New push to kill state ban on sex counseling

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Liberty Counsel, citing the U.S. Supreme Court's ruling last year against government-mandated speech, on Monday asked the justices to throw out a New Jersey law that severely restricts the First Amendment rights of counselors.

The New Jersey law, like several others across the country under scrutiny, restricts what counselors can say to clients about "unwanted same-sex attractions, behaviors or identity."

A lower court got around the First Amendment by creating "a new 'professional speech' category," but the U.S. Supreme Court already has ruled against that concept in a California case.

The petition was filed by Liberty Counsel on behalf of counselors Tara King and Ronald Newman.

Their speech is being censored by the state, the complaint contends.

The state adopted a law banning licensed medical health professionals from providing clients with any counsel to reduce or eliminate same-sex inclinations. A court of appeals called it a content restriction on speech but justified it as "professional speech."

However, in last year's National Institute of Family and Life Advocates vs. Becerra case from California, the U.S. Supreme Court ruled there is no "professional speech" category.

Liberty Counsel said the court "abrogated" New Jersey's law "by name."

Similar laws in other states also are subject to constitutional challenge.

"The lives of real people are at stake, and it is critical that the Supreme Court step in to protect the fundamental rights of counselors and clients to exercise their right to speak in private counseling sessions," said Mat Staver, founder and chairman of Liberty Counsel.

"The law is a gross intrusion into the fundamental rights of counselors and clients. All people should have access to the counselor of their choice. No government has the authority to prohibit a form of counseling simply because it does not like the religious or moral beliefs of a particular counselor or client," he said.

The filing states: "When this court ruled that California's Reproductive FACT Act violates the First Amendment … it also abrogated by name the panel decision at bar, rendering it demonstrably wrong. Other circuits when confronted with supervening decisions by this court that do not mention a lower court opinion by name but place its core holdings in question have recalled the mandate."

However, the 3rd U.S. Circuit Court of Appeals left in place "a blatant content-based violation of the First Amendment."

Besides California, which has considered making counseling against same-sex inclinations "consumer fraud," the issue also has erupted in Maryland .

And last month, a magistrate judge in Florida ruled that a city's ban on counseling against same-sex attractions likely violates the First Amendment. Amanda Sansone wrote in a recommendation to district court that Tampa Ordinance 2017-47 should be revoked because the plaintiffs demonstrated the law violates every test of the First Amendment. The case was brought by Liberty Counsel against the city on behalf of counselors Robert Vazzo and David Pickup, the New Hearts Outreach ministry, and their minor clients.

The California case decided last year by the U.S. Supreme Court centered on promotion of abortion. But government-mandated speech was at issue, as it was in the counseling case.

The Supreme Court ruled in the California case that states cannot force private groups and individuals to present a message with which they disagree.

In the counseling case, the issue is governments trying to censor any counseling speech that does not endorse same-sex relationships.