Petition for Writ of Certiorari — Presbytery of New Jersey of the Orthodox Presbyterian Church v. Whitman

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Supreme Court, 0.8.

FILED

\ 961156 JAN 22 1997

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IN THE r THE CLERK

Supreme Court Of The Anited States

OCTOBER TERM, 1996

THE PRESBYTERY OF NEW JERSEY OF THE

ORTHODOX PRESBYTERIAN CHURCH, a New Jersey

corporation, CALVARY ORTHODOX PRESBYTERIAN

CHURCH OF WILDWOOD, a New Jersey corporation, and

REV. DAVID B. CUMMINGS,

Petitioners,

CHRISTINE TODD WHITMAN, GOVERNOR OF NEW

JERSEY, in her official capacity, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Third Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS STEPHEN NEUBERGER*

THOMAS S. NEUBERGER, P.A.

Suite 702, Ninth Street Plaza

200 West Ninth Street

Wilmington, Delaware 19801

(302) 655-0582

JAMES J. KNICELY

KNICELY & COTORCEANJ, P.C.

Post Office Drawer GK

Williamsburg, Virginia 23187

(804) 253-0026

Counsel For Petitioners

Of Counsel: Cooperating Attorneys for

JOHN W. WHITEHEAD THE RUTHERFORD INSTITUTE

THE RUTHERFORD INSTITUTE Charlottesville, VA 22906

P.O. Box 7482

Charlottesville, VA. 22906 *Counsel of Record for Petitioners

Baimar Legal Publishing Department, Washington, D.C. (202) 682-9800

QUESTIONS PRESENTED FOR REVIEW

(1) Did the court of appeals err in failing to hold portions of

the New Jersey Law Against Discrimination (“LAD”) facially

unconstitutional on grounds that Petitioners’ free speech and

equal protection of the law were violated by impermissible (a)

overbreadth, (b) content and viewpoint discrimination, and (c)

compelled speech?

(2) Did the court of appeals err in granting Pullman absten-

tion on certain issues when the stipulated record showed sub-

stantial free speech and equal protection violations and there

were no unsettled issues of state law justifying abstention?

PARTIES TO THE PROCEEDING BELOW

Petitioners: The Presbytery of New Jersey of the Ortho-

dox Presbyterian Church, a New Jersey corporation, Calvary

Orthodox Presbyterian Church of Wildwood, a New Jersey

corporation, and Rev. David B. Cummings.

Respondents: Christine Todd Whitman, Governor of

New Jersey, in her official capacity (as successor in office to

Governor James Florio); Peter Verniero, Attorney General of

New Jersey, in his official capacity (as successor in office to

Attorney General Robert J. Del Tufo), Marilyn Flanzbaum,

Angel Roman, Betty Carson, Olga L. Vazquez-Clough, Felton

Lingo, Sr., Reinhold W. Smyczek and Casey Tam, all in their

official capacities as members of The Division on Civil

Rights, and C. Gregory Stewart, in his official capacity as ex-

ecutive director of The Division on Civil Rights; and John

Doe(s) and Jane Doe(s) addresses unknown, the last two be-

ing fictitious names, the real names of said defendants being

presently unknown or known only in part to plaintiffs, said

fictitious names being intended to designate organizations,

persons and others acting in concert with any of the defen-

dants, who engage in, are engaged in, or who intend to engage

in, the conduct of defendants complained of herein, or who

would have the right to file or seek enforcement of adminis-

trative, equitable or legal complaints or suits or to assert any

other legal claims or remedies or enforcement thereof against

the plaintiffs under the New Jersey Law Against Discrimina-

tion, as amended by the 1992 affectional and sexual orienta-

tion amendments, and all others similarly situated.

ill

TABLE OF CONTENTS

De Ie PR BEMPIE EL csv csccsersccosoessnseonssnsscersscnsvesanessoocs iv

I cna buhhsidinchvasilichanaansvhensbbacdsbeateeiintsinnese 1

Tid Laisttheclisulncs secsichatbonasignscnsilinbeavnineeseiacsetionenines 2

RELEVANT STATUTES AND CONSTITUTIONAL

TIN siciicallihsisticinchatedansécanstanveyatessuasanpeqidpilicircsaiseeKeess 2

RTE SPE BONES GA vss esvencsssvescossesssoceessossogsoies pawns 2

REASONS FOR GRANTING THE WRIT..............ccccsesseeseees 6

I. The Third Circuit Opinion Denigrates the

Overbreadth Doctrine and Devalues Important

UN III IIIT occ ccnconnsiyacconesevescesiinasnssotsosusseosoee 7

II. The Important Issues From Which The Third

Circuit Abstained Should Be Reviewed On

I TI MII SINR occ ccnsnvsnenicscccrasneeensosenvesass 12

A. Content and Viewpoint Discrimination......... 12

B. Ban on Lawful Boycotts .................ccceesseseeeees 14

C. Forced Speech by Mandatory Posting of

IT alii hadcbicchdheeecicdantinaaissontoniioniieseonteinseaees 14

Ill. The Third Circuit Mistakenly Applied the

PIII BPCIIIIIND cscs cicsccncscreessonscaccensstsssscecessenes 16

EE di dicscs chi slnsssanaddeacesdonscebeivcinieiadbioabdcobvamensese 19

Se IIE pcb tei bheavesepkisorncprinendcdcscentesses scstninteinabewdanenauiontti A-1

TABLE OF AUTHORITIES

Cases Page(s)

Baggett v. Bullitt, 377 U.S. 360 (1964) .............ccsscsrrssescseseee 17

Baliko v. Stecker, 645 A.2d 1218 (N.J. Super. Ct. App.

REY Ear visssccsenevacciabepaciosicaipiadancaininconaeeernisbentennimniaaniaidins 9, 16

Board of Airport Commissioners v. Jews For Jesus, 482

IRs Ie GUE Tapas wsesnvciisainies ienisaeanageaiadiaaiaaaaliteniais 8

Brandenburg v. Ohio, 395 U.S. 444 (1969) 0. eeseeseeeeeeees 7

Capital Square Review Board v. Pinette, 515 U.S. __,

ES ie Sie I Bec cisdeneeenteh leaner ssressinasanveciavtdataoeisbenens 5

Carey v. Brown, 447 U.S. 455 (1980) .........csccsscsssssssesecsscceees 7

City Council v. Taxpayers for Vincent, 466 U.S. 789

ERUPTED cisascsicas ssitrasniotaccuasiccoesssonlioaginanipebaeauasinialebetninaed 7, 11

City of Houston v. Hill, 482 U.S. 451 (1987) .....ceeeseeees 8, 18

Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th

Oe MPa A extnvusvassbedstiahsesisdaniietsdhuaseeeuas Gadi atamiabnnanil 9,11

Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977) ....18

Employment Division v. Smith, 494 U.S. 872 (1990)............ 15

Forsyth County v. Nationalist Movement, 505 U.S. 123

ESI} sscoseninccedysecsseescectcanioumeuniinnakeatiaeaibbeneraiibesietas 6, 10

Harmon v. Forssenius, 380 U.S. 528 (1965)........cccseseeereeees 17

$1683. V. INGORE, 414 US. TOS (UIT) svcrcerscsssascvasssserssocsnasevessse 7

Hurley v. Irish-American Gay, Lesbian, and Bisexual

Group of Boston, 515 U.S. __, 115 S. Ct. 2338

Ene cdcsissssecistmesnicaineatdadbiaesneneieaiamne 6, 7, 14, 15

Lamb's Chapel v. Center Moriches Union Free School

District, 508 U.S.___, 113 S. Ct. 2141 (1993) ow... 7, 13

Market Street Mission v. Bureau of Rooming and

Boarding House Standards, 541 A.2d 668 (N.J. 1988),

appeal dismissed, 488 U.S. 882 (1988) wo... eeeeeeeeeeees 16

Cases Page(s)

NAA.C.P. v. Claiborne Hardware Co., 458 U.S. 886

LD cersciessinetesnisinicnihieieibidadbibiiaetutceitias ieddeioeild cas 7,14

Passaic Daily News v. Blair, 308 A.2d 649 (N.J. 1973)....... 16

Police Department of Chicago v. Mosley, 408 U.S. 92

EF Fad sondiiaissssenienaseiilains wiaasdaamaauidealontaanas ean 7, 14

Prebytery v. Florio, 60 Fair Emp. Pract. Cas. (BNA) 805,

1992 WL 414680 (D.N.J.), aff'd mem. 983 F.2d 1052

Cet 6 O0. TO siicsicssersnsaciencionenmmieinmiiamsaimematants: ia

Presbytery v. Florio, 830 F. Supp. 241 (D.N.J. 1993),

rev’d in part, 40 F.3d 1454 (3d Cir. 1994)... +

Presbytery v. Florio, 902 F. Supp. 492 (D.N.J. 1995),

aff'd sub nom. Presbytery v. Whitman, 99 F.3d 101

(PIE CAE.. SE sieccssnissmnsnerscizaicseeaaiemumanane aati passim

Procunier v. Martinez, 416 U.S. 396 (1974) .......ccccsesesseeeees 18

RA.V. v. City of St. Paul, 505 U.S. 377

CRUE sscissscevsitisinlovethlbisnalatanbsiatuniamaeniiaades 4,7, 12, 13, 14

Romer v. Evans, 517 U.S. __, 116 S. Ct. 1620 (1996)........... 6

Rosenberger v. University of Virginia, 515 U.S. __,

BE as Mts eee a pelle lescascndbiennsealachacninptasihtedalaneshaigtiicineanie 13

Secretary of State of Maryland v. Joseph H. Munson Co.,

OF i BR Ce iaieiiaeasshaveesibaitaitinhecataaaudiiiestnintsiie i]

Sherbert v. Verner, 374 U.S. 398 (1963).........cscscscssssrersesereee 15

Texas v. Johnson, 491 U.S. 397 (1989) .......ssscssescesessescereerees 15

Thornburgh v. American College of Obst. & Gyn., 476

Sialic: FT 0a PUN einssaiicenieenisanniudsihiadeddelailincniaasuicinamiacabsinnsctads 18

Walker v. First Orthodox Presbyterian Church, 22 Fair

Empl. Prac. Cas. (BNA) 762 (Cal.Super.Ct. 1980)............. 3

West Virginia Board of Education v. Barnette, 319 U.S.

OF SURED eccsicrinsssultccctuescesdtiteaatiedtadelaebdatepiitauneebaiiiapeniiatinites 7

Williamson v. United States, 512 U.S. __, 114 S. Ct.

ORE CPO N visschoneninicicninsctaiabauesiaabesdaetindeatdiebrmaanidcnaia 9

Cases Page(s)

Wisconsin v. Constantineau, 400 U.S. 433 (1971)... 18

Wooley v. Maynard, 430 U.S. 705 (1977) ...cccccscccssereeeseees 7,15

Zablocki v. Redhail, 434 U.S. 374 (1978) ....ccccccsesseeseeseeeees 18

Zwickler v. Koota, 389 U.S. 241 (1967) .....cccccscesssseesseeeees 18

Statutes

U. S. Constitution, Amendment I..................... 2, 5, 6, 7, 10, 16

U. S. Constitution, Amendment XIV..............:csssscecessreeeeeenees 2

Be UK. © TAGE Y cccesetnssacssissevsserretsivisventeinviscausneiaamiianates 2

BZ EEDA, EPS cecsnnrnestensssssssserreaevenrioninmdasaanal 2

BZ UGA. BFPO RAED ercereseuiersssesssinsncsenvisterinintdaciabidaciaaitianan: 6

GE USL, ZOO DED cvs ccsnessessontrecnsnsasninnnnenitiissiaibibipiadiniias 6

Fe ce » DONS TIC ieanessuseenenntoeseveceuntenninarsnniuaiianiibncauiaieaiianis 5

PRCA. Rake LAA cccncctescctesvsnissiissiindsisnninidldasiilendiius |

N.J.Stat. Ann. § 10:5-12 (West 1993 and Supp. 1996)........... 2

N.J.Stat. Ann. § 10:5-12(a) (West 1993 and Supp. 1996)....... 8

N.J.Stat. Ann. § 10:5-12(c) (West 1993 and Supp. 1996)...4, 8

N.J.Stat. Ann. § 10:5-12(e) (West 1993 and

UID.. FIGS) oscreccvrssscscnneessiscsennssunemhanbeeuabsainan 4,5, 8, 9, 13

N.J.Stat. Ann. § 10:5-12(f) (West 1993 and Supp. 1996) ...4, 8

N.J.Stat. Ann. § 10:5-12(j) (West 1993 and Supp. 1996) ...4, 5

N.J.Stat. Ann. § 10:5-12(1) (West 1993 and

UD, IID sccricvencevsinsdcusnnitinsssiensatidbdlnthbibisviaiassenis 4,5, 8,14

N.J.Stat. Ann. § 10:5-12(m) (West 1993 and

DD. BFP OD cscceininscsrvastansscnstenassieticahliiibiipinsnissaleai 4,5, 8,14

N.J.Stat. Ann. § 10:5-12(n) (West 1993 and

IE, BP POD scccswevenssceasvieiessincciineietidinidipibeaelitiaaneiped 4,5, 9,14

N.J.Stat. Ann. § 10:5-12(n)(2) (West 1993 and

DO. TI FGD xtsennerissernevsrennsieniaiinaiaaidattandasiniiiaaaline 4

Vii

Miscellaneous Page(s)

Finnis, “Law, Morality, and Sexual Orientation,” 69

Notre Dame L. Rev. 1049 (1994) ........cccscccsssssssssssssecesceeees 10

Webster’s, Third New International Dictionary (1966).......... 7)

No.

IN THE

Supreme Court Of Che United States

OCTOBER TERM, 1996

THE PRESBYTERY OF NEW JERSEY OF THE

ORTHODOX PRESBYTERIAN CHURCH, a New Jersey

corporation, CALVARY ORTHODOX PRESBYTERIAN

CHURCH OF WILDWOOD, a New Jersey corporation, and

REV. DAVID B. CUMMINGS,

Petitioners,

CHRISTINE TODD WHITMAN, GOVERNOR OF NEW

JERSEY, in her official capacity, ET AL..,

Respondents.

Petition For A Writ Of Certiorari To The United States

Court Of Appeais For The Third Circuit

TO THE HONORABLE CHIEF JUSTICE AND AS-

SOCIATE JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

Petitioners, The Presbytery of New Jersey of the Ortho-

dox Presbyterian Church, Calvary Orthodox Presbyterian

Church of Wildwood and Rev. David B. Cummings, respect-

fully petition for a Writ of Certiorari to review the judgment

of the United States Court of Appeals for the Third Circuit

affirming the decision of the District Court granting summary

judgment to the State of New Jersey on certain issues and ab-

staining as to certain other issues.

OPINIONS BELOW

The six published opinions in this dispute are found in

Presbytery v. Florio, 60 Fair Empl. Prac. Cas. (BNA) 805,

1992 WL 414680 (D.N.J.), 135A; (Presbytery I, aff’d mem.

983 F.2d 1052 (3d Cir. 1992)(Presbytery II), 124A; Presby-

tery v. Florio, 830 F. Supp. 241 (D.N.J. 1993)(Presbytery Il),

108A, rev’d in part, 40 F.3d 1454 (3d Cir. 1994) rehearing en

banc denied (Presbytery IV), 71A; Presbytery v. Florio, 902

F. Supp. 492 (D.N.J. 1995)(Presbytery V), 14A, aff’d Pres-

bytery v. Whitman, 99 F.3d 101 (3d Cir. 1996) (Presbytery

VI), 1A.

All opinions are reprinted in the Appendix which ac-

companies this petition.

JURISDICTION

Review is sought from the decision of the United States

Court of Appeals for the Third Circuit entered on October 25,

1996.

Jurisdiction is conferred on this Court pursuant to 28

U.S.C. § 1254(1).

RELEVANT STATUTES AND

CONSTITUTIONAL PROVISIONS

Set forth in the Appendix, pages 148-161A, are U.S.

Constitution Amendments I and XIV, and 42 U.S.C. § 1983,

together with relevant provisions of the New Jersey Law

Against Discrimination (“LAD”), N.J.Stat.Ann. § 10:5-12

(West 1993 and Supp. 1996) and a sign promulgated by the

Respondent New Jersey Division of Civil Rights.

STATEMENT OF THE CASE

In 1992, a lame duck session of the New Jersey legisla-

ture enacted gay rights amendments to its organic Law

Against Discrimination, N.J.Stat.Ann. §§ 10:5-1 to 10:5-42

(West 1993 and Supp. 1996) (“LAD Amendments”). The

LAD Amendments threatened the institutional autonomy of

Petitioners’ small traditional denomination, the freedom of its

pastors to preach and teach on sexual immorality and the

family, and the freedom of speech of its members. Presbytery

IV, 40 F.3d at 1460, 79-80A. Having been forced in the past

to defend itself against San Francisco’s original gay rights

ordinance (which was declared unconstitutional by the Cali-

fornia Superior Court as applied to the Church as a religious

institution, Walker v. First Orthodox Presbyterian Church, 22

Fair Empl. Prac. Cas. (BNA) 762 (Cal.Super.Ct. 1980)), the

Petitioners initiated this declaratory judgment action for pre-

enforcement review of the LAD Amendments on April 15,

1992, in the United States District Court for the District of

New Jersey. Petitioners sought relief for the Church, its pas-

tors and members to remove the chilling effect of the LAD

Amendments on their Free Speech rights and to avoid poten-

tially bankrupting and debilitating lawsuits for unlimited

compensatory and punitive damages by private attorneys gen-

eral. Presbytery IV, 40 F.3d at 1459-60, 76-82A. Suit was

brought against the Governor and Attorney General of New

Jersey, the head and members of its Division of Civil Rights

and John and Jane Doe, the latter being private persons and

organizations who are accorded favcrable standing and other

procedural rights under the LAD to seek enforcement of the

LAD Amendments.’ Presbytery II, 126A.

Because of obvious constitutional defects with the LAD

as written, the defendant head of the New Jersey Division of

Civil Rights, C. Gregory Stewart, immediately filed an inter-

pretive affidavit (the “Stewart Affidavit”) whereby the State

absolutely waived enforcement of the recent gay rights

amendments with reference to any aspect of the Church as an

institution and for any preaching or teaching of its pastors

within the Church. Presbytery IV, 40 F.3d at 1460-61, 80-

81A; Presbytery VI, 99 F.3d at 104, 5A. This mooted those

claims, 40 F.3d at 1461, 81-82A, and, under the judicial es-

The facial proscriptions of the LAD Amendments posed an unac-

ceptable handicap on plaintiffs’ Free Speech and Free Exercise rights,

particularly when coupled with the exceptional threat posed by the LAD’s

1990 empowerment of law reform organizations to sue for unlimited com-

pensatory and punitive damages before civil juries.

toppel doctrine, removed those issues from this case. In light

of this Court’s intervening ruling in R.A.V. v. City of St. Paul,

505 U.S. 377 (1992), the issues were narrowed to unconstitu-

tional overbreadth, content and viewpoint discrimination and

the chilling effect of the gay rights amendments on the Free

Speech rights of members of the denomination (Presbytery

IV, 40 F.3d at 1464-70, 87-100A), making it a civil analogue

of the criminal statute addressed in R.A. V.

A panel of the Third Circuit identified the subsections of

LAD Section 10:5-12 that remained at issue in this case:

(1) clauses (e) and (n) (153, 160A) which through

incorporation facially prohibit “inciting, compelling or

coercing,” among other things, printing or circulating

or causing to be printed or circulated any statement or

publication which expresses, directly or indirectly,

any limitation, specification or discrimination as to

sexual orientation or any intent to make any such limi-

tation, specification or discrimination [clause (c),

153A], or “directly or indirectly to publish, circulate,

issue, display, post or mail any written or printed

communication” to the same effect [clause (f), 153-154

A], or to engage in lawful boycotts [clause(n), 160A).

(2) clauses (1), (m) and (n)(2) (159-160A) which

facially make it unlawful to refuse to do business with

persons on the basis of the proscribed categories pro-

vided that the prohibition does not apply to “refusals or

other actions either pertaining to employee-employer

collective bargaining, labor disputes, or unfair labor

practices, or made or taken in connection with a protest

of unlawful discrimination or unlawful employment

practices,” clause (n)(2) (160A), for example.

(3) clause (j) (158A) which facially mandates

compelled speech on a particular viewpoint because it

does not allow for a conscience exception.

Presbytery IV, 40 F.3d. at 1460, 1459, SOA, 77A, and Pres-

bytery VI, 99 F.3d at 104, 5A.

On remand, the State of New Jersey sought to moot the

remaining issues by filing another interpretive affidavit

(“Stewart Affidavit II’’), but the District Court ruled that the

two Stewart Affidavits did not waive enforcement of the LAD

Amendments under the incitement provisions of subsection

(€), or the facially content and viewpoint discriminatory pro-

visions of clauses (1), (m) and (n), or the sign (forced speech)

provision of clause (j). Presbytery V, 902 F. Supp. at 506,

507, 31-33A. On a stipulated record, the District Court then

granted summary judgment to the State of New Jersey on the

merits of these issues, abstaining only on an as applied chal-

lenge. 70A.’

Despite the fact that the Third Circuit had recognized

that this case involved core “oral advocacy and boycott,”

Presbytery IV, 40 F.3d at 1469, 97A, and although the District

Court likewise acknowledged that the speech at issue was

“political and religious,” Presbytery V, 902 F. Supp. at 513,

523, 46A, 67A --- categories which are fully protected under

the Free Speech Clause, see Capital Square Review Bd. v.

Pinette, 515 U.S. ___, 115 S. Ct. 2440, 2447-51 (1995) ---

another panel of the Third Circuit on its third review of the

case dismissed the Petitioners’ First Amendment challenge

because it found, in conflict with important decisions of this

Court, that the LAD presented no problem of substantial

overbreadth and that the District Court should have abstained

as to all other First Amendment issues.

Plaintiffs moved for summary judgment with affidavits which were

unopposed by the Respondents except for the Stewart Affidavits. The

allegations of the lengthy, fact-specific amended complaint were admitted

by operation of law 10 days after the remand and mandate in Presbytery

IV, 145A, since the state never filed a timely answer. F.R.Civ.P 12

(aX4\(A), 8(d). The District Court was thus presented with a stipulated

trial record on which it granted summary judgment to the State.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted in this case because the

panel failed to protect critical Free Speech rights from over-

broad and facially discriminatory civil rights legislation out-

lawing discrimination based on sexual orientation. In light of

the enactment of such legislation in an increasing number of

states, this Court should correct constitutional excesses such

as those in the present case where overbroad and impermissi-

ble facial distinctions based on content have crippled the ex-

pression of certain viewpoints, while favoring others.

The panel correctly recognized the power of the State to

enact “[a]ntidiscrimination statutes [which] commonly seek to

educate and to eliminate this sort of bias,” Presbytery VI, 99

F.3d at 105, 8A, n.2, but failed to acknowledge the sensitive

balance found in this Court’s recent anti-discrimination hold-

ings. Just as states also cannot trammel the constitutional

rights of homosexuals by selective prohibitions on the expan-

sion of protected civil rights categories [Romer v. Evans, 517

U.S. __, 116 S. Ct. 1620 (1996)], states also cannot abridge

First Amendment freedoms when enacting affirmative protec-

tions for homosexuals in civil rights statutes [Hurley v. Irish-

Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. ___,

115 S. Ct. 2338 (1995)}].

Here in adding sexual orientation as a protected category

under its civil rights laws, the State of New Jersey trans-

gressed the Petitioners’ Free Speech and Equal Protection

rights. Unlike its Federal counterpart found in Title VII of the

Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2(a), 2000¢e-

3(b)), which reaches only conduct, the LAD Amendments ex-

pressly proscribe speech and impose unlawful disabilities on

the expression of certain viewpoints, while favoring others.

The Amendments sweep “too broadly, penalizing a substan-

tial amount of speech that is constitutionally protected.” For-

syth County v. Nationalist Movement, 505 U.S. 123, 127-28

(1992). They prohibit legitimate incitement and impose

viewpoint discrimination, R.A.V. v. St. Paul, supra; Lamb’s

Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S.

__, 113 S. Ct. 2141, 2148 (1993); Hess v. Indiana, 414 U.S.

105 (1973); Brandenburg v. Ohio, 395 U.S. 444 (1969). They

ban protected informational boycotts or other collective ac-

tivity taken to protest policies or sexual activities covered by

the LAD, N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.

886 (1982), impermissibly exempting labor union speech and

speech favoring sexual orientation legislation from this ban,

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972); Carey

v. Brown, 447 U.S. 455 (1980); R.A.V. v. St. Paul, 505 U.S. at

382. And they force Petitioners’ members to display signs

with content that violates their freedom of conscience and re-

ligious belief. West Virginia Bd. of Educ. v. Barnette, 319

U.S. 624, 641-42 (1943); Wooley v. Maynard, 430 U.S. 705,

714 (1977); Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Group of Boston, 115 S. Ct. at 2347-41 (1995).

The court of appeals erred in its conclusory dismissal of

these important claims. For the reasons set forth below, this

Court should grant a writ of certiorari to consider and reverse

the Third Circuit’s resolution of these issues.

I. The Third Circuit Opinion Denigrates the Over-

breadth Doctrine and Devalues Important Free

Speech Rights.

The court of appeals turned First Amendment over-

breadth analysis on its head. Relying principally on a case

involving a challenge to the regulation of signs on utility

poles, City Council v. Taxpayers for Vincent, 466 U.S. 789

(1984), it found that the LAD properly reached some unpro-

tected conduct and, therefore, could not be overbroad. How-

ever, anti-discrimination statutes always reach and proscribe

unlawful discriminatory conduct, but what is extraordinary

about the LAD is that it goes further and expressly proscribes

protected speech.’ In reviewing statutes which on their face

proscribe speech, “a court’s first task” is not to determine

whether the statute reaches some unprotected conduct, but

whether the enactment reaches a substantial amount of con-

Stitutionally protected speech. Bd. of Airport Commrs. v.

Jews for Jesus, 482 U.S. 569, 574 (1987); City of Houston v.

Hill, 482 U.S. 451, 458 (1987). Such an analysis is wholly

missing from the panel opinion which posits an overbreadth

standard that is virtually impossible to meet.

The plain language of LAD subsections (c), (e), (f), (1),

(m) and (n) literally proscribes communicating ideas that are

adverse to certain “sexual orientations.” 153-154A, 159-

160A. Subsection (e) punishes “any statement{[s]” or

“publication(s]” that “incite, compel or coerce” listeners to

engage “directly” or “indirectly” in some prohibited “limita-

tion,” “specification” or “discrimination”, or “any intent” to

do so (to quote the statutory terms). A speaker can be charged

not only for acting to “incite, compel or coerce” violations of

sections (a) and (c) but also for “printing” or “circulating”

“statements” that “express” any “limitation,” “specification”

or “discrimination” as to “sexual orientation.” For example,

the statement that “Presbyterians should not hire or rent to

unrepentant homosexuals because to do so is sinful” can be

severely penalized under the LAD, but the statement that

“homophobic bigots should be fined or jailed for their failure

to hire homosexuals” cannot be punished. Thus, by virtue of

simple advocacy, the speaker and others like him who voice

religious, political, philosophical or other sentiments against

The District Court noted that were the individual Petitioner to hold

seminars, or print or circulate pamphlets, or make oral statements urging

that Orthodox Presbyterian employers, upon pain of excommunication and

eternal damnation, obey scriptural mandates and fire or refuse to hire sex-

ual sinners in the workplace, an aggrieved party could sue both the em-

ployer and the Petitioner for violation of the LAD because the pamphlet or

oral statements were arguably the catalyst for a firing or refusal to hire.

Presbytery V, 902 F.Supp. at 506, 32A.

7 aera

the protected category of sexual orientation dare do so in New

Jersey only at substantial risk of civil punishment for trans-

gressing the foregoing overbroad provisions of the LAD. The

Third Circuit swept this patent overbreadth under the rug, er-

roneously concluding that because the law reached some pro-

scribed conduct, it could not be substantially overbroad."

The panel opinion is also grounded in material misstate-

ments of the record. It significantly misstates that the Peti-

tioners made no argument that “the protected activities of

third parties not before the court might be drawn within the

ambit of the [LAD].” Presbytery VI, 99 F.3d at 106, 9A. It

also incorrectly asserts that Petitioners’ “activities are no dif-

ferent from those of any other person who might assert a First

Amendment challenge to the statute.” Jd. These statements

are simply not true.

The substantial overbreadth of the LAD is illustrated by the plain

meaning of statutory terms under applicable New Jersey case law or by

reference to Webster’s Third New International Dictionary (1966)

(“Webster’s”); see, e.g., Williamson v. United States, 512 U.S.__, 114.

Ct. 2431, 2434 (1994). In the recent case of Baliko v. Stecker, 645 A.2d

1218, 1223 (N.J. Super. Ct. App. Div. 1994), the New Jersey courts have

defined the meaning of “aid” and “abet” under the LAD very broadly to

include to “assist,” “support,” “encourage” and “incite.” Webster’s de-

fines “compel” to include “to urge irresistibly by moral or social pressure”

and “to force by personal temperament or other subjective considera-

tions.” Webster’s at 463. “Incite” means “to move to a course of action|

stir up| spur on| urge on.” Jd. at 1142. “Coerce” is defined to include “to

effect, bring about, establish, or enforce by force, threat, or other pres-

sure.” Id. at 439. And “induce” means “to move and lead (as by persua-

sion or influence) <powers of persuasion that would have induced the

atheist to religion>| prevail upon| influence, persuade.” Jd. at 1154. Like

the invalidated policy against “verbal and nonverbal” discriminatory

“behavior” in Dambrot v. Central Michigan Univ., 55 F. 3d 1177, 1182

(6th Cir. 1995), which was “sweeping and seemingly drafted to include as

much and as many types of conduct as possible,” sections (e) and (n) on

their face have a similar impermissibly overbroad scope and should have

been held invalid as the policy was in that case.

”

The Petitioners specifically and repeatedly alleged in the

complaint and argued in the briefing that the LAD Amend-

ments adversely affected the rights of parties not before the

court. 162-179A. In the present case, not only are the ideas

and viewpoints of Petitioner Cummings unduly burdened by

the LAD’s overbreadth and its proscriptions on expression,

SO, too, are those of OPC members and those of other persons

who for political, philosophical or social reasons conscien-

tiously object to the LAD Amendments or view them as un-

wise, unsound social policy. See, e.g., Finnis, “Law, Moral-

ity, and Sexual Orientation,” 69 Notre Dame L. Rev. 1049

(1994). Moreover, the classifications created by the LAD

illustrate further that the statute’s overbreadth “has the poten-

tial for becoming a means of suppressiig a particular point of

view.” Forsyth County v. Nationalist Movement, 505 U.S. at

130. Accordingly, those who favor the protections granted by

the LAD (for either homosexual, bisexual or heterosexual

conduct outside of marriage) may speak in favor of such top-

ics without the threat of punitive damages, bankrupting law-

suits or other civil penalties. On the other hand, the speech of

Petitioner Cummings and persons sharing his viewpoint based

on scriptural mandates, or the speech of third parties based on

other viewpoints, is clearly unduly burdened by such threats

and penalties.”

Petitioner had third-party standing under applicable First Amend-

ment principles to challenge the facial validity of the LAD for these per-

sons because whenever a regulation might “chill the expressive activity of

others not before the Court, . . . the Court has permitted a party to chal-

lenge an ordinance under the overbreadth doctrine in cases where . . . the

ordinance sweeps too broadly, penalizing a substantial amount of speech

that is constitutionally protected.” Forsyth County v. Nationalist Move-

ment, 505 U.S. at 127-28 (citations omitted).

The Third Circuit sought to distinguish a Sixth Circuit case invali-

dating a university’s anti-discriminatory policy that was likewise directed

at both speech and conduct by suggesting it was aimed only at “hate

speech.” Presbytery VI, 99 F.3d at 105, 8A. But this conclusion does not

The panel’s puzzling observation that the Petitioners’

“activities are no different from those of any other person who

might assert a First Amendment challenge to the statute” is

simply astounding. Presbytery VI, 99 F.3d at 106, 9A.’ The

Petitioners’ opposition to unrepentant homosexual conduct

and heterosexual sex outside marriage --- favored categories

under the LAD --- is by definition “different” from viewpoints

supporting the LAD’s protections. Equally questionable is

the panel’s reliance on City Council v. Taxpayers for Vincent,

supra, to support this holding. In that case, the overbreadth

claim challenging sign regulations (which prohibited attach-

ment of cardboard signs to horizontal crosswires on utility

poles) was ineffective because the law imposed uniform re-

strictions on the placement of all signs whether they belonged

to the Taxpayers or others. As such, an overbreadth challenge

would be of limited, if any, legal effect and there was no se-

lective chill on free speech. But here, the statutory over-

breadth imposes a chill not only on the distinct viewpoints of

Petitioner Cummings, but also on those of his fellow Church

members and third parties who for reasons of conscience and

social policy disagree with the State’s favored viewpoint.

square with the Sixth Circuit’s finding that the university’s anti-

discrimination policy was “sweeping and seemingly drafted to include as

much and as many types of conduct as possible.” Dambrot v. Central

Mich. Univ., 55 F.3d at 1182 (emphasis added).

In Secretary of State of Maryland v. Joseph H. Munson Co., 467

U.S. 947, 965-66 n.13 (1984), the Court indicated that an overbreadth

challenge may be brought by either of two classes of individuals: (1)

those whose behavior may not always be protected by the First Amend-

ment but who are challenging a substantially overbroad law, and (2) those

who claim that application of the challenged law would directly violate

their First Amendment rights.

II. The Important Issues From Which The Third Circuit

Abstained Should Be Reviewed On Certiorari By

This Court

Despite the fact that the District Court reached the merits

of the Petitioners’ content and viewpoint discrimination

claims --- finding them ineffective because of the “secondary

effects” doctrine --- and the merits of the Petitioners’ chal-

lenge to the boycott and forced speech provisions, the Third

Circuit panel ignored these findings and, with sweeping

strokes of legal reasoning, ruled that Pullman abstention

should be applied to these issues. In view of the error of this

ruling, which is discussed in more detail in Part III below, the

Petitioners’ challenge to the LAD Amendments on content

and viewpoint discrimination, equal protection and compelled

speech grounds should also be reviewed on certiorari.

A. Content and Viewpoint Discrimination. The

LAD prohibits a substantial amount of protected speech be-

cause of its facial content and viewpoint discriminatory de-

fects. It suffers from the same content-based defect found in

the St. Paul ordinance in R.A.V. The discrimination is two-

fold. First, the LAD prohibits speech promoting discrimina-

tion based on the subject matter of the LAD proscribed cate-

gories, such as sexual orientation, sex, age, etc., but it imposes

no facial restrictions on speech that promotes discrimination

based on unenumerated categories, such as wealth or political

persuasion. Thus, speech promoting discrimination concern-

ing political or social affiliation, union or club membership,

educational background or economic status, is permitted

without restriction. But speech that promotes discrimination

based on the LAD proscribed categories --- i.e. affectional or

sexual orientation, age, etc. --- is completely banned.

However heinous the latter speech may appear to be,

such content-based distinctions on speech are not permitted

under R.A.V. and its progeny. The State may draw distinc-

tions to prohibit discriminatory conduct in hiring and firing,

and public accommodations, but it may not achieve its ends

by expressly prohibiting speech that espouses or advocates

such discrimination. In R.A.V. even “fighting words” could

not be regulated. Thus the fatal flaw in the challenged provi-

sions of the LAD is that, unlike federal civil rights laws which

contain no such subsection (e) provision reaching speech, the

LAD contains facial bans on pure speech keyed to the content

of the discrimimatory categories it seeks to protect, and it is

not limited to conduct.

Second, and specifically with regard to Petitioners, the

LAD favors speakers who support legal protection for affec-

tional or sexual orientations, but penalizes the speech of those

who oppose, and support discrimination against such behavior

or who oppose legalizing protections against such discrimina-

tion. Speech advancing the viewpoint that sexual conduct

should have moral limits is penalized while speech is permitted

without penalty supporting unfettered sex without moral limits.

As explained in R.A.V., the LAD fosters facial viewpoint dis-

crimination. R.A.V. 505 U.S. at 391-92. Here, those engaging

in or inciting the “printing” or “circulating” of “statements” or

“publications” containing injunctions against homosexual con-

duct or heterosexual sex outside marriage are threatened with

severe civil penalties and liabilities, while those who similarly

espouse other social, philosophical or psychological view-

points favo.ing homosexual or promiscuous conduct are not

only permitted, but in effect encouraged to promote such con-

duct on an unequal playing field in the marketplace of ideas.

Government here has done more than simply educate the pub-

lic about the evils of discrimination, it has fashioned a statutory

regime that penalizes the speech of one side of this public de-

bate. But it cannot do this under R.A.V. and other more recent

cases such as Lamb’s Chapel v. Center Moriches Union Free

Sch. Dist., 113 S. Ct. at 2148 (“The First Amendment forbids

the government to regulate speech in ways that favor some

viewpoints or ideas at the expense of others.”) and Rosen-

berger v. Univ. of Virginia, 515 U.S. ____, 115 S. Ct. 2510,

2517-20 (1995).

LABLE COPY!

B. Ban on Lawful Boycotts. The LAD’s facial ex-

emption of boycotts for labor union speech and speech fa-

voring homosexuality is inexorably problematic under equal

protection principles. In R.A.V. this Court reaffirmed the Po-

lice Department of Chicago v. Mosley, doctrine and said that

“government may not regulate use based on hostility or fa-

voritism towards the underlying message expressed.” 505

U.S. at 386. But, with its two facial content-based exceptions

favoring labor union speech, and speech favoring homosexu-

ality, sections 10:5-12(1), (m) and (n) prohibit any “person”

from refusing to do business with others because of their

“sexual orientation.” It, therefore, precludes peaceful infor-

mational boycotts or other collective activity taken to protest

the policies or sexual activities protected by the LAD, but

permits, for example, boycotts of purported “homophobes”

who assert that homosexual conduct is wrong. So under the

LAD one can engage in an informational boycott favoring

homosexuality by means of informational signs which say

“Don’t patronize this place because it won’t hire homosexu-

als,” but the State can punish informational boycotts with

signs which say “Don’t patronize this place, it hires people

who engage in immoral sexual practices.” But, such peaceful

boycotts are clearly protected under the First Amendment.

NA.A.C.P. v. Claiborne Hardware Co., supra. Thus, the dis-

criminatory anti-boycott provisions should have fallen under

the Claiborne doctrine, but this precedent was ignored.

C. Forced Speech by Mandatory Posting of Signs.

This Court in Hurley v. Irish-American, supra, recently reiter-

ated in the context of a civil rights statute protecting homo-

sexuals that government “may not compel affirmance of a

belief with which the speaker disagrees [and] . . . this general

rule . . . applies not only to expressions of value, opinion, or

endorsement, but equally to statements of fact the speaker

would rather avoid.” 115 S. Ct. at 2347 (citations omitted).

The Appendix (161A) contains a sign containing affirmative

statements about non-discrimination against sexual orienta-

tion which was prepared by the New Jersey Division of Civil

Rights for posting by employers or those who operate places

of public accommodation. With the posting of this sign, those

opposed to the newly enacted protected category are required

to display and affirm statements which they consider ideo-

logical and conscientiously antithetical to their religious or

moral convictions. The State’s requirement poses a classic

dilemma forcing individuals to choose between suffering pen-

alties for violating the LAD or making statements contrary to

their sincerely held religious convictions. This type of Hob-

son’s choice is not permitted under the First Amendment and

should not be sanctioned by this Court."

The forced speech rule in Hurley is based upon a long

line of precedent. Plaintiff Cummings and those he represents

have a First Amendment “right to refrain from speaking at

all.” Wooley v. Maynard, 430 U.S. at 714. The refusal to post

is protected expressive conduct (cf. Texas v. Johnson, 491

U.S. 397 (1989)), and no different from the State of New

Hampshire’s impermissible mandate that motorists display the

“Live Free or Die” slogan which this Court struck down in

Wooley. Pre-enforcement declaratory relief on the merits of

the compelled speech issue was accordingly appropriate since

as a matter of law the current politically fashionable sexual

orientation category is not so legaily “compelling” that it

outweighs freedom of conscience rooted in the Bill of Rights.

Employment Div. v. Smith, 494 U.S. 872, 880-82 (1990), citing

Wooley v. Maynard, 430 U.S. 705 (1977); Sherbert v. Verner, 374 U.S.

39% (1963).

III. The Third Circuit Mistakenly Applied the Abstention

Doctrine.

Quite simply, Pullman abstention was improper because

none of its three elements are found in this case. First, con-

trary to the panel’s opinion, there are no uncertain issues of

state law underlying the Petitioners’ Free Speech claims. In

reaching a contrary conclusion, the court’s predicate is in er-

ror. It made the following egregious misstatement:

Although there is some evidence that New Jersey would

interpret this language in the Law Against Discrimina-

tion in the same manner as it does in the criminal law

context, see Baliko v. Stecker, 465 A.2d 1218, 1223

(N.J. Super. Ct. App. Div. 1994), the New Jersey Su-

preme Court has interpreted the language “aid, abet, in-

cite, compel or coerce” only once in the context of a First

Amendment challenge, and that case involved commer-

cial speech. See Passaic Daily News v. Blair, 308 A.2d

649 (N.J. 1973). ...

Presbytery VI, 99 F.3d at 106-07, 11A. But the 1994 Baliko

case was not a criminal case, it was a civil case involving di-

rect application of the First Amendment to the offending pro-

visions at issue herein. Moreover, as Petitioners have always

contended, the New Jersey courts there clearly interpreted the

“aiding and abetting” provisions most broadly to include

anything that would “assist,” “support,” “encourage” and

“incite.” Baliko v. Stecker, 465 A.2d at 1223. Additionally,

in the Passaic case, the New Jersey Supreme Court accorded

the LAD’s “aiding and abetting” provisions broad application

in a First Amendment context and in another case reversed a

lower court which narrowly construed a statute to avoid its

impact on a religious entity. See Market St. Mission v. Bu-

reau of Rooming & Boarding House Standards, 541 A.2d 668

(N.J. 1988), appeal dismissed, 488 U.S. 882 (1988). In light

of these recent decisions by the New Jersey courts, the panel’s

finding that there are open issues of state law was based on a

faulty factual predicate and was clearly erroneous.

Secondly, the offending provisions of the LAD are not

amenable to any state court interpretation that would obviate

the need for or substantially narrow federal court adjudication.

They are quite plain and unambiguous as written. The Dis-

trict Court unequivocally found that the State had not waived

enforcement of these provisions. Presbytery V, 902 F. Supp.

506, 507, 31-34A. The challenged portions of the LAD sim-

ply are not “fairly subject to an interpretation which will ren-

der unnecessary or substantially modify the federal

constitutional question.” Harmon vy. Forssenius, 380 U.S.

528, 535 (1965).’ The only option for a State court would be

to invalidate the offending provisions and read them out of

existence to the extent that they affect pure speech. But ab-

Stention is improper merely to give a state court the first op-

portunity to hold that a statute violates the federal

constitution:

We have held that “abstention. . .is inappropriate for

cases [where]. . .statutes are justifiably attacked on their

face as abridging free expression.” “In such case[s] to

force the plaintiff who has commenced a federal action

to suffer the delay of state-court proceedings might itself

effect the impermissible chilling of the very constitu-

tional right he seeks to protect.”

The problems in adopting a limiting construction are not unlike

those found in Baggett v. Bullitt, 377 U.S. 360 (1964), which involved the

constitutionality of several statutes requiring loyalty oaths. The Baggett

Court held that abstention would serve no purpose given the lack of any

limiting construction, and found the statutes unconstitutional on their face

under the overbreadth doctrine. The Court noted that the challenged loy-

alty oath was not “open to one or a few interpretations, but to an indefinite

number,” and concluded that “[iJt is fictional to believe that anything less

than extensive adjudications, under the impact of a variety of factual

Situations, would bring the oath within the bounds of permissible consti-

tutional certainty.” Id. at 378. It is hard to imagine in the present case

that the LAD could be limited by anything less than a series of adjudica-

tions, and the chilling effect of the LAD on protected speech in the mean-

time would make such case-by-case adjudication intolerable.

City of Houston v. Hill, 482 U.S. at 467 (citations omitted);

accord, Wisconsin v. Consiantineau, 400 U.S. 433, 439

(1971)(“where there is no ambiguity in the state statute, the

federal court should not abstain but should proceed to decide

the federal constitutional claim”); Zwickler v. Koota, 389 U.S.

241, 250-51, 254 (1967) (“[T]he abstention doctrine is inap-

propriate for cases such as the present one where . . . statutes

are justifiably attacked on their face as abridging free expres-

sion.”); City of Houston v. Hill, 482 U.S. at 468 (“If the stat-

ute is not obviously susceptible of a limiting construction,

then even if the statute has ‘never [been] interpreted by a state

tribunal . . . it is the duty of the federal court to exercise its

properly invoked jurisdiction.’ ”)"”

Lastly, a declaratory judgment concerning pure speech or

the right to conscience would not disrupt any important State

policy through an erroneous construction of State law. The

present case only challenges the regulation of speech and not

pure conduct. The State has no important State interest in

regulating such speech. And since the LAD could follow the

traditional, more narrowly tailored and strictly conduct-based

Title VIi scheme to prevent discrimination, it is clear that

adequate, less restrictive means already exist as a matter of

law for advancing the state’s purported compelling state inter-

est in removing discrimination. A federal adjudication of the

offending proscriptions on speech will not adversely affect

New Jersey’s policies against discriminatory “conduct.”

Procunier v. Martinez, 416 U.S. 396, 400-401 (1974); Thornburgh

v. American College of Obst. & Gyn., 476 U.S. 747, 756 (1986)“when

the unconstitutionality of the particular state action under challenge is

clear, a federal court need not abstain from addressing the constitutional

issue pending state-court review.” [citations omitted]); Zablocki v. Red-

hail, 434 U.S. 374, 379 n. 5 (1978); Douglas v. Seacoast Products, Inc.,

431 U.S. 265, 271 n. 4 (1977).

fh ih i Aa ten IR chain hi Se PCN a etait Ub

CONCLUSION

For the reasons set forth above, Petitioners pray that their

Petition For A Writ of Certiorari be granted and that this

Court decide the issues raised in the Petition.

Respectfully submitted,

THOMAS STEPHEN NEUBERGER*

THOMAS S. NEUBERGER, P.A.

Suite 702, Ninth Street Plaza

290 West Ninth Street

Wilmington, Delaware 19801

(302) 655-0582

JAMES J. KNICELY

KNICELY & COTORCEANU, P.C.

Post Office Drawer GK

Williamsburg, Virginia 23187

(804) 253-0026

Counsel For Petitioners

Of Counsel: Cooperating Attorneys for

JOHN W. WHITEHEAD THE RUTHERFORD INSTITUTE

THE RUTHERFORD INSTITUTE Charlottesville, VA 22906

P.O. Box 7482

Charlottesville, VA. 22906 “Counsel of Record for Petitioners

DATED: January 22, 1997.

A-i

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

TABLE OF CONTENTS

Opinion of the U.S. Court of Appeals for the Third

Circuit filed October 25, 1996,

BO. Sa Fare cintitiencatcndavembnicmidenseamicensins ‘alalaipaidewr” ‘Sebaamnidiislin A-1

Opinion and Order of the U.S. District Court for the

District of New Jersey filed September 13, 1995,

PR: Fab Be a sisicnseccteneerecanien judigshbdliacahelalee lilies aoaniielt A-14

Opinion of the U.S. Court of Appeals for the Third

Circuit filed November 16, 1994,

PU ee aissascecticeteicescesiesaideionsensiscieanbansccissntatnaniehaaniuenesiinacentsies A-71

Opinion of the U.S. District Court for the District of

New Jersey filed August 10, 1993,

i aie caine ilaictiacantaceechbainciiniiiniesiintinmiattieatiaimmnnicinis A-108

Memorandum Opinion of the U.S. Court of Appeals

for the Third Circuit filed December 14, 1992,

i RE ins ccacctiistshaticinilibelsclicitaibesintahertiilitinlcintienelniatc A-124

Oral Opinion of the U.S. District Court for the District

of New Jersey filed June 19, 1992, No. 92-1641............. A-135

Order of U.S. Court of Appeals for the Third Circuit

denying State of New Jersey’s petition for rehearing

and rehearing in banc filed on

December 13, 1994, No. 93-5559 ................cccsccccccssesceseees A-145

Judgment entered by U.S. Court of Appeals for the

Third Circuit on October 25, 1996,

Pi Se a ctctencsesclisinsteadicicadicteonineeitinenbanennninmaniiaite A-146

A-il

Constitutional and Statutory ProviSIOMNS .............:ssseee A-148

First Amendment, U.S. Constitution ................00000 A-148

Fourteenth Amendment, U.S. Constitution ............. A-149

42 U.S.C. © BGG nnceccccencccessvicemsintninnnnttansiiessssiniatiattianti A-150

New Jersey Law Against Discrimination,

N.J. Stat. Ann. § 10:5-12..........<..cccccccsoscecsesecceesssooess A-151

New Jersey Department of Law & Public Policy

Notice- “New Jersey Law Prohibits Discrimina-

tion Based on Affectional or Sexual Orientation” ...A-161

Excerpts from Petitioners’ Amended Complaint............. A-162

Excerpts from Petitioners’ Briefs filed in

NO. 9S-S TG. .nncecicessorsesersnesctaccnensnesentnisininensaaniieneteliennnieiiin A-165

2 TARE "wnat Solana

i at ll le la a SPE

A-1

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5706

PRESBYTERY OF NEW JERSEY OF THE ORTHODOX

PRESBYTERIAN CHURCH, a New Jersey corporation;

CALVARY ORTHODOX PRESBYTERIAN

CHURCH OF WILDWOOD, a New Jersey corporation;

REV. DAVID B. CUMMINGS,

Appellants

CHRISTINE TODD WHITMAN, GOVERNOR OF NEW JERSEY,

in her official capacity; PETER VERNIERO,

ATTORNEY GENERAL OF NEw JERSEY, in his official capacity;

MARILYN FLANZBAUM; ROMAN ANGEL; BETTY CARSON;

OLGA L.VAZQUEZ-CLOUGH; FELTON LINGO, SR.; REINHOLD

W. SMYCZEK; CASEY TAM, all in their official capacities as

members of THE DIVISION ON CIVIL RIGHTS; C. GREGORY

STEWART, in his official capacity as executive of THE DI-

VISION ON CIVIL RIGHTS; JOHN DOE(S), JANE DOE(S), ad-

dresses unknown, the last two being fictitious names, the real

names of said defendants being presently unknown or known

only in part to plaintiffs, said fictitious names being intended

to designate organizations, persons and others acting in

concert with any of the defendants who engage in, are

engaged in, or who intend to engage in, the conduct of

defendants complained of herein, or who would have the right

to file or seek enforcement of administrative, equitable or

legal complaints or suits or to assert any other legal claims or

remedies or enforcement thereof against the plaintiffs under

the New Jersey Law Against Discrimination, as amended by

the 1992 affectional and sexual orientation amendments,

and all others similarly situated.

( Parties substituted pursuant to Fed R. App. P. 43(c)(1).)

A-2

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. CIVIL ACTION NO. 92-01641)

Argued June 28, 1996

Before: BECKER, NYGAARD and LEWIS, Circuit Judges

(Opinion filed October 25, 1996)

THOMAS S. NEUBERGER, ESQUIRE

(Argued)

Suite 702

200 West Ninth Street

Ninth Street Plaza

Wilmington, DE 19801-1646

JAMES J. KNICELY, ESQUIRE

Knicely & Cotorceanu

487 McLaws Circle

Suite 2

Williamsburg, VA 23185

Attorneys for Appellants

WILLIAM H. LORENTZ, ESQUIRE

(Argued)

CHARLES S. COHEN, ESQUIRE

Office of Attorney General

of New Jersey j

124 Halsey Street

P.O. Box 45029

Newark, NJ 07102

Attorneys for State Appellees

A-3

Louis A. PETRONI, ESQUIRE

Montgomery, McCracken,

Walker & Rhoads

1010 Kings Highway South

Suite 2C

Cherry Hill, NJ 08034

Attorney for Religiously

Affiliated Amici-Appellees

A-4

OPINION OF THE COURT

NYGAARD, Circuit Judge.

The Presbytery of New Jersey of the Orthodox Presbyte-

rian Church, Calvary Orthodox Presbyterian Church of Wild-

wood, and the Reverend David B. Cummings filed suit chal-

lenging the sexual orientation provisions of the New Jersey

Law Against Discrimination. The district court dismissed

their facial First Amendment challenge and abstained from

deciding their “as applied” challenge. For reasons somewhat

different from those given by the district court, we will affirm.

in 1992, the New Jersey Legislature added “affectional

and sexual orientation” to the list of protected classes in its

Law Against Discrimination. The amendments made it illegal

to discriminate on the basis of sexual orientation in the em-

ployment relationship, in public accommodations, and in

business dealings.

To appellants, the Law Against Discrimination amend-

ments represented New Jersey’s repudiation of 5,000 years of

Judeo-Christian morality. They believed that the Law Against

Discrimination’s provisions forbidding aiding and abetting

discrimination trammeled their rights to follow the tenets of

their religion in their business dealings and to preach against

immorality in general and homosexuality in particular. Ac-

cordingly, they filed this § 1983 action alleging that the 1992

amendments violated the First Amendment right of free

speech, alleging that the amended Law Against Discrimina-

tion is both unconstitutionally overbroad and a content-based

restriction on speech.

The facts underlying this dispute have been set forth sev-

eral times by now. See Presbytery v. Florio, 60 F.E.P. Cases

(BNA) 805, 1992 WL 414680 (D.N.J.), aff'd mem., 983 F.2d

ee ae eee ee ee Ns Gale

A-5

1052 (3d Cir. 1992) (Presbytery I); Presbytery v. Florio, 830

F. Supp. 241 (D.N.J. 1993), rev’d in part, 40 F.3d 1454 (3d

Cir. 1994) (Presbytery II); Presbytery v. Florio, 902 F. Supp.

492 (D.N.J. 1995) (Presbytery III). Appellants assert that the

theological doctrine of the Orthodox Presbyterian Church and

its members is based strictly upon Biblical teachings. As

such, appellants assert that this doctrine requires them to con-

demn homosexuality, both publicly and in their private lives

and business dealings by speaking out against it and by

avoiding those who engage in it. The sincerity with which

these beliefs are held is not disputed.

The Law Against Discrimination amendments generally

exempt religious organizations from their provisions regard-

ing hiring. See N.J.S.A. § 10:5-12(a). Moreover, the director

of the New Jersey Division on Civil Rights has Stipulated that

places of worship are not public accommodations within the

meaning of the Law Against Discrimination and that Rever-

end Cummings would therefore not be subject to liability for

discriminatory acts he might commit in his Capacity as a pas-

tor. Nevertheless, Cummings points to several provisions of

the Law Against Discrimination which he believes? could

subject him and other religionists to suit in their Capacities as

private citizens: (1) N.J.S.A. § 10:5-12(e), which bans aiding

and abetting, inciting, compelling or coercing another to per-

form a discriminatory act; (2) N.J.S.A. § 10:5-12(n), which

generally forbids aiding and abetting a boycott; (3) N.J.S.A.

§ 10:5-12(j), which requires the posting of notices of nondis-

crimination; and, (4) to the extent incorporated by the two

aiding and abetting provisions, § 10:5-12(c) (proscribing em-

ployer from printing or circulating discriminatory statements),

§ 10:5-12(f) (in public accommodations), § 10:5-12(1)

(prohibiting refusal to do business); § 10:5-12(h) (prohibiting

requirement of boycott as condition of doing business).' For

‘The district court held that appellants had conceded that the scope

of their suit was limited to N.J.S.A. §§ 10:5-12(e),(n) and (j) and such

A-6

example, appellants assert that if a person, following the ten-

ets of his or her religion, circulated tracts condemning homo-

sexuality and exhorting employers to discharge such persons,

and if an employer read one of those tracts and acted upon it,

the person who caused the tract to be printed could be held

liable as an aider and abettor.

The district court first held that, while the challenges to

the aiding and abetting prohibitions were ripe for review, the

notice posting challenge was not. 902 F. Supp. at 503-09.

Then, after determining that Reverend Cummings had both

individual and third party standing, it proceeded to consider

whether it should abstain from reaching the merits under the

Pullman abstention doctrine. The court held that, to the ex-

tent appellants were asserting a valid facial challenge to the

Law Against Discrimination, abstention would be improper,

but it concluded ultimately that the Law Against Discrimina-

tion was not facially unconstitutional. Jd. at 516-23. It then

abstained as to the “as applied” challenge, but retained juris-

diction. Jd. at 523.

Il.

The district court first considered whether appellants’ fa-

cial challenge to the amended Law Against Discrimination

was meritorious. It viewed this challenge as having two prin-

cipal arguments: first, that the statute is unconstitutionally

overbroad; and second, that it is an unconstitutional content-

based, viewpoint-discriminatory restriction on speech. 902 F.

Supp. at 516. It rejected the facial challenge because it be-

lieved that the Law Against Discrimination provisions at issue

were capable of some constitutional application and because

appellants had not demonstrated that the challenged provi-

sions are overbroad. Jd. at 516-17. The district court rejected

other sections of the Law Against Discrimination as were incorporated by

reference by those three subsections. Appellants do not challenge that

ruling.

OE Sahl GIRO ne Sim Ete at rT alld NN Re I I ean Rn ait Fle He

isda ight SE SERR ANC thn i ithe SAME. ‘pt

A-7

the viewpoint discrimination challenge under the “secondary

effects” doctrine set forth in Renton v. Playtime Theatres,

Inc., 475 U.S. 41, 106 S. Ct. 925 (1986), opining that, because

the Law Against Discrimination provisions were not targeted

at speech condemning homosexuality but rather the effects of

discriminatory conduct, they passed constitutional muster be-

cause they were rational and served the substantial govern-

ment interest of ending discrimination. Jd. at 517-22.

For the most part, we agree with the district court’s

analysis of appellants’ facial challenge. In City Council of the

City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,

104 S.Ct. 2118 (1984), the Supreme Court discussed facial

invalidity under the First Amendment. First, it noted that a

Statute may be declared facially invalid if it is “apparent that

any attempt to enforce such legislation would create an unac-

ceptable risk of the suppression of ideas.” Jd. at 797, 104 S.

Ct. at 2124 (emphasis added). That is plainly not the case

here. As the district court aptly noted under the aid and abet

provision,

the State could permissibly prohibit, for example,

an individual from offering a $500 reward to em-

ployers for each time that they refuse to hire a gay

or lesbian job applicant because of the applicant’s

sexual orientation. Such a reward scheme would

have little to do with the expression of ideas and

could legitimately be regulated by the state[.]

902 F. Supp. at 517. Likewise, a person who threatened a

business if it refused to fire its gay employees could certainly

be held liable as a “coercer” under the Law Against Discrimi-

nation without offending the Speech Clause.”

' We reach a similar conclusion with respect to boycotts. One

need not have a political or religious reason for refusing to do business

A-8

Appellants argue that this statute is indeed incapable of

any constitutional application, relying on Dambrot v. Central

Mich. Univ., 55 F.3d 1177 (6th Cir. 1995), and Doe v. Univer-

sity of Mich., 721 F. Supp. 852 (E.D. Mich. 1989). Those

cases, however, are inapposite. Both involved university

“hate speech codes” that explicitly purported to regulate

speech and other protected First Amendment activity. Be-

cause protected activity was the ‘arget of these regulations,

they had no constitutional application and were thus facially

invalid.

Nor are we persuaded that City of Houston v. Hill, 482

U.S. 451, 107 S. Ct. 2502 (1987), militates towards finding

the Law Against Discrimination facially unconstitutional. In

that case, a municipal ordinance made it “unlawful for any

person to assault, strike, or in any manner oppose, molest,

abuse or interrupt any policeman in the execution of his

duty,” and the Supreme Court declared the statute unconstitu-

tional on its face. Jd. at 467, 107 S. Ct. at 2512. Appellants

point to the unprotected conduct proscribed in that statute and

argue that the fact that unprotected conduct is likewise regu-

lated by the Law Against Discrimination cannot therefore

foreclose a facial challenge to that statute. A careful reading

of Hill, however, discloses that all of the prohibited conduct

in that ordinance was preempted by the state criminal code,

leaving only the speech restrictions intact as a matter of state

law. That being the case, there were no constitutional appli-

with a gay or lesbian individual. One might have an irrational and

unfounded, but nevertheless subjectively real, fear of acquiring the HIV

virus, or perhaps one might fear the potential loss of non-gay clientele.

Antidiscrimination statutes commonly seek to educate and to eliminate

this sort of bias without trammeling First Amendment interests; indeed,

that is one of their principal purposes. We cannot conclude that the

boycotting prohibitions are incapable of constitutional application in any

context; of course, we express no view on whether these provisions

violate the First Amendment as applied to appellants.

Pin iti ta ssn saint fen Sci nit Abt AR Alden Baad A

A-9

cations of the ordinance and the Supreme Court invalidated it

on facial grounds. Here, the “conduct” restrictions are an in-

tegral part of New Jersey law and have been enforced for

most of the last half-century. Accordingly, Hill is not dis-

positive.

Second, the Vincent court discussed overbreadth, the

other way in which a statute might be found facially invalid:

[T]he very existence of some broadly written stat-

utes may have such a deterrent effect on free ex-

pression that they should be subject to challenge

even by a party whose own conduct may be unpro-

tected. The Court has repeatedly held that such a

Statute may be challenged on its face even though a

more narrowly drawn statute would be valid as ap-

plied to the party in the case before it. This excep-

tion from the general rule is predicated on a judicial

prediction or assumption that the statute’s very ex-

istence may cause others not before the court to re-

frain from constitutionally protected speech or ex-

pression.

Id. at 798-99, 104 S. Ct. at 2125 (internal citation and quota-

tion marks omitted). Thus, the overbreadth doctrine permits a

litigant whose own activities are unprotected to challenge the

Statute by claiming that is infringes the rights of others not

before the court. In this case, however, appellants make no

argument that, while their own activities may be unprotected,

the protected activities of third parties not before the court

might be drawn within the ambit of the Law Against Dis-

crimination. Rather, it appears that appellants’ activities are

no different from those of any other person who might assert a

First Amendment challenge to the statute. That is fatal to ap-

pellants’ claim that the Law Against Discrimination is uncon-

Stitutionally overbroad. /d. at 801-02, 104 S. Ct. at 2127

(overbreadth challenge inappropriate where it appeared that, if

ordinance could be validly applied to plaintiffs, it could be

validly applied to anybody). Accordingly, we agree with the

A-10

district court that appellants have not presented a valid facial

challenge to the Law Against Discrimination.

That leaves appellants with an “as applied” challenge to

the Law Against Discrimination, specifically appellants’ ar-

gument that the Law Against Discrimination is an impermis-

sible content-based restriction on speech. The district court

apparently believed that this argument was part of appellants’

facial challenge to the statute, since it engaged in a detailed

legal analysis of the issue in that section of its opinion. See

902 F. Supp. at 517-22.

That analysis, however, was unnecessary, and conse-

quently we express no view as to its correctness. Once the

district court determined that the challenged Law Against

Discrimination provisions were capable of some constitu-

tional application and that they are not properly the subject of

an overbreadth challenge, there was no remaining issue of fa-

cial invalidity to be decided.’ Rather, whether the Law

Against Discrimination was an unconstitutional content-based

restraint on speech could only be determined within the con-

text of its application to appellants. Thus, if the district court

correctly abstained from deciding appellants’ as applied chai-

lenge, its discussion of viewpoint discrimination and the sec-

ondary effects doctrine was unnecessary.

‘Appellants argue that “it is not . . . necessary that an entire statutory

scheme be constitutionally offensive for portions of it to be invalidated on

overbreadth grounds{,}” relying on Brockett v. Spokane Arcades, Inc., 472

U.S 491. 105 S. Ct. 2794 (1985). That case is inapposite, however,

because the Court resolved the First Amendment issue as an “as applied”

challenge. See id. at 504, 105 S. Ct. at 2802. Likewise, in Hurley v. Irish-

American Gay, Lesbian and Bisexual Group, 115 S. Ct. 2338 (1995), on

which appellants also rely, the issue was not facial invalidity but how that

law was applied to the particular facts (a parade) before the Court. See id.

at 2347.

stn» RAE ms ee

A-11

We believe that the district court correctly applied Puil-

man abstention. Pullman abstention may be employed “when

a federal court is presented with both a federal constitutional

issue and an unsettled issue of state law whose resolution

might narrow or eliminate the federal constitutional question,

... [thus] avoid[ing] ‘needless friction with state policies.’ ”

Chez Sez Ill Corp. v. Township of Union, 945 F.2d 628, 631

(3d Cir. 1991) (quoting Railroad Comm’n v. Pullman, 312

U.S. 496, 500, 61 S. Ct. 643, 645 (1941)). As 2 matter of law,

Pullman abstention requires the following special circum-

stances: (1) uncertain issues of state law underlying the fed-

eral constitutional claim; (2) state law issues subject to state

court interpretation that could obviate the need to adjudicate

or substantially narrow the scope of the federal constitutional

claim; and (3) an erroneous construction of state law by the

federal court would disrupt important state policies. Chez Sez,

945 F.2d at 631; accord Hughes v. Lipscher, 906 F.2d 961,

964 (3d Cir. 1990). If these special circumstances are all pre-

sent, the court should make a “discretionary determination” as

to whether abstention is appropriate under the circumstances,

based on certain “equitable considerations.” Chez Sez, 945

F.2d at 631. We find, as did the district court, that all three

requirements are met here and that abstention is appropriate

under these circumstances.

First, it is clear that the state law issues are uncertain.

Although there is some evidence that New Jersey would in-

terpret this language in the Law Against Discrimination in the

same manner as it does in the criminal law context, see Baliko

v. Stecker, 645 A.2d 1218, 1223 (N.J. Super. Ct. 1994), the

New Jersey Supreme Court has interpreted the language “aid,

abet, incite, compel or coerce” only once in the context of a

First Amendment challenge, and that case involved commer-

cial speech. See Passaic Daily News v. Blair, 308 A.2d 649

(N.J. 1973), in which the supreme court held that providing

sex-segregated classified advertising columns aided employ-

A-12

ers’ acts of sex discrimination. In sum, we simply do not

know how the courts of New Jersey would interpret the “aid

and abet” language.

Second, it is quite possible that the New Jersey courts

would construe the challenged language so as to avoid reach-

ing the type of conduct in which Reverend Cummings and

others similarly situated engage. Indeed, the state agency re-

sponsible for the statute’s enforcement has stipulated that the

Law Against Discrimination should not be construed to reach

speech protected under the First Amendment. Should the

New Jersey courts agree (and it indeed appears that the

agency’s views would be entitled to considerable weight, see

Blair, 308 A.2d at 654), it is likely that appellants’ First

Amendment claim would be subs.antially narrowed, if not

eliminated entirely.

Third, the potential for disruption of important state poli-

cies is manifest. For many decades, the Law Against Dis-

crimination has been a powerful tool in New Jersey’s war

against discrimination. Were we to erroneously construe it to

reach appellants’ conduct and then find it violative of the First

Amendment, we could eviscerate the entire aiding and abet-

ting prohibitions, not only for sexual orientation, but for race,

gender and creed as well. See N.J.S.A. § 10:5-12(a).

Thus, we conclude that the district court had the power

to abstain under the Pullman doctrine. Turning to the equita-

ble factors, we also conclude that its application of Pullman

abstention was a proper exercise of its discretion. Although

abstention should generally not be applied to facial chal-

lenges, there is no such restriction with respect to an “as ap-

plied” challenge because there is less of a concern that pro-

tected activity will be inhibited if the court abstains from de-

ciding the First Amendment issues. Chez Sez, 945 F.2d at

633-34.

Appellants point to the additional delay which they will

suffer if they are forced to adjudicate their state law issues in

A-13

the New Jersey courts, relying on Stretton v. Disciplinary Bd.,

944 F.2d 137, 140 (3d Cir. 1991), and Biegenwald v. Fauver,

882 F.2d 748, 750-51 (3rd Cir. 1989). Stretton, however, in-

volved an imminent judicial election and the plaintiff in

Biegenwald was under sentence of death. In both cases, ab-

stention threatened any possibility of relief. The situation

here is simply not that extreme.

Moreover, New Jersey law provides for declaratory relief

when a person is unsure of the application of a statute. See

N.J.S.A. § 2A:15-53. Thus, appellants had and continue to

have the statutory opportunity to obtain a definitive construc-

tion of the Law Against Discrimination provisions at issue

from the New Jersey courts. Thus, any delay is at least partly

of appellants’ own making, as they plainly possessed the right

to seek a declaratory judgment in state court from the outset

of this litigation and should have realized that federal court

abstention was at least a possibility.

II.

Because appellants have not presented a valid facial

challenge to the Law Against Discrimination and because the

district court abstained properly from their “as applied” chal-

lenge, we will affirm.

. A-14

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civ. No. 92-1641 (WGB)

OPINION

THE PRESBYTERY OF NEW JERSEY OF THE ORTHODOX

PRESBYTERIAN CHURCH, CALVARY ORTHODOX

PRESBYTERIAN CHURCH OF WILDWOOD,

and REV. DAVID B. CUMMINGS,

Plaintiffs,

Vv.

JAMES FLORIO, ROBERT DEL TUFO,

MARILYN FLANZBAUM, ROMAN ANGEL, BETTY CARSON,

OLGA L. VASQUEZ-CLOUGH, FELTON LINGO, SR.,

REINHOLD W. SMYCZEK, CASEY TAM, C. GREGORY STEWART,

JOHN DOE(S), and JANE DOE(S),

Defendants.

FILED: SEP 13 1995 at 8:30

William T. Walsh, Clerk

APPEARANCES:

Thomas S. Neuberger, Esq.

Ninth Street Plaza, Suite 702

200 West Ninth Street

Wilmington, DE 19081

and

Richard J. Traynor, Esq.

8 Court Street

Morristown, NJ 07960

Attorneys for Plaintiffs

eee ee nee ee wee eee

A-15

Robert J. Del Tufo, Esq.

Attorney General of New Jersey

By: William H. Lorentz, Esq.

Charles S. Cohen, Esq.

Andrea M. Silkowitz, Esq.

Division of Law -- 5th Floor

124 Halsey Street

P.O. Box 45029

Newark, NJ 07101

Attorneys for the State

Defendants

Evans, Osborne & Kreizman

By: Lewis H. Robertson, Esq.

180 White Road

Little Silver, NJ 07739

Attorneys for Amicus Curiae,

the American Civil Liber-

ties Union of New Jersey

Montgomery, McCracken,

Walker & Rhoads

By: Louis A. Petroni, Esq.

1010 Kings Highway South

Cherry Hill, NJ 08034-5074

Attorneys for Religious

Amicus Curiae’

James E. Andrews as Stated Clerk of the Presbyterian Church

(U.S.A.) General Assembly; the Diocesan Council of the Episcopal Dio-

cese of Newark, Right Rev. John S. Spong, Bishop of the Episcopal Dio-

cese of Newark; the Lutheran Office of Governmental Ministry in New

Jersey; the New Jersey-West Hudson Valley Council of the Union of

American Hebrew Congregations; the New Jersey Synod Council of the

New Jersey Synod, Evangelical Lutheran Churches in America; the New

Jersey Council of Churches; and the United Church of Christ Office for

Church in Society.

A-16

BASSLER, DISTRICT JUDGE:

Plaintiff, Reverend David B. Cummings (“Reverend

Cummings”) moves for summary judgment declaring several

provisions of the New Jersey Law Against Discrimination

( “NJLAD” ), N.J.S.A. §§ 10:5-1 - 10:5-42, which added the

category of “affectational or sexual orientation” to the list of

traits or characteristics protected against discrimination in,

among other things, employment, business transactions,

housing, and public accommodations. See N.J.S.A. § 10:5-

12. Plaintiff claims that the NJLAD’s prohibition against dis-

crimination based upon “affectational or sexual orientation,”

both as written and as applied to him, violates the First

Amendment to the United States Constitution.

In this action under 42 U.S.C. section 1983, Plaintiff as-

serts claims against several state officials responsible for en-

forcing the NJLAD, including Defendants, James Florio,

Robert Del Tufo, Marilyn Flanzbaum, Roman Angel, Betty

Carson, Olga L. Vasquez-Clough, Felton Lingo, Sr., Reinhold

W. Smyczek, Casey Tam, and C. Gregory Stewart

(collectively referred to as the “State Defendants”).’

The Defendants move to dismiss the Amended Com-

plaint pursuant to Federal Rules of Civil Procedure 12(b)(1)

2 In this action under 42 U.S.C. § 1983, Plaintiff seeks relief from the

State Defendants in their official capacities. When this action was filed in

1992, Defendants held the following offices in New Jersey’s government:

James Florio, Governor; Robert Del Tufo, Attorney General and board

member, New Jersey Division on Civil Rights; Marilyn Flanzbaum, Ro-

man Angel, Betty Carson, Olga L. Vasquez-Clough, Felton Lingo, Sr.,

Reinhold W. Smyczek, and Casey Tam, also board members of the New

Jersey Division of Civil Rights; and C. Gregory Stewart, Director of the

Division on Civil Rights. Although James Florio has since been replaced

as governor by Christine Todd Whitman, and Robert Del Tufo by Debo-

rah T. Poritz as Attorney General, Plaintiffs have not substituted the par-

ties named as Defendants. When an officer sued in his or her official ca-

pacity ceases to hold office, “the officer’s successor is automatically sub-

stituted as a party.” Fed. R. Civ. P. 25(d)(1)

A-17

and 12 (b)(6). Alternatively, the Defendants request this Court

either to: (1) abstain from deciding the merits of this action

based upon Railroad Comm’n of Texas v. Pullman Co., 312

U.S. 496 (1941); or (2) issue a declaratory judgment adopting

as definitive the interpretation of the NJLAD contained in the

two affidavits of C. Gregory Stewart, Director, Division on

Civil Rights.

If this case is ripe and Plaintiff possesses standing to

maintain this action, this Court has jurisdiction under 28

U.S.C. sections 1331 and 1343. For the reasons set forth in

this Opinion, Reverend Cummings’ motion for summary

judgment is denied. Additionally, Defendants’ motion for a

declaratory judgment is denied. Defendants’ motion to dis-

miss is granted in part and denied in part. This Court dis-

misses all of Reverend Cummings’ claims, except for his

claim that N.J.S.A. sections 10:5-12e and n are unconstitu-

tional as applied to him. This Court shall abstain from de-

ciding the merits of Reverend Cummings’ as applied chal-

lenge pending an adjudication in New Jersey state court.

I. BACKGROUND

A. Plaintiffs’ Challenge to the NJLAD

In 1992, the New Jersey Legislature added “affectational

and sexual orientation” to the list of personal characteristics

protected against discrimination, which previously included

race, creed, color, national origin, ancestry, age, sex, and

marital status. N.J.S.A. § 10:5-12(a). As defined by the

NJLAD, the category “affectational and sexual orientation”

includes “male or female heterosexuality, homosexuality, or

bisexuality by inclination, practice, identity or expression,

having a history thereof or being perceived, presumed or iden-

tified by others as having such orientation.” N.J.S.A. § 10: 5-5

(hh).

Shortly thereafter, Plaintiffs, the Presbytery of New Jer-

sey of the Orthodox Presbyterian Church (“OPC”), Calvary

Orthodox Presbyterian Church of Wildwood (“Calvary”), and

- neha Ae

A-18

Reverend Cummings initiated this declaratory judgment ac-

tion challenging the newly enacted prohibition against dis-

crimination based upon “affectational and sexual orientation”

on the ground that it violates the First, Fifth, Fourteenth, and

Ninth Amendments to the United States Constitution.

Specifically, Plaintiffs sought to have seven provisions

of the NJLAD declared unconstitutional. Two of the chal

lenged provisions apply to employers: one makes it unlaw-

ful “to refuse to hire or employ or to bar or to discharge or

require to retire” any individual based upon a characteristic

protected by the NJLAD, N.J.S.A. § 10:5-12(a); the other

bans printing or distributing statements that express, either

directly or indirectly, that employment Opportunities are

restricted or limited for persons possessing protected char-

acteristics, N.J.S.A. § 10:5-12(c). With respect to hiring

decisions, however, the NJLAD expressly permits a relig-

ious organization to follow “the tenets of its religion in es-

tablishing and utilizing criteria for employment of an em-

ployee.” N.J.S.A. § 10:5-12(a). Another provision of the

NJLAD proscribes restricting access to public accommoda-

tions on the basis of protected traits. N.J.S.A. § 10:5-12(f).

The NJLAD authorizes the Director of the New Jersey Divi-

sion on Civil Rights to promulgate regulations requiring both

employers and providers of public accommodations to post

public notices informing employees and patrons of their rights

under the NJLAD. N.J.S.A. § 10:5-12()).

Furthermore, two provisions prohibit refusing to do

business with an individual because of a protected character-

istic. N.J.S.A. § 10:5-12(1),(m). To that end, the NJLAD

makes it unlawful for anyone “to aid, abet, incite, compel, co-

erce, or induce” any prohibited discrimination in business

transactions, including boycotting any person who refuses to

engage in such unlawful activity. N.J.S.A. § 10:5-12(n). Fi-

nally, the NJLAD proscribes aiding, abetting and inciting any

other conduct forbidden under the Act. N.J.S.A. § 10:5-12(e).

A-19

Moreover, the NJLAD provides several enforcement

mechanisms, both public and private. By filing a complaint

with the New Jersey Division on Civil Rights, an aggrieved

person can initiate an investigation of the allegedly illegal

practice that may prompt the State to commence an enforce-

ment action. N.J.S.A. § 10:5-13 - 10:5-14.1. Alternatively, an

aggrieved individual may proceed directly to state court.

N.J.S.A. § 10:5-13. The NJLAD expressly confers standing

upon “any individual who has been discriminated against” as

well as “any organization which represents or acts to further

the interests of those who have been discriminated against.”

N.J.S.A. § 10:5-38.

According to Plaintiffs, The Holy Bible and the OPC’s

doctrine require Plaintiffs and more than two thousand indi-

vidual members of the OPC in New Jersey to condemn homo-

sexuality, bisexuality, and heterosexual sex outside of mar-

riage as “grievous sins.” Amended Compl. 91 6, 22. Plain-

tiffs alleged that their religious beliefs require them to “draw

reasonable distinctions” based upon permissible and imper-

missible sexual conduct. Amended Compl. {I 22.

As a result, Plaintiffs allege that they have directly and

indirectly discriminated against persons based upon “sexual

or affectational orientation,” even after the 1992 amendments

to the NJLAD made this conduct unlawful. Plaintiffs have

allegedly committed several types of unlawful discriminatory

conduct, including: speaking out, printing and disseminating

publications that condemn homosexuality, bisexuality, and

heterosexual sex outside of marriage as “an abomination and

sinful;” inquiring about the sexual practices of their employ-

ees and refusing to employ anyone engaged in “sinful” sexual

conduct; aiding and abetting discrimination against persons

on the basis of their sexual conduct; and refusing to transact

business with homosexuals, bisexuals, and heterosexuals

having sex outside of marriage. Amended Compl. 1 49, 51,

57, 69.

A-20

Furthermore, Plaintiffs assert that OPC doctrine requires

ministers and elders to discipline church members who are

engaged in “sexual sin” or teach that “adultery or homosexu-

ality [arje an acceptable iifestyle and that we [the OPC]

should not ‘discriminate’ in our dealings with such people.”

Stevenson Aff. 1 6; accord Cummings Aff. 15. If an OPC

member refused to abandon a-“sexually sinful” lifestyle or to

recant “heretical” statements, OPC ministers or elders would

be obligated to file “formal disciplinary charges” against that

member. Stevenson Aff. 17; accord Bahnsen Aff. 1 4. Disci-

plinary action could result in expulsion of the unrepentant

church member from OPC facilities, functions, and sacra-

ments, including “the Lord’s Supper,” baptism, and marriage.

Amended Compl. 1 27, 29, 33, 34, 35.

B. Procedural History

Shortly after initiating this action, Plaintiffs requested

this Court to issue a preliminary injunction precluding Defen-

dants from enforcing the 1992 amendments to the NJLAD

prohibiting discrimination based upon “affectational and sex-

ual orientation” pending a determination of their constitution-

ality.

In opposition to Plaintiffs’ application, Defendants relied

upon the affidavit of C. Gregory Stewart, Director, New Jersey

Division on Civil Rights (the “Division”), the agency charged

with enforcing and applying the NJLAD. N.J.S.A. §§ 10:5-6,

10:5-9.1. As Director of the Division, Stewart is responsible for

interpreting and construing the NJLAD with advice from the

Attorney General. N.J.S.A. §§ 10:5-8d, 10:5-8g.

In the affidavit, Director Stewart set forth the Division’s

interpretation of relevant provisions of the NJLAD. In accor-

dance with the Division’s “longstanding construction” of the

NJLAD, Director Stewart represented that “places of religious

worship” are not public accommodations subject to the pro-

scriptions of the NJLAD. Stewart Aff. 1 10. Additionally, the

NJLAD expressly permits a religious organization to make

mm 2 a a dl aie

A-21

employment decisions based upon the “tenets” of the religion.

N.J.S.A. § 10:5-12(a). Director Stewart indicated that the Di-

vision had no intention of construing the NJLAD to “tend or

threaten to violate the sincere ‘tenets’ of any religion . . . [or]

to engage in any determination or judgment as to what is or is

not a ‘tenet’ of religious faith.” Stewart Aff. 112. Finally,

Director Stewart stated that because of First Amendment con-

cers, the Division “has not in the past prosecuted and has no

intention to prosecute essentially exempt churches for sin-

cerely held religious belief or practice, or speech consistent

with such belief, or for a refusal to engage in certain speech or

for following their religious tenets.” Stewart Aff. 1 13.

This Court denied Plaintiffs’ application for preliminary

relief in an oral opinion rendered on June 19, 1992. Plaintiffs

appealed this denial to the Third Circuit Court of Appeals,

which affirmed this Court’s decision in an unpublished

memorandum opinion. Presbytery of New Jersey v. Florio,

No. 92-5339, slip op. at 13 (Dec. 14, 1992) (Presbytery I), see

983 F. 2d 1052 (3d Cir. 1992) (Table).

After the Third Circuit’s decision, this Court entertained

Defendants’ motion to dismiss the Amended Complaint on

the grounds that Plaintiffs’ lacked standing, their claims

were not yet ripe for adjudication, and that Pullman absten-

tion was appropriate. See 312 U.S. 496. In light of Director

Stewart’s affidavit, which clarified the Division’s interpreta-

tion of the NJLAD, Plaintiffs conceded that the scope of

their challenge to the 1992 amendments to the NJLAD had

been limited to the following provisions: (1) N.J.S.A. § 10:5-

12(e) (making it unlawful to aid and abet any violations of

the Act); (2) N.J.S.A. § 10:5-12(n) (prohibiting aiding and

abetting refusals to do business, including boycotts); and (3)

N.J.S.A. § 10:5-12(j) (requiring posting of notices). Pres-

bytery II, 830 F. Supp. at 247; 40 F.3d at 1461. Plaintiffs

argued that the first two sections impermissibly restrict free-

dom of speech, while the third provision, by compelling

A-22

forced speech, violates their freedom of conscience. Presby-

tery II, 830 F. Supp. at 247.

In granting the motion to dismiss, this Court concluded

that Plaintiffs’ claims were not ripe. Presbytery of New Jersey

v. Florio, 830 F. Supp. 241, 250 (D.N.J. 1993), rev’d in part,

40 F. 3d 1454 (3d Cir. 1994) [hereinafter Presbytery II}.

Based upon the Stewart Affidavit, this Court concluded that

the State had waived enforcement of the NJLAD against both

the institutional Plaintiffs and Reverend Cummings for any

discrimination by them on the basis of “affectational or sexual

orientation.” Presbytery II, 830 F. Supp. at 249. Conse-

quently, this Court determined that Plaintiffs did not face “a

‘real and immediate’ threat of enforcement” by the State as

required to maintain a ripe declaratory judgment action. Id.

(citing Salvation Army v. New Jersey Dept. of Community

Affairs, 919 F.2d 183, 192 (3d Cir. 1990))

Similarly, this Court concluded that Plaintiffs had not

substantiated their general allegation that the threat of private

enforcement had chilled their religious expression with

“evidence of a present and concrete effect” upon their dis-

criminatory speech and conduct. Jd. (citing Salvation Army,

919 F. 2d at 193). Therefore, Plaintiffs claims against the as

yet unknown Defendants who might utilize the private en-

forcement provisions of the NJLAD were similarly unripe for

adjudication. Id.

Since this Court dismissed Plaintiffs’ Complaint as un-

ripe, it did not reach the issues of standing and abstention.

In response to this Court’s decision, Plaintiffs again ap-

pealed to the Third Circuit, which affirmed this Court’s dis-

missal of the claims by the institutional Plaintiffs, the OPC

and Calvary, but reversed with respect to Plaintiff Cummings.

Presbytery II, 40 F.3d at 1470. The Third Circuit held that

although the Amended Complaint consistently refers to

Plaintiff Cummings as “Reverend,” its allegations encompass

allegedly illegal actions by Cummings in his institutional ca-

bo sit bie

A-23

pacity as well as his personal life. Presbytery I, 40 F.3d at

1465-66. The Stewart affidavit, which continually refers to

“religious organizations” and “exempt churches,” waived

prosecution of Reverend Cummings for actions taken in his

official capacity as a minister. The affidavit did not, however,

“disavow enforcement against the members of the church for

their public activities nor does it preclude enforcement against

Cummings for his activities outside the Church.” /d. at 1461.

Consequently, the Third Circuit held that Reverend Cum-

mings had presented a controversy ripe for adjudication. /d.

at 1470.

II. DISCUSSION

On remand to this court, Reverend Cummings, the only

remaining Plaintiff moves for summary judgment on the mer-

its of his First Amendmeiit challenge. Meanwhile, the Defen-

dants have renewed their motion to dismiss on the grounds

that Cummings’ claims are not mpe for adjudication, he lacks

standing and Pullman abstention is appropriate.

A. Issues Before the Court for Resolution ~

As a threshold matter, this Court must identify which is-

sues are properly before this Court for resolution. Defendants’

have moved for a declaration, “adopting as definitive” the in-

terpretations of the challenged provisions of the NJLAD con-

tained in Director Stewart’s affidavits. Def. Br. at 4. The De-

claratory Judgment Act provides that federal courts “upon the

filing of an appropriate pleading, may declare the rights and

other legal relation of any interested party...” In fact, De-

fendants have not filed any pleadings in this action, having

chosen to file two motions to dismiss in lieu of filing an an-

swer. As a result, Defendants have not asserted any cross-

claim or any other claim to affirmative relief. Since Defen-

dants’ have failed to file any pleading upon which a declara-

tory judgment could be based, their motion for a declaratory

judgment is denied.

A-24

Furthermore, this Court must identify which provisions

of the NJLAD remain before the Court for a determination of

their constitutionality. Both before this Court and the Third

Circuit, Plaintiff conceded that Director Stewart’s initial affi-

davit narrowed the scope this challenge to three provisions of

the NJLAD: (1) N.J.S.A. § 10:5-12e (prohibiting aiding and

abetting violations of the Act); (2) N.J.S.A. § 10:5-12n

(making it unlawful to aid and abet discriminatory refusals to

do business, including through boycotting); and (3)

N.J.S.A. § 10:5-12j (requiring posting of notices). Presbytery

IT, 830 F. Supp. at 247; 40 F. 3d at 1461. In spite of this prior

concession, Plaintiff’s Notice of Motion for Summary Judg-

ment requests this Court to declare four additional provisions

of the NJLAD unconstitutional: N.J.S.A. § 10:5-12(c)

(prohibiting employers from distributing statements that re-

strict employment opportunities available to protected per-

sons); N.J.S.A. § 10:5-12f (banning discriminatory limitations

on access to public accommodations); and N.J.S.A. §§ 10:5-

121 and m (making it unlawful to refuse to engage in business

transactions or to extend credit based upon sexual orienta-

tion).

In an effort to convince this Court to rule upon the con-

stitutionality of all seven provisions, Plaintiff contends that

Director Stewart’s supplemental affidavit “dramatically re-

verses the State’s prior enforcement representations made to

this Court and to the Third Circuit” P1. Letter Br. of 6/20/95,

at 1. Plaintiff suggests that these alleged changes in the

State’s enforcement policy have somehow reactivated his pre-

viously abandoned challenge to sections 10:5-12c and f.

Plaintiff offers no explanation for his renewed challenge to

the provisions of the NJLAD that prohibit “direct” discrimi-

nation in business transactions, N.J.S.A. §§ 10:5-121 and m.

In fact, Director Stewart’s supplemental affidavit adds

little, if anything, to the plain language of N.J.S.A. sections

10:5-12c and f. In the supplemental affidavit, Director

Stewart argues that the Amended Complaint fails to allege

ORE eT Tee en ee

A-25

that either Reverend Cummings or any members of the OPC

are covered employers or public accommodations subject to

the requirements of the NJLAD. Stewart Supp. Aff. 19 19-

20. In making this argument, Director Stewart does not enun-

ciate any new State enforcement policy; he merely provides

an interpretation of the existing statutory language. Whether

this Court adopts Director Stewart’s interpretation depends

upon whether it comports with definitions of “employer” and

“public accommodation” provided by the NJLAD itself. See

N.J.S.A. § 10:5-Se, 1.

Therefore, it is the law of this case that Plaintiff has nar-

rowed the scope of his original challenge to the NJLAD to the

following provisions: N.J.S.A. §§ 10:5-12e, n and }. Since

Plaintiff has previously abandoned his direct challenge to

N.J.S.A. section 10:5-12c,f,1 and m, the State Defendants’

motion to dismiss these claims is granted. These four provi-

sions, however, remain indirectly before the Court to the ex-

tent that they are incorporated by reference into the chal-

lenged aid and abet provisions, N.J.S.A. sections 10:5-12e

and n.

B. Justiciability

Federal courts possess the power to resolve only actual

“cases” or “controversies.” U.S. CONST.., art. III, § 2. Both

outgrowths of the “case” or “controversy” requirement, the

justiciability doctrines of standing and ripeness relate not only

to a federal court’s power to adjudicate a particular contro-

versy, but also to the wisdom of its doing so. Presbytery II,

40 F.3d at 1462. The Defendants contend that the Amended

Complaint fails to meet both of these constitutional prerequi-

sites for judicial action.

Standing relates to “who is a proper party to litigate a

particular matter, ripeness [doctrine] . . . determine[s] when

that litigation may occur. Specifically . . . [it] seeks to separate

matters that are premature for review because the injury is

speculative and may never occur, from those cases that are

A-26

appropriate for federal court action.” Erwin Chemerinsky,

Federal Jurisdiction, § 2.4 (1989).

1. Ripeness

In response to the Third Circuit’s ruling, the Defendants

have submitted a supplemental affidavit from Director

Stewart, further elaborating upon the Division’s interpretation

of the NJLAD. In so doing, the Defendants argue that they

have eliminated any “real and immediate” threat of [state] en-

forcement” against Reverend Cummings and other religiously

motivated persons under the aid and abet and boycott provi-

sions of the NJLAD. See Salvation Army, 919 F.2d at 192. As

a result, this Court must once again assess whether Reverend

Cummings’ claims are ripe for adjudication.

A ripe case involves “a real and substantial controversy

admitting of specific relief through a decree of conclusive

character, as distinguished from an opinion advising what the

law would be on a hypothetical state of facts.” Aetna Life Ins.

Co. v. Haworth, 300 U.S. 227, 240 (1937). The purpose of

ripeness doctrine is “to prevent the courts, through avoidance

of premature adjudication, from entangling themselves in ab-

stract disagreements.” Abbott Laboratories v. Gardner, 387

U.S. 136, 149 (1967).

As enunciated by the Supreme Court, the decision

whether a claim is ripe is governed by two considerations:

“the fitness of issues for judicial decision and the hardship to

the parties of withholding court consideration.” Abbott Labo-

ratories, 387 U.S. at 149. “(T]he prototypical case not yet ripe

for adjudication involves a plaintiff who seeks preenforce-

ment review of a statute.” Kessler Institute for Rehabilitation

v. Borough of Essex Fells, 876 F. Supp. 641, 657 (D.N.J.

1995) (citing Chemerinsky, § 2.4). Since pre-enforcement

review is often pursued through a declaratory judgment ac-

tion, ripeness is a special problem in this area. See Maryland

Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273

(1941).

A-27

As a result, the Third Circuit has adopted a three part test

for determining whether pre-enforcement review is appropri-

ate in the context of a declaratory judgment action. A court

must examine: “[1] the adversity of the interests of the parties,

[2] the conclusiveness of the judicial judgment, and [3] the

practical help, or utility of that judgment.” Step-Saver Data

Sys.. Inc. v. Wyse Tech., 912 F. 2d 643, 647 (3d Cir. 1990),

see also Armstrong World Indus., Inc. v. Adams, 961 F.2d

405, 412-24 (3d Cir. 1992) [hereinafter Armstrong] (noting

that these factors are not exclusive).

In order to establish the first factor, an adversity of inter-

est, a party “need not have suffered a ‘completed harm.’ ”

Presbytery IT, 40 F.3d at 1463 (citing Armstrong, 961 F.2d at

412). Adversity of interest exists where a plaintiff faces “a

substantial threat of real harm . . . that . . . remain{s] ‘real and

immediate’ throughout the course of the litigation.” Id.

(citing Salvation Army, 919 F.2d at 192). If “intervening

events remove the possibility of harm,” a court should not ad-

dress the now speculative controversy. Id. (citations omitted).

The second factor, conclusiveness, derives from the re-

quirement that a ripe controversy must be remediable

“through a decree of conclusive character, as distinguished

from an opinion advising what the law would be on a hypo-

thetical state of facts.” Aetna Life Ins. Co., 300 U.S. at 240.

“A declaratory judgment granted in the absence of a concrete

set of facts would itself be a ‘contingency’ and applying it to

actual controversies which subsequently arise would be an

‘exercise in futility.’ ” Presbytery II, 40 F.3d at 1463 (citing

Armstrong, 961 F.2d at 412). The need for a “concrete set of

facts” varies. Armstrong, 961 F.2d at 421. The Supreme

Court has held that the “actual factual setting” is important in

cases alleging unconstitutional takings, see Hodel v. Virginia

Surface Mining & Reclamation Ass’n, 452 U.S. 264, 294-95

(1981), while “a factual record is not as important where the

question is ‘predominantly legal.” Armstrong, 961 F. 2d at

421 (quoting Pacific Gas & Elec. Co. v. State Energy Re-

- ot ne CN sien Sense

A-28

sources Conservation & Dev. Comm’n, 461 U.S. 190, 201

(1983)).

Regarding the third factor, utility, this requirement is met

where “the court is convinced that [by its action] a useful pur-

pose will be served.” Step-Saver, 912 F.2d at 649 (citations

omitted). The court should assess the utility of a judgment in

terms of “whether the parties’ plans of actions are likely to be

affected by a declaratory judgment.” Jd. at 649 n . 9.

Finally, these three factors are not the only relevant con-

siderations in determining whether judicial intervention is ap-

propriate. As an additional factor, the Supreme Court has

considered whether “[p]ostponing consideration of the ques-

tion presented, until a more concrete controversy arises, also

has the advantage of permitting the state courts further op-

portunity to construe [the challenged provisions] . . . and per-

haps in the process to ‘materially alter the question to be de-

cided.’ ” Renne v. Geary, 501 U.S. 312, 323 (1991) (citations

omitted).

a. Adversity of Interest

In deciding this motion to dismiss, this Court must ac-

cept all factual allegations contained in the Amended Com-

plaint as true and draw all reasonable inferences therefrom in

favor of the Plaintiff. Markowitz v. Northeast Land Co., 906

F.2d 100, 103 (3d Cir. 1990). “The test in reviewing a motion

to dismiss for failure to state a claim is whether, under any

reasonable reading of the pleadings, plaintiff may be entitled

to relief.” Presbytery II, 40 F.3d at 1465 (quoting Colburne v.

Upper Darby Township, 838 F. 2d 663, 665-66 (3d Cir.

1988), cert. denied, 489 U.S. 1065 (1989)).

In holding that Cummings had presented a ripe contro-

versy, the Third Circuit specifically expressed concern that

the initial Stewart Affidavit did not obviate the threat that

Reverend Cummings would be prosecuted if he, in his indi-

vidual capacity, engaged in the acts alleged in paragraphs 49,

51, 57, and 69 of the Amended Complaint. Presbytery II, 40

A-29

F.3d at 1469. These acts include: speaking out and lobbying

against homosexuality and other “sexual sins,” Amended

Compl. 1 49, 51; printing and disseminating materials that

condemn these sexual practices, Amended Compl. {| 49; in-

quiring about the sexual practices of prospective employees;

refusing to hire anyone committing “sexual sins,” Amended

Compl. 1 69; making reasonable distinctions based upon these

sexual practices, Amended Compl. {1 51, 69; aiding and abet-

ting discrimination against homosexuals, bisexuals and het-

crosexuals having sex outside of marriage, Amended Compl.

151; and refusing to “buy from, contract with, or otherwise

do business with persons based upon that person’s homosex-

ual, bisexual, or heterosexual practices,” Amended Compl. 9

57.

In deciding the pending motions, the Court must deter-

mine whether Director Stewart’s supplemental affidavit has

eliminated this “real and immediate” threat of Reverend

Cummings being prosecuted for these discriminatory activi-

ties alleged in the Amended Complaint. See Salvation Army,

919 F.2d at 192. If Director Stewart’s supplemental affidavit

insulates Reverend Cummings’ allegedly discriminatory ac-

tivities from prosecution, then this intervening interpretation

of the NJLAD, offered by the State, has “remove[d]-the pos-

sibility of harm” and this Court should not address the merits

of this now speculative controversy. Presbytery II, 40 F.3d at

1463 (citing Armstrong, 961 F. 2d at 412).

As a statement of general policy, Director Stewart main-

tains that the NJLAD does not apply to First Amendment

protected speech that is unaccompanied by conduct in viola-

tion of the Act. Stewart Supp. Aff. 16. In other words, no

one will be subject to prosecution under the NJLAD for “pure

speech” that falls within the scope of the First Amendment’s

protections, regardless of its content and “wherever it may

take place, in the ‘pulpit’ or outside of it.” Stewart Supp.

Aff. 1 8, 7, 6. Similarly, Director Stewart reaffirms that

NJLAD does not authorize prosecution of anyone for either

’

;

A-30

engaging or refusing to engage in speech based upon religious

principle and belief. Stewart Supp. Aff. 1 7 (quoting Stewart

Aff. 1 13). Rather, Director Stewart construes the NJLAD as

prohibiting only: (1) “pure” speech that falls outside of the

First Amendment’s protection for a reason other than its dis-

criminatory content; and (2) speech that is accompanied by

conduct violative of the NJLAD. Stewart Supp. Aff. 19 6, 14.

Applying these general principles, Director Stewart con-

strues N.J.S.A. section 10:5-12e, which makes it unlawful to

“aid, abet, incite, compel or coerce” acts prohibited by the

NJLAD, “or to attempt to do so,” to require either speech that

is not constitutionally protected or actions unlawful under the

NJLAD.

To date, no reported or unreported decision has inter-

preted the prohibition against inciting violations of the

NJLAD. N.J.S.A. § 10:5-12e; Stewart Supp. Aff. 114. If this

incitement provision is ever enforced, Director Stewart as-

sures that it “must be and will be read consistently with cur-

rent First Amendment law” applying only to speech that is not

protected by the First Amendment because it is “‘directed to

inciting or producing imminent lawless action and is likely to

produce such action.’” Stewart Supp. Aff. 1 14 (citing

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per cu-

riam)). Under this interpretation, illegal incitement to dis-

criminate under the NJLAD would not include “expressions

of . . . opposition to the mere existence of the law or to the

people who happen to be included within any of the protected

categories of the law, and advocacy that it be repealed or vio-

lated.” Stewart Supp. Aff. 1 14.

Moreover, Director Stewart maintains that section

10:5-12e requires more than just speech to constitute illegal

“aiding and abetting.’’ Instead, section 10:5-12e “requires

action which assists, supports, and supplements the action of

another in conduct” that violates the NJLAD. Stewart Supp.

Aff. 9 12.

A-31

Even under Director Stewart’s interpretation of N.J.S.A.

section 10:5-12e, Reverend Cummings and other OPC mem-

bers face a real and immediate threat of prosecution if they

engage in the activities alleged in the Amended Complaint.

Plaintiff disavows any intention to engage in advocacy di-

rected to and likely to result in “imminent lawless action,” Pl.

Br. at 32, which would be subject to prosecution under Di-

rector Stewart’s interpretation of N.J.S.A. § 10:5-12e.

Stewart Supp. Aff. 1 14 (citing Brandenburg, 395 U.S. at

447). Therefore, Plaintiff does not face any real threat of

prosecution for incitement. Plaintiff's Amended Complaint

specifically alleges, however, that Reverend Cummings and

other OPC members intend to aid and abet discrimination

against homosexuals, bisexuals, and heterosexuals engaged in

sex Outside of marriage, which is prohibited by the NJLAD.

Amended Compl. 97 51.

Rather than accept Plaintiff’s allegation that he and other

OPC members intend to “aid and abet” discrimination on its

face, the Defendants urge the Court to examine the specific

types of allegedly prohibited conduct cited in the Amended

Complaint. Director Stewart claims that the Amended Com-

plaint merely alleges that Reverend Cummings and others in-

tend to encourage discrimination against persons engaged in

“sexual sin” through “pure” First Amendment protected

speech. Stewart Supp. Aff. 11 11, 12. Speech alone, unac-

companied by action that “assists, supports and supplements”

another’s actions in violation of the NJLAD, does not consti-

tute unlawful aiding and abetting under section 10:5-12e as

construed by the Division. Stewart Supp. Aff. 1 12.

Contrary to Director Stewart’s characterization, Plaintiff

has alleged conduct that satisfies Director Stewart’s inter-

pretation of aiding and abetting and thus could result in

prosecution. Plaintiff alleges that he and other members of

the OPC are employers subject to the NJLAD. Amended

Compl. 9 67; see also 51. In addition, Plaintiff alleges that

he and other OPC members “publish, circulate, issue, dis-

A-32

play, post and mail printed material condemning homosexu-

ality, bisexuality, and heterosexual sex outside of marriage.”

19 53, 51. Consistent with these allegations, Reverend

Cummings could print a leaflet encouraging discrimination

based upon “affectational or sexual orientation” and give it

to an OPC member who is an employer. If that employer

distributed it to prospective employees, that employer would

have violated N.J.S.A. § 10:-12c, which prohibits circulating

Statements that directly or indirectly indicate that employment

opportunities will be discriminatorily limited based upon an

applicant’s sexual orientation. By printing and providing the

leaflet to the employer, Reverend Cummings would have

“assist[ed], support[ed] and supplement[ed]” the employer’s

conduct of distributing the leaflet in violation of the NJLAD.

See N.J.S.A. § 10:5-12c. Therefore, such conduct by Rever-

end Cummings would constitute unlawfully aiding and abet-

ting another in conduct violative of the NJLAD as those terms

have been construed by Director Stewart. Since Director

Stewart’s supplemental affidavit has failed to eliminate Rev-

erend Cummings’ “real and immediate” threat of prosecution

under section 10:5-12e, the parties interests remain adverse in

this respect. See Salvation Army, 919 F. 2d at 192.

In addition, Director Stewart’s supplemental affidavit

amplifies the Division’s interpretation of the NJLAD provi-

sion that makes it unlawful to “aid, abet, incite, compel, co-

erce or induce” violations of the NJLAD provisions prohibit-

ing discrimination in business or credit transactions, or “to

attempt, or conspire to do so.” N.J.S.A. § 10:5-i2n

(incorporating by reference N.J.S.A. §§ 10:5-121,m. Conduct

prohibited under this section includes boycotting. N.J.S.A. §

10:5-12n(2). Director Stewart represents that this provision

will be interpreted to prohibit “only such boycotts as are de-

signed to achieve an unlawful objective, since such boycotts

are not protected by the First Amendment.” Stewart Supp.

Aff. 1 16 (citing NAACP v. Claiborne Hardware Co., 458

U.S. 886, 915-920 (1982). In the absence of an unlawful ob-

tA te 8 Aaa RT i tle SEN Bibi tatty Meade —

ON a ee

A-33

jective, Director Stewart claims that the NJLAD permits peo-

ple, subject to minor restrictions, “to picket, advocate, speak

and distribute leaflets and other written material around and

about businesses” of their choosing. Stewart Supp. Aff. 1 16.

With the supplemental affidavit, Director Stewart has

completely failed to eliminate the “real and immediate” threat

of prosecution under section 10:5-12n(2) that Reverend

Cummings and other OPC members face. See Salvation Army,

919 F.2d at 192. Plaintiff alleges that OPC members like

himself “refuse[] to knowingly buy from, contract with, or

otherwise do business with persons on the basis of that per-

son’s homosexual, bisexual, or heterosexual practices.”

Amended Compl. 157. Plaintiff and the other OPC members

evidence their disapproval of homosexual, bisexual and het-

erosexual persons engaged in sex outside of marriage by iso-

lating and discriminating against such persons in business

transactions. See Amended Compl. 11 24, 29. The NJLAD

expressly states that this discriminatory objective is unlawful.

N.J.S.A. §§ 10:5-121, m. Therefore, Director Stewart’s repre-

sentation that Plaintiff and others will not be prosecuted for

boycotting or any other aiding and abetting discrimination in

business transactions, unless it is directed toward an unlawful

end, does not in any way insulate Plaintiff from prosecution.

The parties’ interests thus remain adverse with respect to en-

forcement of N.J.S.A. §10:5-L2n.

With respect to N.J.S.A. section 10:5-12j, Director

Stewart’s supplemental affidavit represents that he has not

promulgated any regulations requiring persons covered by the

act to post notices informing the public that discrimination

based upon “affectational or sexual orientation” is prohibited.

The NJLAD authorizes the Director “by regulation [to] re-

quire” notice posting, but does not require him to do so.

N.J.S.A. § 10:5-12j. Existing regulations require employers,

real estate agents, and places of public accommodation to post

notices informing the public that discrimination based upon

traditionally protected characteristics, such as race, creed,

A-34

color, or national origin is prohibited. N.J.A.C. §§ 13:8-1.1-

13:8-2.3. Although Director Stewart has not promulgated a

regulation adding “affectational or sexual orientation” to that

list, the Division prepared new notices to reflect the 1992

amendments to the NJLAD and some of these notices were

distributed. Stewart Supp. Aff. 1 17. Director Stewart or-

dered distribution stopped “because of the absence of regu-

latory authorization.” Stewart Supp. Aff. 117. Therefore,

Director Stewart contends, no one is currently required to

post notices stating that discrimination based upon

“affectational or sexual orientation” is illegal. Stewart Supp.

Aff. 1 17.

Since no law or existing regulation requires Plaintiff and

other OPC members to post notices indicating that discrimi-

nation based upon sexual orientation in employment, public

accommodations, and real estate transactions is illegal, Plain-

tiff has failed to demonstrate that his interests are currently

adverse to those of the Defendants. Plaintiff has submitted a

notice prepared by the Division to reflect the 1992 amend-

ments to the NJLAD. P1. Br. Exh. 1. While this revised no-

tice may suggest that Director Stewart intends to promulgate

the necessary regulation, unless and until he does so, Plaintiff

and other OPC members do not face a “real and immediate”

threat of prosecution. See Salvation Army, 919 F.2d at 192.

As a result, the parties do not possess adverse interests with

respect to N.J.S.A. section 10:5-12j. Therefore, this factor

weighs against finding that Reverend Cummings has pre-

sented a ripe controversy challenging the notice posting pro-

vision of the NJLAD.

Having reviewed Director Stewart’s supplemental affi-

davit, the Court concludes that the State has failed to elimi-

nate Reverend Cummings’ “real and immediate” threat of

prosecution for violating N.J.S.A. sections 10:5-12e and n.

See Salvation Army, 919 F.2d at 192. Therefore, the adversity

of the parties’ interests with respect to these two provisions

weighs in favor of this Court finding that this controversy is

i as at —— -

ee oe

A-35

ripe for review. See Step-Saver Data Sys., 912 F.2d at 647. In

contrast, the absence of such adversity of interests weighs

against this Court issuing a decision on the merits of N.J.S.A.

§ 10:5-12). Id.

b. Conclusiveness

The second factor, conclusiveness, requires this Court to

determine whether Plaintiff’s claims are amenable to resolu-

tion “through a decree of conclusive character,” or if a deci-

sion by this Court would amount to no more than an advisory

opinion based upon a hypothetical set of facts. Aetna Life Ins.

Co., 300 U.S. at 240; see also Presbytery II, 40 F. 3d at 1468.

While “predominantly legal questions are generally amenable

to resolution in a pre-enforcement context,” the presence of a

purely legal question, in itself, does noi render a case ripe for

review. See Presbytery II, 40 F.3d at 1468 (citations omitted).

In assessing the conclusiveness of judicial action, courts

should consider whether the parties’ claims are likely to

change substantially in future litigation, whether “the current

parties were appropriate to raise the issues at bar . . . [and

whether] the parties would be subject to enforcement.” Jd.

(citing Atlanta Gas Light Co. v. United States Dept. of En-

erqv, 666 F.2d 1359, 1363 n. 7 (Ilth Cir.), cerz. denied, 459

U.S. 836 (1982).

Since Plaintiff mounts a facial challenge to constitution-

ality of these three NJLAD provisions, factual development

would add little, if anything, to resolution of Plaintiff’s First

Amendment claims. Presbytery II, 40 F.3d at 1468, 1469.

Moreover, Reverend Cummings alleges that he and other

OPC members currently engage in prohibited activities and

intend to do so in the future. Future claims by Reverend

Cummings or others sharing his desire to discriminate based

upon sexual orientation “would most likely parallel those

Claims already presented . . . [making it] unlikely that there

would be any change in the substance or clarity of the chal-

lenges” to the NJLAD. Id. at 1469. As previously discussed,

Reverend Cummings would be subject to prosecution under

A-36

the aid and abet provisions, N.J.S.A. sections 10:5-12e and n,

for the activities alleged in the Amended Complaint. In con-

trast, the notice posting provision, N.J.S.A. section 10:5-12),

could not be enforced against Reverend Cummings because

existing regulations do not require him to post a notice stating

that discrimination based upon “affectational or sexual orien-

tation” is prohibited. Stewart Supp. Aff. 9 18.

Having assessed the applicable criteria, this Court con-

cludes that the second Step-Saver factor, conclusivity, weighs

in favor of finding that Plaintiff’s challenges to the two aid

and abet provisions, N.J.S.A. sections 10:5-12e and n are ripe

for review. See Siep-Saver, 912 F.2d at 649. In contrast, a

decision on Reverend Cummings’ challenge to the notice

posting provision would be merely an advisory opinion, based

upon a hypothetical regulation requiring him to post a notice

Stating that discrimination based upon sexual orientation is

unlawful. Since no such regulation currently exists, Reverend

Cummings would not be subject to prosecution for refusing to

post a notice that is inconsistent with his religious beliefs.

Therefore, the lack of conclusiveness weighs against finding

that Reverend Cummings’ challenge to N.J.S.A. section 10:5-

2j is ripe for review.

c. Utility

In assessing the third Step-Saver factor, the utility re-

solving the facial challenge to a statute, a court should con-

sider “whether the parties’ plans of actions are likely to be

affected by a declaratory judgment.” Step-Saver, 912 F.2d at

649 n.9. Entry of a declaratory judgment would affect the

State’s enforcement policies with respect to the aid and abet

provisions. N.J.S.A. §§ 10:5-12e, n. Although Reverend

Cummings alleges that he will continue to engage in allegedly

prohibited activities in spite of the risk that he will be prose-

cuted, “his willingness to do so is likely to be affected by

resolution of this action.” Presbytery II, 40 F.3d at 1470.

Since a declaration of Reverend Cummings’ rights would

permit him and “others who would seek to engage in similar

/ on ee wea mA

A-37

activity . . . to speak without fear of governmental sanction or

regulation of their activities,” this third Step-Saver factor

weighs in favor of holding that Plaintiff’s challenge to the aid

and abet provisions of the NJLAD re ripe. /d.; N.J.S.A. §§

10:5-12e, n.

With respect to the notice posting provision, however, a

decision by this Court is unlikely to affect the parties’ con-

duct. Most importantly, the State concedes that N.J.S.A. sec-

tion 10:5-12j cannot be enforced against persons, like Rever-

end Cummings, who refuse to display a notice stating that

discrimination based upon sexual orientation is unlawful.

Since this refusal is not unlawful, Reverend Cummings’ con-

duct and his willingness to refuse to post such a notice a no-

tice would not be affected in any way by a judicial decision.

As a result, the third Step-Saver factor weighs against finding

Reverend Cummings’ challenge to the notice posting provi-

sion ripe.

d. Summary of Conclusions

Having applied the three part test enunciated in Step-

Saver, this Court concludes that Reverend Cummings’ claims

challenging the constitutionality of the aid and abet provi-

sions, N.J.S.A. sections 10:5-12e and n, are ripe for adjudica-

tion.

In contrast, all three Step-Saver factors weigh against ju-

dicial action on Reverend Cummings’ challenge to the notice

posting provision, N.J.S.A. section 10:5-12j. As an additional

consideration, the Court notes that the Division has, in the

past, made exceptions to the notice posting requirements in its

regulations. For example, the regulation requiring notices to

be posted by persons engaged in the sale of real estate con-

tains an exception for a person who either sells or attempts to

sell his own residence. N.J.A.C. § 13:8-1.3. The form which

a regulation implementing the 1992 amendments takes, if any,

could eliminate this controversy or “‘materially alter the

question to be decided.’ ” Renne, 501 U.S. at 323. Conse-

A-38

quently, a determination of the constitutionality of N.J.S.A.

section 10:512j is best postponed “until a more concrete con-

troversy arises.” See Id. Accordingly, Plaintiff’s challenge to

N.J.S.A. section 10: 5-12 j is dismissed as unripe.

2. Standing

Like ripeness, standing is an outgrowth of the “case or

controversy” requirement of Article III of the constitution. In

order to invoke the jurisdiction of a federal court, a plaintiff

must have “a personal stake in the outcome” of an otherwise

justiciable controversy. Warth v. Seldin, 422 U.S. 490, 498-

99 (1975), U.S. Const., art. III, § 2, cl. 2. “[A]t an irreducible

minimum, Art. III requires the party who invokes the court’s

authority to “show that he personally has suffered some actual

or threatened injury as a result of the putatively illegal con-

duct of the defendant,’ . . . and that the injury ‘fairly can be

traced to the challenged action” and “is likely to be redressed

by a favorable decision. ..’ ” Valley Forge Christian College

v. Americans United for Separation of Church and State, 454

U.S. 464, 472 (1982) (citations omitted).

In addition to these three constitutional requirements for

standing, the Supreme Court has also identified several pru-

dential standing principles that require a federal court to de-

cline jurisdiction. Even where a party has satisfied the con-

Stitutional case or controversy requirement, these prudential

requirements dictate that “the Plaintiff must generally assert

his own legal rights and interests, and cannot rest his claim to

relief on the legal rights or interests of third parties.” Warth,

422 US. at 499.

The Supreme Court has recognized several exceptions to

the general rule against third party standing. E.g., Secretary of

State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S.

947, 957-59 (1984) (permitting professional fundraiser to

challenge statute requiring charities to use 75% of monies

raised for charitable purposes, rather than administrative ex-

penses.) [hereinafter Munson]. Since a litigant who does not

A-39

possess Article III standing cannot assert the rights of others,

the Court must first determine whether Reverend Cummings

possesses standing to sue in his own right. See Amato v.

Wilentz, 952 F.2d 742, 749 (3d Cir. 1991) (citaticns omitted).

a. Reverend Cummings’ Standing

In Presbytery II, the Third Circuit noted that its determi-

nation that Reverend Cummings faced a real and immediate

threat of prosecution led necessarily to the conclusion that he

possessed standing to bring this action on his own behalf. 40

F. 3d at 1470n. 14. The Third Circuit expressly left open the

question, however, of whether Reverend Cummings pos-

sessed standing to challenge the 1992 amendments to the

NJLAD on behalf of other OPC members. /d.

According to the Defendants, Director Stewart’s supple-

mental affidavit, by removing the threat that Reverend Cum-

mings will be prosecuted for activities in his individual ca-

pacity, has eliminated Plaintiff’s standing to bring this action

either on in his own right or on behalf of OPC members.

Since this Court has concluded that Reverend Cummings

continues to face the threat of prosecution in spite of the sup-

: plemental affidavit, the Defendants’ contention that he has

. lost standing lacks merit. See Id. at 1470. The “real and im-

mediate threat” of prosecution that Reverend Cummings faces

constitutes a concrete injury capable of Supporting standing.

: See Northeastern Fla. Chapter of Assoc. General Contractors

. of Am. v. City of of Jacksonville, _U.S.___, 113 S. Ct. 2297,

i 2301-02 (1993). Moreover, this injury is traceable to the

challenged statutory provisions and is likely to be redressed

by a favorable decision. See Id. Therefore, the Third Cir-

cuit’s conclusion that Reverend Cummings may sue in his

own right remains valid.

b. Third Party Standing

With respect to the issue left open by the Third Circuit.

Reverend Cummings maintains that this Court should not ap-

A-40

ply the prudential bar against third party standing and instead

should permit him to assert the rights of OPC members.

Based upon Supreme Court precedent, the Third Circuit

has identified three factors to be considered in determining

whether a litigant has third party standing to assert the rights

of others not before the Court. Amato, 952 F.2d at 749

(citations omitted). Courts should balance the following fac-

tors: (1) “the relationship between the plaintiff and the third

party whose rights are asserted;” (2) “the ability of the third

party to advance his own rights- whether some obstacle im-

pedes the rightholder’s own suit;” and (3) “the impact on third

party interests- whether plaintiff and the third party have con-

sistent interests.” Jd. at 749, 750 (citing Caplin & Drysdale v.

United States, 491 U.S. 617, 623 n.3 (1989). Additionally, in

the First Amendment context, the Supreme Court has held

that the “fear of chilling expression . . . may at times outweigh

the policies behind the general rule against third party stand-

ing.” Amato, 952 F.2d at 748 (citing Munson, 467 U.S. at

977).

1) Relationship and Consis-

tency of Interests

Although a close personal relationship is “neither neces-

sary nor sufficient” to support third party standing, standing is

more likely where the litigant and the third party possess

some relationship “of special consequence.” Amato, 945 F.2d

at 751 (citations omitted). “The key aspects of the

‘relationship’ prong are thus a common link to the right as-

serted, consistency of the parties’ interests, and effective ad-

vocacy- not the intimacy of the reiationship per se.” Jd.

Since Reverend Cummings’ claims in his official capac-

ity have been dismissed, this Court must examine the relation-

ship between Reverend Cummings as an individual and other

OPC members. Reverend Cummings and other OPC mem-

bers share a common link to their asserted right to aid and

abet discrimination based upon affectational or sexual orien-

A-41

tation: their shared belief that such behavior and advocacy is

required by OPC doctrine. Moreover, the Amended Com-

plaint alleges that Reverend Cummings and other OPC mem-

bers have and intend to continue to engage in similar activities

that may violate the aid and abet provisions of the NJLAD.

See Amended Compl. {1 12 (stating that allegations regarding

“plaintiff(s)” include OPC members). As adherents to a com-

mon belief system, Reverend Cummings and other OPC

members possess consistent interests in being able to express

their belief that “sexual sins,” including homosexuality, bi-

Sexuality, and sex outside of marriage are wrong. Further-

more, Reverend Cummings has shown himself to be an effec-

tive advocate in challenging the 1992 amendments to the

NJLAD as violating the First Amendment. Therefore, the re-

lationship between Reverend Cummings and other OPC

members and the consistency of their interests both weigh in

favor of third party standing.

2. Obstacles

Third party standing may be inappropriate where the

party whose rights have allegedly been violated faces some

impediment from bringing his or her own suit. Jd. at 750.

Such impediments range from “legal or physical inability to

bring suit,” which qualifies as an obstacle, to “a practical dis-

incentive to sue . . . [which] may suffice although a mere dis-

incentive makes for a less persuasive showing than an af-

firmative impediment.” Jd. (citations omitted).

Along the spectrum of impediments, those faced by OPC

members fall close to the practical disincentive end, which

does not necessarily suffice to support third party standing.

Plaintiff does not allege that individual OPC members face

any legal or physical inability to bring suit. Rather, he claims

that the 1992 amendments to the NJLAD, adding affectational

and sexual orientation to the list of protected characteristics

have stigmatized OPC members for believing in and advo-

cating discrimination based upon an individual’s sexual prac-

tices. See Amended Compl. 7 10. In other words, Reverend

A-42

Cummings implicitly argues that the unpopularity of OPC

members’ beliefs impedes them from coming forward to as-

sert their own First Amendment rights.

While this relatively mild disincentive might ordinary

weigh against third party standing, in the First Amendment

context, the lack of an obstacle is not dispositive in deter-

mining standing to challenge a statute as chilling free speech.

Munson, 467 U.S. at 957. Therefore, even though other OPC

members do not face a substantial obstacle to filing their own

suits, the absence of such an impediment is not dispositive.

3) Conclusions

Balancing these relevant factors leads this Court to con-

clude that Reverend Cummings possesses third party standing

to assert the First Amendment rights of other OPC members.

The relationship between the parties, the consistency of their

interests, and concern for the alleged chilling effect of the

challenged NJLAD provisions weigh strongly in favor of third

party standing.

C. Pullman Abstention

In an attempt to prevent this Court from adjudicating the

merits of Plaintiff’s challenge, the Defendants argue that this

Court should Pullman abstain in order to provide the New

Jersey Supreme Court an opportunity to construe the two aid

and abet provisions, N.J.S.A. sections 10:5-12 e and n.

“Abstention from the exercise of federal jurisdiction is

the exception, not the rule.” Colorado River Water Conser-

vation D strict v. United States, 424 U.S. 800, 813 (1976).

The Supreme Court has characterized abstention as:

an extraordinary and narrow exception to the duty

of a District Court to adjudicate a controversy prop-

erly before it. Abdication of the obligation to decide

cases can be justified under this doctrine only in the

exceptional circumstances where the order to the

parties to repair to the state court would clearly

serve an important countervailing interest.

ee, Te ee gee

Cae ee ee Tey eT

A-43

County of Allegheny v. Frank Mashuda Co., 360 U.S. 185,

188-89 (1959).

Under Pullman abstention doctrine, where a federal court

faces “both a federal constitutional question and an unsettled

issue of state law whose resolution might narrow or eliminate

the federal constitutional question, abstention may be justified

under principles of comity in order to avoid ‘needless friction

with state policies.’ ” Chez Sez III Corp. v. Township of Un-

ton, 945 F.2d 628, 631 (3d Cir. 1991), cert. denied, 503 U.S.

907 (1992) (quoting Pullman, 312 U.S. at 500). By abstain-

ing under Pullman, a court does not abdicate federal jurisdic-

tion but merely postpones its exercise, thus avoiding unneces-

sary federal constitutional adjudication. Harrison v. NAACP,

360 U.S. 167, 177 (1959) (citations omitted). According to

the Third Circuit, district courts must engage in a two-step

analysis to decide whether to abstain under Pullman. First, a

court must determine whether three “special circumstances”

exist:

(1) Uncertain issues of state law underlying the fed-

eral constitutional claims brought in federal court;

(2) State law issues amenable to a state court inter-

pretation that would obviate the need for, or sub-

stantially narrow, the scope of adjudication of the

constitutional claims;

(3) A federal court’s erroneous construction of state

law would be disruptive of important state policies.

Hughes v. Lipscher, 906 F.2d 961, 964 (3d Cir. 1990). Sec-

ond, if all three special circumstances exist, the district court

“must then make a discretionary determination as to whether

abstention is in fact appropriate under the circumstances of

the particular case, based upon the weight of these criteria and

other relevant factors.” Chez Sez, 945 F.2d at 631. Other

relevant factors include: “the availability of an adequate state

remedy, the length of time the litigation has been pending,

and the potential impact on the parties caused by delay in ob-

A-44

taining a state ruling.” Stretton v. Disciplinarv Review Bd. of

the Supreme Court of Pennsylvania, 944 F. 2d 137, 140 (3d

Cir. 1991); Biegenwald v. Fauver, 882 F.2d 748, 750 (3d Cir.

1989).

1. Uncertainty of State Law

Before Pullman can apply, the state statute or local ordi-

nance subject to federal constitutional challenge must be un-

certain or ambiguous. Initially, a court should focus on

whether the statutory language is “clear and unmistakable.”

Hughes, 906 F. 2d at 965.

Both the Defendants and Reverend Cummings agree that

the aid and abet provisions of the NJLAD are ambiguous. See

N.J.S.A. §§ 10:5-12e,n. In fact, the Defendants’ request for

this Court to abstain is based upon the concession that key

Statutory provisions are not defined under the Act and are thus

ambiguous. The NJLAD does not define aiding, abetting, co-

ercing, or any of the other behavior that can trigger a violation

of N.J.S.A. sections 10:5-12e and n. See N.J.S.A. § 10:5-5.

Similarly, Reverend Cummings indicates that this declaratory

judgment action stems from his uncertainty concerning the

meaning of these statutory provisions, which has allegedly

had chilling effect upon his advocacy in favor of discrimina-

tion based upon affectational and sexual orientation. Cum-

mings Aff. 11 8 (“I do not know what these terms as used in the

law are supposed to mean.”).

Where the state courts have authoritatively construed an

otherwise ambiguous statute, abstention is not appropriate.

United Services Auto Ass’n v. Muir, 792 F.2d 356, 361 (3d

Cir. 1986), cert. denied, Grode v. United States Auto Ass’n,

479 U.S. 1031 (1987) (citing Kusper v. Pontikes, 414 U.S. 51,

55-56 (1973)). Consequently, a court should not abstain

where a prior authoritative state court decision forecloses the

narrowing interpretation of the challenged statute offered by

the party arguing in favor of abstention. Kusper, 414 U.S. at

55. In contrast, an administrative interpretation of a statute,

eee Pe a eee

A-45

because it is not authoritative, cannot remove an ambiguity

and prevent abstention under Pullman. United Services Auto

Ass'n, 792 F.2d at 361; accord Chez Sez, 845 F.2d at 632.

Since Director Stewart’s clarifying interpretations cannot

authoritatively resolve statutory ambiguities, the Court must

determine whether prior New Jersey Supreme Court decisions

foreclose an interpretation of either N.J.S.A. section 10:5-12 e

or n that would avoid the need for a decision on Plaintiff’s

constitutional claims.

With respect to N.J.S.A. section 10:5-12n, which pro-

hibits aiding and abetting discrimination in business transac-

tions, including through boycotting, this provision has never

been interpreted by the New Jersey Supreme Court. The par-

ties have not cited any published decision by a New Jersey

court interpreting this provision nor has the Court’s independ-

ent research uncovered any such opinions.

Regarding N.J.S.A. section 10:5-12e, however, the New

Jersey Supreme Court has interpreted this provision specifi-

cally in the context of a First Amendment Challenge. The

Passaic Dailv News Corp. v. Blair, 63 N.J. 474 (1973). Sev-

eral newspapers challenged an administrative regulation pro-

hibiting publication of employment ads under column head-

ings segregated by gender or any other characteristic pro-

tected by the NJLAD. /d. at 478. In addition, the regulation

declared it a violation of the NJLAD to publish any employ-

ment ad that either directly or indirectly expressed an intent to

discriminate against persons based upon protected character-

istics like sex, unless the preference was based upon a bona

fide occupational qualification. Id.

Characterizing the employment ads as commercial

speech, the New Jersey Supreme Court held that the regula-

tion prohibiting newspapers from segregating employment

ads by gender did not unconstitutionally abridge freedom of

the press under the First Amendment. Jd. at 481. Moreover,

the New Jersey Supreme Court held that the challenged regu-

A-46

lations fell within the Division’s rule-making authority con-

ferred by the NJLAD. /d. at 490. In so doing, the Court inter-

preted the term “aiding,” as used in N.J.S.A. section 10:5-12e.

Id. ai 488. The Court concluded that “[t]o borrow .. . from

definitions of aiding and abetting in the criminal field, where

criminal intent is stressed because the abettor is a criminal

principal, is entirely inappropriate in the context of the present

statute which is basically a remedial, not a criminal one.” /d.;

but see Baliko v. Stecker, 275 N.J. Super. 182, 191 (App. Div.

1994) (relying upon the criminal definition of aiding and abet-

ting in construing N.J.S.A. section 10:5-12e).

Although the New Jersey Supreme Court has interpreted

N.J.S.A. section 10:5-12e, its interpretation does not foreclose

any of the constructions proposed by Director Stewart to nar-

row or to eliminate Plaintiff's federal constitutional claims.

Most importantly, The Passaic Daily News upheld the con-

Stitutionality of a regulation implementing N.J.S.A. section

10:5-12e as applied to commercial speech. Jd. at 481-82.

Commercial speech is entitled to substantially less constitu-

tional protection than the politically and religiously motivated

speech that Reverend Cummings and other OPC members

allegedly engage in by speaking out against the NJLAD and

“sexual sins.” See e.g., Central Hudson Gas & Electric v.

Public Service comm’n, 447 U.S. 557, 562-63 (1980); Pitts-

burah Press Co. v. Pittsburah Comm’n on Human Relations,

413 U.S. 376, 388-89 (1973) (holding that speech related to

illegal commercial activity, discrimination in employment, is

not constitutionally protected).

Since Passaic Daily News involved commercial speect,

it does not dictate a particular outcome for Plaintiff’s First

Amendment challenge to the aid and abet provisions of the

NJLAD. See N.J.S.A. §§ 10:5-12e, n. Moreover, the New

Jersey Supreme Court’s interpretation of N.J.S.A. section

10:5-12e does not foreclose Director Stewart’s proposed lim-

iting construction of the challenged aid and abet provisions as

inapplicable to “pure” First Amendment protected speech that

‘

A-47

is not accompanied by conduct in violation of the NJLAD.

See Stewart Supp. Aff. 19 6, 14.

In the absence of any New Jersey Supreme Court deci-

sion construing the applicability of the challenged provisions

to religiously or politically motivated speech or expressive

conduct, the Court concludes that meaning of aiding and

abetting discrimination under N.J.S.A. sections 10:5-12 e and

n is uncertain and weighs in favor of Pullman abstention. See

Hughes, 906 F. 2d at 964.

2. Effect of State Law on the Constitutional Claim

As a second factor in the Pullman inquiry, courts should

consider whether the challenged statute is “amenable to an

interpretation by the state courts that would obviate the need

for or substantially narrow the scope of the constitutional is-

sues.” Chez Sez, 945 F.2d at 632 (citations omitted). Al-

though an administrative interpretation of a challenged provi-

sion cannot authoritatively eliminate uncertainty, an adminis-

trative interpretation that narrows or moots the federal con-

Stitutional chalienge weighs in favor of abstention. United

Services Auto Ass’n, 792 F.2d at 361 (citing Belotti v. Baird,

428 U.S. 132, 148 (1976)).

As Director Stewart’s supplemental affidavit indicates,

the challenged aid and abet provisions of the NJLAD,

N.J.S.A. sections 10:5-12e and n, are subject to interpretations

that would either eliminate or substantially narrow the con-

Stitutional issues presented. At a minimum, Director

Stewart’s supplemental affidavit shows that the two chal-

lenged NJLAD provisions can be construed as not prohibiting

constitutionally protected “pure” speech. If the New Jersey

Supreme Court were to adopt this interpretation, it would

eliminate Reverend Cummings’ claims that the NJLAD un-

constitutionally prohibits him from “speaking out” against

“sexual sins” and advocating discrimination against homo-

sexuals, bisexuals, and heterosexuals engaged in sex outside

of marriage. Reverend Cummings’ challenge would then be

A-48

narrowed to a determination of whether expressive conduct,

like publishing and distributing leaflets, can constitutionally

be actionable as unlawful aiding and abetting under the

NJ ,

Under New Jersey law, courts afford the interpretation of

a statute by the administrative agency charged with its en-

forcement special deference. Passaic Daily News, 63 N.J. at

484 (“placing considerable weight upon the construction of a

statute ... by the administrative agency charged by the statute

with the responsibility of making it work.”). The administra-

tive agency’s interpretation “is entitled to prevail, so long as it

is not plainly unreasonable”. E.g., Metromedia Inc. v. Direc-

tor, Div. of Taxation, 97 N.J. 313, 327 (1984). Therefore,

there is a significant chance that given the opportunity, the

New Jersey Supreme Court would adopt the narrowing con-

structions of N.J.S.A. sections 10:5-12e and n contained in

Director Stewart’s supplemental affidavit.

Even if the New Jersey Supreme Court did not adopt Di-

rector Stewart’s precise interpretation, his supplemental affi-

davit shows that both N.J.S.A. sections 10:5-12e and n are

susceptible to limiting constructions that could substantially

alter, narrow, and even eliminate Reverend Cummings’ First

Amendment claims. The amenability of the challenged provi-

sions to narrowing constructions weighs in favor of Pullman

abstention. See Hughes, 906 F. 2d at 964.

3. Effect of an Erroneous Federal

Interpretation of State Law

Regarding the third factor, a federal court must examine

the importance of the state policies underlying the challenged

statute and the potential disruption that would result from an

erroneous ruling. Hughes, 906 F. 2d at 964.

The New Jersey Legislature, in its statement of findings,

emphasized the importance of the State policies embodied in

the NJLAD by declaring that discrimination based against

categories of persons protected by the NJLAD “threatens not

A-49

only the rights and proper privileges of the inhabitants of the

State but menaces the institutions and foundation of a free

democratic State.” N.J.S.A. § 10:5-3.

Similarly, the New Jersey Supreme Court has stated that:

The Law Against Discrimination, and the constitu-

tional precepts of equal rights which it vindicates,

reflect a pervasive public policy. Its objectives are

constant and have a vital place throughout the

panoply of state laws and actions.

Terry v. Mercer County Board of Chosen Freeholders, 86

N.J. 141, 151 (1981) (citations omitted).

Given the “preeminent social significance of its [the

NJLAD’s] purposes and objectives,” an erroneous interpreta-

tion by this Court would disrupt extremely important state

policies. Passaic Daily News, 63 N.J. at 484 (citations omit-

ted). The importance of New Jersey’s policy of eradicating

“the cancer of discrimination” and the disruption that an erro-

neous decision by this federal court would cause weigh in fa-

vor of abstention. Jackson v. Concord Co., 54 N.J. 113, 124

(1969); see Hughes, 906 F.2d at 964.

4. Equitable Considerations

Finally, as additional factors relevant to the Pullman ab-

stention inquiry, courts should consider the relative weight of

the first three criteria, as well as additional factors such as the

availability of adequate state court remedies and the conse-

quences of the delay caused by a decision to abstain. See e.g.

Stretton, 944 F.2d at 140.

With respect to the three abstention criteria already dis-

cussed, the Court finds that all weigh strongly in favor of ab-

stention. In addition, New Jersey law provides an adequate

remedy whereby Reverend Cummings could obtain a de-

claratory ruling on his constitutional claims. New Jersey law

provides that any person whose rights are affected “may have

determined any question of construction or validity” arising

under the challenged state law. N.J.S.A. § 2A:16-53. The

A-50

availability of declaratory relief under New Jersey law weighs

in favor of abstention.

Admittedly, if this Court decided to abstain, this action,

which has already been pending for over three years, would

be delayed still further. According to Plaintiff, the harm to

him and to other OPC members that would result from a deci-

sion to abstain, deferring a decision on the merits of this First

Amendment challenge alone is sufficient to render abstention

inappropriate.

Even where all three special circumstances for abstention

exist, courts may refuse to abstain if the resulting delay would

cause irreparable harm to the parties. Id. at 141; Biegenwald,

882 F. 2d at 753-54. Where a candidate for state judicial of-

fice mounted a challenge to the Pennsylvania Code of Judicial

Conduct which prohibited him from announcing his views on

disputed political or legal issues, the potential harm caused by

a delayed decision on the merits rendered abstention inappro-

priate. Stretton, 944 F.2d at 141. With only a few weeks re-

maining before the election, a timely state court decision

probably could not be obtained, leaving the plaintiff and other

candidates in doubt about appropriate topics for campaign

discussion. Jd. Similarly, the disadvantages of abstaining

significantly outweighed the advantages where the plaintiff, a

death row inmate, might not be alive by the time the state ju-

dicial process had run its course and the litigation returned to

federal court for resolution. Biegenwald, 882 F.2d at 753.

Since the delay caused by the decision to abstain would, as a

practical matter, deprive the death row inmate of any possible

remedy for the alleged constitutional violations, abstention

was inappropriate. Jd. Both of these cases demonstrate that

the harm caused by a delayed decision must be truly extraor-

dinary in order to render abstention inappropriate.

Determining whether the harm to Reverend Cummings

that would result from a delayed decision meets this high

threshold raises unique First Amendment concerns. In the

First Amendment context, the harm of a delayed decision and

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therefore the appropriateness of Pullman abstention varies,

depending upon whether the plaintiff challenges the relevant

Statute on its face or as applied. Chez Sez, 945 F.2d at 633-34.

The Supreme Court has held that “ ‘abstention . . . is inappro-

priate for cases [where] . . . statutes are justifiably attacked on

their face as abridging free expression.” City of Houston v.

Hill, 482 U.S. 451, 467 (1987) (quoting Dumbrowski v. Pfis-

ter, 380 U.S. 479, 489-90).

Distinguishing between facial and as applied challenges

makes sense under the Third Circuit’s two-step Pullman

analysis. See Chez Sez, 945 F.2d at 633. If a statute is justi-

fiably attacked on its face, then it is not susceptible to a lim-

iting construction that would eliminate or alter the federal

constitutional question presented, and thus the first “special

circumstance” criterion for Pullman abstention is not met. See

Hughes, 906 F.2d at 964. Furthermore, if the challenged stat-

ute is in fact invalid on its face, then the delay resulting from

a decision to abstain would cause an extremely harmful chill-

ing effect, a discretionary consideration that would weigh

strongly in favor of immediate judicial intervention. See. e.g.

Stretton, 944 F. 2d at 140.

In contrast, a plaintiff, by challenging a statute as ap-

plied, does not raise such concerns. “Where the state courts

can, in a single proceeding, determine the bounds of the state

Statute by choosing between one of several alternative mean-

ings of the statute, abstention has been held proper even

where a First Amendment challenge is concerned.” Chez Sez,

945 F.2d at 634 (citing Babbitt v. United Farm Workers, 442

U.S. 289, 308 (1979)). Pullman abstention is not inappropri-

ate per se simply because a statute is being challenged on First

Amendment grounds. Id.

Moreover, New Jersey law provides a specific mecha-

nism that could substantially mitigate the harm or chilling ef-

fect for an individual awaiting a state court determination of

whether a challenged statute is constitutional as applied to

him. Under New Jersey law, an individual may seek a bind-

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ing declaratory ruling from the appropriate administrative

agency concerning the applicability of the challenged statute

to specific persons or conduct. N.J.S.A. § 52:14B-8. If this

Court were to abstain, Reverend Cummings could avail him-

self of this administrative procedure while his claims were

pending in state court. By seeking a declaratory ruling from

the Division, Reverend Cummings could eliminate much of

the harm caused by his alleged uncertainty as to whether his

religiously and politically motivated speech and expressive

conduct violate the NJLAD.

Although Reverend Cummings has mounted a facial

challenge to N.J.S.A. sections 10:5-12e and n, this does not

end the Court’s abstention inquiry. According to the Supreme

Court, Pullman abstention is inappropriate where a plaintiff

“justifiably” mounts a facial challenge to a statute. City of

Houston, 482 U.S. at 467 (quoting Dumbrowski, 380 U.S. at

489-90). Therefore, this Court must assess the viability of

Reverend Cummings’ facial challenges to the NJLAD’s two

aid and abet provisions before making any final determination

regarding abstention. If Reverend Cummings’ facial chal-

lenges are entirely without merit, then there is an increased

likelihood that Pullman abstention will be appropriate for his

remaining claims, challenging the two provisions, N.J.S.A.

sections 10:5-12e and n as they apply to him. See Chez Sez,

845 F.2d at 633-34.

D. Reverend Cummings’ Facial Challenge

Reverend Cummings cofitends that N.J.S.A. sections

10:5-12e and n, which prohibit aiding and abetting discrimi-

nation against persons based upon affectational or sexual ori-

entation, are unconstitutional on their face and thus should be

declared invalid. According to Reverend Cummings, the

challenged provisions are unconstitutional on their face for

two reasons: (1) they are unconstitutionally vague and over-

broad; and (2) they are content-based regulations which im-

permissibly discriminate against disfavored viewpoints, such

as Reverend Cummings’ belief that people should be dis-

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criminated against based upon their sexual orientation. Both

of these theories for facially invalidating the challenged aid

and abet provisions lack merit.

1. Overbreadth

The overbreadth doctrine embodies the principle that the

First Amendment “needs breathing space” and “that the pos-

sible harm to society in permitting some unprotected speech

to go unpunished is outweighed by the possibility that the

protected speech of others may be muted and perceived griev-

ances left to fester because of the possibly inhibitory effects

of overly broad statutes.” Broadrick v. Oaklahoma, 413 U.S.

601, 611, 612 (1973).

In an existing case or controversy, the overbreadth doc-

trine permits “a litigant whose own activities are unprotected . . .

nevertheless [to] challenge a statute by showing that it sub-

stantially abridges the rights of other parties not before the

Court.” Schaumberg v. Citizens for a Better Environment, 444

U.S. 620, 634 (1980); accord Dumbrowski, 380 U.S. at 486

(holding that overbreadth doctrine does not require “that the

person making the attack demonstrate that his own conduct

could not be regulated by a statute drawn with the requisite

narrow specificity.”).

A successful overbreadth challenge precludes enforce-

ment of a challenged statute unless and until it is either re-

written by the legislature or authoritatively reinterpreted by a

State court to remove the chilling effect upon constitutionally

protected expression. Broadrick, 413 U.S. at 613. Conse-

quently, “[a}pplication of the overbreadth doctrine . . . is,

manifestly, strong medicine” that should be employed to in-

validate an entire statute only where the statute’s overbreadth

is not only “real, but substantial as well, judged in relation to

the statute’s plainly legitimate sweep,” id. and where the

Statute is not susceptible to a limiting construction or partial

invalidation. Board of Airport Commissioners of the City of

Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987)

A-54

[hereinafter Airport Commissioners]. “[T]he mere fact that

one can conceive of some impermissible applications of a

statute is not sufficient to render its susceptible to an over-

breadth challenge.” City Council of the City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 800 (1984) [hereinafter

Taxpayers for Vincent].

As a guiding principle, federal courts should “never for-

mulate a rule of constitutional law broader than is required by

the precise facts to which it is applied.” United States v.

Raines, 362 U.S. 17, 21 (1961) (citations omitted). For this

reason, courts should not ordinarily invalidate statutes as fa-

cially overbroad “where the parties challenging the statute are

those who desire to engage in protected speech that the over-

broad statute purports to punish.” Brockett v. Spokane Ar-

cades, 472 U.S. 491, 504 (1985). In such cases, there is:

no want of a proper party to challenge the statute,

no concern that an attack on the statute will be un-

duly delayed or protected speech discouraged. The

statute may be declared invalid to the extent that it

reaches too far, but otherwise left intact.

Id.

Unless it appears that “any attempt to enforce” the chal-

lenged legislation “would create an unacceptable risk of the

suppression of ideas,” a court should declare an entire statute

invalid on its face only if the record indicates that the chal-

lenged statute will have a different impact upon third parties

not before the court than it has upon the plaintiffs. Taxpayers

for Vincent, 466 U.S. at 801; see also Laurence H. Tribe,

American Constitutional Law, §12-28 (2d ed. 1988) (noting

the Supreme Court’s increasingly unwillingness to assume the

existence of a chilling effect, instead placing “a mounting

burden on the individual to show that the apparent inhibition

of free expression is in fact highly probable and socially sig-

nificant.”). Courts should not engage in overbreadth analysis

where a plaintiff claims that a statute is overbroad precisely

A-55

because it applies to him. Moore v. City of Kilgore, 877 F.2d

364, 390-92 (Sth Cir. 1989), cert. denied, 493 U.S. 1003

(1989) (Higginbotham, J., concurring).

First, it is not true that “any attempt to enforce” the

challenged provisions of the NJLAD “would create an unac-

ceptable risk of the suppression of ideas.” See id. Even if the

challenged provisions of the NJLAD prohibit speech advo-

cating discrimination, as Reverend Cummings claims, the

provisions also encompass conduct that the State may legiti-

mately prohibit. For example, the State could permissibly

prohibit, for example, an individual from offering a $500 re-

ward to employers for each time that they refuse to hire a gay

or lesbian job applicant because of the applicant’s sexual ori-

entation. Such a reward scheme would have little to do with

the expression of ideas and could legitimately be regulated by

the state because of the secondary effects of such conduct.

Therefore, Reverend Cummings cannot bring an overbreadth

challenge on the ground that the two challenged provisions

are not capable of constitutional application. See id.

Second, Reverend Cummings has failed to established

that the challenged aid and abet provisions would have any

different effect on third parties not before the Court than it has

on himself. The Amended Complaint indicates that where its

allegations refer to “Plaintiffs,” this term includes not only

Reverend Cummings but also OPC members. Amended

Compl. 112. To the extent the Amended Complaint asserts

claims by Reverend Cummings in his individual, as opposed

to his official capacity as a minister, the allegedly prohibited

aiding and abetting activities that he and other OPC members

engage in and intend to continue are identical. In so doing,

Reverend Cummings has failed to overcome the presumption

that this Court should assess the constitutionality of N.J.S.A

sections 10:5-12e and n as they apply to him, as opposed to

on their face. This Court expresses no opinion as to whether

the challenged aid and abet provisions are in fact overbroad.

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Reverend Cummings has failed, however, properly to assert

such a challenge.

2. Viewpoint Discrimination

As explained by the Supreme Court, “[t}here is an

‘equality of status in the field of ideas,’ and government must

afford all points of view an equal opportunity to be heard.”

Police Dep’t v. Mosely, 408 U.S. 92, 96 (1972) (citation

omitted). “{T]he First Amendment’s hostility to content-

based regulation extends not only to a restriction on a par-

ticular viewpoint, but also to a prohibition of public discus-

sion on an entire topic.” Burson v. Freeman, 504 U.S. 191,

197 (1992); R.A.V. v. Citv of St. Paul,__ U.S. ___, 112 S. Ct.

2538, 2542-48 (1992).

Applied to expressive conduct, the preference for con-

tent-neutrality permits “nonverbal expressive activity [to] be

banned because of the action it entails, but not because of the

ideas that it expresses.” RA.V., 112 S. Ct. at 2544; Texas v.

Johnson, 491 U.S. 397, 406 (1989). As long as the expressive

conduct is not regulated because its message, “acts are not

shielded from regulation merely because they express a dis-

criminatory idea or philosophy.” R.A.V., 112 S. Ct. at 2546-

47.

“Content-based regulations [of speech_and expressive

conduct] are presumptively invalid” RA.V., 112 S. Ct. at

2542 (citing Simon & Schuster Inc. v. Members of N.Y. State

Crime Victims Bd., 502 U.S. 105 (1991)). Consequently,

courts, as the first step in a First Amendment analysis, must

determine whether a statute is content-neutral or con-

tent-based. Rappa v. New Castle County, 18 F.3d 1043, 1053

(3d Cir. 1994). The level of constitutional scrutiny applied to

a challenged regulation depends upon this determination. If a

statute is content-based, it is unconstitutional unless the State

can show that it “is necessary to serve a compelling state in-

terest and that it is narrowly drawn to achieve that end.”

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n., 469 U.S.

: Fs id a: WEAN PN a ht RR

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37, 45 (1983); accord Burson, 504 U.S. at 198. In contrast,

courts apply a more relaxed level of scrutiny to content-

neutral restrictions, which will be upheld “so long as they are

designed to serve a substantial government interest and do not

unreasonably limit alternative avenues of communication.”

Renton v. Playtime Theaters, Inc., 475 U.S. 41, 47 (1986)

(citations omitted).

“Government regulation of expressive activity is content

neutral so long as it is ‘justified without referettee to the con-

tent of the regulated speech.’” Jd. at 48 (citations omitted).

Where a statute is “aimed not at the content” of the restricted

speech but “at the secondary effects” generated by or associ-

ated with the speech, the statute is content-neutral. Renton,

475 U.S. at 48; see also Boos v. Barry, 485 U.S.

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