# Petition for Writ of Certiorari — Presbytery of New Jersey of the Orthodox Presbyterian Church v. Whitman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0135%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1155 ## Text Supreme Court, 0.8. FILED \ 961156 JAN 22 1997 rive Ur CLES 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, v. 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 i 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? il 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 iV 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 vi 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, v. 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- 4 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 3 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- 1 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. 4 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. 5 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. 6 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 7 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 8 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 9 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) | 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. ” 10 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). 6 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 1] 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. 12 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 13 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! 14 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- 15 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). 16 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. 17 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. 18 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 19 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 7; 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. A. 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. B. 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 G 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. & 4 | 9 . 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. 4 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 ’ ' | ; i | | 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 eo / 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0135%3A1. Public record. Not legal advice.