Opposition Brief — Presbytery of New Jersey of the Orthodox Presbyterian Church v. Whitman

ie ‘I

No. 96-1156 x DED

FEB 27 1997

In The OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1996

¢

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. CU MINCGS,

Petitioners,

VS.

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

a

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI ON BEHALF OF

THE NAMED NEW JERSEY RESPONDENTS

¢

PETER VERNIERO

Attorney General of New Jersey

Attorney for Named New Jersey

Respondents

Hughes Justice Complex; CN 112

Trenton, New Jersey 08625

(201) 648-7811

Anprea M. Smkowrtz

Assistant Attorney General

Of Counsel

CHarces S. COHEN*

Deputy Attorney General

WituraM H. Lorentz

Deputy Attorney General

Caro. G. JACOBSON

Deputy Attorney General

On the Brief

* Counsel of Record for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

SaAcomemres OF THE CASS, oi ioc cciscscvceseecvin 1

SUMMARY OF ARGUMENT....................05 4

Fee Sse oi oan 6.4 ENWG ew iap de anes hee HE ee hs 5

THE WRIT SHOULD BE DENIED BECAUSE THE

THIRD CIRCUIT’S DECISION AS TO THE

FACIAL CONSTITUTIONALITY OF THE NEW

JERSEY LAW AGAINST DISCRIMINATION AND

THE ISSUE OF PULLMAN ABSTENTION WAS

ENTIRELY CONSISTENT WITH ESTABLISHED

DECISIONAL LAW, AND PETITIONER HAS

FAILED TO PUT FORTH A COMPELLING REA-

SON FOR THIS COURT TO REVIEW IT......... 5

et PV PET Pree oe ere ae ors Pere Peer 25

SOR TORINO

TABLE OF AUTHORITIES

Page

Cases

Albertson v. Millard, 345 U.S. 242 (1953) .......... 22, 23

Baliko v. Stecker, 275 N.J.Super, 182, 645 A.2d 1218

Chae. The. BORD. o000s05e5n50es0s tee 7 |

Bellotti v. Baird, 428 U.S. 132 (1976) ................. 24

Board of Directors of International v. Rotary Club of |

Duarte, 463 UD. TAF Ge ori ctenterecarenchvneds 16

Brandenburg v. Ohio, 395 U.S. 444 (1969)............. 10

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ............ 6 |

City of Houston v. Hill, 482 U.S. 451 (1987) ........... 5

Garrity v. State of New Jersey, 385 U.S. 493 (1967) ..... 8

Harrison v. National Association for the Advancement

of Colored People, 360 U.S. 167 (1959).............. 22

Heritage Farms, Inc. v. Solebury Township, 671 F.2d

743 (3d Cir. 1982), cert. den. 456 U.S. 990 (1982) .... 23

Hoffman Estates v. The Flipside, Hoffman Estates,

iue., TS UD. GD Ge os vsccanscsceksbeaseniasses 5

Hughes v. Lipscher, 906 F.2d 961 (3d Cir. 1990)....... 23

Hurley v. Irish-American Gay, Lesbian and Bisexual

Group, US. __, 132 LEd 2d 487 (1995) ....... 12 |

Jews for Jesus, Inc. v. Jewish Community Relations

Council of New York, Inc., 968 F.2d 286 (2d Cir.

BOOED + i skbeenssscceeassbevaeaeeueeneee 7, 10, 11, 19

Madsen v. Women’s Health Center, Inc., 512 U.S. 753

CRIED « .nns nie enw non eee sued ene 15, 16

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

CRs ow koces se cckshsaeeaseneeee 18, 19, 20

ili

TABLE OF AUTHORITIES - Continued

Page

New York State Club Ass’n v. City of New York, 487

ake Gk AW g ok SHSU NS RAW SAO OR Oa Oe 6

New York v. Ferber, 458 U.S. 747, (1982)............... 5

Ohio Civil Rights Comm'n Dayton Schools, 477 U.S.

I rear toa. ch Sa nie aa ek wed on sees 10, 19, 23

Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460

i Skee yas hy euh chee Mokek ds en ek ene sae 16

R.A.V. v. St. Paul, 505 U.S. 377 (1992) ....11, 13, 14, 15, 19

Railroad Commission of Texas v. Pullman Co., 312

NS rr ee ee 3, 4, 22, 23

Schenck v. Pro-Choice Network of Western New York,

Se ES Re Ae 16

Spector Motor Service, Inc. v. McLaughlin, 323 U.S.

ERE a Be ee ee 21

U.S. v. Escandar, 465 F.2d 438 (5th Cir. 1972) ......... 8

oa oo or ee, aoe Wo. Ser (1968)... 5.25... ccs. 11, 18

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ....11

Wisconsin v. Mitchell, 508 U.S. 476 (1993)......... 15, 19

UNitTeD States CONSTITUTION

Se ee passim

OTHER AUTHORITIES

PM a bbs esc iscbeeecsecdesisecowene 1

acc vw weknnuvesseanas 17

nc nw smenewasoisicenancas 2

iv

TABLE OF AUTHORITIES - Continued

Page

Pew Me > Pee err re CTT yt ace erie ce ey ns G7

fn Pe RPO PoeT STUY eVIE eer eC re ior 20

Lhe ® | ere epe errr rr rer rr rrr Serer. 9

Aw oe hE 2 rer rrrerrere retry rer 20

MISCELLANEOUS

Black’s Law Dictionary, 697 (5 ed. 1979)............... 8

SA. Ce SN PE 6. vnc Nev en ban sae) bead ease eee 1

STATEMENT OF THE CASE

Pursuant to the New Jersey Law Against Discrimina-

tion (“LAD”), N.J.S.A. 10:5-1 et seq., which was originally

enacted in 1945, members of legislatively designated

classes are afforded civil rights protection, mostly in the

areas of employment, housing and access to places of

public accommodation. During the more than 50 years

since this statute became law, it has been amended to

reflect changing public policy by expanding the scope of

its protections. By 1991 N.J. Laws 519, the New Jersey

Legislature amended the LAD to include “affectional or

sexual orientation” among these protected categories.1

The amendment did not substantively change the LAD; it

simply added this category throughout the statute wher-

ever the existing classes are listed. The law was signed by

then-Governor James Florio and became effective on Jan-

uary 19, 1992.

In April 1992, the original three plaintiffs - Reverend

David B. Cummings, the Presbytery of New Jersey of the

Orthodox Presbyterian Church, and Calvary Orthodox

Presbyterian Church of Wildwood -— brought this action in

the United States District Court for New Jersey ostensibly

to oppose the amendments, but in fact challenging the

constitutionality of particular sections of the law, all of

which pertain not only to affectional and sexual orienta-

tion but to all protected classes. Specifically the complaint

1 “Affectional or sexual orientation” is defined as “male or

female heterosexuality, homosexuality or bisexuality by

inclination, practice, identity or expression, having a history

thereof or being perceived, presumed or identified by others as

having such an orientation.” N.J.S.A. 10:5-5hh.

sought declaratory and injunctive relief assuring that reli-

gious speech and practices engaged in by plaintiffs would

not be subject to punishment pursuant to the law, even if

violative of the amended statute. Despite explicit exemp-

tions in the statute for religious institutions and members

of the clergy, See, N.J.S.A. 10:5-12a, as well as affidavits

from the Director of the New Jersey Division on Civil

Rights (“Division”), the agency designated to enforce the

LAD, indicating that it had never been interpreted as

applying to such entities, plaintiffs continued to pursue

their challenge.

The present petition seeks review of the third and

final decision in this matter from the United States Court

of Appeals for the Third Circuit (Pal-Pal3).2 Over the

course of this arduous litigation, the parties and the

issues raised have been significantly refined so that this

most recent decision concerns only Reverend Cum-

mings’s claims - brought as an individual acting in a

secular capacity — regarding only two portions of the

LAD: N.J.S.A. 10:5-12e (prohibiting any person from aid-

ing, abetting, inciting, compelling or coercing another to

engage in an unlawful discriminatory act), and 12n (for-

bidding the aiding and abetting of a boycott designed to

further unlawful discriminatory purposes).*

2 “Pa” refers to the Appendix to the Petition for a Writ of

Certiorari filed by Reverend Cummings.

“P” refers to the Petition for Writ of Certiorari filed by

Cummings.

3 It was not disputed below that Petitioner had waived his

challenge to any other portions of the statute except for those

incorporated by reference in these sections (Pa5-Pa6, n.1). As to

subsection (j), which requires all persons who activities are

Cummings'’s first contention, that these sections were

unconstitutional on their face, was rejected on all

grounds. As to whether they violated the First Amend-

ment’s free speech clause, the Third Circuit concluded

that the statute had not been shown to be incapable of

any constitutional application because of integral “con-

duct restrictions” therein (Pa7-Pa9). The Court also

rejected an overbreadth argument because there had been

no showing that protected activities of either Cummings

or third parties not before the Court might be drawn

within the ambit of the LAD (Pa9-Pal10).

The Court then considered whether to address the

next part of Cummings’s argument, that the challenged

statutory sections were unconstitutional as applied to

him. It affirmed the trial court’s application of the absten-

tion doctrine pursuant to Railroad Commission of Texas v.

Pullman Co., 312 U.S. 496 (1941), agreeing that: (1) New

Jersey courts had yet to interpret the questioned provi-

sions of the LAD dispositively; (2) the statutory language

was susceptible of constitutionally consistent interpreta-

tion by New Jersey courts, and (3) there was a manifest

potential for disruption of important state policies by

invalidating critical sections of the LAD (Pal1-Pal12).

Thus, it should be left to the State courts of New Jersey to

interpret the LAD, and Cummings retained the right to

included within the scope of the LAD to post notices, in a form

mandated by regulation, stating the rights of those protected by

the law, Cummings’s claim was dismissed as unripe because the

regulation specifying the form of the poster has never been

amended to include mention of sexual orientation; therefore, his

argument was simply theoretical (Pa6; Pa33-Pa35).

initiate an action regarding his “as applied” arguments

there.

Accordingly, the trial court’s decisions that Petitioner

had not presented a valid facial challenge to the LAD,

and to abstain from reaching his “as applied” attacks,

were affirmed (Pa13).

SUMMARY OF ARGUMENT

The writ should be denied because Petitioner has

failed to establish that any portion of the New Jersey Law

Against Discrimination is unconstitutional on its face or

that Pullman abstention was inappropriately utilized. The

statute is neither facially overbroad nor intrusive as to

free speech rights guaranteed by the First Amendment.

To the extent that any part of the statute affects speech at

all, this is only incidental to its permissible regulation of

discriminatory conduct. There has also been no showing

that the Third Circuit Court of Appeals erred in abstain-

ing from considering Petitioner’s arguments regarding

the constitutionality of this statute as applied to him. The

Court correctly concluded that no portion of the language

of the law had been shown to preclude a reasonable

interpretation that would be constitutionally permissible.

Given that the New Jersey State courts have not had

occasion to construe the particular provisions at issue, the

Third Circuit appropriately abstained in accordance with

Pullman.

ARGUMENT

THE WRIT SHOULD BE DENIED BECAUSE THE

THIRD CIRCUIT’S DECISION AS TO THE FACIAL

CONSTITUTIONALITY OF THE NEW JERSEY LAW

AGAINST DISCRIMINATION AND THE ISSUE OF

PULLMAN ABSTENTION WAS ENTIRELY CONSIS-

TENT WITH ESTABLISHED DECISIONAL LAW, AND

PETITIONER HAS FAILED TO PUT FORTH A COM-

PELLING REASON FOR THIS COURT TO REVIEW IT.

In urging this Court to grant the writ of certiorari,

petitioner iterates arguments repeatedly rejected by the

District Court and Third Circuit Court of Appeals that the

contested sections of the LAD proscribe the communica-

tion of ideas, including ideas based in religious belief, in

violation of the First Amendment. However, as the State

of New Jersey has consistently maintained, and the courts

have agreed, the statute avoids infringing on constitu-

tionally protected speech because it prohibits not the

expression of beliefs but discriminatory conduct which

consists of more than mere communication.

Petitioner argues first that the challenged parts of the

statute are unconstitutionally overbroad on their face.

When addressing such a challenge, “a court’s first task is

to determine whether the enactment reaches a substantial

amount of constitutionally protected conduct. If it does

not, then the overbreadth challenge must fail.” Hoffman

Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489,

494 (1982) (footnote omitted); City of Houston v. Hill, 482

U.S. 451, 458 (1987). “Only a statute that is substantially

over broad may be invalidated on its face.” Ibid.; New York

v. Ferber, 458 U.S. 747, 769 (1982). The overbreadth doc-

trine has been referred to as “strong medicine” that is

used “sparingly and only as a last resort.” New York State

Club Ass'n v. City of New York, 487 U.S. 1, 14 (1988),

quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

Under the circumstances of this case, it must be con-

cluded that the law does not on its face intrude in any

way upon constitutionally protected speech.

Petitioner continually misconstrues various provi-

sions of the LAD and ignores the interpretations of the

statute historically afforded by the State as well as the

numerous court rulings already rendered in this case.

Both the District Court Judge and the Third Circuit

rejected the argument repeated again here that the LAD

“proscribes communicating ideas that are adverse tc cer-

tain ‘sexual orientations’ ” (P8). On the contrary, subsec-

tions 12e and 12n both prohibit all persons from the

aiding and abetting of discriminatory acts, not merely the

expression of ideas. Section 12e makes it unlawful to

“aid, abet, incite, compel or coerce the doing of any of the

acts forbidden under this act, or to attempt to do so.”

Section 12n contains similar language, making it illegal to

“aid, abet, incite, compel, coerce, or induce” the refusal to

engage in business transactions with someone based on

that person’s protected status. Not only is such accom-

plice liability a valid and essential part of the legislative

goal of eradicating discrimination, but these terms, all of

which have precise meaning, take the forbidden acts

beyond mere speech by requiring accompanying affirma-

tive conduct. “If discriminatory conduct engaged in by

‘primary’ actors using words can be constitutionally out-

lawed, . . . so too can discrimination engaged in by third

parties who use speech or other expressive conduct to

coerce a ‘primary’ actor to violate an anti-discrimination

statute.” Jews for Jesus, Inc. v. Jewish Community Relations

Council of New York, Inc., 968 F.2d 286, 296 (2d Cir. 1992).

Thus, on this issue both courts below agreed that on their

face these provisions regulate conduct which the State

may legitimately prohibit (Pa9; Pa55).

Aiding and abetting, for example, involves more than

just speech, it requires action which assists, supports and

supplements the efforts of another in conduct which vio-

lates the LAD (Pa59). See, Baliko v. Stecker, 275 N.J.Super.

182, 191, 645 A.2d 1218 (App. Div. 1994) (aiding and

abetting are synonymous with assisting, supporting,

etc.).4 Similarly, the term “incite” is construed consis-

tently with current law to exclude mere expressions of

opinion or opposition to the law; again, it requires con-

duct to be actionable (Pa59).

The type of conduct proscribed by the other terms set

forth in N.J.S.A. 10:5-12e and 12n is characterized by

excessive, threatening force, resulting in the overcoming

of another’s will. For example, the term “compel”

requires not merely advocacy but forceful urging under

4 Petitioner challenges the Third Circuit’s reference to the

Baliko decision, saying that the court made an “egregious

misstatement” as to the holding in that case. Discussing the

uncertainty of New Jersey law on the “aiding and abetting”

provisions, the Third Circuit cited Baliko for the proposition that

courts seem inclined to interpret these terms as they have done

in the criminal law context (Pall). Petitioner faults this

reasoning on the ground that Baliko was not a criminal case

(P16). However, he misconstrues the Third Circuit’s point which

was that in the civil case before it, the Baliko court looked to

criminal law - from whence these terms of accomplice liability

derive — for guidance on the appropriate way to interpret them.

extreme pressure. The halimark is the presence of some

operative force producing an involuntary response. U.S.

v. Escandar, 465 F.2d 438, 442 (5th Cir. 1972). “Coercion”

involves compelling submission in a vigorous or forcible

manner. Garrity v. State of New Jersey, 385 U.S. 493, 565

(1967). Finally, Black’s Law Dictionary, 697 (5 ed. 1979),

defines “induce” as causing an act by prevailing upon

another. These terms simply cannot be confused with

expression of opinion or other non-forcible advocacy.

Nor is there merit to Petitioner’s second argument

that the statutory sections also impermissibly punish

advocacy and prohibit speech on the basis of its content

and viewpoint. It should first be noted that the 1992

amendments did not alter the basic provisions of the LAD

except to add sexual and affectional orientation as a

protected class. While Petitioner implies that these

amendments materially changed the statute, the truth is

that the provisions now under attack have been in effect

for many years, and Petitioner can point to no case what-

ever, either initiated by the Attorney General or by pri-

vate parties, in which the LAD has been found to have a

chilling effect on constitutionally protected speech.> This

supports the State’s argument that not only is the statute

susceptible of a constitutionally permissible interpreta-

tion, but it has consistently been so interpreted over the

years.

Equally baseless is Petitioner’s argument that the law

now protects any person wishing to speak out in favor of

> In fact, he provides virtually no evidence that anyone has

been prosecuted under the challenged sections of the LAD at all.

minority orientation but prohibits those who hold oppo-

site views from expressing themselves (P13). Petitioner

can obviously point to no provision in the law which

does this because no such distinctions are in fact made.

His assertion that the amendments at issue burden his

ability to speak against certain sexual orientations fails

for two reasons. First, it assumes that only the sexual

orientations he opposes, homosexuality and bisexuality,

are protected. An examination of the definitional sections

of the LAD make clear that all sexual orientations are

protected, be they heterosexual, bisexual or homosexual.

N.J.S.A. 10:5-5hh to kk. Hence, the statute makes no dis-

tinctions among types of sexual orientation; it prohibits

discriminatory conduct aimed at anyone's sexual orienta-

tion, both majority and minority.®

Second, since expression of a “viewpoint,” religious

or otherwise, is nowhere prohibited, controlled or regu-

lated, Cummings remains free to maintain whatever reli-

gious viewpoint he chooses, even if discriminatory.

However lively, simple debate does not implicate the

LAD. It is only when one discriminates on the basis of a

protected status (or aids and abets such discrimination)

that the LAD comes into play.

6 Contrary to Petitioner’s suggestion, “unrepentant

homosexual conduct” and “heterosexual sex outside marriage”

are not “favored categories under the LAD” (P11). Firstly,

nowhere is “adultery” included as a protected category as

Petitioner suggests. Secondly, the LAD does not permit, prefer

or even address any type of sexual behavior at all. It is

concerned only with the orientation or inclination of the

protected individual. See, N.J.S.A. 10:5-5hh.

10

Even assuming that the LAD does tangentially

infringe on some speech, the interest of the State here is

so strong as to justify a minor intrusion into one’s dis-

criminatory speech. Neither the State’s purpose nor the

effect of the LAD is to impose a flat ban on the expression

of ideas. What the statute does is target acts of discrimi-

nation, and whatever secondary impact this may have on

certain kinds of speech is minimal and justified by this

compelling state interest. The LAD reflects the Legisla-

ture’s assessment that discrimination in society is an evil

that must be addressed head-on. While First Amendment

guarantees are basic rights of all citizens, courts have

consistently recognized that these rights can be limited in

certain circumstances when fundamental competing

interests collide. In weighing these interests, courts are

most concerned that the government not regulate the

exchange of ideas, especially if the ideology being

expressed is offensive to the majority. Clearly, the State’s

interest in prohibiting discrimination is substantial and

compelling. Ohio Civil Rights Comm’n v. Dayton Schools,

477 U.S. 619, 628 (1986); Jews for Jesus, supra, 968 F.2d at

295. The LAD succeeds in addressing that interest

because it does not on its face seek to suppress expres-

sion.

In Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), this

Court held that advocacy alone is entitled to First

Amendment protection and that a state may not forbid or

proscribe advocacy “except where such advocacy is

directed to inciting or producing imminent lawless action

and is likely to incite or produce such action.” This is

precisely why the LAD contains words of specific mean-

ing — such as “compel” and “incite” —- which ensure that

11

enforcement of the law will not affect the expression of

ideas alone. It is only when such words are accompanied

by actions that rise to the level of incitement or are

otherwise apt to cause unlawful conduct that the LAD

applies. As this Court has recognized, “[w]here the gov-

ernment does not target conduct on the basis of its

expressive content, acts are not shielded from regulation

merely because they express a discriminatory idea or

philosophy.” R.A.V. v. St. Paul, 505 U.S. 377, 390 (1992).

Similarly, “simply because speech or other expressive

conduct can in some circumstances be the vehicle for

violating a statute directed at regulating conduct does not

render that statute unconstitutional.” Jews for Jesus, supra,

968 F.2d at 295.

This Court has held that if the government’s interest

is unrelated to the suppression of free expression, regula-

tion of First Amendment free speech “is sufficiently justi-

fied if it is within the constitutional power of the

Government; if it furthers an important or substantial

governmental interest; if the governmental interest is

unrelated to the suppression of free expression; and if the

incidental restriction on alleged First Amendment free-

doms is no greater than is essential to the furtherance of

that interest.” U.S. v. O’Brien, 391 U.S. 367, 377 (1968). The

requirement of narrow tailoring is satisfied so long as the

regulation promotes a substantial governmental interest

that would be achieved less effectively absent the regula-

tion, but such regulation may not burden substantially

more speech than is necessary to further the govern-

ment’s legitimate interests. Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989).

12

Petitioner refers the Court’s attention to Hurley v.

Irish-American Gay,-Lesbian and Bisexual Group, __ US.

__, 132 L.Ed.2d 487 (1995) (P6; P14-P15), incorrectly cit-

ing it as stating that an anti-discrimination law which is

designed to protect homosexuals cannot override the free

speech guarantees of the First Amendment (P6). In

Hurley, the issue was whether Massachusetts’ public

accommodations law could be used to require the spon-

sor of a parade to allow members of a protected class to

participate over the sponsor’s objection. For a violation to

occur under Massachusetts law, state action must occur

and is triggered when the discriminatory act happens in a

place of public accommodation. The Court’s holding was

that because the parade did not occur in a place of public

accommodation, the effect of employing the statute there

was to declare the sponsors’ speech itself to be the public

accommodation. Id. at 503. Hence in Hurley, this use of the

state’s power violated the fundamental rule of protection

under the First Amendment: that a speaker has the auton-

omy to choose the content of his own message. Ibid.

The present situation does not involve the same type

of state action; here, the State is merely targeting acts of

discrimination. Any impact on speech is not direct, but

incidental to what is widely recognized as a valid exercise

of the state’s police power. In fact, the State maintains

that Hurley actually supports the position that it has

always asserted. As the Court held in Hurley, “[p]rovi-

sions like these are well within the State’s usual power to

enact when a legislature has reason to believe that a given

group is the target of discrimination, and they do not, as

a general matter, violate the First or Fourteenth Amend-

ments.” 132 L.Ed.2d at 502. Moreover, the Court said that

13

the Massachusetts statute was constitutionally sound on

its face, “ensur[ing] for gays and lesbians desiring to

make use of public accommodations what the old com-

mon law promised to any member of the public... , that

accepting the usual terms of service, they will not be

turned away merely on the proprietor’s exercise of per-

sonal preference.” Id. at 506. It was only when the law

was applied to expressive activity that constitutional com-

plications arose, Id. at 507; however, this offers no sup-

port to Petitioner in this case where the lower courts

decided only his facial challenge, abstaining from decid-

ing the “as applied” issues.

With respect to the issue of content-based distinc-

tions within laws, in R.A.V. v. St. Paul, supra, this Court

considered whether a municipal ordinance prohibiting

bias-motivated disorderly conduct was constitutional.

The majority of the Court found that the municipal ordi-

nance was facially invalid under the First Amendment

which prevents government from proscribing speech

because of the disapproval of the ideas expressed. While

affirming that certain categories of speech can be regu-

lated consistently with the First Amendment, the majority

held that government may not regulate those areas based

on hostility, or favoritism, towards the nonproscribable

message they contain.

Justice Scalia, writing for the plurality of the Court in

R.A.V., found the ordinance not only content-based but

also viewpoint-based and under-inclusive. However, he

noted three exceptions to the prohibition against content

discrimination in the area of proscribable speech, includ-

ing when a sub-class of proscribable speech happens to

be associated with particular “secondary effects” of the

14 \

speech so that the regulation is justified without reference

to the content of the speech. R.A.V., 505 U.S. at 389.

As further explication of this “secondary effect” -

and specifically relevant herein — Justice Scalia wrote that

[aJnother valid basis for according differential

treatment to even a content-defined subclass of

proscribable speech is that the subclass happens

to be associated with particular “secondary

effects” of the speech, so that the regulation is

“justified without reference to the content of

the . . . speech” [citations omitted]. A State

could, for example, permit all obscene live per-

formances except those involving minors. More-

over, since words can in some circumstances violate

laws not directed against speech but against conduct

(a law against treason, for example is violated

by telling the enemy the nations defense

secrets), a particular content-based subcategory

of a proscribable class of speech can be swept

up incidentally within the reach of a statute

directed at conduct rather than speech. [cita-

tions omitted]. Thus, for example, sexually

derogatory “fighting words” among other

words, may produce a violation of Title VII's

general prohibition against sexual discrimina-

tion and employment practices [citations omit-

ted]. Where the government does not target conduct

on the basis of its expressive content, acts are not

shielded from regulation merely because they express

a discriminatory idea or philosophy.” (emphasis

added, 505 U.S. at 389-90)

R.A.V., then, does not absolutely prohibit even content-

based distinctions in the regulation of speech accompany-

ing permissibly regulated conduct, under certain circum-

stances. Nevertheless, contrary to Petitioner’s misreading

15

of the LAD, it does not target the expressive content of

Petitioner’s conduct. Fairly read, the language of the

LAD does not support the tortured construction

advanced by Petitioner. Instead, the statute seeks to

remove discrimination in employment, housing and

access to public accommodations, which is universally

accepted as a legitimate governmental goal.

The cases following R.A.V. made even clearer that it

does not preclude regulating the type of conduct

addressed by the LAD. For example, in Wisconsin v. Mit-

chell, 508 U.S. 476, 490 (1993), this Court found that a

statute increasing the penalty for criminals who select

victims based on race, religion, color, disability, sexual

orientation or national origin does not violate First

Amendment free speech rights. The distinction is that

“whereas the ordinance struck down in R.A.V. was explic-

itly directed at expression (i.e., ‘speech’ or ‘messages’),

505 U.S. at 392, the statute in this case is aimed at conduct

unprotected by the First Amendment.” 508 U.S. at 487.

Similarly, the LAD punishes conduct, not expression, and

thus civil prosecution under the statute does not violate

the charged party’s right to freedom of speech. Those

subject to the LAD are permitted to communicate their ill

will, hatred or biases without fearing an LAD prosecu-

tion; what the statute does do is prohibit them from

acting on such sentiments in a discriminatory way. More-

over, that the LAD protects certain categories of individ-

uals against discrimination does not render the statute

content- or viewpoint-based. See, Madsen v. Women’s

Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 2523-24

(1994).

16

However, even assuming arguendo that the LAD is

content-based, this would still not render the statute

unconstitutional. If a State’s regulation of speech is

content-based, then a stricter balancing test is necessary

to assure that the government is not suppressing ideas.

To survive strict scrutiny, a regulation must be necessary

to serve a compelling state interest and narrowly drawn

to achieve that end. Perry Educ. Ass'n v. Perry Local Educ.

Ass'n, 460 U.S. 37 (1983). Elimination of discrimination is

a compelling state interest. In Board of Directors of Interna-

tional v. Rotary Club of Duarte, 481 U.S. 537 (1987), this

Court held that the California Civil Rights Act requiring

Rotary Clubs to admit women does not violate the First

Amendment right of association. It said: “Even if the

[Act] does work some slight infringement on Rotary

members’ right of expressive association, that infringe-

ment is justified because it serves the State’s compelling

State interest in eliminating discrimination against

women.” 481 U.S. at 548.

Once it has been determined that there is a compel-

ling state interest, then a balancing test of weighing that

interest against the First Amendment interest must take

place. In both Madsen v. Women’s Health Center, supra, and

Schenck v. Pro-Choice Network of Western New York, __ U.S.

__, 1997 WL 65718 (1997), the Court affirmed the consti-

tutionality of injunctive orders establishing “buffer

zones” which prohibit protesters from congregating

around, and impeding access to, specified areas sur-

rounding health clinics which provide abortion services.

In doing so, it first determined that the injunctions were

not a prior restraint and were content-neutral. Madsen,

supra, 512 U.S. at 765; Schenck, supra, at p. 8. The next step

17

was to analyze whether the challenged provisions burden

no more speech than necessary to serve a significant

government interest. 512 U.S. at 765; Ibid. It was deter-

mined in both cases that the public interests involved

(ensuring public safety and order, protecting property

rights, and protecting a woman’s freedom to seek

pregnancy-related services) were valid and justified

appropriately tailored injunctions to secure them. Id. at

768; Id. at 10.

In the present case it must be concluded that Peti-

tioner has seriously misconstrued the intent and effect of

the LAD. It does not impinge on speech alone, and it

makes no distinctions based on the preference of any

sexual orientation over another. Moreover, the govern-

ment’s interest in eliminating discrimination against

those who have been found by the New Jersey Legisla-

ture to be in need of protection is compelling. Even when

balanced against the possibility that some prohibited con-

duct may also include speech, it is inescapable that the

LAD is a reasonable statute intended to further compel-

ling and legitimate state interests.

Petitioner also argues that N.J.S.A. 10:5-12, subsec-

tions (1), (m) and (n) operate as content-based discrimina-

tion toward certain boycotts. These sections of the LAD

involve refusing, or inducing others to refuse, to do busi-

ness with a person on the basis of his or her protected

status, including sexual orientation. A fair reading of the

pertinent statutory provisions, especially in conjunction

with judicial decisions and the agency’s history of

enforcement, makes clear that the boycott sections are

18

appropriately drafted to further a compelling state inter-

est and do not infringe on any constitutional right on the

basis of content.

Petitioner relies on N.A.A.C.P. v. Claiborne Hardware

Co., 458 U.S. 886, 915 (1982), which involved a boycott

organized by African-American community leaders tar-

geting white merchants who had not complied with a list

of demands for “equality and racial justice.” The Supreme

Court viewed the boycott as comprised of a variety of

activities, including gathering for meetings, speech-

making, nonviolent picketing, marching, pamphleteering

and encouraging others to join. These, the Court said, are

all forms of speech or conduct ordinarily entitled to First

and Fourteenth Amendment protection. Id. at 907.

Such constitutional protection, however, is not with-

out exceptions and limitations. Because boycotting is

comprised of not only speech but conduct as well, the

government has a right to regulate it for compelling or

substantial purposes, even if such regulation entails an

incidental limitation on speech. United States v. O’Brien,

supra, 391 U.S. at 376-77. As discussed above, a state law

aimed at conduct which places an incidental burden on

speech will be upheld if it is within the state’s constitu-

tional power and it furthers an important governmental

interest unrelated to the suppression of free expression.

Ibid.

The Claiborne case is distinguishable because the gov-

ernmental interest being advanced there was economic

regulation. The Claiborne Court held that the govern-

ment’s interest in regulating the economic effects of a

boycott did not outweigh the boycotters’ right to express

19

their messages. Id. at 913-914. Here, however, the govern-

mental interest is not economic regulation but protection

against discrimination. Content-neutral regulation of dis-

criminatory conduct has been recognized to be a valid

and compelling governmental function. See, Wisconsin v.

Mitchell, supra, 124 L.Ed.2d at 446; R.A.V. v. St. Paul, supra,

505 U.S. at 389-90; Ohio Civil Rights Comm’n v. Dayton

Schools, supra, 477 U.S. at 628.

Thus, in Jews for Jesus, supra, the Second Circuit held

that anti-discrimination statutes could constitutionally be

applied to the defendant, a coalition of religious groups,

when it threatened to boycott a resort hotel because it

had contracted to provide its facilities to plaintiff, a non-

profit religious corporation which the defendant organi-

zation opposed. The court said that if the boycott was

designed to further an unlawful discriminatory objective

it wouid not be protected by the-First Amendment. 968

F.2d at 296.

Moreover, Petitioner Cummings would not be using

the boycott to “effectuate rights guaranteed by the Con-

stitution itself” as in Claiborne. In fact, Petitioner admits

that the only reason for such a boycott would be to

discriminate on the very status of the targeted busi-

nessperson that entitles him or her to protection under

the LAD in the first place (P14). Importantly, the Claiborne

Court expressly stated that it was not addressing a boy-

cott “designed to secure aims that are themselves prohib-

ited by a valid state law.” Id. at 915, n. 49. Here, the goal

of the boycott — refusing to do business with someone on

the basis of his or her sexual orientation — would be

prohibited by State law, namely section 121. It is therefore

a vastly different situation than the one before the

20

Claiborne Court. It must be concluded, then, that the

boycott provisions are clearly not violative of the First

Amendment on their face.

With respect to another part of the LAD, Petitioner

challenges N.J.S.A. 10:5-12j, which authorizes the Divi-

sion to design posters, signe or other notices describing

the rights of those protected by the LAD and prohibits

those who are subject to the LAD from refusing to display

them. Although Petitioner offers no examples of any past

enforcement of this statute, he alleges that the law forces

some individuals to express ideas with which they dis-

agree by requiring the posting of signs which declare the

rights of those protected under the LAD (P14-P15). This

part of the complaint was dismissed below for lack of

adversity of interests due to the absence of any current

statutory or regulatory provision requiring that Petitioner

or anyone else post a notice indicating that discrimina-

tion on the basis of sexual orientation is prohibited by

law (Pa6; Pa33-35); nevertheless, the argument is clearly

without merit.

It is true that the Director does, within the scope of

his authority, require that certain posters or signs declar-

ing the rights and responsibilities of those who are

affected by the LAD be displayed by those who are

subject to the law. Such signs are described and mandated

by regulation in N.J.A.C. 13:8-1.1 et seq. In fact, under

N.J.S.A. 10:5-12j one who fails to display such sign as

required is subject to prosecution under the LAD. How-

ever, the Division has repeatedly emphasized throughout

this litigation that the Director will not authorize the

amendment of the relevant posters to include sexual ori-

entation until the questions raised in this action have

21

been resolved. Therefore, the posters currently in circula-

tion do not mention sexual orientation as a category of

protection.” Moreover, should the regulations ultimately

be amended, they will do no more than require those who

are subject to this provision of the LAD to display notices

which accurately state the current status of the protec-

tions to which all are entitled under the law.

Having concluded that the Petitioner had not demon-

strated facial unconstitutionality, the lower courts both

agreed to abstain from reaching the merits of his argu-

ments regarding the statute “as applied” to him. In his

challenge to this decision, he continues to maintain that

the statute is facially invalid and not amenable to any

state court interpretation that could rescue it. Rejecting

Petitioner’s argument, both courts carefully considered

the fact that these provisions are largely untested by New

Jersey courts, which, they reasoned, must be given the

opportunity to consider whether they are susceptible of a

constitutional interpretation.

It is well settled that federal courts are duty-bound to

avoid reaching constitutional issues if there are other

grounds that can resolve the matter. Spector Motor Service,

Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). It is further

7 Petitioner has made much of the fact that a small number

of signs which included sexual orientation were inadvertently

distributed by the Division’s staff to persons who requested

them (Pal61). The agency has repeatedly made clear, however,

that this was an unauthorized action and that steps have been

taken to ensure that no additional such posters were distributed

until properly authorized. Thus, currently no person can be

compelled to post any sign which describes sexual or affectional

orientation as a category of protection.

22

settled that where the issues raised involve state law,

“constitutional adjudication plainly can be avoided if a

definitive ruling on the state issue would terminate the

controversy.” Railroad Commission of Texas v. Pullman Co.,

312 U.S., supra, at 498.

When the issues revolve around the appropriate con-

struction of a state law, deference is given to the state

courts. “Interpretation of state legislation is primarily the

function of state authorities, judicial and administrative.

The construction given to a state statute by the state

courts is binding upon federal courts.” Albertson v. Mil-

lard, 345 U.S. 242, 244-45 (1953). Thus, this Court has

come to recognize “a doctrine of abstention appropriate

to our federal system whereby the federal courts, ‘exer-

cising a wise discretion,’ restrain their authority because

of ‘scrupulous regard for the independence of the state

governments’ and for the smooth working of the federal

judiciary.” Pullman, supra, 312 U.S. at 501 (citations omit-

ted). “This now well-established procedure is aimed at

the avoidance of unnecessary interference by the federal

courts with proper and validly administered state con-

cerns, a course so essential to the balanced working of

our federal system.” Harrison v. National Association for the

Advancement of Colored People, 360 U.S. 167, 176 (1959). “In

the service of this doctrine, which this Court has applied

in many different contexts, no principle has found more

consistent or clear expression than that the federal courts

should not adjudicate the constitutionality of state enact-

ments fairly open to interpretation until the state courts

have been afforded a reasonable opportunity to pass

upon them.” Ibid.

23

Generally, Pullman abstention is appropriate when-

ever “there is an unsettled question of state law, the

resolution of which would affect the decision of a federal

constitutional issue, either by obviating the need to

decide it or by changing the light in which it must be

viewed.” Heritage Farms, Inc. v. Solebury Township, 671

F.2d 743, 746 (3d Cir. 1982), cert. den. 456 U.S. 990 (1982).

Following the generally recognized prerequisites for Pull-

man abstention, the lower courts considered: that New

Jersey law is uncertain as to the challenged aiding and

abetting provisions as applied to religiously or politically

motivated speech; that a state court decision could nar-

row, or obviate, the federal constitutional issues pre-

sented, and that there are important state interests at

stake (Pal1-Pal13; Pa43). See, Hughes v. Lipscher, 906 F.2d

961, 964 (3d Cir. 1990).

A similar situation to this one was presented in

Albertson v. Millard, supra, in which a Michigan statute

requiring official registration of Communist organiza-

tions and their members was challenged as being uncon-

stitutionally void for vagueness. This Court, noting the

importance of state judicial interpretation of state laws,

said that there had been no opportunity for such con-

struction because the federal action had been commenced

only five days after the statute became law. The Court

said: “We deem it appropriate in this case that the state

courts construe this statute before the District Court fur-

ther considers the action.” 345 U.S. at 244-45.

Thus, the State of New Jersey, through its administra-

tive agency and the State judiciary, must first have the

opportunity to examine these provisions because of the

24

likelihood that they will be construed in a manner consis-

tent with all appropriate constitutional mandates. This

Court has repeatedly held that “abstention is appropriate

where an unconstrued state statute is susceptible of a

construction by the state judiciary. ‘which might avoid in

whole or in part the necessity for federal constitutional

adjudication, or at least materially change the nature of

the problem.’ (citations omitted).” Bellotti v. Baird, 428

U.S. 132, 146-147 (1976). Moreover, abstention is not ren-

dered inappropriate simply because First Amendment

issues are raised. Especially when an important state

interest — such as the elimination of discrimination - is

presented, and the state forum o.’ers an adequate oppor-

tunity to adjudicate constitutional questions, abstention

will not be avoided by the assertion of First Amendment

rights. Ohio Civil Rights Commission v. Dayton Christian

Schools, Inc., supra, 477 U.S. at 628.

It must also be emphasized that the LAD has consis-

tently been construed to avoid even the possibility of an

unconstitutional application, particularly respecting legit-

imate belief and free exercise protected by the First

Amendment. In fact, in the affidavits submitted early in

this litigation by the Division’s Director, the agency

clearly expressed its intention not to apply the LAD in

any manner which, liberally construed, would even tend

or threaten to violate the sincere tenets of any religion.

The Division will also not engage in any determination of

what constitutes a tenet of religious faith.

Thus, the Division’s past practices and expressly

stated intentions make clear that all First Amendment

limitations on the application of the LAD have been, and

25

will be, respected and that no facial constitutional infir-

mity has been shown. It must therefore be considered

likely that a similar construction will be afforded to the

amended statute by New Jersey courts.

Accordingly, the lower courts were well within the

scope of their discretion in concluding that the correct

course of action is to abstain from deciding the constitu-

tional questions raised by Petitioner because state judicial

interpretation of the statutory provisions being chal-

lenged is likely to obviate the need for further action by

our federal courts.

CONCLUSION

For the foregoing reasons, the State of New Jersey

Respondents respectfully request that the Petition for a

Writ of Certiorari be denied.

Respectfully submitted,

PETER VERNIERO

Attorney General of New Jersey

Attorney for State of New Jersey

Respondents

CHar.es S. COHEN

Deputy Attorney General

Counsel of Record

DATED: February 26, 1997