                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-25-1996

Presbytery of NJ v. Florio
Precedential or Non-Precedential:

Docket 95-5706




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Recommended Citation
"Presbytery of NJ v. Florio" (1996). 1996 Decisions. Paper 62.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/62


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                 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

                                v.

        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 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.

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

        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, l996)


                                    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
                                              124 Halsey Street
                                                 P.O. Box 45029
                                               Newark, NJ 07102

                                 Attorneys for State Appellees

                                      LOUIS A. PETRONI, ESQUIRE
                                         Montgomery, McCracken,
                                                Walker & Rhoads
                                       1010 Kings Highway South
                                                       Suite 2C
                                          Cherry Hill, NJ 08034

                                       Attorney for Religiously
                                     Affiliated Amici-Appellees



                      OPINION OF THE COURT

NYGAARD, Circuit Judge.
         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 § 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. § 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. §
10:5-12(e), which bans aiding and abetting, inciting, compelling
or coercing another to perform 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 nondiscrimination; and, (4) to the extent incorporated
by the two aiding and abetting provisions, § 10:5-12(c)
(proscribing employer from printing or circulating discriminatory
statements), § 10:5-12(f) (in public accommodations), § 10:5-
12(l) (prohibiting refusal to do business); § 10:5-12(h)
(prohibiting requirement of boycott as condition of doing
business). 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 Discrimination was not
facially unconstitutional. Id. at 516-23. It then abstained as
to the "as applied" challenge, but retained jurisdiction. Id. at
523.
                               II.
         The district court first considered whether appellants'
facial challenge to the amended Law Against Discrimination was
meritorious. It viewed this challenge as having two principal
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
believed that the Law Against Discrimination provisions at issue
were capable of some constitutional application and because
appellants had not demonstrated that the challenged provisions
are overbroad. Id. at 516-17. The district court rejected 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 because they were rational and
served the substantial government interest of ending
discrimination. Id. 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 unacceptable risk of the
suppression of ideas." Id. 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 employers 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
Discrimination without offending the Speech Clause.
     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. University
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. Because protected activity
was the target 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 unconstitutional on its face.
Id. 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 regulated 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 applications of the ordinance
and the Supreme Court invalidated it on facial grounds. Here,
the "conduct" restrictions are an integral part of New Jersey law
and have been enforced for most of the last half-century.
Accordingly, Hill is not dispositive.
     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 statutes
     may have such a deterrent effect on free expression
     that they should be subject to challenge even by a
     party whose own conduct may be unprotected. 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 applied to the party in
     the case before it. This exception from the general
     rule is predicated on a judicial prediction or
     assumption that the statute's very existence may cause
     others not before the court to refrain from
     constitutionally protected speech or expression.

Id. at 798-99, 104 S. Ct. at 2125 (internal citation and
quotation 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 Discrimination.
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 appellants' claim
that the Law Against Discrimination is unconstitutionally
overbroad. Id. 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 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' argument
that the Law Against Discrimination is an impermissible 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 consequently we
express no view as to its correctness. Once the district court
determined that the challenged Law Against Discrimination
provisions were capable of some constitutional application and
that they are not properly the subject of an overbreadth
challenge, there was no remaining issue of facial invalidity to
be decided. Rather, whether the Law Against Discrimination was
an unconstitutional content-based restraint on speech could only
be determined within the context of its application to
appellants. Thus, if the district court correctly abstained from
deciding appellants' as applied challenge, its discussion of
viewpoint discrimination and the secondary effects doctrine was
unnecessary.
                                C.
     We believe that the district court correctly applied
Pullmanabstention. 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
III 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 a matter of law, Pullman abstention
requires the following special circumstances: (1) uncertain
issues of state law underlying the federal 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; accordHughes v.
Lipscher, 906 F.2d 961, 964 (3d Cir. 1990). If these
special circumstances are all present, 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 interpret
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 commercial 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 employers' 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 reaching
the type of conduct in which Reverend Cummings and others
similarly situated engage. Indeed, the state agency responsible
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 substantially
narrowed, if not eliminated entirely.
     Third, the potential for disruption of important state
policies is manifest. For many decades, the Law Against
Discrimination 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 abetting
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 equitable
factors, we also conclude that its application of Pullmanabstention was a
proper exercise of its discretion. Although
abstention should generally not be applied to facial challenges,
there is no such restriction with respect to an "as applied"
challenge because there is less of a concern that protected
activity will be inhibited if the court abstains from deciding
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
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, involved an
imminent judicial election and the plaintiff in Biegenwald was
under sentence of death. In both cases, abstention 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. SeeN.J.S.A. §
2A:15-53. Thus, appellants had and continue to have
the statutory opportunity to obtain a definitive construction 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.
                               III.
     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"
challenge, we will affirm.
