determining whether talk therapy constituted conduct or speech, and rejected
a freedom of speech challenge to the
statute. 29 Additionally, the court added,
“the mere fact that counseling is carried-out speech is not alone sufficient to show
that [the statute] has an incidental effect
on speech. Plaintiffs must also show that
counseling is inherently expressive conduct — i.e., that talk therapy 1) is intended
to be communicative and 2) would be
understood as such by their clients.” 30
The court also dismissed vagueness and
overbreadth claims for similar reasons as
the Ninth Circuit. 31
The New Jersey district court went
on to consider a free exercise claim that
barring SOCE infringes upon mental
health practitioners’ religious freedom.
“Here, [the statute] makes no reference
to any religious practice, conduct, or
motivation. Therefore, on its face, the
statute is neutral.” 32 The court also concluded that the statute did not discriminate between minors seeking sexual
orientation change for religion or for another purpose. 33
The plaintiffs in King v. Christie have
appealed to the Third Circuit. 34
Potential Differences in the
Washington Statute’s Constitutionality
Although the Washington legislation
failed to pass in the 2013–14 legislative
session, questions remain as to whether,
as proposed, it would be constitutional
under the Washington Constitution. In
particular, the Washington statute raises
the issue of how the Washington State
Constitution might, on free exercise
grounds, independently restrict the bill.
Article I Section 11 of the Washington
Constitution is more protective of free
exercise claims than the First Amendment. In order to make a claim under
Article I Section 11, a plaintiff must show
that the government practice has a coercive effect on the practice of religion. If
so, the burden shifts to the government
to prove the restrictions serve a compelling state interest and are the least
restrictive means of accomplishing the
state’s objectives. 35 “[Article I, Section 11]
of the Washington Constitution provides
broader protection of religious freedom”
than the First Amendment by subjecting even laws of general applicability to
higher scrutiny if they have a coercive
effect on religion. 36
The version of the Washington bill
that passed the House has attempted to
avoid a conflict with religion by providing that the bill would not “be construed
to apply to religious practices or counseling under the auspices of a religious
denomination, church, or organization
that do not constitute the performance
of” SOCE. 37 Whether this kind of exemption would save the law from an Article 1,
Section 11 challenge remains to be seen.
The constitutional issues involved with
barring SOCE therapy are complicated,
and legislative efforts and litigation are
ongoing. The Sexual Orientation and Gender Identification Legal Issues (SOGILI)
section of the Washington State Bar is
dedicated to providing up-to-date information on important topics for the community, and will be providing further
education on issues regarding SOCE at its
annual meeting later this fall. NWL
Lucy K. Sharp
is the attorney
liaison of the
Legal Issues Section. She is also a
genderqueer pansexual attorney
and activist who has collaborated
with Legal Voice, the ACLU of Wash-
ington Foundation, and Ingersoll
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Negro Race,” www.pbs.org/wgbh/aia/part4/
4h3106t.html (last accessed 4/14/2014).
2. Pickup v. Brown, 728 F. 3d 1042, 1048–1049
(9th Cir. 2013).
3. Id. at 1049.
4. Washington House Bill 2451 Sec. 1 (2013-
5. Id. at Sec. 2.
6.World Professional Association for
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8. Supra n. 2 at 10409–50.
9. California Senate bill 1172 (2011–12).
10. New Jersey Assembly Bill No. A3371
11. Massachusetts House Bill 154 (2013–2014)
12. Shapiro, Lila, “Conversion Therapy Ban
In Pennsylvania Gaining Support,” www.
html (last accessed 4/14/2014).
13. Siegel, Jim, “Ohio Bill Would Prohibit Conversion Therapy of Gay Youths,” The Columbus Dispatch, www.dispatch.com/content/
html (last accessed 4/14/2014).
14. Supra n. 12.
15. Murphy, Colin, “Illinois Lawmaker Introduces Bill to Ban Conversion Therapy on LBGT
illinois-lawmaker-introduces-bill-to-ban-conversion-therapy-on-lgbt-youth (last accessed 4/14/2014).
16. Supra n. 2 at 1050.
17. 907 F. Supp.2d 1102 (E. D. Cal. 2012).
18. Supra n. 2 at 1051.
19. No. 2:12-CV-02497-KJM-EFB (E. D. Cal. Dec.
21. Planned Parenthood v. Casey, 505 U.S. 833,
22. Supra n. 2 at 1056.
23. Supra n. 2 at 1056-1061.
24. Supra n. 2 at 1055.
25. Supra n. 2 at 1057.
26. Supra n. 2.
27. Pickup v. Brown, 740 F. 3d 1206, 1216 (2013).
29. King v. Christie, Civ. No.13-5038 , 34 (D. N. J.
Nov. 11, 2013).
30. Id. at 51–60.
31. Id. at 50.
32. Id. at 62.
33. Id . at 63.
34. Cheryl Wetstein, “More States Likely to Ban
Sexual-Orientation Change Therapy,” www.
more-states-likely-to-ban-sexual-orientation-chang/?page=all (last accessed 4/14/2014).
35. First United Methodist v. Hearing Examiner for
Public Landmarks, 916 P.2d 374, 378 (1996).
36. Id. at 381.
37. Washington Substitute House Bill 2451, Sec.