Donald Welch v. Edmund Brown, Jr. , 834 F.3d 1041 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD WELCH; ANTHONY DUK; No. 15-16598
AARON BITZER,
Plaintiffs-Appellants, D.C. No.
2:12-cv-02484-
v. WBS-KJN
EDMUND G. BROWN, JR., Governor
of the State of California, in his OPINION
official capacity; DENISE BROWN,
Case Manager, Director of
Consumer Affairs, in her official
capacity; 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;
REGINALD LOW; DENISE PINES;
SILVIA DIEGO; DEV GNANADEV;
JANET SALOMONSON; GERRIE
SCHIPSKE; DAVID SERRANO SEWELL;
BARBARA YAROSLAVSKY; ANNA M.
CABALLERO; CHRISTINE
WIETLISBACH; PATRICIA LOCK-
DAWSON; SAMARA ASHLEY, in their
official capacities as members of
The Medical Board of California,
Defendants-Appellees.
2 WELCH V. BROWN
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted June 22, 2016
San Francisco, California
Filed August 23, 2016
Before: Alex Kozinski, Susan P. Graber,
and Morgan B. Christen, Circuit Judges.
Opinion by Judge Graber
SUMMARY*
Civil Rights
The panel affirmed the district court’s judgment on the
pleadings, entered in favor of the State of California, on
remand from a preliminary injunction appeal, in an action
challenging California’s Senate Bill 1172, which prohibits
state-licensed mental health providers from engaging in
“sexual orientation change efforts” with minor patients.
The panel held that plaintiffs’ claims under the Free
Exercise and Establishment Clauses of the First Amendment
failed. The panel rejected plaintiffs’ Establishment Clause
claim that Senate Bill 1172 excessively entangled the State
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WELCH V. BROWN 3
with religion and would prohibit, for example, certain prayers
during religious services. The panel held that the scope of the
law regulates conduct only within the confines of the
counselor-client relationship.
The panel rejected plaintiffs’ assertion that Senate Bill
1172 has the principal or primary effect of advancing or
inhibiting religion because some minors who seek sexual
orientation change efforts have religious motivations. The
panel held that the prohibition against sexual change efforts
applies without regard to the nature of the minor’s motivation
for seeking treatment. The panel concluded that the operative
provisions of SB 1172 were fully consistent with the secular
purpose of preventing harm to minors and the evidence fell
far short of demonstrating that the primary intended effect of
SB 1172 was to inhibit religion. The panel further concluded
that although the evidence considered by the legislature noted
that some persons seek sexual orientation change efforts for
religious reasons, the documents also stressed that persons
seek change efforts for many secular reasons. The panel held
that an informed and reasonable observer would conclude that
the primary effect of SB 1172 is not the inhibition (or
endorsement) of religion. For substantially the same reasons,
the panel rejected plaintiffs’ argument that under the Free
Exercise Clause, SB 1172 was not neutral.
Finally, the panel held that plaintiffs’ privacy claim was
foreclosed by the panel’s previous opinion which held that
substantive due process rights do not extend to the choice of
type of treatment or of a particular health care provider.
4 WELCH V. BROWN
COUNSEL
Kevin T. Snider (argued), Michael J. Peffer, and Matthew B.
McReynolds, Pacific Justice Institute, Sacramento,
California, for Plaintiffs-Appellants.
Alexandra Robert Gordon (argued), Deputy Attorney
General; Tamar Pachter, Supervising Deputy Attorney
General; Douglas J. Woods, Senior Assistant Attorney
General; Kamala D. Harris, Attorney General; Office of the
Attorney General, San Francisco, California; for Defendants-
Appellees.
William D. Temko, Katherine M. Forster, and Thomas Paul
Clancy, Munger, Tolles & Olson LLP, Los Angeles,
California; Shannon P. Minter and Christopher F. Stoll,
National Center for Lesbian Rights, San Francisco,
California; for Amicus Curiae Equality California.
OPINION
GRABER, Circuit Judge:
Once again, we consider facial constitutional challenges
to California’s law prohibiting state-licensed mental health
providers from engaging in “sexual orientation change
efforts’ (“SOCE”) with minor patients. The law is known as
Senate Bill 1172, or SB 1172, and is codified in California’s
Business and Professions Code sections 865, 865.1, and
865.2. Plaintiffs are two state-licensed mental health
providers and one aspiring state-licensed mental health
provider who seek to engage in SOCE with minor patients.
WELCH V. BROWN 5
Defendants are the Governor of California and other state
officials, to whom we refer collectively as “the State.”
Our earlier opinion in Pickup v. Brown, 740 F.3d 1208
(9th Cir. 2014), contains further background information. In
that appeal, we undertook plenary review of the claims raised
at the preliminary injunction stage. We held that “SB 1172,
as a regulation of professional conduct, does not violate the
free speech rights of SOCE practitioners or minor patients, is
neither vague nor overbroad, and does not violate parents’
fundamental rights”; and we remanded for further
proceedings on any additional claims. Id. at 1222. On
remand, Plaintiffs claimed that SB 1172 violates the Free
Exercise and Establishment Clauses of the First Amendment
and that SB 1172 violates the privacy rights of their minor
clients. The district court granted judgment on the pleadings
to the State. Reviewing de novo, Lyon v. Chase Bank USA,
N.A., 656 F.3d 877, 883 (9th Cir. 2011), we affirm.
Plaintiffs’ claims under the Religion Clauses1 fail. We
earlier held that SB 1172 survives rational basis review
because “SB 1172 is rationally related to the legitimate
government interest of protecting the well-being of minors.”
Pickup, 740 F.3d at 1232. But Plaintiffs argue that, under the
Religion Clauses, we must apply strict scrutiny. We are not
persuaded.
1
“The First Amendment provides in pertinent part that ‘Congress shall
make no law respecting an establishment of religion, or prohibiting the
free exercise thereof.’ The Free Exercise and Establishment Clauses apply
to the States through the Due Process Clause of the Fourteenth
Amendment.” California v. Grace Brethren Church, 457 U.S. 393, 396
n.1 (1982).
6 WELCH V. BROWN
Plaintiffs first argue that, under the Establishment Clause,
SB 1172 excessively entangles the State with religion. This
argument rests on a misconception of the scope of SB 1172.
Plaintiffs interpret SB 1172 to prohibit, for example, certain
prayers during religious services. Plaintiffs are mistaken
about the scope of SB 1172, because that law regulates
conduct only within the confines of the counselor-client
relationship.
We held as much in our earlier opinion: “As we have
explained, SB 1172 regulates only (1) therapeutic treatment,
not expressive speech, by (2) licensed mental health
professionals acting within the confines of the counselor-
client relationship.” Id. at 1229–30 (emphasis added). That
conclusion flows primarily from the text of the law. For
example, SB 1172 prohibits SOCE “with a patient under 18
years of age.” Cal. Bus. & Prof. Code § 865.1 (emphasis
added). Legislative history, too, strongly suggests that the
law was aimed at practices that occur in the course of acting
as a licensed professional.2 Finally, the doctrine of
constitutional avoidance requires us not to interpret SB 1172
as applying in the manner suggested by Plaintiffs. See, e.g.,
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here
an otherwise acceptable construction of a statute would raise
serious constitutional problems, the Court will construe the
2
The record contains legislative reports submitted by Plaintiffs. Those
reports note repeatedly that “the intent of this bill is to limit deceptive
therapies that are harmful to minors by mental health providers.”
(Emphasis added.) Similarly, some reports describe the “[p]urpose of this
bill” as “protections for youths [from] dangerous so-called therapies that
aim to change a person’s sexual orientation.” (Emphasis added.) Nothing
in the legislative history suggests that SB 1172 aimed to regulate ordinary
religious conduct.
WELCH V. BROWN 7
statute to avoid such problems unless such construction is
plainly contrary to the intent of [the legislature].”).
Notably, Plaintiffs are in no practical danger of
enforcement outside the confines of the counselor-client
relationship. The State repeatedly and expressly has
disavowed Plaintiffs’ expansive interpretation of the law. For
example, in its brief to this court, the State asserts that “SB
1172 does not apply to members of the clergy who are acting
in their roles as clergy or pastoral counselors and providing
religious counseling to congregants.” At oral argument, the
State’s lawyer reiterated that the law “does not actually apply
to members of the clergy or religious counselors who are
acting in their pastoral or religious capacity.” Oral Argument
at 15:12–15:22, available at http://www.ca9.uscourts.gov/
media/view_video.php?pk_vid=0000009871. Similarly, the
State’s lawyer emphasized that the law “exempts pastoral
counselors, clergy, etc., as long as they don’t hold themselves
out as operating pursuant to their license.” Id. at
15:32–15:41. In sum, because SB 1172 does not regulate
conduct outside the scope of the counselor-client relationship,
the law does not excessively entangle the State with religion.
Plaintiffs next argue that, under the Establishment Clause,
SB 1172 “has the principal or primary effect of advancing or
inhibiting religion.” Am. Family Ass’n, Inc. v. City of San
Francisco, 277 F.3d 1114, 1122 (9th Cir. 2002). “We
conduct this inquiry from the perspective of a ‘reasonable
observer’ who is both informed and reasonable.” Id. (quoting
Kreisner v. City of San Diego, 1 F.3d 775, 784 (9th Cir.
1993).
“The legislature’s stated purpose in enacting SB 1172 was
to ‘protect the physical and psychological well-being of
8 WELCH V. BROWN
minors, including lesbian, gay, bisexual, and transgender
youth, and to protect its minors against exposure to serious
harms caused by sexual orientation change efforts.’ 2012
Cal. Legis. Serv. ch. 835, § 1(n).” Pickup, 740 F.3d at 1223
(brackets omitted). The operative provisions of SB 1172 are
fully consistent with that secular purpose. The law regulates
the conduct of state-licensed mental health providers only; the
conduct of all other persons, such as religious leaders not
acting as state-licensed mental health providers, is unaffected.
As explained in detail above, even the conduct of state-
licensed mental health providers is regulated only within the
confines of the counselor-client relationship; in all other areas
of life, such as religious practices, the law simply does not
apply.
The prohibition against SOCE applies without regard to
the nature of the minor’s motivations for seeking treatment.
That is, whether or not the minor has a religious motivation,
SB 1172 prohibits SOCE by state-licensed mental health
providers. And, of course, the law leaves open many
alternative paths. Minors who seek to change their sexual
orientation—for religious or secular reasons—are free to do
so on their own and with the help of friends, family, and
religious leaders. If they prefer to obtain such assistance
from a state-licensed mental health provider acting within the
confines of a counselor-client relationship, they can do so
when they turn 18.
Plaintiffs nevertheless argue that SB 1172 has the effect
of inhibiting religion because some minors who seek SOCE
have religious motivations. We acknowledge that a law
aimed only at persons with religious motivations may raise
constitutional concerns. See, e.g., Church of Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)
WELCH V. BROWN 9
(invalidating under the Free Exercise Clause the prohibition
of ritual animal slaughter, tailored to reach only religiously
motivated conduct); Cent. Rabbinical Congress of U.S. &
Can. v. N.Y. City Dep’t of Health & Mental Hygiene,
763 F.3d 183 (2d Cir. 2014) (holding that strict scrutiny
applies under the Free Exercise Clause to health regulations
targeting metzitzah b’peh, an Orthodox Jewish ritual during
circumcision). But SB 1172 falls well outside that category.
The bill’s text and its legislative history make clear that
the legislature understood the problem of SOCE to
encompass not only those who seek SOCE for religious
reasons, but also those who do so for secular reasons of social
stigma, family rejection, and societal intolerance for sexual
minorities. For example, in its express legislative findings,
the legislature quoted a policy statement that found that
“[s]ocial stigmatization of lesbian, gay and bisexual people
is widespread and is a primary motivating factor in leading
some people to seek sexual orientation changes.” 2012 Cal.
Legis. Serv. ch. 835, § 1(h) (emphasis added); see also id.
§ 1(m) (“Minors who experience family rejection based on
their sexual orientation face especially serious health risks.”
(emphasis added)). The documents in the legislative history
recognized that religion is a motivating factor for some
persons who seek to change their sexual orientation; but it
also repeatedly listed “social stigmatization,” “unfavorable
and intolerant attitudes of the society,” and “family rejection”
as common causes of distress that might motivate people to
seek counseling.
The legislative findings of SB 1172 cited a 2009 report
from a Task Force convened by the American Psychological
Association (“APA”). 2012 Cal. Legis. Serv. ch. 835, § 1(b).
Plaintiffs note that the APA Task Force’s report concluded
10 WELCH V. BROWN
that “the population that undergoes SOCE tends to have
strongly conservative religious views that lead them to seek
to change their sexual orientation.” Extrapolating from that
statement, Plaintiffs characterize the report as focusing
exclusively on persons who seek SOCE for religious reasons.
Plaintiffs further conclude that the legislature, too, focused
exclusively on persons who seek SOCE for religious reasons.
We disagree. The evidence falls far short of
demonstrating that the primary intended effect of SB 1172
was to inhibit religion. The legislative findings cite—in
addition to the APA Task Force report—many other sources,
including a 2009 resolution by the APA; a 2000 position
statement by the American Psychiatric Association; a position
statement by the American School Counselor Association; a
1993 article by the American Academy of Pediatrics; a 1994
report by the American Medical Association Council on
Scientific Affairs; a 1997 policy statement by the National
Association of Social Workers; a 1999 position statement by
the American Counseling Association Governing Council; a
2012 position statement by the American Psychoanalytic
Association; a 2012 article by the American Academy of
Child and Adolescent Psychiatry; and a 2012 statement by the
Pan American Health Organization. 2012 Cal. Legis. Serv.
ch. 835, § 1(c)–(l). Those additional sources do not
characterize the main motivation of persons seeking SOCE as
being religious.
Even viewing the APA Task Force’s report in isolation
does not support a conclusion that only those with religious
views sought SOCE. Although the report concluded that
those who seek SOCE “tend” to have strong religious views,
the report is replete with references to non-religious
motivations, such as social stigma and the desire to live in
WELCH V. BROWN 11
accordance with “personal” values. The report noted that
“sexual stigma, manifested as prejudice and discrimination
directed at non-heterosexual sexual orientations and
identities, is a major source of stress for sexual minorities,”
which the report termed “minority stress.” “Homosexuality
and bisexuality are stigmatized, and this stigma can have a
variety of negative consequences (e.g., minority stress)
throughout the life span.” “Some individuals choose to live
their lives in accordance with personal or religious values
. . . .” (Emphasis added.) The following illustrates the
report’s general approach:
[E]xperiences of felt stigma—such as self-
stigma, shame, isolation and rejection from
relationships and valued communities, lack of
emotional support and accurate information,
and conflicts between multiple identities and
between values and attractions—played a role
in creating distress in individuals. Many
religious individuals desired to live their lives
in a manner consistent with their values . . . .
That passage first identifies many non-religious sources of
distress that might cause a person to seek counseling and only
then notes that, for many religious individuals, an additional
source of distress may be present.
In sum, although the scientific evidence considered by the
legislature noted that some persons seek SOCE for religious
reasons, the documents also stressed that persons seek SOCE
for many secular reasons. Accordingly, an informed and
reasonable observer would conclude that the “primary effect”
of SB 1172 is not the inhibition (or endorsement) of religion.
12 WELCH V. BROWN
Plaintiffs next argue that, under the Free Exercise Clause,
SB 1172 is not “neutral.” Church of Lukumi, 508 U.S. at 531.
This argument fails for substantially the same reasons as
discussed above. See also King v. Governor of N.J.,
767 F.3d 216, 241–43 (3d Cir. 2014) (rejecting the plaintiffs’
free exercise challenge to New Jersey’s law prohibiting state-
licensed counselors from engaging in SOCE with minors),
cert. denied, 135 S. Ct. 2048 (2015).
“[I]f the object of a law is to infringe upon or restrict
practices because of their religious motivation, the law is not
neutral . . . .” Church of Lukumi, 508 U.S. at 533. The object
of SB 1172 is the prevention of harm to minors, regardless of
the motivations for seeking SOCE. As we have explained,
many persons seek SOCE for secular reasons. Moreover,
even if we assume that persons with certain religious beliefs
are more likely to seek SOCE, the
Free Exercise Clause is not violated even if a
particular group, motivated by religion, may
be more likely to engage in the proscribed
conduct. See Reynolds v. United States,
98 U.S. 145, 166–67 (1878) (upholding a ban
on polygamy despite the fact that polygamy
was practiced primarily by members of the
Mormon Church); cf. United States v.
O’Brien, 391 U.S. 367, 378–86 (1968)
(rejecting a First Amendment challenge to a
statutory prohibition of the destruction of
draft cards even though most violators likely
would be opponents of war).
Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1077 (9th Cir.
2015), cert. denied, 136 S. Ct. 2433 (2016).
WELCH V. BROWN 13
Finally, Plaintiffs’ privacy claim fails. Plaintiffs
characterize their claim as relying on the principles found in
cases such as Lawrence v. Texas, 539 U.S. 558 (2003).
Lawrence rests on a substantive due process analysis. Id. at
564. Accordingly, we understand Plaintiffs to be asserting
that their clients have a substantive due process right to
receive a particular form of treatment—SOCE—from a
particular class of persons—mental health providers licensed
by the State of California. See Washington v. Glucksberg,
521 U.S. 702, 721 (1997) (“[W]e have required in
substantive-due-process cases a ‘careful description’ of the
asserted fundamental liberty interest.” (quoting Reno v.
Flores, 507 U.S. 292, 302 (1993))). Our previous opinion
forecloses that argument. See Pickup, 740 F.3d at 1235–36
(“[W]e have held that ‘substantive due process rights do not
extend to the choice of type of treatment or of a particular
health care provider.’” (quoting Nat’l Ass’n for Advancement
of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043,
1050 (9th Cir. 2000))).
AFFIRMED.