 U.S. 307 (1987) . . . . . . . . . . . . . . . . . . . . . . 13

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. ,467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . 14, 15

Conant v. Walters,309 F.3d 629 (9th Cir. 2002) . . . . . . . . . . . . 16, 17

Dep’ t of Commerce v. U.S. House of Reps.,525 U.S. 316 (1999) . . . . . . . . . . . . . . . . . . . . . . 22

Diamond v. Charles,476 U.S. 54 (1986) . . . . . . . . . . . . . . . . . . . . . . . 22

Dir., Office of Workers ’ Comp. Programs,U.S. Dep’t of Labor v. Perini N.

River Assocs.,459 U.S. 297 (1983) . . . . . . . . . . . . . . . . . . . . . . 22

Hollingsworth v. Perry,133 S. Ct. 2652 (2013) . . . . . . . . . . . . . . . . . . . 22

Jennings v. Stephens,135 S. Ct. 793 (2015) . . . . . . . . . . . . . . . . . . . . 13,15

King v. Christ ie ,

981 F. Supp. 2d 296 (D.N.J. 2013)aff’d sub nom. King v. Governor ofNew Jersey, 767 F.3d 216(3d Cir. 2014)

. . . . . . . . . . . . . . . . . . . . . . . .10, 11, 12

TABLE OF AUTHORITIESPAGE(S)Cases:



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iv

PAGE(S)

King v. Governor of New Jersey ,767 F.3d 216 (3d Cir. 2014) . . . . . . . . . . . . passim

Legal Servs. Corp. v. Velazquez,531 U.S. 533 (2001) . . . . . . . . . . . . . . . . . . . . . . 18, 19

Lowe v. S.E.C.,472 U.S. 181 (1985) . . . . . . . . . . . . . . . . . . . . . . 15

Mausolf v. Babbitt,

85 F.3d 1295 (8th Cir. 1996) . . . . . . . . . . . . 21

McConnell v. Fed. Election Comm’n,540 U.S. 93 (2003)overruled on other grounds by CitizensUnited v. Fed. Election Comm’n,558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . . 21

Moore-King v. Cnty. of Chesterfield, Va.,708 F.3d 560 (4th Cir. 2013) . . . . . . . . . . . . 15

Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology,228 F.3d 1043 (9th Cir. 2000) . . . . . . . . . . . 17, 18

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

134 S. Ct. 2871, cert denied sub. nomWelch v. Brown, 134 S. Ct. 2881(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13, 17

Planned Parenthood of Se. Pa. v. Casey,505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . 3, 16

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988) . . . . . . . . . . . . . . . . . . 18, 19, 20



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v

PAGE(S)

S. Christian Leadership Conference v. Kelley,747 F.2d 777 (D.C. Cir. 1984) . . . . . . . . . . . 21

Vill. of Arlington Heights v. Metro.Housing Dev. Corp.,429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . . . . 22

Watson v. Maryland,218 U.S. 173 (1910) . . . . . . . . . . . . . . . . . . . . . . 3

Wollschlaeger v. Governor of Fla.,

760 F.3d 1195 (11th Cir. 2014) . . . . . . . . .

14, 16

Statutes

N.J. STA T. A NN . § 45:1 . . . . . . . . . . . . . . . . . . . . . . passim

N.J. STA T. A NN . § 45:14B . . . . . . . . . . . . . . . . . . . . 9

N.J. STA T. A NN . § 45:14BB . . . . . . . . . . . . . . . . . . 10

N.J. STA T. A NN . § 45:15BB . . . . . . . . . . . . . . . . . . 9

N.J. STA T. A NN . § 45:8B . . . . . . . . . . . . . . . . . . . . . 9

N.J. STA T. A NN . § 45:9. . . . . . . . . . . . . . . . . . . . . . .

9

Omnibus Consolidated Rescissions and

Appropriations Act of 1996,Pub. L. No. 104-134, § 504(a)(16),110 Stat. 1321–53 . . . . . . . . . . . . . . . . . . . . . . . . 18



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vi

PAGE(S)

Other Authorities

American Psychological Associat ion TaskForce on Appropriate TherapeuticResponses to Sexual Orientation,REPORT OF TH E A MERICANPSYCHOLOGICAL A SSOCIATIONT AS K FORCE ON A PPROPRIATETHERAPEUTIC RESPONSES TOSEXUAL ORIENTATION (2009) . . . . . . . . . . . 6

Rules

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5



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QUESTIONS PRESENTED

1. Whether a state law prohibiting state-licensed mental health professionals from

engaging in the practice of sexual orientationchange efforts with minors under the age of eighteen violates the freedom of speechguaranteed by the First Amendment to the UnitedStates Constitution as incorporated against thestates by the Fourteenth Amendment.

2. Where plaintiffs unsuccessfully challenge a

state statute in federal district court, and thenseek appellate review in a federal court of appealsand certiorari review in this Court, and where

state official defendants present evidence and/orarguments in defense of the statute at each stageof the federal judicial proceedings, whetherfederal courts must nevertheless determine thatintervenor-defendants independently demonstrate

Artic le III standing in order for the intervenor-

defendants to present argument and evidence insupport of the state statute.

PARTIES

Petitioners are Tara King, Ph.D., RonaldNewman, Ph.D., the National Association for

Research and Therapy of Homosexuality, and the American Association of Christian Counselors .

Respondents are the Governor of the State of New Jersey; Eric T. Kanefsky, Director of the NewJersey Department of Law and Public Safety:

Division of Consumer Affairs; Milagros Collazzo,Executive Director of the New Jersey Boardof Marriage and Family Therapy Examiners;

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J. Michael Walker, Executive Director of the NewJersey Board of Psychological Examiners; PaulJordan, President of the New Jersey State Boardof Medical Examiners; and Garden State Equality.

CORPORATE DISCLOSURE STATEMENT

Garden State Equality is a not-for-profit

corporate organization with no parent corporation.No publicly held company owns 10% or more of Garden State Equality’s stock.

PRELIMINARY STATEMENT

New Jersey Assembly Bill A3371, codified into

law at N.J. STA T. A NN. § 45:1-54 et seq. (referredto herein as “A3371”) is a regulation of state-licensed professionals of the sort that is consistentwith the First Amendment under the precedentsof this Court, as both federal courts of appeals tohave considered such measures have agreed.

A3371 does one thing: it prohibits mental healthprofessionals who hold themselves out ascompetent specialists by virtue of their state-granted licenses from engaging in a practice thatthe State of New Jersey has determined to be bothineffective and potentially harmful—namely, the

practice of attempting to alter the sexualorientation of minor patients through a processknown as “sexual orientation change efforts.”

This Court long has recognized the broad

authority of states to regulate the medical and

mental health professions in order to ensure thatpatients, who typically are at a distinctinformational disadvantage, receive competent

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and scientifically credible care. Indeed, this Courtheld more than a century ago that “[t]here isperhaps no profession more properly open to suchregulations than that which embraces thepractitioners of medicine.” Watson v. Maryland,218 U.S. 173, 176 (1910). This bedrock principle

applies with equal force to cases, like this one,where the purported care is being delivered notthrough a scalpel but, rather, through speech. See

Planned Parenthood of Se. Pa. v. Casey, 505 U.S.833, 884 (1992) (noting that speech is “part of the

practice of medicine, [and is] subject to reasonablelicensing and regulation”).

The professional speech implicated by A3371falls well within the ambit of the State’sregulatory authority. To be clear: A3371 does not

in any way diminish what anyone, including anylicensed mental health professional, may say inthe public arena. It does not prohibit anyone fromexpressing their personal opinion or viewpointabout efforts to alter sexual orientation, including

licensed mental health professionals expressingsuch an opinion to their minor clients. Instead, A3371 solely regulates medical treatments thatinvolve certain direct, personalized speech bylicensed mental health professionals to theirpatients.

Petitioners contend that this Court’s review iswarranted on the ground that the federal Courtsof Appeals are divided on questions of First

Amendment law and intervention. None of thealleged conflicts, however, warrants this Court’s

review.

Petitioners first argue that “the circuits are inconflict” as to “whether the First Amendment

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applies to speech between counselor and client ordoctor and patient.” Pet. at 8 (capitalizationmodified).1 There is no need for this Court toreview that issue here, however, because theThird Circuit in this case agreed with Petitionersthat the First Amendment applies to the speech at

issue in this case, while nonetheless upholding thelaw. (See Section I, infra.)

Petitioners also argue that “the circuits are inconflict as to the appropriate level of scrutinyapplicable to speech between counselor and client

or doctor and patient.” Pet. at 20 (capitalizationmodified). That the Third Circuit upheld A3371after subjecting it to a higher degree of scrutinythan the Ninth Circuit applied in upholding asimilar California statute, see Pickup v. Brown,

740 F.3d 1208 (9th Cir.), cert. denied, 134 S. Ct.2871, cert denied sub. nom Welch v. Brown , 134 S.Ct. 2881 (2014), however, does not justify thisCourt’s review of the Third Circuit’s judgment.(See Section II, infra.) Nor is there any merit to

Petitioners’ argument that “the Third Circuit’sdecision to employ intermediate scrutiny alsodirectly conflicts with decisions of this Court.” Pet.at 31-32. Neither of the two cases cited byPetitioners in support of this supposed conflict arerelevant here because, unlike in this case, theregulations at issue in the cited cases impaired,

rather than promoted, the provision of competentprofessional services and are, thus, inapposite.(See Section III, infra.)

4


1 Citations to “Pet.” refer to the Petition for Writ of

Certiorari filed on December 3, 2014 by Petitioners

(Appellants below), and citations to “App.” refer to the

Appendix to the Petition.


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Petitioners finally argue that “the circuits are inconflict on the recurring question of whether anadvocacy group supportive of legislation mustsatisfy the requirements of Article III standing tointervene as a party in defense of that legislation.”Pet. at 34. But this Court repeatedly has noted

that courts need not assess the standing of aparticular party where, as here, other parties onthe same side unquestionably have standing.Here, there is no dispute that the State of NewJersey has standing to defend its challenged

statute, has done so, and continues to do so.Moreover, the intervenors here were appellees inthe court of appeals and thus did not themselvesinvoke the appellate jurisdiction of the federalcourts. There is therefore no need for this Court toreview any question regarding intervenorstanding. (See infra at Section IV.)

Because Petitioners can offer no “compellingreasons” as to why this Court should grant theirrequest for a writ of certiorari, see Sup. Ct. R. 10,

the Court should deny the Petition.

COUNTERSTATEMENT OF THE CASE

A. Background

New Jersey enacted A3371 in 2013 by wide,bipartisan margins based on its finding that

sexual orientation change efforts are ineffectiveand carry significant risk of harm. App. at 5a-6a.In reaching that conclusion, the New JerseyLegislature relied on the views of the leading

medical and mental health organizations in thefield that sexual orientation change efforts are

ineffective, dangerous, and can lead to “depression,

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guilt, helplessness, hopelessness, shame, socialwithdrawal, suicidality, [and] substance abuse,”among other effects. Id. at 6a (citing AmericanPsychological Association Task Force on AppropriateTherapeutic Responses to Sexual Orientation,REPORT OF THE A MERICAN PSYCHOLOGICAL

A SSOCIATION T AS K FOR CE ON A PPROPRIATETHERAPEUTIC RESPONSES TO SEXUAL ORIENTATION50 (2009)); id. at 138a-146a.

1. The New Jersey Legislature’s Finding ThatBeing Gay Is Not An Illness

The New Jersey Legislature recognized themodern medical community’s understanding that“‘being lesbian, gay, or bisexual is not a disease,disorder, illness, deficiency, or shortcoming’ and

‘that major professional associations of mentalhealth practitioners and researchers in the UnitedStates have recognized this fact for nearly 40years.’” Id. at 139a. In light of the fact that beinggay is not a disease, the Legislature furtheracknowledged the views of the leading mental

health organizations that attempts to “cure”homosexuality by changing an individual’s sexualorientation are unsupported by any scientific ormedical rationale. Id . at 139a-145a.

2. The New Jersey Legislature’s Finding That

Sexual Orientation Change Efforts AreIneffective And Potentially Harmful

In concluding that sexual orientation changeefforts are ineffective, the New Jersey Legislature

also relied on the “judgments of independent

professional organizations that possess specializedknowledge and experience concerning” suchefforts, and which have “spoken with [ ] urgencyand solidarity” regarding their conclusion that

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withdrawal, [and] suicidality,” among othernegative consequences. Id. at 6a (citing id. at139a-140a). The American Academy of Child and

Adolescent Psychia try similarly has concludedthat ef forts to change individuals ’ sexualorientation can “undermine sel f -esteem,

connectedness and caring, [which are] importantprotective factors against suicidal ideation andattempts. ” Id . at 144a. The New JerseyLegislature considered and relied upon theseprofessional organizations’ conclusions, as well as

similar statements from a host of other leadingorganizations. See id. at 141a-144a; see also id. at5a (noting that the “legislature [ ] cited reports,articles, resolutions, and position statements fromreputable mental health organizations opposing”sexual orientation change efforts).

The Legis lature also rel ied upon researchdemonstrating that the r isks of harm areespecially great for minors. It cited researchconcluding that gay, lesbian, and bisexual young

adults who experienced high levels of familyrejection in adolescence based on their sexualorientation were 8.4 times more likely to reporthaving attempted suicide and 5.9 times morelikely to report high levels of depression thanpeers from families reporting no or low levels of rejection. Id . at 144a-145a. The court below

recognized that the New Jersey Legislature’sempirical judgment on the potential harm tominors was “highly plausible,” noting that “[i]t isnot too far a leap in logic to conclude that a minor

cl ient might suffer psychological harm i f repeatedly told by an authority figure that her

sexual orientation—a fundamental aspect of heridentity—is an undesirable condition.” Id. at 44a.

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In light of the findings of these leading medicaland mental health organizations, the c i tedresearch, and the testimony presented to itscommittees, the Legislature determined that “NewJersey has a compelling interest in protecting thephysical and psychological well-being of minors”

and protecting them from “serious harms causedby sexual orientation change efforts.” Id. at 145a.

3. The Statute

Against this backdrop, both houses of the New

Jersey Legislature passed A3371 by wide marginsand, on August 19, 2013, New Jersey GovernorChris Christie signed A3371 into law. The statuteprohibits persons “licensed to provide professionalcounseling under Title 45 of the Revised Statutes”

from performing sexual orientation change effortson minors. N.J. STA T. A N N. § 45:1-55(a). Suchlicensed professionals include psychiatrists, licensedpracticing psychologists, certified social workers,licensed clinical social workers, licensed socialworkers, licensed marriage and family therapists,

certified psychoanalysts, and persons who performcounseling as part of their professional training forany of these professions. Id.

The practitioners in each of the professionscovered in the statute operate under the oversight

of a board or committee that is charged withprotecting the public by setting standards forexamination and licensing, and reviewing andapproving applications for licensure. See N.J. STAT. A NN. §§ 45:9-1 to -27.9 (physicians and surgeons,including psychiatrists); N.J. STAT. A NN. §§ 45:8B-

1 to -50 (marriage and family therapists); N.J.S T A T . A N N . §§ 45:8B-34 to -50 (pro fess ionalcounselors); N.J. STA T. A NN. §§ 45:15BB-1 to -13(social workers); N.J. STAT. A NN. §§ 45:14B-1 to -46

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(psychologists); N.J. STAT. A NN. §§ 45:14BB-1 to -12(state certified psychoanalysts). The Legislaturegranted each board uniform investigative andenforcement authority and established uniformstandards for license revocation, suspension, anddisciplinary proceedings for all of the licensees and

registrants under their respective jurisdictions. SeeN.J. STAT. A NN. §§ 45:1-14, -15.

B. Proceedings Below

On August 22, 2013, Petit ioners f i led aComplaint and Motion for a Temporary RestrainingOrder and Preliminary Injunction in the UnitedStates District Court for the District of NewJersey (the “District Court”), seeking injunctive

and declaratory relief on the grounds that one ormore provisions of the Constitution prohibits NewJersey from enforcing N.J. STAT. A NN. § 45:1-55.

App. at 66a. At Petitioners’ request, and with theState Respondents’ consent, the District Courtconverted Petitioners’ motion for preliminary

injunction into a summary judgment motion. Id.

On September 6, 2013, Respondent Garden StateEquality filed a motion to permissively intervene asa party defendant pursuant to Federal Rule of Civil

Procedure 24(b). One week later, on September 13,2013, Garden State Equality filed an opposition toPetitioners’ then-converted motion for summary

judgment and its own cross-motion for summary judgment. The State Respondents filed a similaropposition and motion that same day.

On October 1, 2013, the District Court held oralargument on the motions, and on November 8,2013 issued an Order and Opinion denyingPetit ioners ’ motion for summary judgment,granting Respondents’ cross-motion for summary

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scrutiny; and (3) A3371 passed muster under thatstandard. Recogniz ing that in the realm of professional speech—particularly by medicalprofessionals—“clients ordinarily have no choicebut to place their trust in these professionals, and,by extension, in the State that licenses them,” and

that “the value of [a] professional’s services stemslargely from her ability to apply [ ] specializedknowledge to a client’s individual circumstances,”the court recognized that the State possessedgreater latitude to restrict speech by professionals

in order to protect the well-being of its citizens.Id. at 28a-29a. Thus, the court held, the “State[has] regulatory authority over l icensedprofessionals stem[ming] from its duty to protectthe clients of these professionals” as well as its“interest in protecting its citizens from ineffectiveor harmful professional services.” Id. at 35a.

Holding that professional speech of the sortregulated by A3371, like commercial speech, wassubject to intermediate scrutiny, the court of

appeals explained that A3371 is constitutional if it“directly advances the State ’s interest inprotecting its citizens from harmful or ineffectiveprofessional practices and is no more extensivethan necessary to serve that interest.” Id. at 35a.Finding that A3371 satisfied that standard, theThird Circuit rejected Petitioners’ free speech

claims. Id. at 46a. The court of appeals also heldthat Garden State Equality need not meet thestanding requirements of Article III in order toparticipate as an intervenor-defendant. Id. at 60a.

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legal error resulted in an erroneous judgment onthe validity of a measure.”3 Chevron, U.S.A., Inc. v.Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842(1984). Because the Third and Ninth Circuits—theonly circuits to have considered the issue—have

agreed that statutes prohibiting licensed therapistsfrom engaging in sexual orientation change effortswith minors survive First Amendment scrutiny,there is no circuit conflict warranting granting of the Petition.4

II. THERE IS NO CIRCUIT CONFLICT ON ANY OTHER ISSUE THAT WARRANTS

THIS COURT’S REVIEW.

Similarly, there is no need for this Court to grant

the Petition in order to decide any other issue,including the level of scrutiny applicable toregulations of speech by healthcare professionalsand their clients. While Petitioners point todifferent articulations by the Third, Fourth, Ninth,

and Eleventh Circuits of the appropriate level of such scrutiny, the cases to which the Petition citesare in agreement that a professional’s “speechwarrants lesser protection . . . when it is used toprovide personalized services to a client based on

the professional’s expert knowledge and judgment.” App. at 30a; Wollschlaeger v. Governor of Fla., 760F.3d 1195, 1218 (11th Cir. 2014) (holding that thepermissibility of a regulation depends on whether

14

3 As explained below, the Third Circuit correctly

applied this Court’s precedents in upholding the

constitutionality of A3371 and, thus, there is no legal error

for this Court to correct. (See Section III, infra.)4 Because A3371 survives under the more rigorous

intermediate scrutiny standard, the statute would survive

rational basis review, as well.


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“the professional is ‘exercis[ing] judgment on behalf of the client in the light of the client’s individualneeds and circumstances’”) (quoting Lowe v. S.E.C.,472 U.S. 181, 232 (1985) (White, J., concurring inthe result)); Moore-King v. Cnty. of Chesterfield, Va.,708 F.3d 560, 569 (4th Cir. 2013) (holding that the

permissibility of a regulation depends on “whetherthe speaker is providing personalized advice in aprivate setting to a paying client or instead engagesin public discussion and commentary”).

First , there is no basis for Petit ioners ’

contention that the Fourth Circuit’s decision inMoore-King “represent[s] a direct spl i t of authority with the Third Circuit’s decision below.”Pet. at 25. In Moore-King , the Fourth Circuitupheld municipal registration and tax regulations

applicable to fortune-telling and, in the course of its opinion, distinguished regulation of fortune-telling from regulation of the medical profession.708 F.3d at 570. In any event, the Petition’scomplaint about the Fourth Circuit’s decision in

Moore-King is that the Fourth Circuit’s level of scrutiny in Moore-King was more lenient than theintermediate scrutiny that the Third Circuitapplied here. Petitioners fail to point to anythingin Moore-King that suggests the Third Circuit’s

judgment should have come out differently in thepresent case; Petitioners thus fail to demonstrate

that resolving any conflict between the Third andFourth Circuits would redound to Petitioners’benefit. See Jennings, 135 S. Ct. at 799; Chevron,467 U.S. at 842.

Nor is there any conflict between the ThirdCircuit’s decision below and the Eleventh Circuit’sdecision in Wollschlaeger that warrants review bythis Court. The Petition erroneously describes the

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Eleventh Circuit in Wollschlaeger as having “heldthat speech between counselor and client or doctorand patient in the context of a professionalrelationship is entitled to no constitutionalprotection.” Pet. at 22. The Eleventh Circuit held nosuch thing in Wollschlaeger. Rather, although the

Eleventh Circuit in that case concluded that aFlorida statute prohibiting physicians from inquiringor recording information about patients’ firearmownership where not relevant to medical care orsafety imposed at most only an “incidental” burden

on physician speech and thus survived a facialattack, the Eleventh Circuit expressly left open thepossibility of an as-applied First Amendmentchallenge to the statute. See Wollschlaeger, 760 F.3dat 1203, 1204, 1217 n.12. Although the Petition (andthe dissent in Wollschlaeger, id. at 1239 (Wilson, J.,dissenting)), describe the Eleventh Circuit as having

applied rational basis review, Pet. at 27, what theEleventh Circuit actually held—quoting from theplurality opinion in Casey —was that the Floridastatute was “a regulation of professional conduct that

implicates physicians’ speech only ‘as part of thepractice of medicine, subject to reasonable licensingand regulation, ’ and does not offend the First Amendment.” Wollschlaeger, 760 F.3d at 1220(emphasis added) (quoting Casey, 505 U.S. at 884(plurality opinion)).

Finally, the Petition’s efforts to justify this Court’sreview by contending that Ninth Circuit precedentsother than Pickup are in conflict with the ThirdCircuit’s decision below are unavailing. The Petition

first erroneously describes the Third Circuit’sdecision as being “in direct conflict with the Ninth

Circuit’s decision in Conant [v. Walters, 309 F.3d 629,639 (9th Cir. 2002)], which applied strict scrutiny to

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regulations of speech between doctor and patient.”Pet. at 23. In Conant, the Ninth Circuit upheld aninjunction prohibiting the federal government fromenforcing a policy that threatened to punish doctorsfor communicating with their patients about themedical use of marijuana. 309 F.3d at 632. The Ninth

Circuit itself in Pickup did not regard Conant asrequiring strict scrutiny of measures prohibitinglicensed therapists from engaging in sexualorientation change efforts with minors, as Petitionershere argue. Rather, in upholding California’s statute

barring such practices, the Ninth Circuit observedthat California’s statute, “unlike [the federalmarijuana policy] in Conant . . . allows discussionsabout treatment, recommendations to obtaintreatment, and expressions of opinions about [sexualorientation change efforts] and homosexuality.”

Pickup, 740 F.3d at 1229. The same is true of New

Jersey’s A3371, and Conant therefore presents noconflict with the Third Circuit’s decision here.

Nor is there any merit to the Petition’s argument

that the Ninth Circuit’s decision in National Association for Advancement of Psychoanalysis v.California Board of Psychology, 228 F.3d 1043 (9thCir. 2000) (“NAAP ”), is in conflict with the ThirdCircuit’s decision below. See Pet. at 30-31. In NAAP ,the Ninth Circuit upheld California’s mental healthprofessional licensing requirements against First

Amendment challenges. Indeed, the Petition’ssuggestion that the Ninth Circuit’s NAAP holdingrequires that courts subject laws such as A3371 tostrict scrutiny—thereby creating a conflict with the

Third Circuit here—incorrectly states the holding of the Ninth Circuit’s NAAP decision, which applied

rational basis review to the licensing requirementsat issue in that case. See NAAP, 228 F.3d at 1049

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(“Because psychoanalysts are not a suspect classentitled to heightened scrutiny, we must examinewhether the licensing scheme implicates anyfundamental right. We hold that it does not.”).

In sum, the Petition has not demonstrated that

this case presents any circuit confl ict thatwarrants resolution by this Court.

III. THE THIRD CIRCUIT’S DECISION ISCONSISTENT WITH THIS COURT’SPRECEDENTS.

Petitioners also argue that “[t]he Third Circuit’sdecision to employ intermediate scrutiny alsodirectly conflicts with decisions of this Court” in

Legal Services Corp. v. Velazquez , 531 U.S. 533(2001), and Riley v. National Federation of the Blindof North Carolina, Inc., 487 U.S. 781 (1988). Pet. at31-32. Neither of those cases, however, concerns ameasure regulating a medical professional’s speech

as part of the provision of treatment or services toher patient, and, thus, the Third Circuit’s decision

is not in conflict with either case. Rather, whereasthis Court’s decisions in both Velazquez and Rileystruck down laws that impaired the provision of competent professional services, the court of appeals

here upheld A3371 based on the “State’s interest in protecting its citizens from ineffective or harmfulprofessional services.” App. at 35a.

In Velazquez, this Court struck down a provision of a statute prohibiting the distribution of federal funds

by a congressionally-created legal services non-profitcorporation for any organization “that initiates legalrepresentation or participates in any other way, inlitigation, lobbying, or rulemaking, involving aneffort to reform a Federal or State welfare system.”

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531 U.S. at 538 (quoting Omnibus ConsolidatedRescissions and Appropriations Act of 1996, Pub.L. No. 104-134, § 504(a)(16), 110 Stat. 1321–53).This Court held that “the restriction operates toinsulate current welfare laws from constitutionalscrutiny and certain other legal challenges, a

condition implicating central First Amendmentconcerns,” and was thus invalid. Id. at 547.

As the Third Circuit below explained, the law inVelazquez , was subject to “more demandingscrutiny” because it was not “enacted pursuant to

the State’s interest in protecting its citizens fromineffective or harmful professional services.” App.at 35a. To the contrary, this Court found that thestatute in Velasquez actually had the oppositeeffect: it impaired the quality of professional legal

representation because, under the law, attorneysfrom organizations receiving federal funds “couldnot advise the courts of serious questions of statutory validity.” Velazquez, 531 U.S. at 545.That “disability,” the Court held, “is inconsistent

with the proposition that attorneys should presentall the reasonable and well-grounded argumentsnecessary for proper resolution of the case.” Id.(emphasis added) . Any comparison betweenVelazquez and this case is thus misplaced.

Nor is the Third Circuit’s decision inconsistent

with Riley. In Riley, this Court struck down aNorth Carolina regulation of professional non-profitfundraisers that (1) limited the fees that they couldcharge their client organizations; (2) required thefundraisers to disclose the percentage of gross

receipts passed along to the organizations; and (3)mandated that the fundraisers obtain licenses. 487U.S. at 784-86. Although this Court applied strictscrutiny in reaching its conclusion, the statute at

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issue had the effect of impairing the provision of professional services, rendering inapt anycomparison—let alone any conflict—with the ThirdCircuit’s decision upholding A3371’s protection of professional standards. In particular, this Courtfound that the three provisions at issue in Riley (1)

“might well drive professional fundraisers out of North Carolina, or at least encourage them to cease. . . represent ing certain char it ies (primari lysmall or unpopular ones),” id. at 794 (fee limitingprovision); (2) “will almost certainly hamper the

legitimate efforts of professional fundraisers” and“necessarily discriminate[ ] against small orunpopular charities,” id. at 799 (disclosureprovision); and (3) created “delay” during thependency of l icensing applications, thus“compel[ling] the speaker’s silence,” id. at 802(licensing provision). Such impairment of the

provision of competent professional services standsin stark contrast with A3371, which protectsvulnerable patients through reasonable regulationof professional standards in order to further the

competent delivery of mental health care. As such,there is no conflict between the Third Circuit’sdecision and this Court’s decision in Riley.

IV. THIS IS NOT AN APPROPRIATE CASE

FOR DEMARCATING ARTICLE IIISTANDING REQUIREMENTS FORINTERVENOR-DEFENDANTS.

Petitioners also urge this Court to hear this caseto “resolve the conflict among the circuits concerning

the recurring question of whether an advocacy groupsupportive of challenged legislation must satisfy therequirements of Article III standing to intervene asa party in defense of that legislation.” Pet. at 34. But

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this broad issue need not be resolved here becausethe original parties to this action, all of whom arestill active litigants, unquestionably have standing.Under such circumstances, this Court previously hasdeclined to address whether an intervenor mustpossess Article III standing. See McConnell v. Fed.Election Comm’n, 540 U.S. 93, 109 (2003) overruledon other grounds by Citizens United v. Fed. ElectionComm’n, 558 U.S. 310 (2010).

In McConnell , this Court held that when anintervenor-respondent’s “position is identical to

the [respondents’],” and the respondent has metthe requirements of Article III standing, the Court“need not address the standing of the [intervenor-respondent].” 540 U.S. at 233. Here, Garden StateEquality seeks to defend the constitutionality of

A3371, and thus maintains the exact same positionas the State Respondents . Thus, just as inMcConnel l , the question of Garden StateEquality’s standing is not relevant to the jurisdictionof the federal courts in this case.

In support of their argument regarding aconflict among the courts of appeals, Petitionersrely on only two cases, both of which were decidedbefore McConnell. Pet. at 34-37 (citing Mausolf v.

Babbitt, 85 F.3d 1295 (8th Cir. 1996); S. Christian

Leadership Conference v. Kelley , 747 F.2d 777

(D.C. Cir . 1984)) . Moreover, both cases aredistinguishable because the proposed intervenorsin those cases did not advance the same positionas that of a plaintiff or defendant with Article IIIstanding. See Mausolf , 85 F.3d at 1298 (the

orig inal defendant ’s “ interest in promotingrecreational activity and tourism in the Park . . .may be adverse to the [proposed intervenor’s]conservation interests”); S. Christian Leadership

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Conference, 747 F.2d at 778 (proposed intervenorsought to challenge a judgment accepting theparties’ settlement agreement).

Garden State Equality’s position is consistentwith this Court’s longstanding practice of not

deciding whether additional parties satisfy ArticleIII standing where it is clear that at least one of the parties seeking to invoke federal jurisdictionhas standing. See, e.g., Dir., Of fice of Workers’ Comp. Programs, U.S. Dep’t of Labor v. Perini N.

River Assocs., 459 U.S. 297, 305 (1983) (noting

that the presence of one party with standing“assures that an admittedly justic iablecontroversy is now before the Court”); Dep’ t of Commerce v. U.S. House of Reps. , 525 U.S. 316,330 (1999) (holding that the presence of one party

with standing is sufficient for purposes of ArticleIII); Vill. of Arlington Heights v. Metro. Housing

Dev. Corp., 429 U.S. 252, 263-64 & n.9 (1977)(same). It is only where an intervenor seeks itself to invoke federal jurisdiction or to establish

adversity—without the presence of a party ininterest invoking such jurisdiction or establishingsuch adversity—that the intervenor would need tosatisfy Article III standing. See Diamond v.Charles , 4 76 U .S . 5 4, 64 ( 19 86 ) ; see alsoHollingsworth v. Perry, 133 S. Ct. 2652, 2661(2013). This is not such a case.

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CONCLUSION

For the foregoing reasons, the Court shoulddeny the Petition for writ of certiorari.

Dated: February 4, 2015

Respectfully submitted,

D AVID S. FLUGMAN

Counsel of Record

FRANK M. HOLOZUBIEC A NDREW C. ORRK IRKLAND & ELLIS LLP

601 Lexington Avenue

New York, New York 10022

(212) 446-4800

[email protected]

SHANNON P. MINTER

CHRISTOPHER F. STOLL

D AVID C. CODELL

N ATIO NAL CENTER FORLESBIAN RIGHTS

870 Market Street, Suite 370

San Francisco, California 94102

(415) 392-6257

MICHAEL GLUCK

A NDREW B AYER

GLUCK W ALRA TH LLP

428 River View Plaza

Trenton, New Jersey 08611

(609) 278-3900 Attorneys for Respondent

Garden State Equality

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14-672 GSE's Opposition

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