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Welch v. Brown

United States District Court, E.D. California

December 3, 2012

Donald WELCH, Anthony Duk, Aaron Bitzer, Plaintiffs,
Edmund G. BROWN, Jr., Governor of the State of California, In His Official Capacity, Anna M. Caballero, Secretary of California State and Consumer Services Agency, In Her Official Capacity, Denise Brown, Director of Consumer Affairs, In Her Official Capacity, Christine Wietlisbach, Patricia Lock-Dawson, Samara Ashley, Harry Douglas, Julia Johnson, Sarita Kohli, Renee Lonner, Karen Pines, Christina Wong, In Their Official Capacities as Members of the California Board of Behavioral Sciences, Sharon Levine, Michael Bishop, Silvia Diego, Dev Gnanadev, Reginald Low, Denise Pines, Janet Salomonson, Gerrie Schipske, David Serrano Sewell, Barbara Yaroslaysky, In Their Official Capacities as Members of the Medical Board of California, Defendants.

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Kevin Trent Snider, Matthew Brown McReynolds, Sacramento, CA, Michael John Peffer, Santa Ana, CA, for Plaintiffs.

Alexandra Robert Gordon, Paul Evan Stein, California Office of the Attorney General San Francisco San Francisco, CA, for Defendants.


WILLIAM B. SHUBB, District Judge.

Plaintiffs Donald Welch, Anthony Duk, and Aaron Bitzer seek to enjoin enforcement of Senate Bill 1172 (" SB 1172" ), which if it goes into effect on January 1, 2013, will prohibit mental health providers from engaging in sexual orientation change efforts (" SOCE" ) with minors.

Because the court finds that SB 1172 is subject to strict scrutiny and is unlikely to satisfy this standard, the court finds that plaintiffs are likely to succeed on the merits of their 42 U.S.C. § 1983 claims based on violations of their rights to freedom of speech under the First Amendment. Because plaintiffs have also shown that they are likely to suffer irreparable harm in the absence of an injunction, that the balance of equities tips in their favor, and that an injunction is in the public interest, the court grants plaintiffs' motion for a preliminary injunction.[1]

I. Factual and Procedural Background

On September 29, 2013, defendant Governor Edmund G. Brown, Jr., signed SB 1172. SB 1172 prohibits a " mental health provider" from engaging in " sexual orientation change efforts with a patient under 18 years of age" under all circumstances. Cal. Stats.2012, ch. 835, at 91 (" SB 1172" ) (to be codified at Cal. Bus. & Prof.Code §§ 865(a), 865.1). It further provides that " [a]ny sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline

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by the licensing entity for that mental health provider." Id. (to be codified at Cal. Bus. & Prof.Code § 865.2).

SB 1172 defines " sexual orientation change efforts" as " any practices by mental health providers that seek to change an individual's sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex." Id. (to be codified at Cal. Bus. & Prof.Code § 865(b)(1)). From this definition, SB 1172 excludes " psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients' coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation." Id. (to be codified at Cal. Bus. & Prof.Code § 865(b)(2)). The bill defines " mental health provider" as:

a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation.

Id. (to be codified at Cal. Bus. & Prof.Code § 865(a)).

Plaintiff Donald Welch is a licensed marriage and family therapist in California and an ordained minister. (Welch Decl. ¶ 1 (Docket No. 11).) He is currently the president of a non-profit professional counseling center, the owner and director of a for-profit counseling center, and an adjunct professor at two universities. ( Id. ¶ 4.) Welch is also employed part-time as a Counseling Pastor for Skyline Wesleyan Church, which teaches that " human sexuality ... is to be expressed only in a monogamous lifelong relationship between one man and one woman within the framework of marriage." ( Id. ¶ 5, Ex. A at 3.) Welch provides treatment that qualifies as SOCE under SB 1172 and his " compliance with SB 1172 will jeopardize [his] employment" at Skyline Wesleyan Church. ( Id. ¶¶ 5, 8-9, 11, 17.)

Plaintiff Anthony Duk is a medical doctor and board certified psychiatrist in full-time private practice who works with adults and children over the age of sixteen. (Duk Decl. ¶ 1 (Docket No. 13).) His current patients include minors " struggling with" homosexuality and bisexuality. ( Id. ¶ 6.) In his practice, Duk utilizes treatment that qualifies as SOCE under SB 1172. ( Id. )

Plaintiff Aaron Bitzer is an adult who has had same-sex attractions beginning in his childhood and was " involved in sexual orientation efforts commonly called ‘SOCE’ " as an adult in 2011 and 2012. (Bitzer Decl. ¶¶ 1-11, 15 (Docket No. 12).) Bitzer " had been planning on becoming a therapist specifically to work" with individuals having same-sex attractions and to help men like himself. ( Id. ¶ 26.) He explains that, " [b]ecause of SB 1172, [he has] had to reorder all of [his] career plans and [is] trying to pursue a doctorate so as to also contribute research to this field." [2] ( Id. )

On October 1, 2012, plaintiffs initiated this action under 42 U.S.C. § 1983 against

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various state defendants to challenge the constitutionality of SB 1172. ( See Docket No. 1.) In their Complaint, plaintiffs seek declaratory relief and preliminary and permanent injunctions. Presently before the court is plaintiffs' motion for a preliminary injunction in which they seek to enjoin enforcement of SB 1172 before the new law goes into effect on January 1, 2013.[3] The court granted Equality Justice permission to submit briefs and present oral argument as an amicus curiae in this case. ( See Docket No. 30.)

II. Analysis

To succeed on a motion for a preliminary injunction, plaintiffs must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir.2011). The Supreme Court has repeatedly emphasized that " injunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22, 129 S.Ct. 365.

" The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). " ‘ A preliminary injunction ... is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment.’ " U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir.2010) (quoting Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984)) (omission in original).

A. Plaintiffs May Not Assert the Rights of Parents and Minors

" As a prudential matter, even when a plaintiff has Article III standing, [federal courts] do not allow third parties to litigate on the basis of the rights of others." Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 917 (9th Cir.2004). The Supreme Court has " adhered to the rule that a party ‘ generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’ " Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).

This limitation on prudential standing is not " absolute," and the Court has recognized " that there may be circumstances where it is necessary to grant a third party standing to assert the rights of another." Id. at 129-30, 125 S.Ct. 564. Specifically, a litigant may bring an action on behalf of a third party if " three important criteria are satisfied" : " The litigant must have suffered an ‘ injury in fact,’ thus giving him or her a ‘ sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must

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exist some hindrance to the third party's ability to protect his or her own interests." Powers v. Ohio, 499 U.S. 400, 410-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); accord Coalition of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1163 (9th Cir.2002).

Third-party standing for physicians asserting the rights of their patients first developed in the abortion context. For example, in Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), the Supreme Court concluded that " it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision." [4] Singleton, 428 U.S. at 118, 96 S.Ct. 2868 (plurality opinion); see also Planned Parenthood of Idaho, Inc., 376 F.3d at 917 (" Since at least Singleton v. Wulff, [ ] it has been held repeatedly that physicians may acquire jus tertii standing to assert their patients' due process rights in facial challenges to abortion laws." ).

Even assuming plaintiffs can satisfy the first two criteria, plaintiffs cannot credibly suggest that parents of minor children who seek SOCE and minors who desire SOCE face a hindrance in asserting their own rights. Three days after plaintiffs initiated this action, a second case challenging SB 1172 was filed in this court. The plaintiffs in that case include parents of minor children seeking SOCE for their minor children and minor children seeking SOCE, and the plaintiffs in that case have similarly sought a preliminary injunction. ( See Pickup v. Brown, Civ. No. 2:12-2497 KJM EFB (E.D.Cal.) Compl. ¶¶ 2-6 (Docket No. 1).)

Not only is it clear that parents and minors do not face a hindrance in challenging SB 1172 as it relates to their rights, determining whether the statute will violate their rights is more appropriately addressed in the case in which they are plaintiffs. Accordingly, plaintiffs in this case may not assert the third-party rights of parents of minor children or minors and the court's analysis of SB 1172 will be limited to challenges based on plaintiffs' own rights. Cf. Smith v. Jefferson Cnty. Bd. of Sch. Comm'rs, 641 F.3d 197, 208-09 (6th Cir.2011) (finding that teachers lacked prudential standing to assert the rights of their students when, even though the teachers had a sufficiently close relationship to their students, " [t]here is no evidence that the students or their parents might be deterred from suing," " that the claims of the students would be imminently moot," or " that the students face systemic practical challenges to filing suit" ).

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B. Plaintiffs' Right of Free Speech under the First Amendment

" The First Amendment applies to state laws and regulations through the Due Process Clause of the Fourteenth Amendment." Nat'l Ass'n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1053 (9th Cir.2000) (hereinafter " NAAP " ). " The Supreme Court has recognized that physician speech is entitled to First Amendment protection because of the significance of the doctor-patient relationship." Conant v. Walters, 309 F.3d 629, 636 (9th Cir.2002) (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion); Rust v. Sullivan, 500 U.S. 173, 200, 111 S.Ct. 1759, 114 L.Ed.2d 233 ...

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