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No. 13-4429 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT TARA KING, ED. D., individually and on behalf of her patients; RONALD NEWMAN, PH. D., individually and on behalf of his patients; NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY, (NARTH); AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS, Appellants,
V.

GOVERNOR OF THE STATE OF NEW JERSEY; ERIC T. KANEFSKY, DIRECTOR OF THE NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY: DIVISION OF CONSUMER AFFAIRS, in his official capacity; MILAGROS COLLAZO, EXECUTIVE DIRECTOR OF THE NEW JERSEY BOARD OF MARRIAGE AND FAMILY THERAPY EXAMINERS, in her official capacity; J. MICHAEL WALKER, EXECUTIVE DIRECTOR OF THE NEW JERSEY BOARD OF PSYCHOLOGICAL EXAMINERS, in his official capacity; PAUL JORDAN, PRESIDENT OF THE NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS, in his official capacity; GARDEN STATE EQUALITY, Appellees. ____________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY _____________ OPPOSITION OF APPELLEE GARDEN STATE EQUALITY TO PLAINTIFFS-APPELLANTS MOTION TO STRIKE _____________

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Appellee Garden State Equality respectfully submits this reply brief in further support of the motion of James Guay, Ryan Kendall, Peter Drak, John Metzidis-Drennan, and Maris Ehlers (the SOCE Survivors) to file an amicus curiae brief in support of Defendants-Appellees urging affirmance of the District Courts decision below (the SOCE Survivors Brief) (Doc. No. 003111459928). As explained below, Plaintiffs-Appellants (Appellants) opposition to the filing of the SOCE Survivors Brief (Mot. to Strike, Doc. No. 003111552730) should be rejected and the Court should permit the SOCE Survivors to appear as amici and file their proposed brief. INTRODUCTION Proposed amici consist of individuals who experienced first-hand the harms posed by sexual orientation change efforts (SOCE). They are the very people the challenged statute is designed to protect, and their voices provide the Court with an important firsthand perspective about the potential impact of these practices on young people and their families. Appellants opposition to their

motion to participate as an amicus offers no legitimate reason to exclude them. Appellants arguments are divorced from this Courts current jurisprudence on

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amicus briefs and should be rejected; the SOCE Survivors Brief falls well within the range of amicus briefs routinely accepted in this Circuit.1 Appellants opposition brief fails for multiple reasons. First, Appellants argument that the SOCE Survivors Brief should be stricken because the SOCE Survivors are not impartial fails for the same reasons then-Judge Alito explained over ten years ago in Neonatology Associates, P.A. v. Commr of Internal Revenue, 293 F.3d 128, 131 (2002). Then-Judge Alito expressly recognized that while the role of an amicus was once considered by some courts to be impartial, this description became outdated long ago. Id. In this case, the individuals

represented in the SOCE Survivors Brief offer information about the specific types of harm they or their family members have experienced as a result of being exposed to the practices barred by A3371 and usefully supplement the scientific evidence and professional literature described in briefs by the State Defendants, Garden State Equality, and other amici. Second, Appellants argument that amicus briefs cannot present facts is incorrect. Both the Supreme Court and this Court regularly welcome the

presentation of additional factual information by amici, regardless of whether Appellants counsel, who represented the appellants in Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013), several of whom are also Appellants here, filed substantially similar motions to strike substantially similar briefs of amici curiae in that case (id., ECF Nos. 92, 93), which the Ninth Circuit summarily denied (id. ECF No. 117).
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amici presented those facts in the trial court. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 330-32 (2003) (quoting amicus brief of military leaders asserting importance of a diverse officer corps); B.H. ex rel. Hawk v. Easton Area School Dist., 725 F.3d 293, 317 (2013) (en banc) (considering amicus brief of school board association on free-speech issue), cert. denied. -- S. Ct. --, No. 13-672, 2014 WL 901854 (U.S. Mar. 10, 2014). The SOCE Survivors Brief provides exactly the kind of supplemental information and perspectives that amici traditionally have provided to appellate courts, including this one. Third, Appellants contentions that the facts proffered in the SOCE Survivors Brief are irrelevant or constitute inadmissible hearsay are also baseless. The brief presents information directly relevant to a critical issue in this case: the risk of serious harms that SOCE pose to children and the compelling need to prevent those harms. The brief thus presents legislative facts that concern the constitutional justification for A3371 rather than adjudicative facts that relate to the parties before the Court. See Fed. R. Evid. 201(a) advisory committees note. Courts are free to give such materials the weight they deem appropriate, without regard to the requirements of judicial notice or other evidentiary rules. See id.

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ARGUMENT I. APPELLANTS ARGUMENTS FOR STRIKING THE SOCE SURVIVORS BRIEF LACK MERIT A. The SOCE Survivors Brief Appropriately Supports the Importance of Protecting Youth and their Families from the Harms that May Be Caused by SOCE. 1. The SOCE Survivors Brief Is the Type Commonly Received by this Court.

Appellants posit that the only permissible function of amici is to present impartial legal arguments to the court. (Mot. to Strike at 1-6.) There is no such limitation on amici. The idea of amici who serve as an impartial advisor on the law became outdated long ago. Neonatology Assocs., 293 F.3d at 131. Rather, appellate courts look to appellate procedural rules to determine whether (1) the movant has an interest in the case, (2) the amicus brief is desirable, and (3) the matters asserted are relevant. See Fed. R. App. P. 29(b); see also Neonatology Assocs., 293 F.3d at 131. Here, the SOCE Survivors Brief easily satisfies all three requirements. The requirement to have an interest in the case makes it particularly difficult to reconcile impartiality with Rule 29(b). Neonatology Assocs., 293 F.3d at 131; see also Fed. R. App. P. 29(e) (noting amicus brief filing deadline determined by the argument the brief supports (emphasis added)); 3B C.J.S. Amicus Curiae 1 (noting that the role of the amicus now is that of an acknowledged adversary). Furthermore, an amicus brief can be desirable even if
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the named parties are adequately represented because [s]ome amicus briefs collect background or factual references that merit judicial notice. Neonatology Assocs., 293 F.3d. at 132. A broad reading [of desirability] is prudent because judges are capable of discerning unhelpful amicus briefs from desirable ones but cannot consider a brief prematurely rejected. Id. Here, the SOCE Survivors clearly have an interest in the outcome of the litigation. (See SOCE Survivors Br. at 1.) The SOCE Survivors also provide insight into the testimony offered to the New Jersey legislature before it passed A3371, giving the court background information highly relevant to the issues in this case. 2. The Court May Consider Facts Offered by Amici.

Moreover, this Court has repeatedly confirmed that amicus briefs may present facts relevant to the Courts decision-making. See, e.g., B.H. ex rel. Hawk, 725 F.3d at 317 (considering amicus brief of school board association on potential factual scenarios applicable to the legal issue); The Abi Jaoudi & Azar Trading Corp. v. Cigna Worldwide Ins. Co., 391 F. Appx. 173, 179 (3d Cir. 2010) (considering background information provided by United States as amicus on its practices regarding foreign sovereign immunity); accord Kennedy v. Louisiana, 554 U.S. 407, 445 (2008) (recognizing the experience of the amici who work with child victims (emphasis added)); Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004) (citing information presented by amicus about impact of threat of
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deportation on undocumented workers); Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 276 F.3d 1150, 1157 (9th Cir. 2002) (citing amicus brief of Navajo Nation describing effects on Navajo lands of lease at issue in appeal). Amici can, and should, discuss the impact of a particular result upon parties not before the court. Michael E. Tigar & Jane B. Tigar, Federal Appeals:

Jurisdiction & Practice 2:20 (3d. ed. 2012). Appellate courts, including the Supreme Court, routinely consider such factual material presented by amici and benefit from the broadened perspective that material provides. For example, in Grutter v. Bollinger, 539 U.S. 306, 330-32 (2003), the Supreme Court based its holding that the respondent law school had a compelling interest in fostering diversity in its student body in significant part on the facts and firsthand experiences presented in amicus briefs. See, e.g., id. at 331 (discussing the

decades of experience described in the Consolidated Brief of Lt. Gen. Julius W. Becton, Jr., et al, as Amici Curiae in Support of Respondents); id. at 332 (citing amicus brief of the Association of American Law Schools for the fact that law school graduates occupy a high percentage of state and federal elected offices).2 The Court questioned both the petitioners and the United States Solicitor General about the military leaders amicus brief despite objections by the petitioners that amicis facts had not been presented in the lower courts. Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs Revisited, 33 Stetson L. Rev. 171, 175, 177 & n.35 (2003).
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The SOCE Survivors offer exactly this kind of direct experience in their brief. The SOCE Survivors Brief recounts those individuals personal experiences with sexual orientation change efforts and explains the damage, including severe depression and suicide, those efforts caused the survivors themselves and their family relationships. Despite Appellants assertion that amici must be impartial, an amicus who makes a strong but responsible presentation in support of a party can truly serve as the courts friend, Neonatology Assocs., 293 F.3d at 131, just as the SOCE Survivors have in their amicus brief by advising the Court of why, based on their own experiences of being damaged by these practices, A3371 is vitally necessary to protect New Jerseys youth from harm. The only limitation on amicus briefs that can be gleaned from Appellants cases is that some courts have, in their discretion, declined to consider new adjudicative facts concerning the actual events in dispute in an appeal. See, e.g., Webb v. City of Phila., 562 F.3d 256, 261 n.4 (3d Cir. 2009) (declining to consider articles appended to amicus brief discussing practices regarding religious garb of para-military organizations while reviewing employment discrimination case against city police force). Those authorities have no relevance here, where the SOCE Survivors do not seek to provide additional adjudicative facts.

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B.

The Facts Presented In SOCE Survivors Brief Are Relevant To This Appeal And May Be Considered By The Court

Appellants also argue that the SOCE Survivors Brief includes irrelevant and hearsay information and therefore should be stricken. Neither argument has merit. The facts in the SOCE Survivors Brief are directly relevant to the issue of whether enacting A3371 was justified. The brief powerfully supplements the scientific evidence presented by the parties and other amici by directly showing the severe adverse impact on individuals and families of the practices barred by A3371. Appellants only argument against the relevance of this information is their contention that anecdotes cannot establish harm. (Mot. at 7 (citing United States v. Playboy Entmt Grp., 529 U.S. 803, 822 (2000).) But Playboy does not stand for any such proposition. In Playboy, the Supreme Court merely held that certain anecdotal statements were, alone, insufficient to establish that limiting the hours during which explicit programming could be carried on cable television would be more effective than allowing parents to voluntarily block channels they did not wish their children to see. See id. at 822. The Court did not hold that individuals reported experiences of harm are irrelevant, in the context of a law regulating medical treatment or otherwise. Nor did it suggest that such firsthand experiences must be disregarded, especially when combined with other evidence of harm. In this case, the evidence of harm presented in the SOCE Survivors Brief reinforces the well-supported conclusions of the professional mental health community, based
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on the relevant scientific literature, that SOCE pose a risk of serious harm. (SOCE Survivors Br. at 5-17; see also Appellants Appx. 132-35 (A3371 1).) Appellants argument that the SOCE Survivors Brief should be stricken because it includes hearsay is also without merit. This brief does not present adjudicative facts, but rather facts concerning the Legislatures justification for enacting A3371. Legislative facts help the tribunal determine law and policy and are ordinarily general facts not concerning the immediate parties. Castillo-

Villagra v. INS, 972 F.2d 1017, 1026 (9th Cir. 1992) (citing Kenneth Culp Davis, Judicial Notice, 55 Colum. L. Rev. 945, 952 (1955) and Fed. R. Evid. 201 advisory committees notes); accord Thomas v. City of N.Y., 143 F.3d 31, 36 n.7 (2d Cir. 1998) (citing Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971)). Unlike adjudicative facts, legislative facts are not subject to the usual limitations on courts power to take judicial notice of materials outside the record. See Fed. R. Evid. 201(a) advisory committees note. The need for judges to have access to the full range of information bearing on such critical constitutional questions renders inappropriate any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and

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any requirement of formal findings at any level. See id.3 Notably, Ryan Kendall, one of the amici filing the SOCE Survivors Brief, testified before the New Jersey Senate and New Jersey Assembly committees as the legislature heard testimony on the proposed bill. (See S.A. 212, 232-33; SOCE Survivors Br. at 10.) Furthermore, even if the hearsay rule did apply to the SOCE Survivors Brief, the statements to which Appellants object would be admissible under the residual exception to hearsay, which provides that hearsay statements need not be excluded if they are trustworthy, material, more probative on the point for which they are offered than other evidence that the proponent can obtain, and will serve the purposes of the evidentiary rules and the interests of justice. Fed. R. Evid. 807. The statements in the SOCE Survivors Brief meet all of these criteria. Appellants have not demonstrated that the sources for these statements are not trustworthy. It is in the interests of justice that this Court have available to it the perspectives of persons who have undergone SOCE, or who have children or other family members who have done so, and who can speak to the dangers posed by such practices based on their own experiences. CONCLUSION For the foregoing reasons, Appellants Motion to Strike should be denied in its entirety.
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Of course, this does not preclude the parties from presenting expert testimony or other evidence relevant to such issues when appropriate. See Fed. R. Evid. 201 advisory committees note. 11

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Dated: March 14, 2014

KIRKLAND & ELLIS LLP /s David S. Flugman Frank Holozubiec David S. Flugman Shireen A. Barday Andrew C. Orr 601 Lexington Avenue New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -andAndrew J. Welz 655 Fifteenth Street, N.W. Washington, D.C. 20005 Telephone: (202) 637-2015 Facsimile: (202) 879-5200 NATIONAL CENTER FOR LESBIAN RIGHTS Shannon P. Minter Christopher F. Stoll Amy C. Whelan 870 Market Street, Suite 370 San Francisco, California 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442 GLUCKWALRATH LLP Michael Gluck Andrew Bayer 428 River View Plaza Trenton, New Jersey 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901 Attorneys for Appellee Garden State Equality

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on March 14, 2014. Service will be effectuated by the Courts electronic notification system upon all counsel of record.

s/ Andrew J. Welz Andrew J. Welz Kirkland & Ellis LLP 655 Fifteenth Street, NW Washington D.C. 20005 Telephone: (202) 637-2015 Facsimile: (202) 879-5200 Attorney for Appellee Garden State Equality

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