New opinions — “gay-conversion” therapy-ban upheld, plus two others

The year is 2014, yet still there are licensed counselors keen to “convert” kids with same-sex attraction. So last year, New Jersey passed a law banning licensed counselors from engaging in gay-conversion therapy on patients under 18. Plaintiffs sued, arguing that the ban violated their and their patients’ free-speech and free-exercise rights. The district court ruled against them, and today CA3 affirmed.

In a long opinion, CA3 held that the ban does limit speech (seeming to split with CA9) but that it advances NJ’s substantial interest in protecting its citizens from harmful care. The court categorized the limited speech here as professional speech and held that professional speech gets the same protection as commercial speech (again splitting with other circuits). Finally, the court affirmed intervention, joining the circuit-split majority allowing intervention without standing. A cert petition seems certain (UPDATE: sure enough, counsel already has told AP they will seek cert, H/T How Appealing), and I wouldn’t bet the house against a grant.

The case is King v. Governor of NJ. Opinion by Smith, joined by Vanaskie and Sloviter. (Impressive to issue a major 74-page opinion two months after argument.) Arguing counsel were Mathew Staver for the would-be converters, Susan Scott for the state, and David Flugman of Kirkland & Ellis for the intervenor. I posted after the oral argument here (maybe my best-ever accompanying visual).

Today’s second case involves the much more mundane subject of utility rates. NJ enacted legislation to promote construction of new electric power plants. Today, CA3 held that federal law preempts NJ’s law. Former SG Paul Clement was among the many prominent counsel on the appeal.

The case is PPL Energyplus v. Solomon. Opinion by Fuentes, joined by Shwartz and Rosenthal SDTX by designation. Arguing counsel were Richard Engel for the state, Clifton Elgarten and Richard Zuckerman for two intervenors, Clement for the appellees, and Clare Kindall and Robert Solomon for amici.

In today’s final case, CA3 upheld denial of class certification and summary judgment against a plaintiff. The case is Grandalski v. Quest Diagnostics. Opinion by Rendell, joined by Chagares and Jordan. Arguing counsel were Lisa Rodgriguez for the appellants and Robert Hochman for the appelles.