Joseph Rugg's Health Law Blog

On September 11, 2014, the Third Circuit Court of Appeals decided the case of King v. Governor of the State of New Jersey.

The King case deals with a New Jersey statute that prohibits licensed counselors from “sexual orientation change efforts” with clients under the age of 18.  The plaintiff-appellants, who provide licensed Christian-based counseling to minor clients seeking to reduce or eliminate same-sex attractions, challenged the N.J. statute as improperly violating their First Amendment freedoms of speech and religion.

The court affirmed the lower court’s upholding of the statute but on the basis of a much more conservative/protective analysis of the First Amendment rights.

The 3rd Circuit’s holding is in line with recent holdings from the 4th, 9th, and 11th Circuits that establish special rules for the regulation of speech that occurs pursuant to the practice of a licensed profession. (The 11th Circuit case dealt with the Florida gun-gag law on doctors.)

Though, unlike the other Circuits, the 3rd Circuit in King held that the statute must be subjected to “intermediate scrutiny” (as opposed to a more deferential review or no review) in order to “adequately protect the First Amendment interests inherent in professional speech.”

The take away here for me is that the reach of state legislatures has gotten bigger.  State legislatures are enacting laws that challenge/support the influence of religious groups (challenge, as in the King case) or political groups like the NRA (support, as in the Florida gun-gag case).  The Constitution has been a shield upholding intrusive laws that support very specific political agendas (e.g., pro-gay, pro-gun).  The politics of a state’s legislators, and the views of their supporters, will likely continue to trickle down to impact on what may be said to patients/clients by their counselors and by any other regulated professions.  I suspect that legislators will explore new ways to intrude on matters of individual choice and conscience that should be outside their interest or concern.