Gay conversion therapy and the implications of Ferguson v. JONAH

Are state bans on services claiming to “cure” homosexuality through religious therapy constitutional?

Photo by Jason Pier (Flickr)

With the U.S. Supreme Court preparing to tackle the issue of gay marriage during its current term, it is clear that the LGBT social movement is making headway.  Yet there remain additional, important strides to be made.  The LGBT community still needs many protections that can only be offered by state legislatures and courts.  A recent plea from the LGBT community requests judicial recognition of the harmful effects of gay conversion therapy.  The cause currently centers on an ongoing case in New Jersey, where the state’s Consumer Fraud Act has given rise to a unique lawsuit in Ferguson v. JONAH.

Today, all major American medical, psychiatric, physiological, and professional counseling organizations discredit and staunchly criticize gay conversion therapy.

Gay conversion therapy (PDF) claims to help people, usually gay men, overcome their unwanted homosexual attractions, thereby “converting” them from gay to straight.  This “reparative” therapy has been used by mental health facilities and religious centers since the nineteenth century.  Methods of the past were more extreme than those employed today and included measures such as institutionalization, castration, and electroconvulsive shock therapy.  As the mental health profession shifted its stance on homosexuality, gay conversion therapy lost popularity within the field.  In 1973, the American Psychiatric Association stopped classifying “homosexuality” as a mental disorder.  The American Psychological Association followed suit in 1974 by passing a resolution stating that homosexuality implies no social impairment.

Today, all major American medical, psychiatric, physiological, and professional counseling organizations discredit and staunchly criticize gay conversion therapy.  However, this type of reparative therapy is still commonly directed toward homosexual individuals holding conservative religious and political beliefs.  Organizations such as Jews Offering New Alternatives for Healing use techniques including hypnosis, behavioral and cognitive therapies, sex therapies, and psychotropic medication to change or reduce a person’s same-sex attraction, or to alter his or her gender identity.

The SPLC argues that JONAH’s method relies on therapy that has been widely discredited as ineffective and harmful.

In 2012, the Southern Poverty Law Center (“the SPLC,” or alternatively “the Center”) filed suit (PDF) against Jews Offering New Alternatives for Healing, its founder Arthur Goldberg, and counselor Alan Downing (hereinafter, referred to collectively as “JONAH”).  The complaint alleges that these parties violated New Jersey’s Consumer Fraud Act (“CFA”) (PDF) by claiming gay clients could be “cured” through the use of the organization’s counseling services.  The Center is bringing the lawsuit on behalf of four young men who were “consumers” of JONAH’s conversion therapy.

The SPLC argues that JONAH’s method relies on therapy that has been widely discredited as ineffective and harmful.  The services offered are based on the premise that homosexuality is a mental defect or disorder, a claim that has been scientifically disproven.  According to the SPLC, the JONAH plaintiffs relied on those misrepresentations in paying for the organization’s services, which can cost more than $10,000 per year.  Among the Center’s requests for relief are: monetary damages, accounting for the costs of repairing the injury caused by JONAH’s treatments, lost wages, and attorneys’ fees; a declaration that JONAH’s practices constitute a violation of the CFA; and a shutdown of JONAH, in order to prevent the organization from engaging in these unlawful practices in the future.

JONAH countered the complaint with a motion to dismiss (PDF), arguing that there is a scientific split in opinion as to the effectiveness of gay conversion therapy, and claiming that any “failure to change is the fault of the counseling client.”  The defendants supported their argument with medical reports claiming that homosexuality can be changed through reorientation therapy.  JONAH alleged that the SPLC was using the lawsuit as a means to push its campaign to end conversion therapy altogether.  Further, the organization asserted that it is not the role of the courts to decide societal issues that are subject to scientific dispute.  The Superior Court of New Jersey disagreed and denied (PDF) JONAH’s motion to dismiss in July 2013.

This year, the SPLC filed a motion questioning the admissibility of the testimony of six expert witnesses for the defense.  The Center claimed that the experts’ opinion testimony lacked a reliable foundation, and therefore, did not meet the burden imposed by Rules 702 and 703 of the New Jersey Rules of Evidence.  On February 5, 2015, the court granted (PDF) the SPLC’s motion to exclude in its entirety the testimony of five of the defense’s expert witnesses, and partially as to the sixth, limiting the testimony of that witness to certain facts.

On February 10 (PDF), the court granted partial summary judgment in favor of the plaintiffs.  By this order, the court declared that advertisements for conversion therapy services that characterize homosexuality as a mental illness, rather than a normal variation of human sexuality, violate the CFA.

Arguing against summary judgment, JONAH asserted its First Amendment freedoms of speech and religion.  The organization said that together, the Free Exercise and Free Speech Clauses protect JONAH’s religious expressions relating to its belief that homosexual orientation is wrong and changeable.  Despite noting that “the First Amendment is not a sufficient basis for summary judgment,” the Superior Court of New Jersey nevertheless acknowledged that there exists a genuine issue of material fact regarding the organization’s representation of homosexuality as a mental disorder, and preserved the issue of JONAH’s First Amendment defenses for trial.

In addition to the three jurisdictions that have already outlawed gay conversion therapy, there is a national trend that favors banning this form of “treatment” for good.

Just three United States jurisdictions currently have laws addressing gay conversion therapy.  In 2012, California (PDF) became the first state to ban gay conversion therapy because of the serious risks that it poses to the LGBT community, including depression, social withdrawal, suicidality, substance abuse, and a loss of faith.  The United States Court of Appeals for the Ninth Circuit (PDF) upheld the law in January 2014.  Using the rational basis standard of constitutionality, the Court held that the restrictions imposed by the legislation survived any First Amendment implications.  The Supreme Court of the United States denied review (PDF) in June 2014.

Ironically, New Jersey, the state whose law gave rise to the JONAH lawsuit, passed legislation (PDF) in 2013 banning the use of gay conversion therapy in minors.  In September 2014, the Court of Appeals for the Third Circuit upheld (PDF) the law’s constitutionality under intermediate scrutiny, a more difficult hurdle than rational basis for the state to overcome.  The decision is pending review, and the Supreme Court may decide to grant certiorari, given that there is now a circuit split as to which constitutional standard applies to state bans of gay conversion therapy.  Regardless of the standard applied, however, it appears from the decisions of the Third and Ninth Circuits that this type of legislation constitutes a permissible restriction on religious speech.

In December 2014, the District of Columbia became the most recent jurisdiction to ban (PDF) reparative therapy.  The bill is projected to become law in March 2015.

In addition to the three jurisdictions that have already outlawed gay conversion therapy, there is a national trend that favors banning this form of “treatment” for good.  Nineteen states have introduced bills requesting some form of a ban on gay conversion therapy.  With this national trend and the Superior Court of New Jersey’s bold declarations in Ferguson v. JONAH, the LGBT community’s prayer for relief from reparative therapy is becoming a reality.

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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