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Welch v. Brown

United States District Court, E.D. California

November 5, 2014

DONALD WELCH, ANTHONY DUK, AARON BITZER, Plaintiffs,
v.
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

November 4, 2014

Page 1080

For Donald Welch, Anthony Duk, Aaron Bitzer, Plaintiffs: Kevin Trent Snider, Matthew Brown McReynolds, LEAD ATTORNEYS, Pacific Justice Institute, Sacramento, CA; Michael John Peffer, LEAD ATTORNEY, Pacific Justice Institute, Santa Ana, CA.

For Edmund G. Brown, Jr., Governor, State of California, Defendant: Alexandra Robert Gordon, LEAD ATTORNEY, CA. Dept. of Justice, San Francisco, CA; Paul Evan Stein, LEAD ATTORNEY, California Attorney General's Office, San Francisco, CA.

For Denise Brown, Director, Consumer Affairs, Harry Douglas, Member of the Board, California Board of Behavioral Sciences, Julia Johnson, Member of the Board, California Board of Behavioral Sciences, Sarita Kohli, Member of the Board, California Board of Behavioral Sciences, Renee Lonner, Member of the Board, California Board of Behavioral Sciences, Karen Pines, Member of the Board, California Board of Behavioral Sciences, Christina Wong, Member of the Board, California Board of Behavioral Sciences, Sharon Levine, President of the California Medical Board, Michael Bishop, Member of the California Medical Board, Reginald Low, Member of the California Medical Board, Denise Pines, Member of the California Medical Board, Anna M. Caballero, Secretary, California State and Consumer Services Agency, Christine Wietlisbach, Chair of the Board, California Board of Behavioral Sciences, Patricia Lock-Dawson, Vice Chair of the Board, California Board of Behavioral Sciences, Samara Ashley, Member of the Board, California Board of Behavioral Sciences, Silvia Diego, Member of the California Medical Board, Dev Gnana, Member of the California Medical Board, Janet Salomonson, Member of the California Medical Board, Gerrie Schipske, Member of the California Medical Board, David Serrano Sewell, Member of the California Medical Board, Barbara Yaroslaysky, Member of the California Medical Board, Defendants: Alexandra Robert Gordon, LEAD ATTORNEY, CA. Dept. of Justice, San Francisco, CA.

For Equality California, Amicus: William David Temko, LEAD ATTORNEY, Munger Tolles and Olson, Los Angeles, CA; Christopher Francis Stoll, National Center for Lesbian Rights, San Francisco, CA; Katherine Melanie Forster, Munger, Tolles & Olson Llp, Los Angeles, CA; Shannon Price Minter, National Center for Lesbian Rights, San Francisco, CA.

Page 1081

MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY INJUNCTION

WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE.

Plaintiffs Donald Welch, Anthony Duk, and Aaron Bitzer seek to enjoin enforcement of Senate Bill 1172 (" SB 1172" ), which prohibits mental health providers in California from engaging in sexual orientation change efforts (" SOCE" ) with minors. The court previously granted plaintiffs' motion for a preliminary injunction after finding they could likely show that SB 1172 violated their rights to free speech under the First Amendment. Characterizing SB 1172 as a regulation of therapeutic treatment, not expressive speech, the Ninth Circuit held that SB 1172 did not violate free speech rights and thus reversed the court's order granting plaintiffs' motion for a preliminary injunction. See Pickup v. Brown, 740 F.3d 1208, 1229-32, 1236 (9th Cir. 2014). The Ninth Circuit also held that SB 1172 is not unconstitutionally vague or overbroad and does not violate First Amendment expressive association rights or the fundamental rights of parents seeking SOCE for their minor children. Id. at 1232-36.

Page 1082

Because the court's previous order concluded that plaintiffs were likely to prevail on their 42 U.S.C. § 1983 claim asserting that SB 1172 violated their rights to free speech, the court did not address the alleged constitutional violations underlying plaintiffs' remaining § 1983 claims. After providing the parties with the opportunity for supplemental briefing, the court now addresses plaintiffs' motion for a preliminary injunction on the grounds that SB 1172 violates the Free Exercise and Establishment Clauses and privacy rights. Based on the Ninth Circuit's decision on appeal, the court need not address plaintiffs' § 1983 claims alleging that SB 1172 is unconstitutionally vague or overbroad and violates First Amendment expressive association rights and the fundamental rights of parents seeking SOCE for their minor children. See id. (rejecting such claims).

I. SB 1172 and Plaintiffs

SB 1172 went into effect on January 1, 2013 and was codified in sections 865, 865.1, and 865.2 of the California Business and Professions Code.[1] Section 865.1 states, " Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age." Cal. Bus. & Prof. Code § 865.1. Section 865.2 provides that any SOCE " 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 by the licensing entity for that mental health provider." Id. § 865.2.

Subsection 865(b)(1) defines " sexual orientation change efforts" as " any practices by mental health providers that seek to change an individual's sexual orientation," including " 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. § 865(b)(1). Excluded from classification as SOCE are " 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. § 865(b)(2).

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 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 and he utilizes SOCE. (Id. ΒΆ ...


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