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Presbytery of New Jersey of the Orthodox Presbyterian Church v. Whitman

October 25, 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. CUMMINGS,

APPELLANTS

v.

CHRISTINE TODD WHITMAN, *fn* GOVERNOR OF NEW JERSEY, IN HER OFFICIAL CAPACITY; PETER VERNIERO,*FN* 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 DIVISION ON CIVIL RIGHTS; JOHN DOE(S), JANE DOE(S), ADDRESSES 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.



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil Action No. 92-01641)

Before: BECKER, NYGAARD and LEWIS, Circuit Judges

NYGAARD, Circuit Judge.

Argued June 28, 1996

filed October 25, l996)

OPINION OF THE COURT

The Presbytery of New Jersey of the Orthodox Presbyterian Church, Calvary Orthodox Presbyterian Church of Wildwood, and the Reverend David B. Cummings filed suit challenging 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.

I.

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 employment relationship, in public accommodations, and in business dealings.

To appellants, the Law Against Discrimination amendments 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. Accordingly, they filed this Section(s) 1983 action alleging that the 1992 amendments violated the First Amendment right of free speech, alleging that the amended Law Against Discrimination is both unconstitutionally overbroad and a content-based restriction on speech.

The facts underlying this dispute have been set forth several 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 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 condemn 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 regarding hiring. See N.J.S.A. Section(s) 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 Reverend Cummings would therefore not be subject to liability for discriminatory acts he might commit in his capacity as a pastor. 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. Section(s) 10:5-12(e), which bans aiding and abetting, inciting, compelling or coercing another to perform a discriminatory act; (2) N.J.S.A. Section(s) 10:5-12(n), which generally forbids aiding and abetting a boycott; (3) N.J.S.A. Section(s) 10:5-12(j), which requires the posting of notices of nondiscrimination; and, (4) to the extent incorporated by the two aiding and abetting provisions, Section(s) 10:5-12(c) (proscribing employer from printing or circulating discriminatory statements), Section(s) 10:5-12(f) (in public accommodations), Section(s) 10:5-12(l) (prohibiting refusal to do business); Section(s) 10:5-12(h) (prohibiting requirement of boycott as condition of doing business). *fn1 For example, appellants assert that if a person, following the tenets of his or her religion, circulated tracts condemning homosexuality 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 extent appellants were asserting a valid facial challenge to the Law Against Discrimination, abstention would be improper, but it concluded ultimately that the Law Against ...


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