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08/20/2013 11:53 am ET Updated Feb 02, 2016

New Jersey's Controversial Ban On Gay 'Cure' For Minors Will Face Legal Challenges

On Monday, New Jersey became the second state to pass a law banning licensed counselors from practicing a controversial therapy on minors that attempts to change their sexual orientations.

Gay rights advocates were quick to applaud the move as a critical measure to protect minors and the latest sign that the United States is moving in the right direction. Two conservative legal organizations pledged that they would soon bring lawsuits challenging the law.

Legal experts, meanwhile, told The Huffington Post that the law's path forward in the state was unclear.

The idea of a therapist "curing" patients of same-sex attractions through talk therapy goes back to a time when homosexuality was widely considered a mental illness and "sodomy" was a crime. But in recent decades, practically all mainstream mental health organizations have disavowed the practice.

Supporters of the New Jersey law point to the overwhelming consensus of the mainstream mental health community where organizations, including the American Psychological Association and the American Academy of Pediatrics, have warned that there is no scientific proof the therapy changes sexual orientation and that attempting to do so could harm the patient. They also point to the fact that the United States government has a history of regulating medical treatment for minors. Opponents of the law, however, said these bans are an unconstitutional infringement on free speech and parental rights.

(For more on the history of the fight over this therapy, read The Huffington Post's investigation into one patient who spent $35,000 attempting to become straight, and his former therapist, who renounced the work.)

Upon signing the bill, Gov. Chris Christie (R) acknowledged in a statement that he carefully weighed both sides of the argument.

"At the outset of this debate, I expressed my concerns about government limiting parental choice on the care and treatment of their own children," Christie wrote. "However, I also believe that on issues of medical treatment for children we must look to experts in the field to determine the relative risks and rewards."

New Jersey's law is nearly identical to one passed last fall in California -- a law that is still not in effect, held up by two legal challenges and currently waiting for a ruling from the United States Court of Appeals for the Ninth Circuit.

Legal experts say that the future of both laws depends on whether the judges who hear these challenges view talk therapy as protected speech or as medical conduct.

"The problem is that there are two lines of thinking and they coincide here," said William N. Eskridge Jr., a professor at Yale Law School specializing in constitutional law. "Usually when the government says 'no, you cannot say speech like this,' that's viewpoint discrimination and that's usually fatal. And then there are another line of cases, also good, that say that the government can regulate professional speech, an attorney, for example, cannot intentionally give bad advice to a client."

As to how New Jersey's judges may rule, Eskridge said, "it probably boils down to the ideology of the judge considering the challenge."

In California, two separate judges each heard different lawsuits challenging the law and reached opposite conclusions.

U.S. District Judge William B. Shubb, appointed to the Eastern District of California bench by President George H.W. Bush, called the law an unconstitutional infringement on the free speech rights of therapists, who should be allowed to share their views that being gay is a sin with their patients.

U.S. District Judge Kimberly J. Mueller, who was appointed by President Barack Obama, wrote that the law did not violate free speech rights, but instead regulated professional conduct.

The lawsuits challenging the New Jersey statute likely will be filed in the coming weeks by the same two conservative religious legal organizations that brought lawsuits challenging the California law. Shortly after the law was signed Monday, the Liberty Counsel, announced its plans to file suit in a news release.

“This bill is so broad that parents would be prohibited from seeking help for their son who developed unwanted same-sex attractions after being molested by the likes of [former Pennsylvania State University coach] Jerry Sandusky," Liberty Counsel's founder Mat Staver said in the release. "Counselors would only be allowed to affirm these unwanted feelings as good and normal."

The Pacific Justice Institute, likewise, said that it is seeking plaintiffs for a possible lawsuit of its own.

Perry Dane, a professor at Rutgers University law school in New Jersey who specializes in constitutional law and religion, said that after examining the statute, he doesn't believe the law forbids a therapist from expressing the view that being gay is immoral. It merely prevents the licensed counselor from offering a "cure" to make the patient straight, he said.

"I think the therapist is perfectly free -- and a court might interpret it differently -- to say, 'you know what, I agree with you. It's just not a clinical condition,'" Dane said. "There are all sorts of people who might have their individual views and be free to express those views, but one of the prices you pay when you take a license from the state is at least some limit on the sorts of thing you can do."

It is unclear at this point when the New Jersey lawsuits will be filed or heard in court. Similar legislation is now being considered in New York, Massachusetts and Pennsylvania.

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