Case 2:12-cv-02497-KJM-EFB Document 28 Filed 10/22/12 Page 1 of 37

Mary E.
McAlister 1
California Bar Number 148570 2
Liberty Counsel 3
P.O. Box 11108 4
Lynchburg, VA 24506 5
(434) 592-7000 (telephone) 6
(434) 592-7700 (facsimile) 7
court@lc.org Email 8
Attorney for Plaintiffs 9
10
UNITED STATES DISTRICT COURT 11
EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION 12
13
DAVID PICKUP, CHRISTOPHER H. 14
ROSIK, PH.D., JOSEPH NICOLOSI, PH.D, 15
ROBERT VAZZO, NATIONAL ASSOCIATION FOR 16
RESEARCH AND THERAPY OF HOMOSEXUALITY 17
(NARTH), AMERICAN ASSOCIATION OF CHRISTIAN 18
COUNSELORS (AACC), JOHN DOE 1, by and through JACK 19
AND JANE DOE 1, JACK DOE 1, individually, and 20
JANE DOE 1, individually, 21
JOHN DOE 2, by and through JACK 22
AND JANE DOE 2, JACK DOE 2, individually, and 23
JANE DOE 2, individually 24
Case No. 2:12-cv-02497-KJM-EFB 25
Plaintiffs, 26
v. Judge Kimberly J. Mueller 27
Date: November 30, 2012 28
Time: 10:00 a.m. 29
Courtroom #3 15
th
Floor 30
EDMUND G. BROWN, Jr. Governor of the State 31
of California, in his official capacity; ANNA Plaintiffs Memorandum of Points 32
M. CABALLERO, Secretary of the State and and Authorities In Support of 33
Consumer Services Agency of the State of Motion for Preliminary Injunction 34
California, in her official capacity, 35
KIM MADSEN, Executive Officer of the 36
California Board of Behavioral Sciences, in 37
her official capacity; MICHAEL ERICKSON, 38
PH.D, President of the California Board of 39
Psychology, in his official capacity; SHARON LEVINE, 40
President of the Medical Board of California, in her official 41
capacity. 42
43
Defendants. 44
Case 2:12-cv-02497-KJM-EFB Document 28 Filed 10/22/12 Page 1 of 37
i
Memorandum In Support of Preliminary Injunction
TABLE OF CONTENTS 1
2
TABLE OF AUTHORITIES ....................................................................................................... ii 3
INTRODUCTION ........................................................................................................................ 1 4
LEGAL ARGUMENT .................................................................................................................. 2 5
I. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS. ......................... 2 6
A. SB 1172 Unconstitutionally Discriminates On The Basis Of Viewpoint. ......... 2 7
B. SB 1172 Is A Prior Restraint, Vague And Vests Unbridled Discretion. ........ 12 8
C. SB 1172 Infringes Upon The Fundamental Rights Of Parents. ..................... 18 9
D. SB 1172 Violates Minors First Amendment Rights. ....................................... 22 10
II. SB 1172 IRREPARABLY HARMS PLAINTIFFS. ............................................... 25 11
III. PLAINTIFFS INJURIES OUTWEIGH ANY HARM TO DEFENDANTS. .... 28 12
IV. THE INJUNCTION WILL SERVE THE PUBLIC INTEREST. ........................ 30 13
CONCLUSION ........................................................................................................................... 30 14
15
16
ii
TABLE OF AUTHORITIES 1
2
3
Cases 4
5
Alliance for the Wild Rockies v. Cottrell, 6
632 F.3d 1127, 1131 (9th Cir. 2011) .......................................................................................... 2 7
8
Associated Gen. Contractors v. Coal. for Econ. Equity, 9
950 F.2d 1401 (9th Cir. 1991) .................................................................................................. 25 10
11
Associated Press v. Otter, 12
682 F.3d 821 (9th

Cir. 2012) ........................................................................................... 2, 25, 28 13
14
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 15
457 U.S. 853 (1982) .................................................................................................................. 22 16
17
Broadrick v. Oklahoma, 18
413 U.S. 601 (1973) .................................................................................................................. 14 19
20
Carroll v. Presidents & Commrs of Princess Anne, 21
393 U.S. 175 (1968) ...................................................................................................................... 13 22
23
Children of the Rosary v. City of Phoenix, 24
154 F.3d 972 (9th Cir. 1998) ...................................................................................................... 4 25
26
City of Lakewood v. Plain Dealer Publg Co., 27
486 U.S. 750 (1988) .................................................................................................................. 13 28
29
Conant v. Walters, 30
309 F.3d 629 (9th Cir. 2002) .................................................................................... 6, 24, 25, 28 31
32
Connally v. Gen. Const. Co., 33
269 U.S. 385 (1926) .................................................................................................................. 14 34
35
DiLoreto v. Downey Unified School District Board of Education, 36
196 F.3d 958 (9th Cir. 1999). ..................................................................................................... 3 37
38
Elrod v. Burns, 39
427 U.S. 347 (1976) ............................................................................................................ 25, 28 40
41
Fields v. Palmdale Sch. Dist., 42
427 F.3d 1197 (9th Cir. 2005) ...................................................................................... 18, 20, 21 43
44
Florida Bar v. Went For It, Inc., 45
515 U.S. 618 (1995) .................................................................................................................... 7 46
iii
G & V Lounge, Inc. v. Mich. Liquor Control Commn, 1
23 F.3d 1071 (6th Cir. 1994). ................................................................................................... 30 2
3
Grayned v. City of Rockford, 4
408 U.S. 104 (1972) .................................................................................................................. 14 5
6
In re Custody of Smith, 7
969 P.2d 21, 31 (Wash. 1998) (en banc) .................................................................................. 19 8
9
Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 10
505 U.S. 672 (1992) ................................................................................................................ 3, 4 11
12
Keyishian v. Bd. of Regents of Univ. of State of N.Y., 13
385 U.S. 589 (1967) ...................................................................................................... 11, 14, 15 14
15
Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 16
508 U.S. 384 (1993) .................................................................................................................... 3 17
18
Legal Services Corporation v. Velazquez, 19
531 U.S. 533 (2001) .................................................................................................................... 5 20
21
Lydo Enters., Inc. v. City of Las Vegas, 22
745 F.2d 1211 ..................................................................................................................... 25, 28 23
24
Martin v. City of Struthers, 25
319 U.S. 141 (1943) .................................................................................................................. 22 26
27
Melendres v. Arpaio, 28
2012 WL 4358727 *9 (9th Cir. 2012) ...................................................................................... 25 29
30
Meyer v. Nebraska, 31
262 U.S. 390 (1923) ............................................................................................................ 18, 20 32
33
Monteiro v. Tempe Union High Sch. Dist., 34
158 F.3d 1022 (9th Cir. 1998). ................................................................................................. 23 35
36
Monterey Mech. Co. v. Wilson, 37
125 F.3d 702 (9th Cir. 1997) .............................................................................................. 25, 28 38
39
NAACP v. Button, 40
371 U.S. 415 (1963) .................................................................................................................. 14 41
42
National Association for the Advancement of Psychoanalysis v. California Board of Psychology, 43
228 F.3d 1043 (9th Cir. 2000) .................................................................................................... 7 44
45
46
iv
New York Times Co. v. United States, 1
403 U.S. 713 (1971) ...................................................................................................... 13, 25, 28 2
3
Parham v. J.R., 4
442 U.S. 584, 602 (1979) .......................................................................................................... 19 5
6
Pierce v. Socy of Sisters, 7
268 U.S. 510 (1925) ............................................................................................................ 18, 20 8
9
R.A.V. v. St. Paul, 10
505 U.S. 377 (1992) .......................................................................................................... 3, 9, 12 11
12
Reno v. Flores, 13
507 U.S. 292 (1993) ................................................................................................................ 18, 22 14
15
Rosenberger v. Rector & Visitors of Univ. of Va., 16
515 U.S. 819 (1995) ................................................................................................................ 3, 4 17
18
Sable Commcns of Cal., Inc. v. F.C.C., 19
492 U.S 115 (1989) ..................................................................................................................... 8 20
21
Sammartano v. First Judicial District, in & for Cnty. of Carson City, 22
303 F.3d 959 (9th Cir. 2002). ............................................................................................. 29, 30 23
24
Schneider v. New Jersey, 25
308 U.S. 147 (1939) .................................................................................................................. 29 26
27
Stanley v. Georgia, 28
394 U.S. 557 (1969) .................................................................................................................. 22 29
30
Tinker v. Des Moines Independent Community School District, 31
393 U.S. 503 (1969) .................................................................................................................. 13 32
33
Troxel v. Granville, 34
530 U.S. 57 (2000) ........................................................................................................ 18, 19, 22 35
36
Turner Broadcasting Sys., Inc. v. F.C.C., 37
512 U.S. 622 (1994) ................................................................................................................ 8, 9 38
39
United States v. Playboy Entmt Grp., 40
529 U.S. 803 (2000) ............................................................................................................... 8-10 41
42
Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 43
425 U.S. 748 (1976) .................................................................................................................. 22 44
45
46
v
Video Software Dealers Assn v. Schwarzenegger, 1
556 F.3d 950 (9th Cir. 2009) ......................................................................................... 8, 10, 11 2
3
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 4
455 U.S. 489 (1982) .................................................................................................................. 14 5
6
Wisconsin v. Yoder, 7
406 U.S. 205 (1972) ...................................................................................................... 18, 19, 22 8
9
10
OTHER AUTHORITIES 11
12
Kim Reyes, Controversy Follows Effort to Ban Gay Conversion Therapy, Orange Cnty. 13
Reg., (July 27, 2012) ................................................................................................................. 21 14
15
Report of the American Psychological Association Task Force on Appropriate 16
Therapeutic Responses to Sexual Orientation (2009) ........................................................ passim 17
18
Sean Young, Note, Does Reparative Therapy Really Constitute Child Abuse?: 19
A Closer Look, 6 YALE J. HEALTH POLY L. & ETHICS 163, 202 (2006). ................................. 11 20
21
What We Offer, available at http://narth.com/menus/goals.html 22
(last visited Sept. 25, 2012)......................................................................................................... 4 23
24
1
INTRODUCTION 1
Plaintiffs are asking this Court to enjoin implementation of SB 1172, which infringes on 2
the right of mental health professions to speak or provide treatment information to their clients 3
and on the right of parents and minors to receive information regarding Sexual Orientation 4
Change Efforts (SOCE) therapy under any circumstances. Since SB 1172 goes into effect 5
on January 1, 2013, Plaintiffs are desperate for relief enjoining the implementation and 6
enforcement of SB 1172, because all Plaintiffs will suffer immediate and irreparable harm 7
that cannot be satisfied by money damages. As described in detail in the Declarations and the 8
Motion, Plaintiffsmental health professionals, their minor clients and parentsface imminent 9
and irreparable harm unless SB 1172 is enjoined. SB 1172 infringes upon the First Amendment 10
rights of all Plaintiffs and places mental health professionals in a Catch-22 as they cannot 11
provide or recommend SOCE to clients without risking their professional licenses and cannot 12
refrain from providing or recommending SOCE without risking their professional licenses. If SB 13
1172 is permitted to become effective on January 1, 2013, then Plaintiffs will be immediately 14
and irreparably harmed by being forced to discontinue ongoing therapy in violation of their 15
constitutional rights (John Doe 1, John Doe 2), by being denied the ability to direct the 16
upbringing of their children (Jack and Jane Does 1 and 2), and by being compelled to violate 17
their ethical obligations in order to obey the law, and force to present only one viewpoint 18
regarding unwanted same-sex attraction even though in violation of their rights to free speech 19
and free exercise of religion. (David Pickup, Christopher H. Rosik, Ph.D., Joseph Nicolosi, Ph.D, 20
Robert Vazzo, NARTH, and AACC). The state Defendants do not and cannot offer a compelling, 21
or even rational, reason for its sweeping, intrusive legislation. Plaintiffs hereby incorporate by 22
reference as if set forth in full the facts set forth in the Declarations and in the Statement of Facts 23
described in the Motion filed simultaneously hereto. 24
2
LEGAL ARGUMENT 1
Plaintiffs readily satisfy the standard prerequisites and the Ninth Circuits sliding scale 2
standard for injunctive relief. Under the standard of Winter v. Nat. Res. Def. Council, Inc. 555 3
U.S. 7, 20 (2008), Plaintiffs are entitled to injunctive relief if they can establish that they are 4
likely to succeed on the merits, likely to suffer irreparable harm in the absence of preliminary 5
relief, the balance of equities tips in their favor, and that the injunction is in the public interest. 6
Under the Ninth Circuits sliding scale approach, the elements of the preliminary injunction 7
test are balanced, so that a stronger showing of one element may offset a weaker showing of 8
another. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). [A]t an 9
irreducible minimum, though, the moving party must demonstrate a fair chance of success on 10
the merits, or questions serious enough to require litigation. Pimentel v. Dreyfus 670 F.3d 1096, 11
1105 -1106 (9th Cir. 2012). 12
I. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS. 13
SB 1172s significant constitutional infirmities provide Plaintiffs with several grounds 14
upon which they are likely to succeed on the merits. SB 1172, inter alia, discriminates on the 15
basis of viewpoint in violation of the First Amendment, is hopelessly vague and overbroad, 16
infringes upon the fundamental rights of parents to direct the upbringing and education of their 17
children, and infringes upon the free exercise of religion. For purposes of this Motion, Plaintiffs 18
are addressing the First Amendment and parental rights claims. 19
A. SB 1172 Unconstitutionally Discriminates On The Basis Of Viewpoint. 20
SB 1172 represents a brazen attempt to silence a particular viewpoint with which the 21
State does not agree. SB 1172 prohibits licensed mental health professionals from even 22
mentioning the viewpoint that unwanted same-sex attractions can be changed, reduced, or 23
minimized in accordance with the self-determination of the client. Counselors are only permitted 24
3
to espouse one viewpoint regarding same-sex sexual attractions, i.e., that they are good, should 1
not be resisted, and cannot be stopped, reduced or otherwise managed. If mental health 2
professionals want to express the viewpoint that there are treatments available that can change, 3
reduce or minimize same-sex attractions for clients who say they do not want to pursue those 4
attractions, then the therapists speech is censored upon threat of disciplinary sanctions. 5
It is axiomatic that the government may not regulate speech based on its substantive 6
content or the message it conveys. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 7
819, 828 (1995). When the government targets not subject matter, but particular views taken by 8
speakers on a subject, the violation of the First Amendment is all the more blatant. Id. at 829. In 9
fact, viewpoint-based regulations are always unconstitutional. See, e.g., Lamb's Chapel v. Ctr. 10
Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (the First Amendment forbids the 11
government to regulate speech in ways that favor some viewpoints or ideas at the expense of 12
others). A regulation that affects expressive activity, such as SB 1172s restriction on what 13
mental health professionals can say to clients, is only permissible as long as the regulation is 14
not an effort to suppress the speaker's activity due to disagreement with the speakers view. 15
Int'l Soc. for Krishna Consciousness (ISKON) Inc. v. Lee, 505 U.S. 672, 679 (1992). Much 16
like the law invalidated in R.A.V. v. St. Paul, 505 U.S. 377 (1992), where the Court struck down 17
an ordinance that favored a particular point of view, SB 1172 impermissibly favors one side in a 18
debate on a very public issue, i.e., therapeutic responses to same-sex attraction. 19
SB 1172s discriminatory treatment of the particular viewpoint of change therapy for 20
same-sex attractions also conflicts with prevailing Ninth Circuit precedent that has long 21
recognized the blanket prohibition on viewpoint-based discrimination. See DiLoreto v. Downey 22
Unified School District Board of Education, 196 F.3d 958, 965 (9th Cir. 1999). In DiLoreto, the 23
4
court observed that even in a nonpublic forum, the government may not limit expressive activity 1
if the limitation is . . . based on the speakers viewpoint. Id. at 965 (citing ISKON, 505 U.S. at 2
679). Viewpoint discrimination is a form of content discrimination in which the government 3
targets not subject matter, but particular views taken by speakers on a subject. Children of the 4
Rosary v. City of Phoenix, 154 F.3d 972, 980 (9th Cir. 1998) (quoting Rosenberger 515 U.S. at 5
829). 6
SB 1172 is a textbook example of this type of prohibited viewpoint discrimination. The 7
statute explicitly states that a mental health professional cannot, under any circumstances, tell 8
a client with unwanted same-sex attractions that same-sex sexual orientation can be changed 9
through therapy. SB 1172 permits discussion of the subject of sexual orientation or same-sex 10
attractions, but precludes expression of a particular view on that subject. Counselors are 11
prohibited from saying and clients are prohibited from hearing that unwanted same-sex 12
attractions can be reduced or eliminated. The only viewpoint allowed is that unwanted same-sex 13
attractions should be encouraged despite the clients religious and moral beliefs to the contrary. 14
SB 1172 prohibits one viewpoint regarding the subject matter of unwanted same-sex attractions.
1
15
While such discrimination alone is sufficient to doom the legislation, the viewpoint 16
discrimination goes even deeper. 17
SB 1172 specifically targets only SOCE that seeks to eliminate or reduce sexual or 18
romantic attractions or feelings towards individuals of the same sex. Compl. 34 (emphasis 19
added). SB 1172 prohibits such SOCE purportedly to protect[] the physical and psychological 20
well-being of minors, including lesbian, gay, bisexual, and transgender youth. SB 1172 1(n) 21

1
This stands in stark contrast to Plaintiff NARTHs desire to build an atmosphere which
allows an honest debate and to open for public discussion all issues relating to homosexuality,
See What We Offer, available at http://narth.com/menus/goals.html (last visited Sept. 25,
2012).
5
(emphasis added). SB 1172 thus explicitly aims to ban only one therapeutic viewpoint that seeks 1
to change non-heterosexual sexual orientations, as is apparent from its legislative findings and/or 2
declarations, which expressly decry efforts to change non-heterosexual sexual orientations (i.e. 3
homosexual or bisexual).
2
There is no legislative finding that similarly opposes therapy seeking 4
to change heterosexual sexual orientations. SB 1172s definitions confirm that only non- 5
heterosexual sexual orientation change efforts are precluded as SOCE does not include 6
psychotherapies that: (A) provide acceptance, support, and understanding of clients or 7
facilitation of clients coping, social support, and identity exploration and development, 8
including sexual orientation-neutral intervention . . . and (B) do not seek to change sexual 9
orientation. Id. 34 (emphasis added). Consequently, counselors are free to counsel their 10
clients toward same-sex attractions, to provide acceptance, support, and understanding of 11
same-sex attractions, or to remain neutral on such attractions. What they may not do, however, is 12
discuss possibilities of changing or reducing same-sex desireseven when the client and the 13
parents desire to eliminate or reduce unwanted same-sex attractions. See id. The viewpoint of 14
counselors who, in their professional judgment, after consulting with their clients, determine that 15
same-sex attractions conflict with their religious and moral beliefs and are not desired, is 16
silenced by SB 1172. 17
The Supreme Court has not hesitated to facially invalidate laws like SB 1172 that use the 18
states authority to censor one viewpoint on an otherwise permissible subject matter. In Legal 19
Services Corporation v. Velazquez, 531 U.S. 533 (2001), the Court invalidated a federal 20
limitation on the legal profession that operated in materially the same viewpoint-discriminatory 21
manner as does SB 1172. The regulation at issue in Velazquez prevented legal aid attorneys from 22

2
See SB 1172, Section 1(a)-(e), (h)-(k).
6
receiving federal funds if they challenged welfare laws. Id. at 537-38. In invalidating the 1
measure on its face, the Court said that effect of the funding condition was to prohibit advice or 2
argumentation that existing welfare laws are unconstitutional or unlawful, and thereby exclude 3
certain vital theories and ideas from the lawyers representation. Id. at 547-549. SB 1172 4
regulates mental health counselors in the same constitutionally-proscribed manner. In fact, SB 5
1172s restrictions are even more egregious. The law invalidated in Velasquez merely removed 6
federal funding from lawyers who expressed the prohibited viewpoint. Id. Lawyers who violated 7
the provision could still practice law, but would just be deprived of a portion of their income. 8
However, under SB 1172, mental health professionals risk losing their licenses, and thereby, 9
their entire livelihood, if they express the prohibited viewpoint. If deprivation of one source of 10
income is sufficient to invalidate a regulation on the grounds of impermissible viewpoint 11
discrimination, then deprivation of an entire livelihood is even more so. 12
Ninth Circuit precedents provide even more compelling justification for the constitutional 13
invalidity of SB 1172. In Conant v. Walters, 309 F.3d 629, 633 (9th Cir. 2002), several 14
physicians and patients brought a First Amendment challenge to a federal policy that punished 15
physicians for communicating with their patients about the benefits or options of marijuana as a 16
potential treatment. The Ninth Circuit began its analysis by recognizing that the doctor-patient 17
relationship is entitled to robust First Amendment protection. Physicians must be able to speak 18
frankly and openly to patients. That need has been recognized by courts through the application 19
of the common law doctor-patient privilege. Id. at 636. Far from being a First Amendment 20
orphan, such professional speech may be entitled to the strongest protection our Constitution 21
has to offer. Conant, 309 F.3d at 637 (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 22
7
634 (1995)). The court held that the ban impermissibly regulated physician speech based on 1
viewpoint: 2
Only doctor-patient conversations that include discussions of the medical use of 3
marijuana trigger the policy. Moreover, the policy does not merely prohibit the 4
discussion of marijuana; it condemns expression of a particular viewpoint, i.e., 5
that medical marijuana would likely help a specific patient. Such condemnation 6
of particular views is especially troubling in the First Amendment context. 7
Id. at 637-38 (emphasis added). The court permanently enjoined enforcement of the policy and 8
rejected as inadequate the governments justification that the policy prevented clients from 9
engaging in illegal behavior. Id. at 638-39. SB 1172 operates almost identically to the federal 10
policy enjoined in Conant. Just as the policy in Conant prohibited physicians from speaking 11
about the benefits of marijuana to a suffering patient, so SB 1172 prohibits counselors from 12
speaking about the benefits of SOCE with a client distressed about his or her non-heterosexual 13
sexual attractions. Both policies favor one government-preferred message over the private 14
message of the health provider. Both should suffer the same constitutional demise. See R.A.V., 15
505 U.S. at 391 (The First Amendment does not permit [the government] to impose special 16
prohibitions on those speakers who express views on disfavored subjects.) 17
In National Association for the Advancement of Psychoanalysis v. California Board of 18
Psychology, 228 F.3d 1043 (9th Cir. 2000) (NAAP), the Ninth Circuit further clarified that the 19
state cannot engage in viewpoint discrimination in the context of mental health professional 20
licensing laws. In NAAP, a national association and individual psychoanalysts brought a First 21
Amendment challenge to the licensing scheme governing the practice of psychology. Id. at 1046. 22
The court rejected a claim that the regulations were viewpoint discriminatory because they did 23
not dictate what can be said between psychologists and patients during treatment nor did it 24
prevent licensed therapists from utilizing psychoanalytic methods. Id. at 1055. By contrast, SB 25
1172 does dictate what can be said between psychologists, psychiatrists, and other mental health 26
8
counselors and patients during treatment and does prevent licensed therapists from utilizing 1
psychoanalytic methods. Therefore, unlike the licensing standards in NAAP, the provisions in SB 2
1172 do constitute impermissible viewpoint discrimination. Because SB 1172 was adopted 3
specifically because of [Californias] disagreement with a particular course of psychoanalytic 4
theory, it cannot withstand constitutional scrutiny. Id. at 1056. Any attempted balancing of the 5
states interest would not benefit SB 1172 since a viewpoint-based restriction is unconstitutional 6
no matter what interest the government may allege. 7
But even if SB 1172 were merely content- and not viewpoint-based, the Defendants 8
cannot meet the burden of proving that SB 1172 survives strict scrutiny. United States v. Playboy 9
Entmt Grp., 529 U.S. 803, 813 (2000). To survive strict scrutiny, Defendants would have to 10
show that SB 1172 is narrowly tailored to achieve a compelling government interest and is the 11
least restrictive means of achieving that interest. Id. The right of expression prevails, even where 12
no less restrictive alternative exists. Id. The Legislature claims that SB 1172 was enacted to meet 13
a compelling interest in protecting the physical and psychological well-being of minors. SB 14
1172(n). Under certain circumstances, states may have a compelling interest in the well-being 15
and protection of children. See Sable Commns of Cal., Inc. v. F.C.C., 492 U.S 115, 126 (1989). 16
Notwithstanding this abstract compelling interest, when the government seeks to restrict speech 17
[i]t must demonstrate that the recited harms are real, not merely conjectural, and that the 18
regulation will in fact alleviate these harms in a direct and material way. Video Software 19
Dealers Assn v. Schwarzenegger, 556 F.3d 950, 962 (9th Cir. 2009) (quoting Turner 20
Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994)) (emphasis added). The reviewing 21
court must assure that, in formulating its judgments, [the legislature] has drawn reasonable 22
inferences based on substantial evidence. Id. at 962 (quoting Turner Broadcasting, 512 U.S. at 23
9
664). The state must also show that content discrimination is necessary to achieve [its 1
compelling interests]. R.A.V., 505 U.S. at 395-96. Even the objective of shielding children 2
does not suffice to support a blanket ban if the protection can be accomplished by a less 3
restrictive alternative. Playboy, 529 U.S. at 813. 4
The Legislatures own sources demonstrate that they have no proof that SOCE causes 5
harm. The legislative findings consist of position statements conceding that scientific evidence of 6
harm is inconclusive, and excerpts from professional journal articles that support the 7
Legislatures viewpoint. Defendants primary evidence is a 2009 report issued by the American 8
Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual 9
Orientation (Task Force), which was charged with reporting on the appropriate application of 10
affirmative therapeutic interventions for adults who present a desire to change their sexual 11
orientation or their behavioral expression of their sexual orientation.
3
The report states that 12
recent SOCE research cannot provide conclusions regarding efficacy or effectiveness. Id. at ix. 13
The report also supports the concept that sexual orientation is not immutable by noting that some 14
have successfully changed their sexual orientation. Id. at 45, 50, 53. Exhibiting the same bias as 15
is apparent in SB 1172 the report defines SOCE solely in terms of seeking to change only same- 16
sex sexual orientation without any basis to prohibit SOCE counseling.
4
The Task Force says that 17
a systematic review of the peer-reviewed literature found some evidence of both harm and 18
benefits produced by SOCE (for adults).
5
The Task Force also conceded that there were 19

3
Report of the American Psychological Association Task Force on Appropriate
Therapeutic Responses to Sexual Orientation (2009) at 4 (emphasis added), available at
http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (last visited October 1, 2012).
4
Id. at 12, n.5 (emphasis added)
5
Id. at 2-3, 42, 49-50 (emphasis added).
10
significant limitations in the report, including that the research has not fully addressed age,
6
that 1
sexual orientation issues in children are virtually unexamined,
7
that none of the recent research 2
meets standards that permit conclusions regarding efficacy or safety,
8
and that there is a dearth 3
of scientifically sound research on the safety of SOCE.
9
The amount of research on children 4
and adolescents is limited, and [t]here is no research demonstrating that providing SOCE to 5
children or adolescents has an impact on adult sexual orientation.
10
Research on SOCE 6
(psychotherapy, mutual self-help groups, religious techniques) has not answered basic questions 7
of whether it is safe or effective and for whom. . . . [R]esearch into harm and safety is 8
essential.
11
Rather than demonstrating that SOCE is harmful, as the Legislature claims, the 9
report reveals that the effects of SOCE on children are inconclusive, with the only mention of 10
harm being some anecdotal testimony of some individuals [who] reported being harmed by 11
SOCE.
12
But, the government must present more than anecdote and supposition to support its 12
burden of proof. Video Software, 556 F.3d at 962 (quoting Playboy, 529 U.S. at 822).
13
The only 13
remaining factual support for the Legislatures action is a listing of policy statements from 14
various organizations that oppose SOCE, which, at best, are based upon inconclusive scientific 15
evidence and at worst are nothing more that unsupported political or ideological suppositions. 16
See SB 1172, 1(d), (e), (g), (h), (i), (j), and (l). Either way, such positions do not prove that 17
SOCE is harmful to minors, and the entire foundation upon which SB 1172 is based must fall. 18

6
Id. at 120 (emphasis added).
7
8
9
10
11
12
Id. at 120.
13
Similarly, an article by the American Academy of Child and Adolescent Psychiatry cited
in SB 1172 consists of mere supposition that SOCE may be harmful.
11
What is probative of the fact that there is no evidence that SOCE is harmful is that the 1
standards of care of the various mental health professions, which are designed to protect patients 2
from harm, do not proscribe SOCE. Courts have consistently looked to these codes of ethics to 3
determine whether a psychologist has [caused harm],
14
as the California Legislature has 4
codified the APAs Ethics Code as the accepted standard of care for all disciplinary proceedings 5
in the field of psychology. Cal. Bus. & Prof. Code 2936 (West 2012). Neither the American 6
Psychological Association (APA) nor the American Psychiatric Association prohibits SOCE in 7
their ethics code.
15
In fact, on at least three different occasions, in 1994, 1995, and 2003, those 8
organizations specifically considered amending their ethics codes to make SOCE per se 9
unethical and failed to do so.
16
10
Defendants must provide substantial evidence that SB 1172s prohibition on SOCE is 11
necessary to advance the compelling government interest of protecting children from real 12
harm. Video Software, 556. F.3d at 962. This burden is especially difficult in this context, for 13
[n]o field of education is so thoroughly comprehended by man that new discoveries cannot be 14
made. Particularly is this true in the social sciences, where few, if any, principles are accepted 15
as absolutes. Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603 (1967) 16
(emphasis added). That is borne out in this case where the sources upon which the Legislature 17
based its finding that SOCE is harmful show that the research is inconclusive. Defendants cannot 18
establish any state interest, let alone a compelling state interest in violating Plaintiffs 19
constitutional rights. Further evidence that SB 1172 is not necessary to prevent harm is the fact 20
that all the ethical codes of the professions engaging in this treatment already prohibit engaging 21

14
Sean Young, Note, Does Reparative Therapy Really Constitute Child Abuse?: A
Closer Look, 6 YALE J. HEALTH POLY L. & ETHICS 163, 202 (2006).
15
Id. at 204.
16
Id. at 208.
12
in practices that actually harm patients. See Compl. 39, 44. Violations of these ethical codes 1
are treated as unprofessional conduct both by courts and in Business and Professions Code 2
2936 and subject licensed professionals to discipline by their respective licensing boards. SB 3
1172 is not an attempt to prevent harm, but is a politically motivated attempt to ascribe special 4
treatment to a particular viewpoint regarding SOCE therapy. Children are already protected from 5
harmful and dangerous therapies without SB 1172. Consequently SB 1172 is not about 6
protecting minors, but merely an attempt to discriminate against, and silence, the viewpoint of 7
those therapists minors and their parents who believe that SOCE is helpful. 8
Nor can Defendants establish that SB 1172 is narrowly tailored. Even if the state could 9
ban an entire mode of therapysuch as SOCEfrom the field of counseling, it could not do so 10
simply to suppress a particular idea. R.A.V., 505 U.S. at 386. Such a discriminatory motive is 11
revealed where there are other content-neutral substitutes to the regulation. See id. at 395. 12
Furthermore, even if the Legislature had evidence that SOCE could cause harm to some minors, 13
the state would be required to utilize the least restrictive means available to address the interest. 14
A complete ban is certainly not the least restrictive means to achieve any purported 15
governmental interest. Especially in light of the availability of less restrictive regulations, such as 16
informed consent, which is a mainstay in mental health treatment, the extreme measure of 17
banning SOCE is constitutionally impermissible. 18
B. SB 1172 Is A Prior Restraint, Vague And Vests Unbridled Discretion. 19
SB 1172 absolutely prohibits, under any circumstances, the expression of the point of 20
view that SOCE therapy is available for minors who are seeking help for unwanted same-sex 21
sexual attractions, based upon nothing more than anecdotes and position statements from 22
organizations that oppose the therapy. SB 1172, therefore, acts as a prior restraint on therapists, 23
their minor clients and the clients parents not based upon empirical evidence of harm, but upon 24
13
supposition and conjecture that some minor might be harmed. The Supreme Court has held 1
unequivocally that the First Amendment tolerates absolutely no prior restraints predicated on 2
surmise or conjecture that untoward consequences may result. New York Times Co. v. United 3
States, 403 U.S. 713, 725-26 (1971) (Brennan, J., concurring). A [p]rior restraint upon speech 4
suppresses the precise freedom which the First Amendment sought to protect against 5
abridgement. Carroll v. Presidents & Commrs of Princess Anne, 393 U.S. 175, 181 (1968). 6
Consequently, the Court will not countenance a suppression of speech based upon an 7
undifferentiated fear. Tinker v. Des Moines Indep. Comm. School Dist., 393 U.S. 503, 508 8
(1969). 9
Furthermore, it is unconstitutional to allow a public official to be granted unbridled 10
discretion to make decisions on what a therapist can say to a client, what a client can hear from a 11
therapist, or what a parent can consent to having his child hear in therapy, as SB 1172 does here, 12
and it is irrelevant whether the official ever uses the grant of unbridled discretion to actually 13
infringe on the First Amendment rights of individuals or groups. See City of Lakewood v. Plain 14
Dealer Publg Co., 486 U.S. 750 (1988). A constitutional violation occurs the moment the 15
official is vested with such discretion. Allowing government officials to have absolute discretion 16
over decisions involving expressive activity is not just problematic because of the potential for 17
viewpoint discrimination, but also because they place tremendous burdens on the individual who 18
might be inclined to self-censor as a result of the requirements established by the government. 19
The risk of self-censorship is particularly acute in this case because SB 1172 is also 20
unconstitutionally vague. A law is unconstitutionally vague if it either forbids or requires the 21
doing of an act in terms so vague that [persons] of common intelligence must necessarily guess 22
at its meaning and differ as to its application. Connally v. Gen. Const. Co., 269 U.S. 385, 391 23
14
(1926). The States policies must be so clearly expressed that the ordinary person can 1
intelligently choose, in advance, what course it is lawful for him to take. Id. at 393. Precision 2
of regulation is the touchstone of the First Amendment. NAACP v. Button, 371 U.S. 415, 435 3
(1963). It is a basic principle of due process that an enactment is void for vagueness if its 4
prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 5
While all regulations must be reasonably clear, laws which threaten to inhibit the exercise of 6
constitutionally protected expression must satisfy a more stringent vagueness test. Village of 7
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). When considering 8
whether a law is impermissibly vague, the crucial consideration is that no [individual subject to 9
the law] can know just where the line is drawn . . . . Keyishian v. Bd. of Regents of Univ. of 10
State of N.Y., 385 U.S. 589, 599 (1967). A law must give adequate warning of what activities it 11
proscribes and must set out explicit standards for those who apply it. See Broadrick v. 12
Oklahoma, 413 U.S. 601, 607 (1973) (citing Grayned, 408 U.S. at 108). SB 1172 fulfills neither 13
requirement. 14
From the outset of the therapeutic relationship SB 1172 leaves the therapist guessing 15
since it does not define or provide any guidance regarding how to define the foundational 16
concept of sexual orientation. Without such guidance, a therapist cannot know when or if he 17
has begun to engage in prohibited SOCE therapy. The vagueness created by the failure to define 18
is exacerbated when viewed in context of the underlying complexities of human sexuality. As the 19
APA Task Force noted: 20
Same-sex sexual attractions and behavior occur in the context of a variety of sexual 21
orientations and sexual orientation identities, and for some, sexual orientation identity 22
(i.e., individual or group membership and affiliation, self-labeling) is fluid or has an 23
indefinite outcome.
17
24

17
Task Force report at vii.
15
The recent research on sexual orientation identity diversity illustrates that sexual 1
behavior, sexual attraction, are labeled and expressed in many different ways, some of 2
which are fluid.
18
3
Individuals with sexual attractions may understand, define, and label their experiences 4
differently than those with similar desires because of the unique historical constructs 5
regarding ethnicity, gender, and sexuality.
19
6
The available evidence suggests that although sexual orientation is unlikely to 7
change, some individuals modified their sexual orientation identity (i.e. individual or 8
group membership and affiliation, self-labeling) and other aspects of sexuality (i.e. values 9
and behavior). They did so in a variety of ways and in a variety of unpredictable 10
outcomes.
20
11
The intricate and subjective interchange between these concepts means that therapists conducting 12
research on SOCE often misinterpret sexual orientation entirely.
21
Even if a therapist can 13
accurately diagnose a clients sexual orientation, as the Legislature assumes, SB 1172 still fails 14
to provide sufficient instruction for counselors concerning what they can and cannot say during 15
treatment to clients with non-heterosexual sexual attractions. 16
The Supreme Court struck down as unconstitutionally vague a similar statute that 17
prohibited employing any teacher who advocates, advises, or teaches the doctrine of forceful 18
overthrow of government. Keyishian, 385 U.S. at 599-600. The Court noted that the law raised 19
more questions than it answered. Id. For example, the proscription on advocacy could be 20
interpreted to prohibit employing people who merely advocate the doctrine in the abstract and 21
the ban on advising could be read to prohibit the mere advising of the existence of the 22
doctrine, advising another to support the doctrine, or inform[ing ones] class about the precepts 23
of Marxism or the Declaration of Independence. Id. SB 1172 raises similar unanswered 24

18
Id. at 14.
19
Id. at 30.
20
21
Id. at 31 (Considered in the concept of the conceptual complexities of and debates over
the assessment of sexual orientation, much of the SOCE research does not adequately define the
construct of sexual orientation, does not differentiate it from sexual orientation identity, or has
misleading definitions that do not accurately assess or acknowledge bisexual individuals.)
16
questions. Does a therapist violate SB 1172 when the therapist simply raises the existence of 1
SOCE with a minor client distressed with same-sex sexual orientation or attractions? Does 2
recommending a book that discusses SOCE to a minor patient desiring to reduce or eliminate his 3
same-sex attractions constitute any practice seeking to change an individuals sexual 4
orientation? Do professional counselors unwilling to counsel in a manner affirming homosexual 5
practices have to effectively close their mouths at the mere mention that a minor patient might 6
have experienced some form of same-sex attractions? SB 1172 leaves professional counselors 7
uncertain whether these or any other practices will cost them their professional license. 8
Therefore, under SB 1172 therapists are put in the same unconstitutional dilemma as that faced 9
by the teachers in Keyishian. The vagueness doctrine requires that neither therapists nor teachers 10
be compelled to choose between silence and employment. Because SB 1172 forces therapists 11
into this Mortons Fork without adequate warning of what activities it proscribes, it is 12
impermissibly vague. Broadrick, 413 U.S. at 607. 13
SB 1172 also fails to address other scenarios, including what counsel therapists may 14
provide to minors who identify themselves as bisexual. What is a professional counselors 15
obligation if a minor patient enters the office on Monday discussing the homosexual feelings and 16
relations he had over the weekend, but returns on Thursday discussing heterosexual attractions 17
and relations from the previous night? Is the professional required to affirm the homosexual 18
attractions the patient relayed during the Monday session, but sit silently on Thursday when the 19
patient is discussing heterosexual attractions? Certainly, engaging in discussions that might 20
encourage this hypothetical patients feelings during the Thursday session would involve some 21
practice that might reduce the patients same-sex attractions or romantic feelings. Additionally, 22
what is a professional counselors obligation when a questioning patient enters the office? Is 23
17
he only permitted to affirm the patients homosexual feelings, but not the heterosexual feelings? 1
If the patient is truly confused as to his sexual identity, SB 1172 appears to compel him towards 2
homosexuality, at least if the professional counselor does not want to risk losing his license. If 3
professional counselors are prohibited from engaging in any practice that attempts to reduce 4
same-sex attractions, then clients will only be able to receive homosexual-affirming therapy. Yet 5
even the APA acknowledges that sexual orientation identity appears to shift and evolve in 6
some individuals lives.
22
In short, there is simply no way to determine the proper course of 7
action when a questioning person enters the office. 8
SB 1172 also completely undermines the APAs recommendations supporting clients 9
self-determination and respect for clients faith, leaving therapists uncertain about how they can 10
support their clients and comply with the law. APA recommends that therapists show and even 11
maximize support and respect for self-determination,
23
even for minors.
24
In addition, the 12
clinical and research literature encourages the provision of acceptance, support, and recognition 13
of the importance of faith to individuals and communities.
25
14
Finally, the lack of any specified geographic boundaries further obscures the reach of the 15
bill. On its face, SB 1172 could presumably cover Web videos, radio broadcasts or electronic 16
transmissions into California that provide SOCE or referrals to counselors who provide SOCE. 17
Specifically, Dr. Nicolosi and NARTH have numerous videos and instructional pamphlets on 18
their websites, which explicitly discuss and advocate for SOCE counseling. These videos are 19
available to potentially every minor in California. SB 1172 provides no guidance on whether this 20

22
Task Force Report at 4 (emphasis added).
23
Self-determination is the process by which a person controls or determines the course of
his or her own life (according to the Oxford English Dictionary). Id. at 5.
24
Id. (emphasis added).
25
Id.
18
would constitute a practice seeking to reduce or eliminate same-sex attractions. NARTH and Dr. 1
Nicolosi are left to guess whether their videos could potentially subject them to sanctions for an 2
ethical violation. Similarly, SB 1172 could cover a California-licensed counselor who is licensed 3
in other jurisdictions and who offers SOCE in states outside of California. Mr. Vazzo is a 4
certified Marriage and Family Therapist in California, Ohio, and Florida. See Vazzo Decl. 3- 5
4. If he is providing SOCE counseling under his licenses in Florida or Ohio, states that do not 6
have prohibitions on SOCE counseling, is he committing an ethical violation in California? Mr. 7
Vazzo is left to guess at the answer and guessing wrong would cost him his license. The 8
Constitution simply does not permit placing practitioners in such a quandary. 9
SB 1172 does not provide adequate protection to counselors who engage in SOCE 10
counseling who cannot intelligently choose the proper course of action with certainty that they 11
will be in compliance with the law. Such a scenario renders SB 1172 unconstitutionally vague. 12
C. SB 1172 Infringes Upon The Fundamental Rights Of Parents. 13
Parents are vested with the care, custody, and control of their children and that right is 14
enforceable against the states through the Fourteenth Amendment. See, e.g., Troxel v. Granville, 15
530 U.S. 57, 65 (2000); Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972); Pierce v. Socy of 16
Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). SB 1172 17
tramples upon this most basic right by preventing parents from caring for the mental health of 18
their children as they see fit. Because the statute intrudes upon a fundamental right, strict 19
scrutiny applies. See Reno v. Flores, 507 U.S. 292, 301-02 (1993); Fields v. Palmdale Sch. Dist., 20
427 F.3d 1197, 1208 (9th Cir. 2005) (Governmental actions that infringe upon a fundamental 21
right receive strict scrutiny.). Because Defendants cannot satisfy this high burden, Plaintiffs are 22
likely to succeed on the merits of their case. 23
19
The interest of parents in the care, custody, and control of their children is perhaps the 1
oldest of the fundamental liberty interests recognized by this Court. Troxel, 530 U.S. at 65 2
(discussing nine seminal cases dealing with this parental liberty interest). The history and 3
culture of Western civilization reflect a strong tradition of parental concern for the nurture and 4
upbringing of their children. Yoder, 406 U.S. at 232. American jurisprudence historically has 5
reflected Western . . . concepts of the family as a unit with broad parental authority over minor 6
children. Parham v. J.R., 442 U.S. 584, 602 (1979). It cannot be questioned that parents enjoy a 7
fundamental discretion to bring up their children as they see fit. Troxel, 530 U.S. at 66. This 8
primary role of the parents . . . is now established beyond debate as an enduring American 9
tradition. Yoder, 406 U.S. at 232. Care, custody, and control encompass decisions relating to 10
the mental health of the child, for parents have a high duty to recognize symptoms of illness 11
and to seek and follow medical advice. Parham, 442 U.S. at 602. Parents direct the destiny of 12
their children and inculcate moral standards in them. Yoder, 406 U.S. at 233; Pierce, 268 U.S. at 13
535. Certainly, these responsibilities include selecting a course of therapy, for it is parents . . . 14
[who] choose whether to expose their children to certain people or ideas. In re Custody of 15
Smith, 969 P.2d 21, 31 (Wash. 1998) (en banc), affd sub nom. Troxel v. Granville, 530 U.S. 57, 16
63 (2000). Simply because the decision of a parent is not agreeable to a child or because it 17
involves risks does not automatically transfer the power to make that decision from the parents to 18
some agency or officer of the [S]tate. Parham, 442 U.S. at 603 (emphasis added). Rather, 19
parents have authority to select medical procedures and otherwise decide what is best for their 20
child, and [n]either state officials nor federal courts are equipped to review such parental 21
decisions. Id. at 603-604. SB 1172 deliberately and explicitly infringes upon this right. There is 22
no proof of any harm befalling children engaging in SOCE therapy, and therefore not a modicum 23
20
of reason to support the constitutional violation the Legislature has intentionally visited upon 1
parents. 2
The Supreme Court has not hesitated to uphold the right to direct the upbringing of ones 3
child over state laws that would deprive parents of that right. This has been true even in the 4
context of public education, which is at the very apex of the function of the State. Yoder, 406 5
U.S. at 213. In Meyer, the Court upheld the power of parents to control the education of their 6
own. Meyer, 262 U.S. at 401. At issue was a Nebraska statute that made it illegal to teach 7
languages, other than the English language . . . [until] the pupil . . . passed the Eighth grade. Id. 8
at 397. The statute effectively prevented parents from hiring a teacher to instruct their children in 9
German and penalized teachers who did so. Id. at 396. The Court found that the states intrusion 10
on parental rights could not be justified, and the statute was arbitrary and without reasonable 11
relation to any end within the competency of the state. Id. at 403. The Supreme Court similarly 12
held that a law requiring every parent . . . of a child between 8 and 16 years to send him to a 13
public school unreasonably interfered with the liberty of parents and guardians to direct the 14
upbringing and education of children under their control. Pierce, 268 U.S. at 535. [R]ights 15
guaranteed by the Constitution may not be abridged by legislation which has no reasonable 16
relation to some purpose within the competency of the state. The fundamental theory of liberty 17
upon which all governments in this Union repose excludes any general power of the state to 18
standardize its children by forcing them to accept instruction from public teachers only. Id. 19
(emphasis added). 20
Meyer and Pierce proscribed the same unconstitutional act, i.e., the states attempt to 21
impose a comprehensive, government-sanctioned mode of education upon children against the 22
wishes of their parents. Fields, 427 F.3d at 1205 23
21
The Meyer and Pierce cases, we think, evince the principle that the state cannot 1
prevent parents from choosing a specific educational program--whether it be 2
religious instruction at a private school or instruction in a foreign language. That 3
is, the state does not have the power to standardize its children or foster a 4
homogenous people by completely foreclosing the opportunity of individuals and 5
groups to choose a different path of education. 6
Id. (citation omitted) (emphasis added)). 7
SB 1172 operates in the same unconstitutional manner by preventing parents from 8
choosing a specific form of counselingSOCE therapyfor their children by muzzling every 9
mental health professional in the state. Indeed, the prohibition is comprehensive, applying to 10
physician[s] and surgeon[s] specializing in the practice of psychiatry, psychologist[s], 11
licensed marriage and family therapist[s], registered marriage and family therapist[s], 12
licensed educational psychologist[s], credentialed school psychologist[s], licensed clinical 13
social worker[s], licensed professional clinical counselor[s], registered clinical 14
counselor[s], and their respective interns and trainees as well as any other person designated 15
as a mental health professional under California law or regulation. Cal. Bus. & Prof. Code 16
2(a). California is attempting to standardize its children, Fields, 427 F.3d at 1205, by 17
ensuring that they may only receive professional help that affirms non-heterosexual sexual 18
orientations. Just as Nebraska and Oregon foreclosed the opportunity of parents to choose 19
professional foreign language training or private education for their children, so too has 20
California foreclosed the opportunity of parentsparticularly, Plaintiffs Jack and Jane Does 1 21
and 2to choose SOCE therapy for their children. SB 1172s sponsor, Senator Ted Lieu, 22
acknowledges his intent to infringe these rights: The attack on parental rights is exactly the 23
whole point of the bill because we dont want to let parents harm their children. See Compl. 24
70 (citing Kim Reyes, Controversy Follows Effort to Ban Gay Conversion Therapy, Orange 25
Cnty. Reg., July 27, 2012, at 2). If the intrusions into parental rights in Meyer and Pierce were 26
22
deemed unconstitutional in the public school context, where the states interest is at its apex, then 1
SB 1172s intrusions are certainly impermissible in the context of private counseling sessions 2
chosen by parents to benefit their children. 3
California has preempted parental discretion by interposing itself between therapist and 4
child, limiting the therapeutic options from which a consenting parent, child, and therapist can 5
select. Because SB 1172 arrogates the choice of therapies a minor may receive, and thus 6
tramples the fundamental right of parents to care for the mental health of their children, 7
Defendants must satisfy strict scrutiny. See Troxel, 530 U.S. at 80 (Thomas, J., concurring) 8
(articulating that strict scrutiny is the appropriate standard of review for infringements upon the 9
fundamental parental right). Therefore, Defendants must prove that California has a compelling 10
interest to substitute its judgment for parents judgments, and that SB 1172 is narrowly tailored 11
to serve that interest. Reno v. Flores, 507 U.S. at 301-02. At a minimum, Defendants must show 12
that SOCE therapy will jeopardize the health or safety of the child. Yoder, 406 U.S. at 234. As 13
the Legislatures findings attest, Defendants cannot make that showing. The sources cited in the 14
legislative findings provide no evidence of harm, but are merely policy statements by 15
organizations politically opposed to SOCE therapy. Absent evidence of harm there is no 16
compelling state interest. Therefore, Plaintiffs are likely to succeed on the merits, and this Court 17
should grant the preliminary injunction. 18
D. SB 1172 Violates Minors First Amendment Rights. 19
The First Amendment, which applies to the State through the Fourteenth Amendment, 20
protects the right to receive information as a corollary of the right to speak. See, e.g., Bd. of 21
Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982); Va. State 22
Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); Stanley v. 23
Georgia, 394 U.S. 557, 564 (1969); Martin v. City of Struthers, 319 U.S. 141, 143 (1943); 24
23
Meyer, 262 U.S. 390; Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th 1
Cir. 1998). SB 1172 deprives minorssuch as Plaintiffs John Does 1 and 2of this right by 2
prohibiting therapists from offering SOCE therapy as treatment for unwanted same-sex 3
attractions. While the government may regulate the receipt of information for various legitimate 4
reasons, it may not do so when its purpose is to suppress certain ideas or viewpoints. See Pico, 5
457 U.S. at 871-72 (plurality) (Our Constitution does not permit the official suppression of 6
ideas.); id. at 880 (Blackmun, J., concurring) ([O]ur precedents command the conclusion that 7
the State may not act to deny access to an idea simply because state officials disapprove of that 8
idea. . . .). SB 1172 suppresses the viewpoint that changing non-heterosexual attractions may be 9
beneficial to minors in favor of the Legislatures viewpoint that SOCE therapy is not beneficial. 10
Both the Supreme Court and Ninth Circuit have held that suppression of ideas from willing 11
recipients in the medical context is unconstitutional. 12
In Virginia State Board of Pharmacy, the Court rejected the states argument that banning 13
advertisement of the market prices of prescription drugs protected professionalism from price 14
competition. 425 U.S. at 768-69. As is true in this case, pharmacists professional rules already 15
imposed a high standard of care. Id. The Court determined that the advertisement ban was 16
actually designed to keep the public ignorant about drug prices, prevent them from following 17
the discount, and ultimately insulate ethical pharmacists from unethical ones who could operate 18
at lower cost. Id. at 769. In striking down the law, the Court said that the First Amendment 19
commands the assumption that information is not in itself harmful, that people will perceive 20
their own best interests if only they are well enough informed, and that the best means to that end 21
is to open the channels of communication rather than to close them. Id. at 770. The rule 22
articulated in Virginia State Board of Pharmacythat the First Amendment commands more 23
24
information, not lessis most pronounced for the medical profession. Thus, the Ninth Circuit 1
upheld a permanent injunction against a federal policy that threatened to punish physicians for 2
communicating with their patients about the medical use of marijuana. See Conant, 309 F.3d at 3
639. The Ninth Circuit affirmed that the policy struck at core First Amendment interests of 4
doctors and patients by creating barriers to full disclosure that would impair diagnosis and 5
treatment. Id. at 636. The federal policy at issue in Conant, like the state ban on certain SOCE 6
therapy at issue here, prevented patients from making an informed decision as to their own health 7
and self-determination. As Judge Kozinski noted in Conant, [e]nforcement of the federal policy 8
will cut such patients off from competent medical advice and leave them to decide on their own 9
whether to use marijuana to alleviate excruciating pain, nausea, anorexia or similar symptoms. 10
Id.at 644 (Kozinski, J., concurring) (emphasis added). Similarly, here, SB 1172 cuts clients and 11
their parents off from competent medical advice regarding available options for unwanted same- 12
sex attractions and leave them on their own as to how to deal with these issues. Also, like the 13
advertising ban in Virginia State Board of Pharmacy SB 1172 assumes that SOCE therapy and 14
related information are harmful and keeps the public in ignorance by closing a channel of 15
therapist-client communication. In addition, SB 1172 could actually cause harm to minors: 16
parents whose children are distressed over their same-sex sexual attractions may thus seek out 17
unlicensed and untrained counselors who could inflict irreversible emotional damage. SB 1172 18
suppresses information and ideas, and therefore is unconstitutional. 19
SB 1172 exemplifies the Legislatures desire to suppress a particular treatment for 20
unwanted same-sex attractions and its unconstitutional means of doing so. SB 1172 states that 21
[u]nder no circumstances shall a mental health provider engage in [SOCE therapy] with a 22
patient under 18 years of age, see Compl. 33. However, in 2009, the Legislature passed a law 23
25
stating that a minor who is 12 years of age or older may consent to mental health treatment or 1
counseling services if, in the opinion of the attending professional person, the minor is mature 2
enough to participate . . . . Ca. Health & Safety Code 124260(b) (West 2012). In other words, 3
the Legislature is seeking to ban minors outright from consenting to SOCE therapy but at the 4
same time deems those age 12-18 as competent enough to consent to mental health treatment. 5
That inconsistency further discredits Defendants argument that SB 1172 is designed to protect 6
the health and safety of minors and indicates that Defendants true motivation is to suppress any 7
kind of therapy that seeks to reduce unwanted same-sex attractions. Such a law is simply 8
unconstitutional. 9
II. SB 1172 IRREPARABLY HARMS PLAINTIFFS. 10
It is well established that the deprivation of constitutional rights unquestionably 11
constitutes irreparable injury. Melendres v. Arpaio, 2012 WL 4358727 *9 (9th Cir. 2012) 12
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). This is especially true where the freedom of 13
speech is at risk because the loss of such freedom even for minimal periods of time constitutes 14
irreparable harm. Elrod, 427 U.S. at 373; see also New York Times Co. v. United States, 403 U.S. 15
713 (1971); Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012); Lydo Enters., Inc. v. 16
City of Las Vegas, 745 F.2d 1211, 1214 (9th Cir. 1984). These principles are so well-founded 17
that an alleged constitutional infringement will often alone constitute irreparable harm. 18
Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Associated Gen. 19
Contractors v. Coal. for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991)). 20
SB 1172 inflicts a host of irreparable constitutional injuries upon Californias therapists, 21
parents, and minors. Judge Kozinskis concurrence in Conant aptly describes the nature of the 22
irreparable injury suffered by the therapist Plaintiffs in this case. Conant, 309 F.3d at 639-40 23
(Kozinski, J., concurring). By speaking candidly to their patients about the potential benefits of 24
26
medical marijuana, [doctors] risk losing their license to write prescriptions, which would prevent 1
them from functioning as doctors. In other words, they may destroy their careers and lose their 2
livelihoods. Id. In this case, by speaking candidly to their clients about potential benefits of 3
SOCE therapy, the therapist Plaintiffs risk losing their licenses, which would prevent them from 4
functioning as therapists and thereby destroy their livelihoods. Furthermore, it is impossible to 5
comply with both SB 1172 and all of the other provisions of the ethics codes. SB 1172 prohibits 6
professional counselors from any practices that . . . eliminate or reduce sexual or romantic 7
attractions or feelings toward individuals of the same sex. Compl. 34. However, Plaintiffs 8
ethical codes require that they respect the clients right to self-determination and to align their 9
counseling with their religious and moral values.
26
It will become impossible to comply with 10
these codes and with SB 1172. In addition, counselors who have a sincerely-held religious belief 11
to offer religiously-based counsel will be unable to do so under SB 1172. Also, SB 1172 12
prohibits therapists from respecting their clients and clients parents choices, even if the minor 13
desires the therapy and the parents believe that it is in the best interest of the child. It is irrational 14
and illogical to force physicians, psychiatrists, psychologists, and counselors to choose between 15
violating the ethical codes and complying with SB 1172, or vice versa. This is especially true 16
when each professions ethical codes already protect minors, which is ostensibly the purpose 17
behind SB 1172.. 18
If this court does not enjoin SB 1172, Plaintiffs-Parents will suffer the loss of their 19
constitutional right to direct the upbringing and education of their children, which per se 20
constitutes irreparable harm. Melendres, 2012 WL 4358727 at *9 (the deprivation of 21
constitutional rights unquestionably constitutes irreparable injury.). SB 1172 aims to 22

26
See Complaint, 37, 41, 46, 49, 52, 53
27
homogenize all California children by permitting counselors to provide only neutral or gay- 1
affirming therapy. Plaintiff-Parents, Jack and Jane Does 1 and 2 object to this government- 2
approved therapy for their respective male children, including John Doe 1 and John Doe 2, based 3
on their sincerely-held religious beliefs. See Jack Doe 1 Decl. 15; Jane Doe 1 Decl. 15; Jack 4
Doe 2 Decl. 6; Jane Doe 2 Decl. 6. Indeed, Mr. and Mrs. Doe 1 are Christians who believe in 5
the authority of the Bible, which states that homosexuality harms people. Mr. and Mrs. Doe 2 are 6
a practicing Muslim and a practicing Roman Catholic, respectively, whose shared religious 7
beliefs include the Biblical prohibition against homosexual conduct. In accordance with these 8
religious beliefs and in direct contradiction to SB 1172, Plaintiff-Parents wish for their respective 9
sons to continue to receive therapy that decreases same-sex attractions and affirms the natural 10
attractions between men and women so that their sons can achieve their full, God-given 11
heterosexual potential. See Jack Doe 1 Decl. at 11; Jane Doe 1 Decl. 10; Jack Doe 2 Decl. 12
15; Jane Doe 2 Decl. 15. Through the SOCE therapy efforts of Dr. Nicolosi, John Doe 1 has 13
experienced a decrease in same-sex attractions and an increase in attractions for women while 14
also experiencing less personality disorder issues, less obsessive-compulsive behaviors, and 15
improved relationships with his parents. See Jack Doe 1 Decl. 11; Jane Doe 1 Decl. 10. 16
Through the SOCE therapy efforts of Dr. Nicolosi, John Doe 2 has experienced a stronger bond 17
with his parents and decreasing confusion about sexual orientation. Jack Doe 2 Decl. 15; Jane 18
Doe 2 Decl. 15. In light of this progress, the Plaintiffs-Parents fear regression in their 19
respective childs healing if they cannot continue receiving SOCE therapy. See Jack Doe 1 Decl. 20
12; Jane Doe 1 Decl. 11; Jack Doe 2 Decl. 16; Jane Doe 2 16. But, effective January 1, 21
2013, SB 1172 will cut off this avenue of therapy for the Plaintiff-Parents and thereby sever their 22
28
constitutionally-protected right to direct the upbringing of their children. Only an injunction by 1
this court can prevent this irreparable harm from occurring. 2
When SB 1172 becomes effective, Plaintiffs-Minors, John Does 1 and 2, will likewise 3
face the loss of their First Amendment right to receive medical information, which 4
unquestionably constitutes irreparable harm. Elrod, 427 U.S. at 373; see also New York Times 5
Co. v. United States, 403 U.S. 713 (1971); Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 6
2012); Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1214 (9th Cir. 1984). As discussed 7
above, this constitutional right takes on special importance in the patient-client context because 8
patients cut off from professional advice are left to make critical medical decisions on their own. 9
See Conant, 309 F.3d at 622 (Enforcement of the federal policy will cut such patients off from 10
competent medical advice and leave them to decide on their own whether to use marijuana to 11
alleviate excruciating pain, nausea, anorexia or similar symptoms.) (Kozinski, J., concurring). 12
John Doe 1 and John Doe 2 struggle with unwanted same-sex attractions. See John Doe 1 Decl. 13
9-10 ; Jack Doe 2 Decl. 5. Both want to minimize same-sex attractions and feminine 14
behaviors and to increase their attractions to women so that they may fully realize their potential 15
as heterosexual men. See John Doe 1 Decl. 10, 14; Jack Doe 2 Decl. 16. In pursuit of these 16
ends, they have voluntarily sought and received SOCE therapy. Abruptly stopping the therapy 17
will result in immediate and irreparable harm. Plaintiffs-Minors allegations alone are sufficient 18
to show a likelihood of irreparable injury, Monterey Mech. Co., 125 F.3d at 715 (an alleged 19
constitutional infringement will often alone constitute irreparable harm.). When combined with 20
the allegations of the other Plaintiffs, make the likelihood even clearer. 21
III. PLAINTIFFS INJURIES OUTWEIGH ANY HARM TO DEFENDANTS. 22
Granting an injunction will preserve the status quo and protect Plaintiffs First 23
Amendment and parental rights. If an injunction is not issued, professional counselors will be 24
29
subject to a hopelessly irreconcilable choice of ethical violations, and minors will be unable to 1
receive desired counseling that aligns with their religious and moral values. An injunction in this 2
case will protect the very rights that the Supreme Court has characterized as lying at the 3
foundation of free government of free men. Schneider v. New Jersey, 308 U.S. 147, 151 (1939). 4
The loss of such fundamental freedoms outweighs any interest Defendants might have in halting 5
SOCE therapy, for which there is nothing more than anecdotal evidence of harm to some 6
unnamed people. See SB 1172, 1(d). The only potential injury that Defendants could try to 7
assert is that an injunction will permit Plaintiffs and others to continue therapy that some 8
legislators speculate might be harmful despite the fact that the therapy is not proscribed as 9
harmful by the ethical codes of all the relevant professions. Since the injury caused to Plaintiffs 10
is the total loss of First Amendment freedoms involving the doctor-patient relationship as well as 11
the infringement of fundamental parental rights, and Plaintiffs cannot comply with SB 1172 12
without violating other provisions of their ethical codes, the balance of the equities strongly 13
favors granting the injunction. 14
Even if constitutional violations are not clearly established at the preliminary injunction 15
phase, the fact that a case raises serious First Amendment questions compels a finding that there 16
exists the potential for irreparable injury, or that at the very least the balance of hardships tips 17
sharply in [movants] favor. Sammartano v. First Judicial District, in & for Cnty. of Carson 18
City, 303 F.3d 959, 973 (9th Cir. 2002). Certainly, SB 1172 raises serious constitutional 19
questions concerning the First Amendment rights of professional counselors and the fundamental 20
right of parents to direct the upbringing and education of their children. As such, the balance of 21
hardships tips strongly in favor of granting Plaintiffs requested relief. 22
30
IV. THE INJUNCTION WILL SERVE THE PUBLIC INTEREST. 1
The protection of constitutional rights is of the highest public interest. Elrod v. Burns, 2
427 U.S. 347, 373 (1976). [I]t is always in the public interest to prevent the violation of a 3
partys constitutional rights. G & V Lounge, Inc. v. Mich. Liquor Control Commn, 23 F.3d 4
1071, 1079 (6th Cir. 1994). Here, SB 1172 eliminates Plaintiffs right to discuss all available 5
treatment options with minor patients, infringing the First Amendment rights of Plaintiffs. 6
The focus of the public interest inquiry is generally focused on how the challenged law 7
will affect non-parties. Sammartano, 303 F.3d at 974. Here, the detrimental effect on non-parties 8
is virtually limitless. No minor patient will ever be able to obtain SOCE therapy from a 9
professional counselor regardless of the patients sincerely-held religious beliefs about same-sex 10
attractions or his desire to eliminate unwanted same-sex attractions. Permitting such an 11
unconstitutional government infringement of the doctor-patient relationship opens a potential 12
Pandoras Box of regulations that will forever change the relationship between patients and their 13
doctors and preventing such an unprecedented intrusion is unquestionably in the public interest. 14
CONCLUSION 15
For the foregoing reasons, Plaintiffs respectfully request that this Court grant the 16
Preliminary Injunction. 17
18
/s/ Mary E. McAlister 19
Mary E, McAlister SBN 148570 20
Mathew D. Staver* 21
LIBERTY COUNSEL 22
Attorneys for Plaintiffs 23
P.O. Box 11108 24
Tel. 434-592-7000 26
Fax: 434-592-7700 27
court@LC.org 28
* Admitted Pro Hac Vice 29
31
CERTIFICATE OF SERVICE 1
I hereby certify that I have this 22nd day of October, 2012, I filed the foregoing Motion 2
electronically through the CM/ECF system, which caused the following parties or counsel to be 3
served by electronic means, as more fully reflected in the Notice of Electronic Filing: 4
5
DAVID C. DINIELLI (SB No. 177904) 6
David.Dinielli@mto.com 7
LIKA C. MIYAKE (SB No. 231653) 8
Lika.Miyake@mto.com 9
BRAM ALDEN (SB No. 272858) 10
Bram.Alden@mto.com 11
MUNGER, TOLLES & OLSON LLP 12
355 South Grand Avenue, Thirty-Fifth Floor 13
Los Angeles, CA 90071-1560 14
Telephone: (213) 683-9100 15
Facsimile: (213) 687-3702 16
17
MICHELLE FRIEDLAND (SB No. 234124) 18
Michelle.Friedland@mto.com 19
MUNGER, TOLLES & OLSON LLP 20
560 Mission Street, Twenty-Seventh Floor 21
San Francisco, CA 94105-2907 22
Telephone: (415) 512-4000 23
Facsimile: (415) 512-4077 24
Attorneys for EQUALITY CALIFORNIA 25
Proposed Intervenor 26
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SHANNON MINTER (SB No. 168907) 41
SMinter@nclrights.org 42
CHRISTOPHER STOLL (SB No. 179046) 43
cstoll@nclrights.org 44
NATIONAL CENTER FOR LESBIAN 45
RIGHTS 46
870 Market Street, Suite 360 47
San Francisco, CA 94102 48
Telephone: (415) 392-6257 49
Facsimile: (415) 392-8442 50
51
KAMALA D. HARRIS, State Bar No. 146672 52
Attorney General of California 53
TAMAR PACHTER, State Bar No. 146083 54
Supervising Deputy Attorney General 55
PAUL STEIN, State Bar No. 184956 56
Deputy Attorney General 57
455 Golden Gate Avenue, Suite 11000 58
San Francisco, CA 94102-7004 59
Telephone: (415) 703-5740 60
Fax: (415) 703-1234 61
E-mail: Paul.Stein@doj.ca.gov 62
Attorneys for California State Defendants 63
64
s/ Mary E. McAlister 65
Mary E, McAlister 66
California Bar No. 148570 67
LIBERTY COUNSEL 68
Attorneys for Plaintiffs 69
P.O. Box 11108 70
Tel. 434-592-7000 72
Fax: 434-592-7700 73
court@LC.org 74
75
1 Mary E. McAlister
2 California Bar Number 148570
3 Liberty Counsel
4 P.O. Box 11108
5 Lynchburg, V A 24506
6 (434) 592-7000 (telephone)
7 (434) 592-7700 (facsimile)
8 court@]c.org Email
9 Attorney for Plaintiffs
10
11 UNITED STATES DISTRICT COURT
12 EASTERN DISTRICT OF CALIFORNIA
13 SACRAMENTO DIVISION
14
15 DAVID PICKUP, CHRISTOPHER H.
16 ROSIK, PH.D., JOSEPH NICOLOSI, PH.D,
17 ROBERT V AZZO, NATIONAL ASSOCIATION FOR
18 RESEARCH AND THERAPY OF HOMOSEXUALITY
19 (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN
20 COUNSELORS (AACC), JOHN DOE 1, by and through JACK
21 AND JANE DOE 1, JACK DOE I, individually, and
22 JANE DOE 1, individually,
23 JOlIN DOE 2, by and through JACK
24 AND JANE DOE 2, JACK DOE 2, individually, and
25 JANE DOE 2, individually
26
27
28
Case No.:, ________ _
29 Plaintiffs
30 v.
31
32 EDMUND G. BROWN, Jr. Governor of the State
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of California, in his official capacity, ANNA
M. CABALLERO, Secretary of the California
State and Consumer Services Agency, in her
offiCial capacity, KIM MADSEN, Executive
Officer of the California Board of Behavioral
Sciences, in her official capacity, MICHAEL
ERICKSON, PH.D, President of the California
Board of Psychology, in his official capacity; SHARON
LEVINE, President of the Medical Board of California,
I in h" uffid,' ':;::M"
DEC LARA nON OF DR. CHRISTOPHER ROSIK
1
Case 2:12-cv-02497-KJM-EFB Document 3-3 Filed 10/04/12 Page 1 of 5 Case 2:12-cv-02497-KJM-EFB Document 28-1 Filed 10/22/12 Page 1 of 5
I, Dr. Christopher Rosik, hereby declare as follows:
1. I am over the age of 18 and am one of the Plaintiffs in this action, The statements in this
Declaration are true and correct and if called upon (0 testify to them I would and could do so
competently.
2. I am submitting this Declaration In support of Plaintiffs' Motion for a Preliminary
Injunction.
3. I am a Phi Beta Kappa graduate of the University of Oregon's honors college and
graduated with a Bachelor of Arts in Psychology in 1980. I also studied one semester at the University
of Copenhagen, Denmark while completing my undergraduate work. I received a Master of Alts in
Theological Studies from the Fuller Graduate School of Psychology, Fuller Theological Seminary in
1984. I received a Doctor of Philosophy degree in Clinical Psychology from the Fuller Graduate School
of Psychology, Fuller Theological Seminal), in 1986. I am a clinical psychologist licensed by the State
of California and have been so licensed since 1988.
4. My practice is located at the Link Care Center, which is a religious, non-profit foundation
III Fresno, California. Link Care Center employs a staff of twelve clinicians, which include
psychologists, marriage and family therapists, a social worker, and an intern, and it also employs
two pastoral counselors. The majority of Link Care Center's clients come to the facility becausc of
its Christian identity and their trust that their Christian values and beliefs will be respected in
treatment.
5. Link Care Center has an intensive outpatient psychotherapy program that serves clergy
from around the country and Protestant ministries from around the world. I served as the Clinical
Director of Link Care's Counseling Center from 1996-1999.
DECLARATION OF DR. CHRISTOPHER ROSIK 2
6. Since 200 I, I have also been on the clinical faculty of Fresno Pacific University, and 1
2 teach a psychology research practicum every year. I have published over 40 mticles and book
3 chapters in peer reviewed journals, many of them on the subject of homosexuality. I am a
4 member of the American Psychological Association and have been a member in good standing
5 since 1984; a member of the International Society for the Study of Trauma and Dissociation and
6 have been a member in good standing since 1992; a member and former-President and board
7 member of the Christian Association of Psychological Studies, Western Region; and am the
8 current President of the National Association for Research and Therapy of Homosexuality
9 ("NARTH").
10 7. My practice at the Link Care Center is comprised of approximately 25-30 clients per
II week, and approximately 5-10 percent of that group involves clients who are dealing with same-
12 sex attraction issues. Of the 5-10 percent that make up my same-sex attraction clients,
13 approximately half are minors. My first step in the process of treatment for those minor clients
14 with same-sex attractions is to figure out what the patient and the parents are hoping to achieve
15 with therapy. The majority of children that come to my office dealing with same-sex attractions
16 are not interested in sexual orientation change efforts ("SOCE") counseling.
17 8. When a minor patient does not want to engage in SOCE counseling, my treatment focus
18 often shifts to helping the parents understand the child's thinking, providing psychoeducation
19 about homosexuality among youth, and working within the parents' religious beliefs to help
20 them love and support their child. Helping parents love their child while valuing their own
21 typically conservative religious faith is key intervention I believe unique to therapists like me
22 who would be subject to SB 1172.
DECLARATION OF DR. CHRISTOPHER ROSIK
3
9, When both the minor client and the parents want SOCE counseling, then J engage in what
I call advanced informed consent, which documents the controversies surrounding SOCE, explains my
therapeutic approach, explains possible contributing factors to the same-sex attractions, and explains
options for therapy, My practice of obtaining this advanced informed consent satisfies the ethical
requirements that J provide all of the information that is reasonable for the client to make an informed
decision concerning their individual course of treatment and that facilitates the autonomous client
decision-making process,
10, SB 1172 would cause me to violate Section 3,10 of the American Psychological
Association's Ethics Code ("APA Code") because SB 1172 would require that J not even discuss
SOCE counseling and where someone could obtain such counseling, Compliance with SB 1172
will force me to violate Section 3,10 of the APA Code and probably also infringe General Ethical
Principle E of the APA Code that J allow the patient the freedom to make a self-determined choice
concerning his therapy, Failure to comply with SB 1172 will itself subject me to possible
disciplinary action,
11, Because of this impossible Catch-22, SB 1172 is certain to cause irreparable harm to my
practice by putting my professional license in jeopardy without providing any clear understanding of
how to comply with all of the requirements of the counseling profession,
12, SB lin will also cause me to violate Section 3,06 of the APA Code by causing me to
enter into a relationship where my objectivity is called into question especially since SB lin
mandates that only one ideology ____ i,e" the government's ideology concerning SOCE-be shared
in the counselor's office,
13, SB 1172 improperly interferes with client autonomy, For those who desire SOCE
counseling for their unwanted same-sex attractions, implementation of SB 1172 will cause
DECLARATION OF DR, CHRISTOPHER ROSIK 4
immediate and irreparable harm by precluding them from accessing helpful therapy that the
2
client desires.
3
33. I declare under penalty of perjury under the laws of the United States and the State of
4 California that the foregoing statements are true and accurate.
5
6
7
8
9
Executed this 2nd day of October. 2012.
/ ''j) r..,,1
~ ~ ( ~
'--=-----
Christopher Rosik
DECLARATION OF DR. CHRISTOPHER ROSIK
5
1 Mary E. McAlister
3 Liberty Counsel
4 P.O. Box 11108
5 Lynchburg, VA 24506
6 (434) 592-7000 (telephone)
7 (434) 592-7700 (facsimile)
8 court(ill,lc.org Email
10
14
17 ROBERT VAZZO, NATIONAL ASSOCIATION FOR
20 COUNSELORS (AACC), JOHN DOE I, by and through JACK
21 AND JANE DOE I, JACK DOE I, individually, and
22 JANE DOE 1, individually,
23 JOHN DOE 2, by and through JACK
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Case No.: ________ _
32
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Plaintiffs
v.
EDMUND G. BROWN, Jr. Governor of the State
ojJicial capacity, KIM MADSEN, Executive
Officer ofthe California Board of Behavioral
Sciences, il1 her o.fficial capacity, MICHAEL
I;' h" "o;d"' '::::'""
DEC LARA TlON OF DA VlD PRUDEN
1
1
2 I, David Pruden, hereby declare as follows:
3 1. I am over the age of 18 and am one of the Plaintiffs in this action. The statements in this
4 Declaration are true and correct and if called upon to testify to them I would and could do so
5 competently.
6 2. I am submitting this Declaration in support of Plaintiffs' Motion for a Preliminary
7 Inj uncti on.
8 3. I am the Vice President of Operations for the National Association for Research and
9 Therapy of Homosexuality (NARTH). NARTH has hundreds of affiliated counselors,
10 psychologists, and psychotherapists and 14 of those members practice in California. NARTH is a
II professional, scientific organization that offers hope to those who struggle with unwanted same-
12 sex attractions. As an organization, NARTH disseminates educational infonnation, conducts and
13 collects scientific research, promotes effective therapeutic treatment, and provides international
14 referrals to those who seek its assistance.
15 4. NARTH is engaged in extensive research concernmg individuals who have
16 successfully reduced or eliminated their unwanted same-sex attractions and the psychological
17 factors that are typically associated with a homosexual lifestyle. NARTH offers scholarly
18 publications and educational inionnation to the general public. NARTH provides various
19 presentations across the country hosted by mental health professionals who specialize in what is
20 referred to as sexual orientation change efforts ("SOCE") counseling.
21 5. NARTH advocates for an open discussion of all viewpoints concerning SOCE
22 counseling and its potential benefits or harms to patients. NARTH supports the rights of
23 individuals with unwanted same-sex attractions to receive effective psychological care, including
24 SOCE counseling, and the rights of professionals to offer that care.
DECLARATION OF DA VID PRUDEN
2
1 6. NAR TIf does not advocate for or support imposing its ideolo!lY on any patient
2 and seeks to offer the course of treatment desired by the patient in accordance with the patient's
3 right to self-determination.
4 7. SB 1172 prohibits mental health providers from engaging in SOCE counseling,
5 defined as "any practices by mental health providers that seek to change an individual's sexual
6 orientation." NARTIf's dissemination of educational information regarding same-sex attractions
7 and promotion of effective therapeutic treatment for those with unwanted same-sex attractions
8 falls within the category of conduct SB 1172 prohibits. Disseminating information about, and
9 providing referrals for, SOCE counseling would place its licensed professional members at risk
10 of being fonnd in violation of their respective professional codes of conduct.
11
12
13
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15
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17
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19
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22
8. Nl\.RTH members currently have clients who receive SOCE treatment In
California. Some of the clients of NARTH members are minors who would lose all ability to
continue receiving the SOCE counseling that they desire. These minor clients would suffer
regression in their course of treatment as a result of their counselor being prohibited from
continuing to offer the treatment desired by the client. Even though SB 1172 has become law,
NARTH members will continue to have clients approach them concerning a desire to reduce or
eliminate unwanted same-sex attractions. In fact, some NARTH members report tllat five to ten
percent of their practices involve SOCE counseling and that nearly half of those seeking such
counseling are minors.
9. SB 1172 will cause NARTH, its members, and clients of its members to suffer
immediate and irreparable injury as it will censor the speech of NARTH members and deprive
clients of beneficial psychological counseling and treatment.
DECLARA nON OF DAVID PRUDEN
3
1
2
3
4
5
10. I declare under penalty of perjury of the laws of the United States and California
that the foregoing statements are true and accurate.
Executed this 2nd day of October, 2012. C')
~ I J (1
"'<'\ r A ~
DavId"? uden
DECLARATION OF DA VIn PRUDEN
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Mary E. McAlister
California Bar Number 148570
Liberty Counsel
P.O. Box 11108
Lynchburg, VA 24506
(434) 592-7000 (telephone)
(434) 592-7700 (facsimile)
court(@.1c.org Email
Attorney for Plaintiffs
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
DAVID PICKUP, CHRISTOPHER H.
ROSIK, PH.D., JOSEPH NICOLOSL PH.D,
ROBERT V AZZO, NATIONAL ASSOCIATION FOR
RESEARCH AND THERAPY OF HOMOSEXUALITY
(NARTH), AMERICAN ASSOCIATION OF CHRISTIAN
COUNSELORS (AACC), JOHN DOE 1, by and through JACK
AND JANE DOE 1, JACK DOE 1, individually, and
JANE DOE I, individually,
JOHN DOE 2, by and through JACK
JANE DOE 2, individually
Case No. : _______ _
Plaintiffs
v.
EDMUND G. BROWN, Jr. Governor ofthe State
of California, in his offiCial capacity, ANNA
M CABALLERO, Secretary of the California
offiCial capacity, KIM MADSEN, Executive
Sciences, in her offiCial capacity, MICHAEL
I in her
DECLARATION OF JACK DOE 2
1
1
2
3
4 1.
I, Jack Doe 2, hereby declare as follows:
I am over the age of 18 and am one of the Plaintiffs in this action. The statements in this
6 competently.
8 Injunction.
9 3. I am the father of John Doe 2, who is fourteen years old and my middle child When my
10 son John Doe 2 was a young child, I had a much different personality than him; I enjoyed sports,
11 and I bonded much better with my oldest son. Some might say I am a sports fanatic. Despite my
12 anger issues and short fuse, I still was able to bond well with my oldest son, simply because of
13 his own strong personality. My younger son, John Doe 3, was a different story. He was more
14 sensitive, and my parenting style did not sync with his personality.
15 4. My son began exhibiting gender-dysphoric behaviors growing up. He was inclined to
16 play with dolls, and he fixated more on the doll's hair than was normal for a boy his age. My
17 wife and I thought this was odd, but teachers at school and therapists encouraged us not to bother
18 him about these issues, and to let it go, to avoid future repercussions. We listened to them, and
19 my son became more and more fixated on dolls and their hair, and adopted effeminate
20 mannerisms. Instead of using the parenting techniques that I have learned from Dr. Nicolosi's
21 therapy such as Affirmation, Attention, and Approval, I used anger and punishment as methods
22 to show my son that I did not approve of his behavior. Now I know that method may have been
23 counter-productive. I have dramatically changed my parenting style for the better as a direct
24 result of the family therapy with Dr. Nicolosi and his staff.
2
1 5. My son is now 14 years old. Approximately six months ago, he began to enter
2 adolescence. During this time, he came to my wife and me, and told us that he was "confused."
3 We asked him what he meant, and to explain further what he was confused about. He said, 'Tm
4 confused about whether I like boys or girls - I think I like both." He expressed that he was
5 disturbed by these feelings, because he loves God, and wants to do what is right, according to his
6 faith in God. He did not want to experience those attractions and did not want to act on them. He
7 asked us if we could help him to eliminate his unwanted same-sex attractions.
8 6. I didn't know what to do. I was born in a Muslim country, and raised here in the United
9 States. I am a Muslim; my wife is Catholic. We raise our children in a mixed-faith household,
10 and all of our children believe in and love God. Homosexuality is inconsistent with both of our
11 religions, and is against the faith of our children.
12 7. I began researching options to help my son reconcile his same-sex attractions and
13 confusion over his sexual identity consistent with his personal religious beliefs. He prays every
14 night to God, and wants to be acceptable to God. I told him, "God loves you - and He's here to
15 help you."
16 8. In my search for answers, I found someone who specialized in helping children who
17 struggle with unwanted same-sex attractions. I found out about Dr. Joseph Nicolosi, whom I
18 learned was a specialist in sexual orientation change efforts ("SOCE") counseling. I researched
19 Dr. Nicolosi's material, and what others who did not agree with him had to say. I watched his
20 YouTube videos, and I read his book After my investigation of his approach, my wife and I
21 contacted Dr. Nicolosi to discuss the possibility that our son would be able to benefit from his
22 SOCE counseling sessions.
3
During our conversations with Dr. Nicolosi, he explained to us his theory of why my son
2 was experiencing same-sex attractions, which he said were really the manifestation of underlying
3 . emotional issues. Dr. Nicolosi explained that some of my son's emotional and personal identity
4 issues were the result of childhood wounds that were caused by childhood needs of my son that I
5 ' did not meet. In particular, his gender and sexual identity issues had as core, underlying issues
6 the fact that I did not provide positive male attention for my son, which led him to find
7 affirmation and acceptance from the women in the home, and caused him to adopt female
8 mannerism in an attempt to obtain acceptance from them.
9 10. Dr. Nicolosi explained the types of counseling that he uses in SOCE counseling sessions,
10 explained that some therapists do not think an individual can or should change his sexual
11 orientation, explained that not everyone is able to successfully reduce or eliminate their
12 unwanted same-sex attractions, and told us that often patients continue to struggle with same-sex
13 attractions throughout life and that my son's ability to fully recognize his heterosexual potential
14 is a life-long process.
15 II. I sought counsel from my brother, and from my spiritual leaders at my local Islamic
16 Center and Mosque about working with Dr. Nicolosi. I had found no specific mechanism dealing
17 with this issue in the Islamic world, beyond verses in the Qu'ran. I explained to my imam what I
18 . had found with Dr. Nicolosi, and my imam told me to continue on this path.
19 12. I asked my son whether he would like to go to counseling together as a family, to seek
20 answers to his confusion over his identity and whether he was attracted to boys or girls. I
21 approached my son with the idea of therapy as a family - I suggested we could go as a family, to
22 i help him figure out why he was confused over his identity, to get to the bottom of things, and
23 hopefully solve his confusion. I told him the natural way that God intended for us to live was as a
4
1 husband and wife, like his mother and me, and his grandparents. I asked him if he would like to
2 go to therapy like this, and he said okay. He did not fight to avoid therapy; he was completely in
3 agreement with my suggestion.
4 13. My wife was a bit skeptical at first, because of how the media has described this sort of
5 therapy. However, after going to the first session and to future sessions, she has come to really
6 appreciate the way that it is done. Nothing is done through "shock therapy." Everything is done
7 in a really loving way. The therapy teaches us to bond together as a family. The therapy has
8 helped me personally bond with my son, to overcome how I was raised. I have learned to include
9 ' ~ h e three A's" - affirmation, affection, and approval- in my interaction with my son. During the
10 past three and a half months, my son and I have grown closer than we have ever been in the past
11 13 years. The therapy has also helped me to get closer with my oldest son and my two sons have
12 began to bond more than they ever have before.
13 14. My wife, son, and I have been receiving counseling from Dr. Nicolosi for three and a half
14 months now. The therapy has primarily centered on my wife and I as mom and dad. The thernpy
15 explains how I as a dad must change my own behavior, and the family dynamic, because my
16 behavior and how I relate to my son is key. Because my son is young, the sessions focus on
17 helping him understand his masculinity and gender. My son really looks forward to the time he
18 is able to spend with Dr. Nicolosi during our SOCE counseling sessions.
19 15. Because of Dr. Nicolosi's counseling sessions, we have noticed significant changes in our
20 son, such as the fact that he acts more like a regular teenage boy who is growing more
21 comfortable in his own masculinity. My son, who has always been a sensitive child, is trying
22 more physical activity. He is confident and unafraid to try new things, such as karate, which he
23 really enjoys. He and I are relating better to one another. He has told my wife and me that he no
5
1 longer experiences the anxiety and confusion as frequently as he did prior to counseling. Our son
2 has said that he wants to continue the sessions and my wife and I would like for our son to
3 continue his counseling sessions with Dr. Nicolosi.
4 16. Based upon his progress so far, I believe that if my son can continue SOCE counseling
5 sessions with Dr. Nicolosi, then he will be able to continue to make progress towards his stated
6 goal of eliminating his unwanted same-sex attractions in a manner consistent with his religious
7 convictions. I also believe that if Dr. Nicolosi is not allowed to continue to provide the SOCE
8 counseling that my son wants, then my son might regress from the progress he has made in
9 SOCE counseling. Our son has told us that he is concerned that if Dr. Nicolosi is no longer
10 allowed to provide SOCE counseling to him then he will have a harder time dealing with his
11 confusion over his attractions.
12 17. The counseling has also improved the relationship my wife and I have with our son I
13 think my relationship with our son will continue to improve if he is allowed to continue to have
14 SOCE counseling, but that it could regress if our son is unable to address the gender and sexual
15 identity issues that he has been troubled about.
16 18. Our son has at all times been the one who has wanted to participate in SOCE counseling
17 with Dr. Nicolosi. If our son had resisted in the slightest way going to therapy, my wife and I
18 would not have forced him. Everything my wife and I have done, we have asked him, "Hey,
19 what do you think about this - do you think this would be a good change for you?" He has
20 always responded, "Yeah, I'd like that." My wife and I have affirmed his choice and engaged the
21 services of Dr. Nicolosi on his behalf, but have not pressured him into attending or continuing
22 the counseling sessions. Our son tells us that he wants to continue the treatment.
r
o
1 19. Our son has told us that he wants to live a life that is free from his unwanted same-sex
2 attractions. As parents who believe that the homosexual lifestyle is emotionally and physically
3 harmful as well as against our religious beliefs, we have the right to help our son get the therapy
4 he desires without the state interfering with our decision.
5 20. Regardless of whether the therapy works or not in ultimately helping my son to reach his
6 heterosexual potential, it has eased both his mind and my mind, has helped me bond with my son
7 more, has helped him bond with his older brother, and has helped us all bond together as a
8 family.
9 21. I declare under penalty of peIjury of the laws of the United States and California that the
10 foregoing statements are true and accurate.
11
12
13
14
15
16
Executed this 3rd day of October, 2012.
lack Doe 2
7
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Mary E. McAlister
California Bar Number 148570
Liberty Counsel
P . .o. Box 11108
Lynchburg, VA 24506
(434) 592-7000 (telephone)
(434) 592-7700 (facsimile)
court@lc.org Email
Attorney for Plaintiffs
UNITED STATES DISTRICT C.oURT
EASTERN DISTRICT .oF CALIFORNIA
SACRAMENT.o DIVISI.oN
DAVID PICKUP, CHRIST.oPHER H.
R.oSIK, PH.D., J.oSEPH NIC.oL.oSI, PH.D,
R.oBERT V AZZ.o, NATIONAL ASSOCIATI.oN F.oR
RESEARCH AND THERAPY .oF H.oM.oSEXUALITY
(NARTH), AMERICAN ASSOCIA TI.oN .oF CHRISTIAN
COUNSEWRS (AACC), J.oHN ooE I, by and through JACK
AND JANE ooE 1, JACK D.oE 1, individually, and
JANE ooE 1, individually,
J.oHN DOE 2, by and through JACK
JANE DOE 2, individually
28 Case No.: _______ _
29
30
31
v.
Plaintiffs
32 EDMUND G. BR.oWN, Jr. Governor of the State
33 of California, in his official capacity, ANNA
34 M. CABALLER.o, Secretary of the California
35 State and Consumer Services Agency, in her
36 official capacity, KIM MADSEN, Executive
37 .officer of the California Board of Behavioral
38 Sciences, in her official capacity, MICHAEL
39 ERICKS.oN, PH.D, President ofthe California
40 Board of Psychology, in his official capacity; SHARON
41 LEVINE, President of the Medical Board of California,
E I in her offwWl :::u
45
DECLARATION OF JANE DOE 2
1
1 DECLARATION OF JANE DOE 2
2
3
4 J, Jane Doe 2, hereby decJare as foJIows:
5 1. J am over the age of 18 and am one of the Plaintiffs in this action. The statements in this
7 competently.
9 Injunction.
10 3. I am the mother of John Doe 2, who is fourteen years old and my middle child. When my
11 son John Doe 2 was a young child, he was very attached to me until the age of about 6 years old.
12 My husband had a much different personality than my son; he enjoyed sports and was more
13 outspoken. My husband was very loving and caring with both our sons but our oldest was not as
14 sensitive as our younger son. I did not understand this at the time. When he got older, the issues
15 became more prominent. As a preschool teacher I learned during my childcare classes that a
16 parent or teacher should not inhibit a child's imagination, otherwise major repercussions could
17 appear when he is older. Unfortunately, we took professional advice from certain therapists and
18 teachers, and took them to heart, because we did not know there was any other type of therapy
19 out there that could help us. The advice was to ignore the behaviors, and he will just grow out of
20 them. This is what society told us at the time was the only option. Now we know better, and we
21 are very grateful and relieved to know that there is other therapy out there, regardless of our
22 son's eventual sexual identity outcome.
23 4. My son began exhibiting gender-dysphoric behaviors growing up. He was incJined to
24 play with dolls, and he fixated more the doll's hair than was normal for a boy his age. My
25 husband and I thought this was odd, but teachers at school and therapists encouraged us not to
2
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4
5
6
7
8
9
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23
bother him about these issues, and to let it go, to avoid future repercussions. We listened to them,
and my son became more and more fixated on the dolls and the doll's hair, and adopted
effeminate mannerisms.
5. My son is now 14 years old. Approximately six months ago, he began to enter
adolescence. During this time, he came to my husband and me, and told us that he was
"confused." We asked him what he meant, and to explain further what he was confused about.
He said, "I'm confused about whether I like boys or girls - I think I like both." He expressed that
he was disturbed by these feelings, because he loves God, and wants to do what is right,
according to his faith in God. He did not want to experience those attractions and did not want to
act on them. He asked us if we could help him to eliminate his unwanted same-sex attractions.
6. We didn't know what to do. My husband was born in a Muslim country, and raised here
in the United States. He is Muslim; I am Catholic. We raise our children in a mixed-faith
household, and all of our children believe in and love God Homosexuality is inconsistent with
both of our religions, and is against the faith of our children.
7. My husband and I began researching options to help my son reconcile his same-sex
attractions and confusion over his sexual identity consistent with his personal religious beliefs.
Our son prays every night to God, and wants to be acceptable to God. My husband told him,
"God loves you - and He's here to help you.
8. My husband found out about Dr. Joseph Nicolosi, whom I learned was a specialist in
sexual orientation change efforts ("SOCE") counseling. My husband researched Dr. Nicolosi's
material, and what others who did not agree with him had to say. He watched his YouTube
videos, and read his book. We contacted Dr. Nicolosi to discuss the possibility that our son
would be able to benefit from his SOCE counseling sessions.
3
1 9. During our conversations with Dr. Nicolosi, he explained to us his theory of why my son
2 was experiencing same-sex attractions, which he said were really the manifestation of underlying
3 emotional issues. Dr. Nicolosi explained that some of my son's emotional and personal identity
4 issues were the result of childhood wounds that were caused by childhood needs of my son that
5 my husband did not meet. In particular, his gender and sexual identity issues had as core,
6 underlying issues the fact that he did not provide positive male attention for our son, which led
7 him to find affirmation and acceptance from me as a woman, and caused him to adopt female
8 mannerism in an attempt to obtain my acceptance.
9 to. Dr. Nicolosi explained the types of counseling that he uses in SOCE counseling sessions,
10 explained that some therapists do not think an individual can or should change his sexual
11 orientation, explained that not everyone is able to successfully reduce or eliminate their
12 unwanted same-sex attractions, and told us that often patients continue to struggle with same-sex
13 attractions throughout life and that my son's ability to fully recognize his heterosexual potential
14 is a life-long process.
15 12. My husband asked my son whether he would like to go to counseling together as a
16 family, to seek answers to his confusion over his identity and whether he was attracted to boys or
17 girls and to get help with the anxiety affecting our son from this confusion. My husband
18 approached my son with the idea of therapy as a family - he suggested we could go as a family,
19 to help my son figure out why he was confused over his identity, to get to the bottom of things,
20 and hopefully solve his confusion. My husband asked him if he would like to go to therapy like
21 this, and he said okay. He did not fight to avoid therapy; he was completely in agreement with
22 my husband's suggestion.
4
1 13. I was certainly a bit skeptical at first, because of how the media has described this sort of
2 therapy. However, after going to the first session and to future sessions, I have come to really
3 appreciate the way that it is done. Nothing is done through "shock therapy." Everything is done
4 in a really loving way. The therapy teaches us to bond together as a family. The therapy has
5 helped my husband to bond with my son, to overcome how my husband was raised. He has
6 learned to include "the three A's" - affirmation, affection, and approval- in his interactions with
7 our son. During the past three and a half months, my son and my husband have grown closer
8 than they have ever been in the past 13 years.
9 14. My husband, son, and I have been receiving counseling from Dr. Nicolosi for three and a
10 half months now. The therapy has primarily centered on my husband and I as father and mother.
11 The therapy explains how a father must change his own behavior, and the family dynamic,
12 because his behavior and how he relates to his son is key. Because my son is young, the sessions
13 focus on helping him understand his masculinity and gender. My son really looks forward to the
14 time he is abJe to spend with Dr. Nicolosi during our SOCE counseling sessions.
15 15. Because of Dr. Nicolosi's counseling sessions, we have noticed significant changes in our
16 son, such as the fact that he acts more like a regular teenage boy who is growing more
17 comfortable in his own masculinity. My son, who has always been a sensitive child, is trying
18 more physical activity. He is confident and unafraid to try new things, such as karate, which he
19 really enjoys. He and his father are relating better to one another. Our son has said that he wants
20 to continue the sessions and my husband and I would like for our son to continue his counseling
21 sessions with Dr. Nicolosi.
22 16. Based upon his progress so far, I believe that if my son can continue SOCE counseling
23 sessions with Dr. Nicolosi, then he will be able to continue to make progress towards his stated
5
1 goal of eliminating his unwanted same-sex attractions in a manner consistent with his religious
2 convictions. I also believe that if Dr. Nicolosi is not allowed to continue to provide the SOCE
3 counseling that my son wants, then my son might regress from the progress he has made in
4 SOCE counseling. Our son has told us that he is concerned that if Dr. Nicolosi is no longer
5 allowed to provide SOCE counseling to him then he will have a harder time dealing with his
6 confusion over his attractions.
7 17. The counseling has also improved the relationship my husband and I have with our son. I
8 think his relationship with our son wi}] continue to improve if he is allowed to continue to have
9 SOCE counseling, but that it could regress if our son is unable to address the gender and sexual
10 identity issues that he has been troubled about.
11 18. Our son has at all times been the one who has wanted to participate in SOCE counseling
12 with Dr. Nicolosi. If our son had resisted in the slightest way going to therapy, my husband and I
13 would not have forced him. Everything my husband and I have done, we have asked him what he
14 thinks about it, and whether he thinks any given thing would be a good change for him. He has
15 always responded, "Yeah, I'd like that." My husband and I have affirmed his choice and engaged
16 the services of Dr. Nicolosi on his behalf, but have not pressured him into attending or
17 continuing the counseling sessions. Our son tells us that he wants to continue the treatment.
18 19. Our son has told us that he wants to live a life that is free from his unwanted same-sex
19 attractions. As parents who believe that the homosexual lifestyle against our religious beliefs, we
20 have the right to help our son get the therapy he desires without the state interfering with our
21 decision.
22 20. Regardless of the outcome of the therapy on our son's life, it has eased my mind and my
23 son's mind. Whether the therapy works or not in ultimately helping my son to reach his
6
1 heterosexual potential, it has helped my husband bond with my son more, has helped him bond
2 with his older brother, and has helped us all bond together as a family. It has also helped my son
3 deal with the anxiety issues that come from this confusion.
4 21. I declare under penalty of perjury of the laws of the United States and California that the
5 foregoing statements are true and accurate.
6
7
8
9
10
11
12
Executed this 3rd day of October, 2012.
~ ~ r
Jane Doe
7
1 Mary E. McAlister
3 Liberty Counsel
4 P.O. Box 11108
5 Lynchburg, VA 24506
6 (434) 592-7000 (telephone)
7 (434) 592-7700 (facsimile)
8 courtw)]c.org Email
10
14
17 ROBERTVAZZO, NATIONAL ASSOCIATION FOR
20 COUNSELORS (AACC), JOHN DOE I, by and through JACK
21 AND JANE DOE I, JACK DOE I, individually, and
22 JANE DOE I, individually,
23 JOHN DOE 2, by and through JACK
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
Plaintiffs
v.
EDMUND G. BROWN, Jr. Governor of the State
o.fficial capacity, KIM MADSEN, Executive
Sciences, in her official capacity, MICHAEL
1
m
h" Offi""i '::::M"
Case
DECLARATION OF DR. JOSEPH NICOLOSI
1
1
2
3
4
5 I.
T, Joseph Nicolosi, hereby declare as follows:
I am over the age of 18 and am one of the Plaintiffs in this action. The statements in this
6 Declaration are true and correct and if called upon to testifY to them I would and could do so
7 competently.
8 2. I am submitting this Declaration III support of Plaintiffs' Motion for a Preliminary
9 Injunction.
lO 3. I am a licensed psychologist in the state of California. I received my Masters of Arts
11 degree in Psychology from the New School for Social Research and my Doctor of Philosophy in
12 Clinical Psychology from the California School of Professional Psychology. I am the Founder
13 and the Clinical Director of the Thomas Aquinas Psychologists Clinic in Encino California.
14 4. I have performed extensive research on the topic of homosexuality and the nature of
15 same-sex attractions and have studied extensively the actual benefits of sexual orientation change
16 efforts ("SOCE") counseling. I have published numerous articles, books, and other scholarly
17 works on the topic of homosexuality and the course of treatment for those individuals who seek
18 to reduce or eliminate their unwanted same-sex attractions. I also have had the oppOliunity to be
19 interviewed and featured on numerous programs to discuss the issue of same-sex attractions and
20 the availability of treatment options for people who wish to eliminate such attractions.
21 5. In my practice, I specialize in the treatment and counseling of males who struggle with
22 unwanted same-sex sexual attractions.
23 6. Prior to engaging in SOCE counseling with patients, I provide them an extensive consent
24 form that outlines the nature of the treatment, the potential benefits and risks, including the fact
25 that some psychotherapists believe that sexual orientation cannot or should not be changed, and
DECLARA nON OF DR. JOSEPH NICOLOSI
2
1 informs the client that success in any method of psychotherapy is not guaranteed and could
2 potentially be harmful. In my consent fonn, I explicitly state that I do not, nor does anyone at my
3 clinic, provide gay-affinning treatment and that clients should seek an alternative therapist to
4 help them if that is their stated objective.
5 7. I also explain that if at any point in the course of the client's therapy, the client decides
6 that he no longer wants therapy for unwanted same-sex attractions, then he should infonn me
7 immediately because a client's course of treatment should always be based on his objectives.
8 Related to this, I explain that if the client decides during the course of SOCE counseling that he
9 wants therapy that affinns his same-sex attractions, then it would be best for the client to seek an
10 alternative therapist.
11 8. I explain to my clients that the nature of SOCE counseling is such that many people
12 report benefits from the counseling, but that it can invoke initial feelings of stress and anxiety;
l3 that many experience a reduction in same-sex attractions; and that often a person will continue to
14 experience same-sex attractions even after therapy. I explain that as with other issues people face
15 in their lives, many people report that their recognition of their heterosexual potential and
16 identity is a lifelong process that continues with them after therapy.
17 9. My SOCE counseling consists of discussions with the client concerning the nature and
18 cause of their unwanted sanle-sex sexual attractions; the extent of these attractions; assistance in
19 understanding traditional, gender-appropriate behaviors and characteristics; and assistance 111
20 fosteling and developing those gender-appropriate behaviors and characteristics.
21 10. Most of my patients with unwanted same-sex sexual attractions seek to develop and
22 foster healthy, heterosexual relationships and seek the elimination or reduction of their unwanted
23 same-sex sexual attractions. I have had many clients who, through SOCE counseling, have been
3
1 able to succeed in reducing their unwanted same-sex attractions and have reported a marked
2 increase in their recognition of their heterosexual potential.
3 11. I have also had clients who decided that they wanted to remain in the homosexual
4 lifestyle, but report that SOCE counseling helped them to understand the nature of their
5 homosexual identity and, as a result, were able to better cope with that identity after SOCE
6 counseling. These same clients who decide to remain in the homosexual lifestyle have reported
7 that they experienced no harm as a result of SOCE counseling.
8 12. I have been engaging in SOCE counseling with PlaintifI Doe 1 for a year and a half. In
9 the course of Doe 1 's SOCE counseling, we have developed the therapeutic alliance that is
10 necessary for all psychotherapy to be successful. The therapeutic alliance is the relationship that
11 is developed between psychotherapist and patient and describes the collaborative nature of the
12 relationship, which incorporates the client's goals and the psychotherapist's methods for
13 accomplishing those goals. Because we have been able to develop this therapeutic alliance, Doe
14 1 and I have been able to successfully progress in the SOCE counseling and have moved closer
15 to Doe I' s therapeutic goal of reducing his same-sex sexual attractions and increasing his
16 recognition of his heterosexual potential.
17 13. During the course of Doe I's SOCE counseling, [ have noticed a substantial reduction in
18 his gender identity issues and his unwanted same-sex attractions. Doe I has reported that he now
19 understands the nature and causes of his unwanted same-sex attractions and that he understands
20 the triggers that cause those unwanted attractions to arise. Doe I and his parents now report that
21 their relationship has become much better and that they are able to communicate openly and
22 frankly about Doe I's unwanted same-sex attractions. Doe I reports an overall positive impact
DECLARA TlON OF DR. JOSEPH NICOLOSI
4
1 from SOCE counseling and believes that his progress in reducing his unwanted same-sex
2 attractions will regress and be immediately harmed ifhe is unable to receive this counseling.
3 14. As Doe 1's psychologist, I also believe that Doe 1 will sutTer an immediate regression
4 and that he will have difficulty in continuing to progress in his desired recognition of his
5 heterosexual potential.
6 15. I have been engaging in SOCE counseling with Plaintiff Doe 2 since for three and one
7 half months. In the course of Doe 2's SOCE counseling, we have developed the therapeutic
8 alliance that is necessary for all psychotherapy to be successful. Because of Doe 2's age and
9 individual needs, the sessions focus primarily on helping him understand his masculinity and
10 gender. The understanding developed thus far has resulted in the reduction of his unwanted
11 sanle-sex attractions, and has resulted in increasing recognition of his heterosexual potential. A
12 critical component of Doe 2's therapy has been a focus on the overall family dynamic, through
13 discussion with Doe 2's father and mother regarding how they relate to each other, and how they
14 relate to, interact with and aftirm Doe 2.
15 16. Doe 2 and his parents now report that their relationship has become much better and that
16 they are able to communicate more openly and frankly about Doe 2's unwanted same-sex
17 attractions. Doe 2 exhibits growing certainty over his nascent sexuality and greater comfort with
18 his sense of identity. Doe 2 repOlts an overall positive experience with SOCE counseling and
19 believes that his progress in reducing his unwanted same-sex attractions will regress and be
20 immediately harmed if he is unable to receive this counseling. As Doe 2's psychologist, I also
21 believe that Doe 2 will suffer an immediate regression and that he will have difticulty in
22 continuing to progress in the recognition of his desired heterosexual potential.
5
1 17. Because my clinic focuses on SOCE counseling, SB 1172 will cause immediate and
2 irreparable harm to me in that SB 1172 will prohibit me from continuing beneficial and
3 successful courses of treatment with my minor clients and force me to stop speaking about
4 SOCE treatment or risk losing my license.
5 18. If I am forced to terminate my SOCE counseling with my minor patients, many of them
6 will regress and will suffer adverse health consequences stemming from an inability to address
7 their goal of recognizing their heterosexual potential.
8 19. If I am forced to terminate my SOCE counseling with my minor patients, it will destroy
9 the relationship of trust and the therapeutic alliance that has developed between my clients and
10 me, which will be detrimental to the well-being of the clients. Some of my clients and their
11 parents will have to seek out counselors who are not licensed and therefore not subject to the
12 dictates of SB 1172. They might continue to receive the SOCE counseling they desire, but it will
13 be administered by unlicensed professionals.
14 20. As a clinical psychologist, I believe that it is important for SOCE counseling to be
15 engaged in by those therapists who have studied it and understand the benefits and potential
16 risks.
17 21. My practice of giving detailed information to my minor clients and their parents satisfies
18 the ethical requirements that I provide all of the information that is reasonable for the client to
19 make an infomled decision conceming their individual course of treatment and that facilitates the
20 autonomous client decision-making process. SB 1172 will cause me to violate Section 3.10 of
21 the American Psychological Association's Ethics Code ("APA Code") because I will be
22 prohibited from even discussing a course of treatment, SOCE, that is part of the infonnation that
DEC LARA nON OF OR. JOSEPH NICOLOSI
6
1 I am ethically required to provide to my clients. I would also be prohibited from even referring a
2 client who wants to discuss SOCE therapy to a professional who can provide it.
3 22. Compliance with SB 1172 will force me to violate the informed consent mandates of
4 Section 3.10 of the APA Code and probably also infringe ethical requirement outlined in General
5 Principle E of the AP A Code that I allow the patient complete freedom to make a self-
6 determined choice concerning his therapy. However, providing clients with unwanted same-sex
7 attractions with the treatment they desire automatically constitutes and ethical violation under SB
8 1172.
9 23. Because of this impossible Catch-22, SB 1172 is certain to cause irreparable harm to my
10 practice by putting my professional license in jeopardy no matter how r proceed and with no
11 guidelines on how to resolve the conflict between SB 1172 and the ethical codes.
12 24. SB 1172 will also cause me to violate Section 3.06 of the APA Code by causing me to
13 enter into a relationship where my objectivity is called into question because SB 1172 mandates
14 that only one ideology-i.e., the State's ideology condemning SOCE-be shared in the
15 counselor's oftlce.
16 25. If SB 1172 is permitted to go into effect, then my clients and r will be irreparably harn1ed
17 as I will be forced to abruptly discontinue ongoing beneficial treatment, destroy a beneficial
18 therapeutic alliance and deny treatment to other clients who come to me seeking help for
19 unwanted same-sex attractions. I will be placed in an impossible situation of having to choose
20 how I will subject myself to potential disciplinary action against my license, i.e., either by failing
21 to comply with SB 1172 for the good of my patients or refusing to offer the information
22 necessary to fulfill my obligations to provide informed consent.
DECLARA nON OF DR. JOSEPH NICOLOSI
7
1 26. SB 1172 also presents a significant problem for another element of my practice and
2 provides no guidance on whether it prohibitions apply to it. Specifically, I have many Y ouTube
3 and other videos on my website and on other websites that specifically address the issue of
4 SOCE counseling. These videos have the potential to reach every minor in California. SB 1172's
5 language prohibits all effOlis that seek to reduce or eliminate same-sex attractions, and it would
6 seem that having videos on the Internet that advocate for SOCE counseling and provide
7 information about where an individual can receive it might be perceived as an eftort that seeks to
8 reduce or eliminate same-sex attractions. I do not know whether SB 1172 requires me to remove
9 all of these videos from my website and request that they be removed from others. Also, it is
10 virtually impossible to ensure that all such videos are removed, so if SB 1172 is found to apply
11 to them, then I could inadvertently be subject to disciplinary proceedings because of the viewing
12 of a video that I thought had been removed from the internet. I also have many pamphlets and
13 informative brochures on the website that would pose the same problems. Additionally, I am
14 completely uncertain about whether a simple referral would constitute an effort seeking to reduce
15 or eliminate same-sex attractions that would violate SB 1172. Informing someone that such
16 SOCE counseling is available at another location by another individual not subject to SB 1172
17 seems like it could be a violation, but SB 1172 provides no guidance on this matter, so I am
18 again faced with a dilemma of how to exercise my professional judgment. In short, SB 1172
19 provides no guidance on the seemingly ilmumerable applications of its prohibitions, which
20 places me at constant risk of unknowingly being subject to losing my professional license. My
21 clients will sutfer as well, since I will not be able to confidentially counsel them on available
22 options for their undesired same-sex attractions.
8
1 27. I declare under penalty of perjury under the laws of the United States and the State of
2 California that the foregoing statements are true and accurate.
3 Executed this 4th day of October, 2012.
4
5
6
7
DECLARA TlON OF DR. JOSEPH NICOLOSI
9

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