Pickup v. Brown

740 F.3d 1208

David H. PICKUP; Christopher H. Rosick; Joseph Nicolosi; Robert Vazzo; National Association for Research and Therapy of Homosexuality, a Utah non-profit organization; American Association of Christian Counselors, a Virginia non-profit association; Jack Doe 1, Parent of John Doe 1; Jane Doe 1, Parent of John Doe 1; John Doe 1, a minor, guardian ad litem Jane Doe, guardian ad litem Jack Doe; Jack Doe 2, Parent of John Doe 2; Jane Doe 2, Parent of John Doe 2; John Doe 2, a minor, guardian ad litem Jack Doe, guardian ad litem Jane Doe, Plaintiffs–Appellants,

v.Edmund G. BROWN, Jr., Governor of the State of California, in his official capacity; Anna M. Caballero, Secretary of the California State and Consumer Services Agency, in her official capacity; Sharon Levine, President of the Medical Board of California, in her official capacity; Kim Madsen, Executive Officer of the California Board of Behavioral Sciences, in her official capacity; Michael Erickson, President of the California Board of Psychology, in his official capacity, Defendants–Appellees,andEquality California, Intervenor–Defendant–Appellee.

Donald Welch; Anthony Duk; Aaron Bitzer, Plaintiffs–Appellees,

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, Case Manager, 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 Yaroslavsky, in their official capacities as members of the Medical Board of California, Defendants–Appellants.

Nos. 12–17681, 13–15023.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 17, 2013.

Filed Aug. 29, 2013.

Amended Jan. 29, 2014.

Negative Treatment Reconsidered

West's Ann.Cal.Bus. & Prof.Code §§ 865, 865.1, 865.2Mathew D. Staver (argued) and Anita L. Staver, Liberty Counsel, Maitland, FL; Mary E. McAlister, Stephen M. Crampton, and Daniel J. Schmid, Liberty Counsel, Lynchburg, VA, for Plaintiffs–Appellants David H. Pickup et al.

Alexandra Robert Gordon (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J. Powell and Rei R. Onishi, Deputy Attorneys General, San Francisco, CA, for Defendants–Appellees Edmund G. Brown, Jr., et al.

Shannon P. Minter (argued), National Center for Lesbian Rights, San Francisco, CA; David C. Dinielli, Munger, Tolles & Olson LLP, Los Angeles, CA, for Intervenor/Defendant–Appellee.

Robert P. Taylor, Arnold & Porter LLP, San Francisco, CA, for Amici Curiae American Association for Marriage and Family Therapy–California Division, et al.; Elizabeth O. Gill, ACLU Foundation of Northern California, Inc., San Francisco, CA, for Amicus Curiae American Civil Liberties Union Foundation of Northern California; Eric Alan Isaacson, San Diego, CA, and Stacey M. Kaplan, San Francisco, CA, for Amici Curiae California Faith for Equality, et al.; Brad W. Seiling, Benjamin G. Shatz, and Justin Jones Rodriquez, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, and Hayley Gorenberg, Lambda Legal Defense and Education Fund, Inc., New York, NY, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, for Amici Curiae Children's Law Center of California, et al.; Jay Rapaport, Covington & Burling LLP, San Francisco, CA, for Amicus Curiae Dr. Jack Drescher, M.D.; Jon B. Eisenberg and Barry R. Levy, Encino, CA, for Amicus Curiae First Amendment Scholars; Eileen R. Ridley, Thomas F. Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley & Lardner LLP, San Francisco, CA, for Amicus Curiae Health Law Scholars; Adam L. Gray and James Maxwell Cooper, Kirkland & Ellis LLP, San Francisco, CA, for Amici Curiae Medical Professionals Tonya Chaffee, MD, MPH, et al.; Tara M. Steeley, Deputy City Attorney, and Dennis J. Herrera, City Attorney, and Therese Stewart, Mollie Lee, and Sara Eisenberg, Deputy City Attorneys, San Francisco, CA, for Amicus Curiae The City and County of San Francisco; and Sanford Jay Rosen, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA, for Amicus Curiae Survivors

of Sexual Orientation Change Efforts.

Alexandra Robert Gordon (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J. Powell and Rei R. Onishi, Deputy Attorneys General, and Craig J. Konnoth, Deputy Solicitor General, San Francisco, CA, for Defendants–Appellants Edmund G. Brown, Jr., et al.

Kevin T. Snider (argued), Matthew B. McReynolds, and Michael J. Peffer, Pacific Justice Institute, Sacramento, CA, for Plaintiffs–Appellees Donald Welch et al.

Elizabeth O. Gill, ACLU Foundation of Northern California, Inc., San Francisco, CA, for Amicus Curiae American Civil Liberties Union Foundation of Northern California; Peter D. Lepiscopo, William P. Morrow, James M. Griffiths, and Michael W. Healy, Lepiscopo & Associates Law Firm, San Diego, CA, for Amicus Curiae American College of Pediatricians; Eric Alan Isaacson, San Diego, CA, and Stacey M. Kaplan, San Francisco, CA, for Amici Curiae California Faith for Equality, et al.; Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, and Hayley Gorenberg, Lambda Legal Defense and Education Fund, Inc, New York, NY, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, for Amici Curiae Children's Law Center of California, et al.; Shannon P. Minter, National Center for Lesbian Rights, San Francisco, CA, and David C. Dinielli, Munger, Tolles & Olson LLP, Los Angeles, CA, for Amicus Curiae Equality California; Jon B. Eisenberg and Barry R. Levy, Encino, CA, for Amicus Curiae First Amendment Scholars; John A. Eidsmoe and Joshua M. Pendergrass, Foundation for Moral Law, Montgomery, AL, for Amicus Curiae Foundation for Moral Law; Eileen R. Ridley, Thomas F. Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley & Lardner LLP, San Francisco, CA, for Amicus Curiae Health Law Scholars; Dean R. Broyles, The National Center for Law & Policy, Escondido, CA, for Amicus Curiae Parents and Friends of Ex–Gays & Gays; and Sanford Jay Rosen, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA, for Amicus Curiae Survivors of Sexual Orientation Change Efforts.

Appeal from the United States District Court Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Senior District Judge, Presiding. D.C. No. 2:12–CV–02497–KJM–EFB, D.C. No. 2:12–CV–02484–WBS–KJN.

Before: ALEX KOZINSKI, Chief Judge, and SUSAN P. GRABER, and MORGAN CHRISTEN, Circuit Judges.

Dissent to Order by Judge O'SCANNLAIN; Opinion by Judge GRABER.

ORDER

The opinion filed on August 29, 2013, and published at 728 F.3d 1042, is replaced by the amended opinion filed concurrently with this order. With these amendments, the panel has voted to deny the petitions for panel rehearing and petitions for rehearing en banc.

The full court has been advised of the petitions for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

The petitions for panel rehearing and petitions for rehearing en banc are DENIED. No further petitions for panel rehearingor petitions for rehearing en banc shall be entertained.

O'SCANNLAIN, Circuit Judge, joined by BEA and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:

May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as “conduct”? That is what these cases are really about.

The State of California, in the statute at issue here, has prohibited licensed professionals from saying certain words to their clients. By labeling such speech as “conduct,” the panel's opinion has entirely exempted such regulation from the First Amendment. In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California's prohibition—in the guise of a professional regulation—of politically unpopular expression.

I respectfully dissent from our court's regrettable failure to rehear these cases en banc.

I

California enacted Senate Bill 1172 (“SB 1172”), which subjects state-licensed “mental health providers” ¹ to professional discipline for engaging in “sexual orientation change efforts” with clients who are minors. Cal. Bus. & Prof.Code §§ 865.1, 865.2. The statute defines such change efforts to include “any practices ... that seek to change an individual's sexual orientation.” Id.§ 865(b)(1). Explicitly exempted from the regulation are “psychotherapies that provide acceptance, support, and understanding of clients' coping, social support, and identity exploration and development.” Id.§ 865(b)(2). The law does not expressly prohibit professionals from discussing change efforts with patients, from referring patients to unlicensed practitioners of change efforts, or otherwise from offering opinions on the subject of homosexuality. Amended op. at 26.

In Welch, the district court granted plaintiffs an injunction against SB 1172, but a different judge in Pickup denied a similar request. Plaintiffs in these cases include licensed professionals who provide change efforts exclusively through speech—i.e., methods such as counseling and prayer. ²Cf. id. at 39 n. 5.

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