Tara KING, Ed.D., et al., Plaintiffs, v. Christopher CHRISTIE, Governor of New Jersey, et al., Defendants, 981 F. Supp. 2d 296

OPINION FREDA L. WOLFSON, District Judge. On August 19, 2013, New Jersey Governor Christopher J. Christie signed into law Assembly Bill Number A3371 (“A3371”) (codified at N.J.S.A. 45:1-54, -55), which prohibits New Jersey state licensed practitioners, who provide professional counseling services, from treating minors using methods of Sexual Orientation Change Efforts (“SOCE”), more commonly known as “gay conversion therapy;” A3371 became effective on the same date. The Bill is the second piece of legislation of its kind in the nation, with California having been the first state to successfully enact such a law.

In passing this statute, the New Jersey Legislature determined, inter alia, that this type of treatment subjects minors to potentially harmful consequences. Challengers to the constitutionality of A3371 are Plaintiffs, Tara King Ed.D. and Ronald Newman, Ph.D., who are individual licensed therapists, as well as the National Association for Research and Therapy of Homosexuality (“NARTH”) and the American Association of Christian Counselors (“AACC”) (collectively, “Plaintiffs”), whose members include various licensed professionals who practice or wish to engage in SOCE.

The named defendants are Governor Christie, Eric T. Kanefsky, Director of the New Jersey Dep’t of Law and Public Safety, Milagros Collazo, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, J. Michael Walker, Executive Director of the New Jersey Board of Psychological Examiners, and Paul Jordan, President of -the New Jersey State Board of Medical Examiners (collectively, “Defendants” or the “State”). Plaintiffs also bring constitutional claims on behalf of the licensed professionals’ minor clients and the clients’ parents. Presently before the Court are cross motions for

summary judgment. During the pendency of the briefing, Proposed Intervenor, Garden State Equality (“Garden State”), moved to intervene as a. defendant in this case, or in the alternative, it sought amicus curiae status. On these motions, the parties raise a host of legal issues, the most significant of which focuses on whether, by prohibiting the practice of SOCE, the State has impermissibly infringed upon Plaintiffs’ First Amendment rights — freedom of speech and free religious expression. Because the Court finds that A3371 restricts neither speech nor religious expression, rational basis review applies.

I further find that A3371 passes constitutional muster under that standard. Accordingly, Defendants’ cross motion for

summary judgment is GRANTED in its entirety; and Plaintiffs’ motion for

summary judgment is DENIED. Garden State’s motion to intervene is GRANTED. BACKGROUND Assembly Bill A3371 precludes persons licensed to practice in certain counseling professions from engaging in “the practice of seeking to change a [minor’s] sexual orientation.” § 2(b). The statute has two sections;

Section 1 provides legislative findings and declarations, while

Section 2 defines SOCE and establishes the scope of the legislative prohibition on such conduct.

Section 1 (N.J.S.A. 45:1-54) In

Section 1 of the Statute, the Legislature declared that “[b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years.” § 1(a).

The Legislature then went on to state that “[m]inors who experience family rejection based on their sexual orientation face especially serious health risks,” and that “[s]uch directed efforts [at changing sexual orientation] are against fundamental principles of psychoanalytic treatment and often result in' substantial psychological pain by .reinforcing damaging internalized attitudes.” §§ l(m), (j)(2).

In support of its determination, the Legislature cited many of the position statements and resolutions of professional associations, including, inter alia, the American Psychiatric Association, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry. § l(c)-(m). According to the Legislature, each of these professional associations has concluded that there is little or no evidence of the efficacy of SOCE, and that SOCE has the potential for harm, such as causing those treated to experience depression, guilt, anxiety and thoughts of suicide. Id.

Specifically, relying on the American Psychological Association’s report on Appropriate Therapeutic Responses to Sexual Orientation, the Legislature found 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, self-blame, decreased self-esteem and authenticity to others, ... [and] a feeling of being dehumanized.” § 1(b).

Similarly, and particularly relevant to minors, citing an American Academy of Pediatrics journal article, the Legislature concluded that “[t]herapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation.” § 1(f). The Legislature also looked to an American Academy of Child and Adolescent Psychiatry journal article, which states that [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....

Indeed, there is no medically valid basis for attempting to prevent homosexuality, which is not an illness. On the contrary, such efforts may encourage family rejection and undermine self-esteem, connectedness and caring, important protective factors against suicidal ideation and attempts. Given that there is no evidence that efforts to alter sexual orientation are effective, beneficial or necessary, and the possibility that they carry the risk of significant harm, such interventions are contraindicated. § 1(k).

Indeed, based on these professional associations’ findings and other evidence before the Legislature, the State concluded that it “has a compelling interest in protecting the physical and psychological well-being of minors, including gays, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” § l(n).

Section 2 (N.J.S.A. 45:1-55) Assembly Bill A3371’s prohibition on the practice of SOCE with a person under 18 years of age applies to “[a] person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the person’s professional training for any of these professions.” § 2(a).

Further, the Legislature defines SOCE as “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 .... ” § 2(b).

However, the statute makes clear that the prohibition does 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 or unsafe sexual practices”; and (2) any other type of counseling that does not seek to change sexual orientation. Id. at (1), (2).

Plaintiff’s Challenge to A3371 Plaintiffs challenge the constitutionality of A3371 because they allege the statute violates their state and federal First Amendment rights, namely, freedom of speech and free exercise of religion. In addition, Plaintiffs, on behalf of minor clients and their parents, assert that A3371 interferes with the minor clients’ right to self-determination and the parents’ fundamental right to direct the upbringing of their children.

As to free speech, Plaintiffs maintain that A3371 prohibits licensed professionals from engaging in, or referring to a licensed professional who engages in, counseling with a minor regarding his/her “unwanted” same-sex sexual attractions, placing an unconstitutional restraint on the content of Plaintiffs’ message to their clients. Plaintiffs reason that A3371 “authorizes only one viewpoint on SOCE and unwanted same-sex sexual attractions, behaviors, and identity by forcing ... Plaintiffs ... to present only one viewpoint on the otherwise permissible subject matter of same-sex attractions .... ” Compl., ¶ 186.

Plaintiffs further complain that A3371 infringes on their “sincerely held religious beliefs to provide spiritual counsel and assistance to their clients who seek such counsel in order to honor their clients’ right to self-determination and to freely exercise their own sincerely held religious beliefs to counsel on the subject matter of same-sex attractions.... ” Compl., ¶ 235. By doing so, Plaintiffs allege that A3371 “impermissibly burden[s] Plaintiffs’ and their clients’ sincerely held religious beliefs and compels them to both change those religious beliefs and to act in contradiction to them.” Id. at ¶ 237.

This type of restriction, Plaintiffs assert, violates their state and federal constitutional rights to the free exercise of religion. Finally, Plaintiffs assert that A3371 violates the parents’ fundamental rights “to direct the upbringing and education of their children according to their sincerely held religious beliefs,” Id., ¶ 260, because the statute “prevents the parents ... from seeking mental health counseling for their minor children’s unwanted same-sex attractions ....” Id. at ¶ 261. Shortly after Plaintiffs filed suit, Garden State sought permissive intervention to defend the constitutionality of A3371.

Founded in 2004, Garden State is a New Jersey civil rights organization, primarily advocating for lesbian, gay, bisexual, and transgender (“LGBT”) equality within the state. It supports and lobbies for legislation, such as A3371, that prohibits, inter alia, discrimination on the basis of sexual orientation. Garden State aims to protect the interests of LGBT citizens in New Jersey, including youth.

This organization has over 125,000 members, including LGBT minors and their parents, some of whom, according to Garden State, might be subject to SOCE treatment at the insistence of a parent or guardian, or based on the choice of a licensed mental health professional. Procedural History Plaintiffs filed their six-count Complaint on August 22, 2013. Initially, Plaintiffs moved to temporarily restrain Defendants from enforcing A3371. However, after a telephone conference, and with the consent of the parties, the Court converted Plaintiffs’ motion for a preliminary injunction to a

summary judgment motion. Thereafter, Defendants cross-moved for

summary judgment. After the filing of Plaintiffs’ initial motion, Garden State moved to intervene as a defendant in this matter. By Text Order dated September 16, 2013, the Court granted Garden State’s request, and indicated in that Order that the reasoning for the Court’s decision would be stated more fully in a written opinion to follow. On October 1, 2013, the Court held oral argument on these

summary judgment motions, wherein counsel for Plaintiffs, Defendants and the Intervenor participated. Notably, during the hearing, Plaintiffs advanced an additional novel argument as to why Garden State should not be granted intervenor status: Garden State must have

Article III standing to intervene at the district court level. The Court reserved its decision on that question. In addition, in response to the parties’ various evidentiary objections to certain expert opinions/certifications, the Court indicated that all objections will be taken under advisement, and to the extent the Court relies on any certifications, the Court will rule on the relevant objections accordingly in this Opinion. See Hearing Transcript (“Tr.”), T58:12-T59:ll. DISCUSSION I.

Standard of Review A moving party is entitled to judgment as a matter of law where there is no genuine issue as to any material fact. See Fed. R. Civ. 56(c); Brooks v. Kyler, 204 F.3d 102, 105 n. 5 (3d Cir.2000) (citing Fed. R. Civ. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.1996). The burden of demonstrating the absence of a genuine issue of material fact falls on the moving party. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir.1999) (citations omitted).

Once the moving party has satisfied this initial burden, the opposing party must identify “specific facts which demonstrate that there exists a genuine issue for trial.” Or-son, 79 F.3d at 1366. Not every issue of fact will be sufficient to defeat a motion for

summary judgment; issues of fact are genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, the nonmoving party cannot rest upon mere allegations; he must present actual evidence that creates a genuine issue of material fact. See Fed. R. Civ. 56(c); Anderson, 477 U.S. at 249, 106 S.Ct. 2505 (citing First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

In conducting a review of the facts, the non-moving party is entitled to all reasonable inferences and the record is construed in the light most favorable to that party. See Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986). Accordingly, it is not the court’s role to make findings of fact, but to analyze the facts presented and determine if a reasonable jury could return a verdict for the nonmoving party. See Brooks, 204 F.3d at 105 n. 5 (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505); Big Apple BMW v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992). II.

Motion to Intervene by Garden State A. Standing as an Intervenor According to Plaintiffs, in their supplemental briefing, Garden State must independently satisfy

Article III standing requirements before it can be granted leave to intervene under Fed.R.Civ.P. 24(b). Generally, to demonstrate the “case or controversy” standing requirement under

Article III, § 2 of the United States Constitution, a plaintiff must establish that it has suffered a cognizable injury that is causally related to the alleged conduct of the defendant and is redressable by judicial action. Friends of the Earth, Inc. v. Laidlaw Envt’l. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); The Pitt News v. Fisher, 215 F.3d 354, 359 (3d Cir.2000). Here, Plaintiffs argue that Garden State, a proposed intervening defendant, must also satisfy

Article Ill’s standing mandate. To begin the analysis, I start with the Third Circuit’s acknowledgement in Am. Auto. Ins. Co. v. Murray, 658 F.3d 311 (3d Cir.2011), that neither the Third Circuit nor the Supreme Court “has determined whether a potential intervenor must even have

Article III standing” to participate in district court proceedings. Id. at 318 n. 4 (citing Diamond v. Charles, 476 U.S. 54, 68-69, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). While this circuit has not answered the standing question in the context of intervention, Murray recognized that other circuit courts are split on this issue. Compare Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir.1998) (holding that

Article III standing is not a prerequisite to intervention); City of Colo. Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1079 (10th Cir.2009) (same); Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir.1994) (same); Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir.1991) (same); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir.1983) (same); Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989) (same); and United States Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir.1978) (same); with Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir.1996) (holding that

Article III standing is necessary for intervention); United States v. 36.96 Acres of Land, 754 F.2d 855, 859 (7th Cir.1985) (concluding that intervention under Rule 24 requires interest greater than that of standing); and Rio Grande Pipeline Co. v. FERC, 178 F.3d 533, 538 (D.C.Cir.1999) (an “intervenor must have standing to participate as an intervenor rather than only as an amicus curiae.”). Having reviewed the conflicting authorities cited above, I find that based on the circumstances of this case, Garden State need not satisfy standing requirements in order to intervene in these proceedings.

I start with the “minority” view’s reasoning. For example, the Eighth Circuit, in Mausolf, takes a rigid approach to intervention. The court there held that an intervenor, regardless of Rule 24 requirements, must have standing because “[a]n

Article III case or controversy is one where all parties have standing, and a would-be intervenor, because he seeks to participate as a party, must have standing as well.” Mausolf, 85 F.3d at 1300. In that court’s view, any intervenor that does not have independent standing, “destroys” an

Article III case or controversy, regardless whether the original parties have standing to bring suit. Id. On the other side of the coin, the “majority” view does not impose independent standing requirements on an intervenor at the district court level. “ ‘[O]n many occasions the Supreme Court has noted that an intervenor may not have standing, but has not specifically resolved that issue, so long as another party to the litigation has sufficient standing to assert the claim at issue.’ ” San Juan County, Utah v.

United States, 503 F.3d 1163, 1171-72 (10th Cir.2007) (en banc) (quoting panel decision in San Juan County, Utah v. United States, 420 F.3d 1197, 1205 (10th Cir.2005) (citing McConnell v. Fed. Election Comm’n, 540 U.S. 93, 233, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003))). These cases reason that

Article III requires only that justiciable “cases” and “controversies” may be maintained in a federal court, see Brennan, 579 F.2d at 190, and, that a proposed intervenor is permitted to intervene on the basis of an existing party’s standing to assert the claim at issue, based upon what the Supreme Court has described as “piggyback” standing. See Diamond, 476 U.S. at 64, 68-9, 106 S.Ct. 1697. Such standing is permissible because “[i]n that circumstance the federal court has a Case or Controversy before it regardless of the standing of the intervenor.” City of Colo., 587 F.3d at 1079.

The Eleventh Circuit has explained that the standing requirement exists to ensure that a justiciable case or controversy exists. Chiles, 865 F.2d at 1212-13, and, Rule 24, authorizing intervention, presumes that a justiciable case or controversy already exists before the court. See Id.; see also, 7C Wright, Miller, and Kane, Federal Practice and Procedure: Civil 2d § 1917 (2d ed.1986) at 457 (“Intervention presupposes the pendency of an action in a court of competent jurisdiction ....”) (footnote omitted).

Because a court’s subject matter jurisdiction is necessarily established before intervention, the Chiles court held that a party seeking to intervene need not have independent standing. Id. at 1212-13. While the Third Circuit has not spoken on this matter and there are no cases on this issue in this district, there are at least three other district court opinions in this circuit that have found that an intervenor need not have independent standing to participate in district court proceedings. See Indian River Recovery Co. v.

The China, 108 F.R.D. 383, 386-87 (D.Del.1985) (“an intervenor need not have standing necessary to have initiated the lawsuit”); Coca-Cola Bottling Co. of Elizabethtown, Inc. v. The Cocar-Cola Co., 696 F.Supp. 57, 93 (D.Del.1988) (“The fact that [a party] lack[s] standing, however, does not control the analysis of whether [it] [is] entitled to intervene.”); United States v. Germantown Settlement Homes, Inc., No. 84-2622, 1985 U.S. Dist. LEXIS 18193, at *6 n. 1 (E.D.Pa. Jul. 5,1985). I find the reasoning of those courts that do not require independent standing by an intervenor to be persuasive.

First, the constitutional requirement of standing only speaks to whether the federal district court has a justiciable controversy. In my view, so long there is a case or controversy before the court, it is not necessary that an intervenor have independent standing. Rather, Rule 24 aims to promote the efficient and orderly use of judicial resources by allowing persons to participate in the lawsuit to protect their interests or vindicate their rights. In that furtherance of the Rule, the court makes a determination whether those interests would be impaired by the disposition of the case.

Imposing standing on an intervenor would eviscerate Rule 24’s practical approach. And, furthermore, such a restriction would impinge on the purposes of permissive intervention. Accordingly, I find that Garden State need not separately satisfy standing requirements to intervene. B. Permissive Intervention Pursuant to Rule 24(

b) Garden State seeks to intervene on the basis of permissive intervention. Permissive intervention under Rule 24 requires (1) the motion to be timely; (2) an applicant’s claim or defense and the main action have a question of law or fact in common; and (3) the intervention may not cause undue delay or prejudice to the original parties’ rights. See Fed.R.Civ.P. 24(b); see also N.C.A.A. v. Governor of N.J., 520 Fed.Appx. 61, 63 (3d Cir.2013); Appleton v. Comm’r, 430 Fed.Appx. 135, 137-38 (3d Cir.2011).

So long as these threshold requirements are met, whether to allow a party to permissively intervene is left to the sound discretion of the court. See N.C.A.A, 520 Fed.Appx. at 63. As to the first factor, Garden State’s motion is timely. Garden State moved to intervene only 14 days after the Complaint was filed. While Plaintiffs suggest that they did not have sufficient time to respond to Garden States’ briefing, the Court has provided all parties an opportunity to respond to each other’s arguments. There was more than sufficient time for Plaintiffs to address any .arguments made by Garden State before the

summary judgment hearing. And, indeed, the Court afforded Plaintiffs an opportunity to submit supplemental briefing on issues they deemed important after the hearing, including on the question of the proposed intervenor’s standing. Next, Plaintiffs contend that intervention is not necessary because Garden State’s interests are already adequately represented by Defendants. However, the presence of overlapping interests between Garden State and the State does not preclude permissive intervention.

Rather, “[t]he shared interests of [Garden State] and the state defendants support [Garden State’s] argument that it shares a common question of law with the current action because it plans to defend the constitutionality of [A3371], the subject of the dispute between plaintiffs and the state defendants.” Pickup v. Brown, No. 12-2497, 2012 WL 6024387, at *4, 2012 U.S. Dist. LEXIS 172027, at *13-14 (E.D.Cal. Dec. 4, 2012). Indeed, Plaintiffs have not disputed that Garden State’s claims or defenses share common questions of law or fact with this action. Accordingly, I find that the second factor is satisfied.

Plaintiffs also contend that allowing Garden State to intervene would cause an undue delay of the resolution of Plaintiffs’ claims because it would result in additional briefing by Plaintiffs. I do not find this argument convincing. As I have already explained, Garden State’s filings in this matter would not unduly expand Plaintiffs’ submissions because Garden State’s arguments and positions are similar to those advanced by the State.

In other words, while Plaintiffs may have expended additional time or expense in order to respond to Garden State’s arguments, those efforts are not unduly prejudicial or burdensome. Rather, contrary to Plaintiffs’ position, I find that Garden State has provided a “helpful, alternative viewpoint from the vantage of some persons who have undergone SOCE treatment or are potential patients of treatment that will aid the court in resolving plaintiffs’ claims fully and fairly.” Id. at *4, 2012 U.S. Dist. LEXIS 172027, at *14. Accordingly, having satisfied the Rule 24(

b) factors, Garden State is given leave to intervene. III. Eleventh Amendment In their Complaint, Plaintiffs bring parallel state constitutional claims against Defendants and they seek injunctive and declaratory relief, as well as nominal money damages. Defendants argue that the Eleventh Amendment bars Plaintiffs’ § 1983 claims for money damages and state constitutional claims. During the hearing, Plaintiffs argued that they are entitled to nominal money damages in this action should they prevail.

Since Plaintiffs did not brief their position on this issue, the Court provided Plaintiffs an opportunity to submit additional briefing. Instead of any substantive response, Plaintiffs subsequently withdrew their claim for nominal damages. See Plaintiffs’ Response on Claim for Nominal Damages, p. 2. Moreover, Plaintiffs have also withdrawn their state constitutional claims. See Tr., T7:22-T8:2. Accordingly, all federal claims for monetary damages — however nominal — against Defendants in their official capacities are barred, and Plaintiffs’ state constitutional claims, i.e., Counts II and V, are dismissed. IV.

Third-Party Standing As a jurisdictional matter, Defendants contend that Plaintiffs lack third-party standing to pursue claims on behalf of Plaintiffs’ minor clients and parents. As discussed previously, to satisfy the “case or controversy” standing requirement under

Article III, a plaintiff must establish that it has suffered a cognizable injury that is causally related to the alleged conduct of the defendant and is redressable by judicial action. Apart from those standing requirements, the Supreme Court has imposed a set of prudential limitations on the exercise of federal jurisdiction over third-party claims. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (“The federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.”) (quotation and citation omitted); Powell v. Ridge, 189 F.3d 387, 404 (3d Cir.1999). The restrictions against third-party standing do not stem from the

Article III “case or controversy” requirement, but rather from prudential concerns, Amato v. Wilentz, 952 F.2d 742, 748 (3d Cir.1991), which prevent courts from “deciding questions of broad social import where no individual rights would be vindicated and ... limit access to the federal courts to those litigants best suited to assert a particular claim.” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984).

It is important to bear in mind that in the jurisprudence of standing, a “litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir.1994).

This principle is based on the assumption that “third parties themselves usually will be the best proponents of their own rights,” Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion), which serves to foster judicial restraint and ensure the clear presentation of issues. See Munson, 467 U.S. at 955, 104 S.Ct. 2839. The prohibition against third-party standing, however, is not absolute.

The Supreme Court has found that the principles animating these prudential concerns are not subverted if the third party is hindered from asserting its own rights and shares an identity of interests with the plaintiff. See Craig v. Boren, 429 U.S. 190, 193-94, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Singleton, 428 U.S. at 114-15, 96 S.Ct. 2868; Eisenstadt v. Baird, 405 U.S. 438, 443-46, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

Based on that recognition, third-party standing is permitted so long as the plaintiff can satisfy three preconditions: 1) the plaintiff must suffer injury; 2) the plaintiff and the third party must have a “close relationship”; and 3) the third party must face some obstacles that prevent it from pursuing its own claims. Powers, 499 U.S. at 411, 111 S.Ct. 1364; Pitt News, 215 F.3d at 362. It remains for courts to balance these factors to determine if third-party standing is warranted. Amato, 952 F.2d at 750. Here, Plaintiffs assert constitutional claims on behalf of their minor clients and parents.

To establish standing for these third parties, Plaintiffs must, in the first instance, show that they have suffered an injury. Indeed, Plaintiffs’ ability to bring third-party claims hinges on whether they suffered any constitutional wrongs by the passage of A3371. This question will be addressed extensively later in this Opinion, and, because the Court finds that Plaintiffs have suffered no injuries, they cannot meet the first factor. Furthermore, Plaintiffs cannot meet the third element of the test.

Indeed, during the pendency of this matter, a minor and his parents filed suit in this Court, challenging the constitutionality of A3371. Therefore, since these litigants are bringing their own action against Defendants, there can be no serious argument that these third parties are facing obstacles that would prevent them from pursuing their own claims. Accordingly, I find that Plaintiffs do not meet third-party standing requirements, and thus, Counts III and VI are dismissed as well. V.

First Amendment — Freedom of Speech Plaintiffs first challenge the constitutionality of A3371 on the ground that it violates their First Amendment right to free speech, contending that the statute constitutes an impermissible viewpoint and content-based restriction on their ability to discuss and engage in SOCE.

Specifically, Plaintiffs argue that the statute forbids licensed counselors from both (1) speaking on or about the subject of SOCE to their minor clients, including recommending SOCE or referring a client to SOCE, and (2) administering SOCE to their minor clients under any circumstance, regardless of the client’s informed consent to the practice. Plaintiffs posit that because psychotherapy is carried out virtually exclusively through “talk therapy,” any restriction on a therapist’s ability to engage in a particular type of therapy is therefore a restriction on that therapist’s First Amendment free speech right.

Thus, Plaintiffs argue, that as a regulation of speech, A3371 cannot survive the applicable standard of review, ie., strict scrutiny. The State rejects Plaintiffs’

interpretation of A3371, and, in particular, that the statute regulates, or implicates, speech in any form. Rather, the State claims that the statute merely restricts a licensed professional from engaging in practicing SOCE counseling, and accordingly is a rational exercise of the State’s long-recognized power to reasonably regulate the counseling professions. In that connection, the State asserts that A3371 targets conduct only, not speech. Accordingly, Defendants argue that the statute does not implicate any fundamental constitutional right and withstands rational basis review.

It is clear that the threshold issue before the Court is whether A3371 regulates constitutionally protected speech. I first determine whether the statute on its face seeks to regulate speech; I then turn to whether the statute has the effect of burdening speech or expressive conduct. Ultimately, if the statute does not implicate or burden constitutionally protected speech or expression in any manner, I apply rational basis review.

If, however, the statute does seek to regulate speech or has the effect of burdening protected speech, directly or incidentally, I must determine the degree of constitutional protection afforded to, as well as the resulting burden on, that speech and then apply the appropriate standard of review. I note that A3371 is a novel statute in New Jersey and other jurisdictions within the Third Circuit, as is the issue of whether counseling, by means of talk therapy, is entitled to any special constitutional protection. However, I do not start with a blank slate.

Last year, California passed a law, SB 1172, that is virtually identical to A3371 in both language and purpose. After two district court challenges, one finding SB 1172 constitutional, Pickup v. Brown, No. 12-02497, 2012 WL 6021465 (E.D.Cal., Dec. 4, 2012), the other not, Welch v. Brown, 907 F.Supp.2d 1102 (E.D.Cal.2012), a panel for the Ninth Circuit Court of Appeals concluded that the statute is constitutional. See Pickup v. Brown, 728 F.3d 1042 (9th Cir.2013).

Although the Pickup decision is not binding on me, given the relevance of this opinion, and the dearth of decisions from the Third Circuit or other jurisdictions addressing the interplay between constitutionally protected speech and professional counseling, I will turn to the Ninth Circuit’s decision where appropriate, and explain my reason for so doing. A. A3371 Does Not Regulate Speech I begin by reviewing the plain language of A3371.

Even a cursory review reveals that the statute nowhere references speech or communication; instead, the statute contains words and phrases that are generally associated with conduct. For example, the operative statutory language directs that a licensed counselor “shall not engage in sexual orientation change efforts,” and further defines “ ‘sexual orientation change efforts’ ” as “the practice of seeking to change a person’s sexual orientation.” N.J.S.A. 45:1-55 (emphasis added). Such language is commonly understood to refer to conduct, and not speech, expression, or some other form of communication.

See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 572-73, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Scalia, J., concurring) (noting that a criminal statute prohibiting a person from “engaging],” “appearing]”, or “fondl[ing]” “is not directed at expression in particular”); United States v. Tykarsky, 446 F.3d 458, 473 (3d Cir.2006) (facially reviewing statute with the operative words “engage in prostitution” and determining this term governed conduct); cf. Associated Film Distribution Corp. v.

Thornburgh, 683 F.2d 808, 814 n. 8 (3d Cir.1982) (finding that Pennsylvania statute regulating the bidding, distribution, screening, and exhibition of motion pictures to have “no facial impact upon speech”); United States v. Elcom Ltd., 203 F.Supp.2d 1111, 1128 (N.D.Cal.2002) (finding that portion of Copyright Act that “ban[ned] trafficking in devices, whether software, hardware, or other” did not on its face target speech). Moreover, the Ninth Circuit reached the same conclusion in Pickup, 728 F.3d 1042, finding that the statute did not implicate speech.

Specifically, the Pickup panel determined that the California law did not do any of the following: • Prevent mental health providers from communicating with the public about SOCE • Prevent mental health providers from expressing their views to patients, whether children or adults, about SOCE, homosexuality, or any other topic • Prevent mental health providers from recommending SOCE to patients, whether children or adults • Prevent mental health providers from administering SOCE to any person who is 18 years of age or older • Prevent mental health providers from referring minors to unlicensed counselors, such as religious leaders • Prevent unlicensed providers, such as religious leaders, from administering SOCE to children or adults • Prevent minors from seeking SOCE from mental health providers in other states Id. at 1049-50.

I find that the Pickup panel’s explanation of the reach of the California law applies with equal force to A3371, given the statutes’ similarities. Nothing in the plain language of A3371 prevents licensed professionals from voicing their opinions on the appropriateness or efficacy of SOCE, either in public or private settings. Indeed, A3371 does not prevent a licensed professional from, for example, lecturing about SOCE at a conference or providing literature to a client on SOCE; the statute only prohibits a licensed professional from engaging in counseling for the purpose of actually practicing SOCE.

In light of the foregoing — and Plaintiffs’ failure to provide any substantive support to the contrary, other than their own subjective

interpretations— I find that A3371 does not directly regulate or target speech on its face. In that regard, although Plaintiffs do not meaningfully advance an argument that A3371 regulates speech per se, Plaintiffs nevertheless contend that A3371 clearly targets speech by virtue of the statute’s application solely to licensed counselors. According to Plaintiffs, SOCE counseling necessarily implicates speech because “SOCE counseling is talk therapy.” See Deel. of Dr. Tara King, ¶ 12; see also PI. Reply, 8 (“Plaintiffs’ counseling involves no nonspeech elements, and should be considered pure speech.”).

Plaintiffs explain that: SOCE counseling consists of discussions with the client concerning the nature and cause of their unwanted same-sex sexual attractions, behaviors, or identity; the extent of these attractions, behaviors, or identity; assistance in understanding traditional, gender-appropriate behaviors and characteristics; and assistance in fostering and developing those gender-appropriate behaviors and characteristics. Decl. of Dr. Joseph Nicolosi, ¶ 10.

Similarly, during oral argument, counsel for Plaintiffs stated that SOCE therapists “simply talk to [their clients] ... about what their ultimate objectives are, and they would try to give them support to reach that objective, which in this case would be change.” Tr., T18:18-23. Plaintiffs further stress that they do not use any “aversion techniques” with clients seeking to change their sexual orientation, and that they only engage in SOCE with clients who, following informed consent, voluntarily wish to receive such counseling. See, e.g., Decl. of Dr. Tara King, ¶¶ 10,12-13; Decl. of Dr. Joseph Nicolosi, ¶¶ 7-8.

In sum, Plaintiffs’ position is that, regardless of whether A3371 facially appears to target conduct, the statute is directed at “counseling,” and counseling, as relevant here, consists almost solely of talk therapy; thus, A3371 effects a constitutionally impermissible viewpoint and content based restriction on Plaintiffs’ speech.

In contrast, the State maintains that counseling is conduct, subject to regulation by the state, and that A3371, by its own terms, only governs counseling; the statute does not prevent a licensed counselor from speaking about SOCE, but only prohibits the actual practice of counseling to change a minor’s sexual orientation. Plaintiffs’ argument rests entirely on the premise that SOCE counseling, in the form of talk therapy, is “speech” in the constitutional sense.

Indeed, Plaintiffs, both in their papers and at argument, essentially treat this premise as self-evident, spending little time explaining why talk therapy is properly considered constitutionally protected speech rather than conduct. I believe a more far-reaching analysis is required because, as explained in more detail infra, “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in

part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834 (1949). Accordingly, I must determine whether SOCE counseling should be considered (

i) a form of speech, subject to constitutional protections, (ii) mere conduct, subject to reasonable regulation by the state, or (iii) some combination of both. I begin with the statutory framework in which A3371 is found: Subtitle 1 of Title 45 of the New Jersey Statutes, governing “Professions And Occupations Regulated By State Boards Of Registration And Examination.” N.J.S.A. 45:1-55.

Indeed, A3371 expressly provides that the statute only applies to: “A person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst. ...” Id.

Because the statute only governs “professional counseling” by these, or other similarly “licensed” individuals, I find it helpful to turn to the statutes defining the nature of these licensed practices to better understand the meaning of “counseling” as embodied in A3371.

Section 45:14B-2 of the New Jersey Statute covers psychologists and defines the “practice of psychology” as “the rendering of professional psychological services,” which in turn are defined as “the application of psychological principles and procedures in the assessment, counseling or psychotherapy of individuals for the purposes of promoting the optimal development of their potential or ameliorating their personality disturbances and maladjustments as manifested in personal and interpersonal situations.” More simply put, this statute regulates licensed psychologists’ “application of psychological principles and procedures” to their clients.

Because the statute targets the application of principles and procedures, and not any speech, I view this as a regulation of treatment, ie., conduct. In that sense, counseling, as it arises in the context of psychology, is identified as one of the vehicles for psychological treatment, not a form of speech or expression.

It would therefore appear that the means through which counseling is carried out by a psychologist — ie., whether through talk therapy or actions — is immaterial for the purposes of this statutory definition; the relevant inquiry is whether the psychologist is applying psychological principles and procedures. Similar conclusions can be drawn from other New Jersey statutes regulating the professions and occupations covered by A3371, as these statutes abound with references to counseling as the application of established sociological or psychological methods, principles, and procedures.

Beyond New Jersey’s statutory scheme, commentators have also long discussed psychological counseling in a manner that suggests counseling is therapy, and thus a form of conduct. See, e.g., Note, Regulation of Psychological Counseling and Psychotherapy, 51 Colum. L.Rev. 474, 495 n. 2 (1951) (“ ‘Counseling’ is a form of psychological aid rendered by a psychologist to an individual for social-psychological adjustment problems.” (citing Starke R. Hathaway, Some Considerations Relative to Nondirective Counseling as Therapy, 4 J. Clin. Psychology 226-27 (1948); W.C.

Menninger, The Relationship of Clinical Psychology and Psychiatry, 5 Am. Psychologist 3, 9 (1950))). Similarly, in discussing mental health treatment generally, commentators focus on describing the “services” and “procedures” provided. See, e.g., Stacey A. Tovino, Conflicts of Interest in Medicine, Research, and Law: A Comparison, 117 Penn. St. L.Rev. 1291, 1309 (2013) (“Treatment may be defined as ‘the provision, coordination, or management of health care and related services by one or more health care providers’ to a particular individual.

The definition of treatment is based on the concept of health care, which has been defined as care, services, and procedures related to the health of a particular individual. Health care is frequently defined to include preventive, diagnostic, therapeutic, ' rehabilitative, maintenance, or palliative care that is provided to a particular individual, as well as counseling, assessments, and procedures that relate to the physical or mental condition or functional status of a particular individual.

Activities are thus classified as treatment when they involve a health care service provided by a health care provider that is tailored to the specific preventive, diagnostic, therapeutic, or other health care needs of a particular individual.”). While such commentary certainly is not dispositive, it provides further support for the concept that counseling is more properly understood as a method of treatment, not speech, since the core characteristic of counseling is not that it may be carried out through talking, but rather that the counselor applies methods and procedures in a therapeutic manner.

Notably, by their own admission, Plaintiffs define SOCE counseling as being “no different than any other form of mental health counseling,” involving “the traditional psychodynamic process of looking at root causes, childhood issues, developmental factors, and other things that cause a person to present with all types of physical, mental, emotional, or psychological issues that in turn cause them distress.” Decl. of Dr. Tara King, ¶ 12. Accordingly, I find that the mere fact that counseling may be carried out through talk therapy does not alter my finding that A3371 regulates conduct and not speech.

Additional support for this conclusion comes from the Ninth Circuit’s decision in Pickup. At the core of Pickup is the holding that: Because SB 1172 regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against, SOCE, we conclude that any effect it may have on free speech interests is merely incidental. Therefore, we hold that SB 1172 is subject to only rational basis review and must be upheld if it “bear[s] ... a rational relationship to a legitimate state interest.” Pickup, 728 F.3d at 1056.

The Pickup panel further concluded that California had a rational basis for enacting SB 1172, and thus the statute was constitutional.

Plaintiffs dispute the relevancy and persuasiveness of Pickup, contending that the panel misapplied controlling Ninth Circuit and Supreme Court precedent when it concluded that SB 1172, a law regulating SOCE therapy, is not a regulation of speech, notwithstanding that, as here, therapy in California is carried out almost entirely through “talk therapy.” Plaintiffs further argue that even if the Pickup panel properly concluded that a statute like A3371 regulates conduct with only an “incidental” impact on speech, the panel nevertheless erred when it applied rational basis review rather than the more demanding O’Brien test in upholding the statute.

See United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). I have already independently concluded that A3371 regulates conduct, not speech, and thus I need not devote much time to Plaintiffs’ argument that the Pickup panel, in its analysis of whether SOCE therapy is conduct, not speech, erred when harmonizing the Ninth Circuit’s previous holdings in National Association for the Advancement of Psychoanalysis v. California Board of Psychology, 228 F.3d 1043 (9th Cir.2000) (“NAAP”), and Conant v. Walters, 309 F.3d 629 (9th Cir.2002).

Ninth Circuit law is not binding on this Court, and I am under no obligation to interpret and resolve issues internal to that circuit’s jurisprudence. In re Grossman’s Inc., 607 F.3d 114, 121 (3d Cir.2010). Indeed, in the absence of controlling authority, I am free to adopt whatever reasoning I find persuasive from another jurisdiction’s decision, while rejecting contrary reasoning from that same jurisdiction — regardless of whether the reasoning I rely on is binding in that jurisdiction. See Barrios v.

Attorney General of the United States, 399 F.3d 272, 277 (3d Cir.2005) (finding persuasive reasoning of dissenting Ninth Circuit opinion while rejecting majority’s reasoning from same opinion). In that connection, I briefly highlight certain observations and conclusions in Pickup that I find persuasive here. To begin, the Ninth Circuit, in Pickup, aptly explained that “the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech.

That psychoanalysts employ speech to treat their clients does not entitle them, or their profession, to special First Amendment protection.” Pickup, 728 F.3d at 1052 (quoting NAAP.) Thus, the Pickup panel endorsed the principle that “the communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation.” Id. However, the Pickup panel clarified that the Ninth Circuit had “neither decided how much protection that communication should receive nor considered whether the level of protection might vary depending on the function of the communication.” Id.

The Pickup panel distilled several principles applicable to the state’s authority and limits in regulating the therapist-client relationship: (1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.

Id. Although to some extent Plaintiffs take issue with all three of these “principles,” the most salient to their challenge in this case is the second that psychotherapists are not entitled to special First Amendment protection merely because they use the spoken word as therapy. See, e.g., PI. Reply at 2. This argument is merely a corollary of Plaintiffs’ contention that “counseling,” by its very nature, is constitutionally protected speech. I have already explained why this is not so for the purposes of A3371.

The same rationale extends to why psychotherapists, and other similarly regulated professionals, are not entitled to blanket First Amendment protection for any and all conversations that occur in the counselor-client relationship. To be clear, the line of demarcation between conduct and speech is whether the counselor is attempting to communicate information or a particular viewpoint to the client or whether the counselor is attempting to apply methods, practices, and procedures to bring about a change in the client—the former is speech and the latter is conduct.

However, there is a more fundamental problem with Plaintiffs’ argument, because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services. See Watson v.

Maryland, 218 U.S. 173, 176, 30 S.Ct. 644, 54 L.Ed. 987 (1910) (“It is too well settled to require discussion at this day that the police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health.”); see also Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889) (holding that states have' a legitimate interest in regulating the medical profession through doctors’ licensing requirements); Williamson v.

Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (finding it constitutionally permissible for states to require a prescription for opticians to fit or duplicate lenses); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (noting that “the State bears a special responsibility for maintaining standards among members of the licensed professions”); Eatough v. Albano, 673 F.2d 671, 676 (3d Cir.1982) (“It is long settled that states have a legitimate interest in regulating the practice of medicine.... ”); Lange-Kessler v.

Dep’t of Educ. of the State of New York, 109 F.3d 137 (2d Cir.1997) (finding that regulation of the medical profession is afforded rational basis review); cf. Washington v. Glucksberg, 521 U.S. 702, 731, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (“The State also has an interest in protecting the integrity and ethics of the medical profession.”); Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d 639, 645 & nn. 9-10 (3d Cir.1995) (rejecting argument that choice of provision of medical services is a constitutionally significant interest triggering strict scrutiny review).

Finally, I address Plaintiffs’ reliance on Wollschlaeger v. Farmer, in which the court found that a Florida law preventing doctors from inquiring into a patient’s gun ownership invaded the constitutionally protected realm of doctor-patient communications. 880 F.Supp.2d 1251, 1266-67 (S.D.Fla.2012). The Wollschlaeger court relied on the proposition that “[c]ourts have recognized that the free flow of truthful, non-misleading information is critical within the doctor-patient relationship,” id. at 1266, and cited Trammel v.

United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (“[T]he physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment.”), Conant, 309 F.3d at 636 (“An integral component of the practice of medicine is the communication between a doctor and a patient. Physicians must be able to speak frankly and openly to patients.”), and Sorrell v.

IMS Health, Inc., ■— U.S.-, 131 S.Ct. 2653, 2664, 180 L.Ed.2d 544 (2011) (“A consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue .... That reality has great relevance in the fields of medicine and public health, where information can save lives.”). In contrast here, A3371 does not seek to regulate the conveying of information, only the application of a particular therapeutic method. Thus, Wollschlaeger is inapposite.

For the foregoing reasons, I conclude that A3371 on its face does not target speech, and “counseling” is not entitled to special constitutional protection merely because it is primarily carried out through talk therapy. Thus, I find that A3371 does not seek to regulate speech; rather the statute regulates a particular type of conduct, SOCE counseling. B. Level of Scrutiny — Rational Basis Review Applies Having determined that A3371 regulates conduct, I must still determine if the statute carries with it any incidental effect on speech.

Plaintiffs argue that because the conduct being regulated by A3371-SOCE counseling — is carried out entirely through speech, the statute necessarily has, at the very least, an incidental effect on speech and thus, a heightened level of judicial scrutiny applies. See Pl. Reply at 8. In that connection, Plaintiffs assert that under Third Circuit precedent, a law that “burdens expression but is content neutral” must be analyzed under the “intermediate scrutiny” standard enunciated by the Supreme Court in O’Brien. See Conchatta Inc. v. Miller, 458 F.3d 258, 267 (3d Cir.2006); Barbnicki v.

Vopper, 200 F.3d 109, 121 (3d Cir.1999) aff'd, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (noting that O’Brien standard applies to regulations governing conduct that incidentally restrict expressive behavior). In response, Defendants argue that the mere fact that the conduct in question here is carried out through spoken words is not, by itself, sufficient to show that the statute has an incidental burden on speech; rather, Plaintiffs must also show that their conduct is inherently expressive, which they fail to do.

In O’Brien, the Supreme Court addressed a federal law that made it a criminal offense to forge, alter, knowingly destroy, knowingly mutilate, or in any manner change a draft card. O’Brien, 391 U.S. at 370, 88 S.Ct. 1673. The petitioner had been convicted for burning his draft card on the steps of a court house, and appealed his conviction on the grounds that the law unconstitutionally abridged his freedom of speech. Id. As an initial matter, the Supreme Court found that the statute “on its face deals with conduct having no connection with speech.

It prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about such conduct.” Id. at 375, 88 S.Ct. 1673. However, the O’Brien court recognized that the petitioner had burned his draft card to protest the Vietnam War, and accordingly, determined that this “communicative element in O’Brien’s conduct [was] sufficient to bring into play the First Amendment.” Id. at 376, 88 S.Ct. 1673 (emphasis added).

The Supreme Court reasoned that the federal law was constitutionally permissible, notwithstanding its incidental effect on individuals like the petitioner, explaining that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Id.

Thus, the inquiry into whether O’Brien’s intermediate scrutiny review is appropriate turns on whether the alleged conduct falls within the scope of the First Amendment’s right to freedom of expression, and extends only to “conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative [as] [s]ymbolic expression, otherwise known as expressive conduct.” Barbnicki, 200 F.3d at 121 (internal quotation marks omitted) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)).

On the other hand, as I have noted herein, “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in

part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney, 336 U.S. at 502, 69 S.Ct. 684. Similarly, “the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.” Ohralik, 436 U.S. at 456, 98 S.Ct. 1912.

Thus, in determining whether conduct is deserving of First Amendment speech protection, the focus is on “the nature of [the] activity, combined with the factual context and environment in which it was undertaken,” to determine whether “activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Spence v. State of Washington, 418 U.S. 405, 409-10, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974).

In making that connection, the Supreme Court has “rejected the view that conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea [and has] extended First Amendment protection only to conduct that is inherently expressive.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 65-66, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (other internal quotation marks omitted). Thus, contrary to Plaintiffs’ argument, the mere fact that counseling is carried out through speech is not alone sufficient to show that A3371 has an incidental effect on speech.

Plaintiffs must also show that counseling is inherently expressive conduct — i.e., that talk therapy (1) is intended to be communicative, and (2) would be understood as such by their clients. Plaintiffs fail to make such a showing. Plaintiffs themselves discuss SOCE as a type of therapy, intended to bring about some form of change in the client. See, e.g., Decl. of Dr. Tara King, ¶ 12 (discussing SOCE as a form of counseling involving the “traditional psychodynamic process” to effect “change” in the client’s sexual orientation); Decl. of Dr.

Ron Newman, ¶ 8 (“I also believe that change is possible and have personally counseled individuals who have successfully reduced or eliminated their unwanted same-sex attractions, behaviors, or identity.”); Decl. of Dr. Joseph Nicolosi, ¶ 11 (discussing SOCE as a means to eliminate or reduce a client’s unwanted same-sex sexual attractions).

Here, Plaintiffs’ explanation of their roles and boundaries in the counselor-client relationship leads to the conclusion that counseling is not “conduct that is intended to be communicative” because the counselor’s goal is to apply traditional mental health treatment methods and principles to effect a change in the client’s sexual orientation. SOCE counseling is not a means of communication to express any particular viewpoint; rather it is a means of treatment intended to bring about a change in the mental health and psyche of the client who desires and seeks out such a change.

I therefore do not find that SOCE counseling, as performed by Plaintiffs, satisfies the Barbnicki requirement of conduct that is intended to be communicative. Moreover, SOCE counseling is not like other forms of conduct traditionally found to be “inherently expressive,” such as the burning of a draft card in OBrien or the burning of a flag in Texas v. Johnson, 491 U.S. 397, 405-406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). In these cases, there was a clear distinction between the conduct that the statute sought to govern and the expressive conduct incidentally affected by the statute.

Here, by contrast, Plaintiffs have identified no conduct, let alone any expressive conduct, other than that covered by A3371. Thus, Plaintiffs’ claim is more appropriately governed by Giboney, which affords no protection to speech that is integrally part of validly prohibited conduct. Giboney, 336 U.S. at 498, 69 S.Ct. 684 (“It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.

We reject the contention now.”); Rumsfeld, 547 U.S. at 66, 126 S.Ct. 1297 (“If combining speech and conduct were enough to create expressive conduct, a regulated - party could always transform conduct into ‘speech’ simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O’Brien to determine whether the Tax Code violates the First Amendment. Neither O’Brien nor its progeny supports such a result.”); United States v.

Schiavo, 504 F.2d 1, 21 n. 9 (3d Cir.1974) (“Freedom of expression can be suppressed if, and to the extent that, it is so brigaded with illegal action as to be an inseparable part of it.”). Similarly, I find that Plaintiffs have not shown that A3371 has an incidental effect on expressive conduct, and thus, O’Brien does not govern Plaintiffs’ challenge to A3371. Instead, I apply rational basis review.

See Sammon, 66 F.3d at 645 & nn.9-10. “Where rational basis review is appropriate, a statute withstands a substantive due process challenge if the state identifies a legitimate state interest that the legislature rationally could conclude was served by the statute.” Sammon, 66 F.3d at 644; see Scavone v. Pa. State Police, 501 Fed.Appx. 179, 181 (3d Cir.2012). “‘The law need not be in every respect consistent with its aims to be constitutional.

It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.’ ” Rogin v. Bensalem Township, 616 F.2d 680, 689 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981) (quoting Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88, 75 S.Ct. 461, 99 L.Ed. 563 (1955)); see also Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 682 (3d Cir.1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1668, 118 L.Ed.2d 389 (1992); Mabey Bridge & Shore, Inc. v.

Schoch, 666 F.3d 862, 876 (3d Cir.2012). When legislation is being tested under rational basis review, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification [of the statute] is apparently based could not reasonably be conceived as true by the governmental decisionmaker.” Id. (quoting Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)); see also Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1034-35 (3d Cir.), cert. denied, 482 U.S. 906, 107 S.Ct. 2482, 96 L.Ed.2d 375 (1987).

Indeed, “those attacking the rationality of the legislative classification have the burden ‘to negatfe] every conceivable basis which might support it.’ ” FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)); see, e.g., Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (finding that laws scrutinized under rational basis review are “accorded a strong presumption of validity”).

Ordinarily, that burden is nearly insurmountable. “[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321, 113 S.Ct. 2637 (internal quotation marks and citations omitted); N.J. Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 399 (3d Cir.2012).

Importantly, a state need not provide justification or rationale for its legislative decision. Indeed, the Supreme Court has held that “legislative choice[s] [are] not subject to court factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Communications, 508 U.S. at 315, 113 S.Ct. 2096; N.J. Retail Merchs., 669 F.3d at 399. It is not the courts’ role, under a rational basis review, “ ‘to judge the wisdom, fairness, or logic of legislative choices.’ ” Parker v. Conway, 581 F.3d 198, 202 (3d Cir.2009) (quoting Beach Commc’ns, 508 U.S. at 313, 113 S.Ct. 2096).

Nevertheless, the court must still determine “whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory.” Nebbia v. New York, 291 U.S. 502, 536, 54 S.Ct. 505, 78 L.Ed. 940 (1934). Here, the State’s professed interest is in protecting minors from professional counseling it deems harmful. It is beyond debate that the State has an interest in protecting vulnerable groups, Washington, 521 U.S. at 731, 117 S.Ct. 2258, which includes minors. American Civil Liberties Union v.

Ashcroft, 322 F.3d 240, 251 (3d Cir.2003) (“[T]here is a compelling interest in protecting the physical and psychological well-being of minors.”) (Quoting Sable Commc’n of California, Inc. v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)). A3371 accomplishes this by ensuring that licensed professionals who engage in counseling do not perform SOCE on minors.

Contrary to Plaintiffs’ arguments, it is immaterial whether there is any actual evidence of harm from SOCE; for A3371 to have a rational basis, it is sufficient that the legislature could reasonably believe that SOCE conveyed no benefits and potentially caused harm to minors. Beach Communications, 508 U.S. at 315, 113 S.Ct. 2096. The legislative findings set forth in A3371 support such a conclusion. See generally N.J.S.A. 45:1-54.

For example, the legislature found: • “Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming”; • “[S]exual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people”; • “[T]he [American Psychological Association] advises parents, guardians, young people, and their families to avoid sexual orientation change efforts that portray homosexuality as a mental illness or developmental disorder”; • “The American Academy of Pediatrics in 1993 published an

article in its journal, Pediatrics, stating: ‘Therapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation’ ”; and • “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 Id. It is also immaterial that some of the legislature’s findings and declarations address SOCE with respect to adults, as opposed to minors. It is certainly rational for the legislature to believe that the potential harms that attend SOCE for adults exist at least equally for minors.

See Scavone, 501 Fed.Appx. at 181 (explaining the rational basis inquiry as “whether the legislature rationally might have believed the predicted reaction would occur or that the desired end would be served”). Finally, because in applying the rational basis test I rely only on the legislature’s stated findings to determine whether there is a rational basis for A3371 — indeed, I need not even rely on those findings, as long as I can conceive of some rational basis for the statute — Plaintiffs’ arguments attacking the validity of the studies and reports relied on by the legislature carry no weight in the analysis.

See N.J. Retail Merchs., 669 F.3d at 399; Beach Communications, 508 U.S. at 315, 113 S.Ct. 2096. Similarly, A3371’s prohibition on the practice of SOCE counseling is rationally related to the harm the statute seeks to prevent. A3371 targets only licensed professionals who engage in professional counseling of minors, and restricts them from performing the specific type of conduct — SOCE counseling — the legislature deemed harmful. This nexus is more than adequate to satisfy rational basis review. Id. In sum, I conclude that:

(1) A3371 on its face does not target speech; (2) “counseling” is not constitutionally protected speech merely because it is primarily carried out through talk therapy; (3) no speech or expressive conduct is incidentally burdened by A3371’s prohibition, and thus (4) rational basis review is appropriate for adjudging the statute’s constitutionality, which is easily satisfied by the stated legislative findings and the statute’s purpose. C. A3371 is Neither Vague Nor Over-broad In connection with their free speech challenge, Plaintiffs also assert that A3371 is both unconstitutionally vague and overbroad.

These arguments are grounded in Plaintiffs’ contention that A3371 regulates speech. Having determined that A3371 covers conduct only, the majority of Plaintiffs’ arguments in this regard no longer apply. I nevertheless address whether, as an otherwise constitutionally permissible, rational regulation of conduct, A3371 is impermissibly vague or over-broad. 1. Vagueness Plaintiffs contend that A3371 is unconstitutionality vague because Plaintiffs do not know what type of speech or conduct is actually prohibited by the statute.

The “vagueness inquiry is grounded in the notice requirement of the Fourteenth Amendment’s due process clause.” J.S. v. Blue Mt. Sch. Dist., 650 F.3d 915, 935 (3d Cir.2011) (citing City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)). A statute will be considered void for vagueness if it does not allow a person of ordinary intelligence to determine what conduct it prohibits, or if it authorizes arbitrary enforcement. Id.; Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).

However, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citations omitted). Indeed, voiding a democratically enacted statute on grounds that it is unduly vague is an extreme remedy. Id. More particularly, a facial vagueness attack on a statute that does not infringe on constitutionally protected freedoms — as is the case in this matter — can succeed only if the statute is incapable of any valid application. Steffel v.

Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Brown v. City of Pittsburgh, 586 F.3d 263, 269 (3d Cir.2009) (“[A] successful facial challenge requires the challenger to establish that no set of circumstances exists under which the Act would be valid.” (internal quotation marks omitted.)); Humanitarian Law Project v. U.S.

Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir.2009) (explaining that a statute will survive a facial vagueness challenge so long as “it is clear what the statute proscribes in the vast majority of its intended applications”). In that regard, it is significant to bear in mind that speculation about possible or hypothetical applications does not suffice; a statute that is valid “in the vast majority of its intended applications” cannot be struck down on a facial challenge. Hill v. Colorado, 530 U.S. 703, 733, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).

Moreover, in the context of a statutory proscription that purports to regulate a targeted industry or profession, a slightly different type of analysis applies: “if the statutory prohibition involves conduct of a select group of persons having specialized knowledge, and the challenged phraseology is indigenous to the idiom of that class, the standard is lowered and a court may uphold a statute which uses words or phrases having a technical or other special meaning, well enough known to enable those within its reach to correctly apply them.” United States v.

Weitzenhoff 35 F.3d 1275, 1289 (9th Cir.1993) (emphasis added) (quoting Precious Metals Assocs., Inc. v. Commodity Futures Trading Comm’n, 620 F.2d 900, 907 (1st Cir.1980), in turn quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) (internal quotations omitted)); cf.

Village of Hoffman Estates, 455 U.S. at 498, 102 S.Ct. 1186 (“[E]eonomic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because ... the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process”). Plaintiffs contend that the term “sexual orientation” and the phrase “sexual orientation change efforts” are impermissibly vague. The latter challenge can be quickly dismissed, as it is based on, and significantly overlaps with, Plaintiffs’ substantive free speech challenge.

Indeed, Plaintiffs’ primary theory in this case is that it is unclear whether under A3371 Plaintiffs can talk about SOCE to their clients, even if they are not engaging in actual SOCE. Plaintiffs thus argue that A3371 burdens speech because Plaintiffs will either be chilled from, or disciplined for, merely speaking about SOCE. As my earlier discussion makes clear, the reasonable reading of A3371, as well as the State’s position throughout this litigation, limits the application of the statute to the actual practice of SOCE.

This limitation resolves Plaintiffs contention that SOCE, as a phrase, is unconstitutionally vague. The statute defines SOCE by providing an illustrative list of practices: “ ‘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.” N.J.S.A. 45:l-55(b).

Given this definition, it cannot be said that the statute does not allow a person of ordinary intelligence to determine what conduct it prohibits, and therefore it is not facially vague. Nothing in A3371 prevents a counselor from mentioning the existence of SOCE, recommending a book on SOCE or recommending SOCE treatment by another unlicensed person such as a religious figure or recommending a licensed person in another state. The statute does not require affirmation of a patient’s homosexuality.

Even if, “at the margins,” there is some conjectural uncertainty as to what the statute proscribes, such uncertainty is insufficient to void the statute for vagueness because “it is clear what the statute proscribes in the vast majority of its intended applications,” namely counseling intended to alter a minor patient’s sexual orientation. See Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1151 (9th Cir.2001) (quoting Hill, 530 U.S. at 733, 120 S.Ct. 2480).

Moreover, Plaintiffs are licensed professionals who engage in counseling, and if some Plaintiffs are not familiar with how to practice SOCE, Plaintiffs have never suggested that they, or any person who professionally counsels, is wholly unfamiliar with the idea of SOCE. See Weitzenhoff, 35 F.3d at 1289. Thus, Plaintiffs’ facial vagueness attack on the term “sexual orientation change efforts” is without merit.

Plaintiffs also challenge the term “sexual orientation,” noting that it is undefined in the statute, and citing the APA Task Force that explained that “[s]ame-sex sexual attractions and behavior occur in the context of a variety of sexual orientations ... and ... is fluid or has an indefinite outcome.” Plaintiffs reason that because the term “sexual orientation” has subjective and interchanging meanings, its usage in the challenged statute makes the statute vague. I am not persuaded that the term “sexual orientation” is unconstitutionally vague.

Plaintiffs, in their own declarations, demonstrate that they understand what the term sexual orientation means and how that term relates to the conduct prohibited by A3371. See, e.g., Decl. of Dr. Tara King, ¶ 4 (“We offer counseling on numerous issues, including ... sexual orientation change efforts”) id., ¶ 5 (“I am a former lesbian who went through SOCE counseling.” (Emphasis added.)); Decl. of Dr. Ron. Newman, ¶ 8 (“Part of my practice involves what is often called sexual orientation change efforts.”). Indeed, Plaintiffs are bringing this suit precisely because they wish to engage in SOCE.

For Plaintiffs to argue on the one hand that their ability to engage in SOCE is impermissibly restricted by A3371, and on the other hand claim that A3371 is unconstitutionally vague because it fails to define “sexual orientation” strains credulity. Regardless, because I find that a person of ordinary intelligence — let alone Plaintiffs — would understand what the term sexual orientation means, A3371 is not vague for the inclusion of this term. Canvassing case law on this subject, I have found several courts that have determined that the term sexual o

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