A recent ruling in a New Jersey consumer fraud case may signal a new strategy for combating some forms anti-gay discrimination. In Ferguson v. JONAH [1] Judge Peter F. Bariso Jr. prohibited the defendant, a gay-to-straight conversion therapy provider, from introducing expert testimony that homosexuality is a mental disorder which can be corrected through therapy. The ruling opens the door for former JONAH patients to prove JONAH’s claim it can cure same-sex-attraction is false and misleading.

JONAH (Jews Offering New Alternatives for Healing) is a nonprofit gay-to-straight counseling service. According to its website [2], JONAH attempts to educate the Jewish community about the social, cultural, and emotional factors that lead to same-sex attractions.

The plaintiffs, six former patients, sued JONAH under New Jersey’s Consumer Fraud Act. They claim JONAH engaged in “unconscionable commercial practice, deception, fraud, false pretense, false promise, and misrepresentation.” Specifically, plaintiffs claim JONAH misrepresented that: (1) homosexuality is a mental illness or disorder, (2) JONAH could cure or treat the disorder within a specified time, (3) JONAH has a specific success rate, and (4) JONAH’s program is capable of changing people from homosexual to heterosexual. Plaintiffs also claim JONAH’s therapeutic methods constitute unconscionable business practices.

To defend against these claims, JONAH presented the opinions of six expert witnesses. The experts, which include a practicing psychiatrist, a licensed clinical professional counselor, a licensed psychologist and a Rabbi, were expected to testify that homosexuality is a disorder that can be cured.

In a stunning decision, the judge rejected JONAH’s expert proof. The judge stated, “The overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal. The universal acceptance of that scientific conclusion – save for outliers such as JONAH – requires any expert opinions to the contrary must be barred.”

In his ruling [3], Judge Bariso stated that an expert’s opinion is acceptable only if it has a sufficient scientific basis. JONAH’s experts, the judge said, contradicts the generally accepted scientific understanding that homosexuality is not a mental disorder. This understanding goes back as far as 1973 when the American Psychiatric Association removed homosexuality from the list of mental disorders in the Diagnostic and Statistical Manual of Mental Disorders.

Judge Bariso said, “the theory that homosexuality is a disorder is not novel but – like the notion that the earth is flat and the sun revolves around it – instead is outdated and refuted.” The judge further stated, “Each of JONAH’s experts proffers the opinion that homosexuality is either a disorder or is not a normal variation of human sexuality. Because the generally accepted scientific theory is that homosexuality is not a mental disorder and not abnormal, these opinions are inadmissible.”

Because the court prohibited JONAH’s experts from testifying, JONAH cannot refute the plaintiffs’ experts who say homosexuality is a natural variation of human sexuality. [4] The result is JONAH’s claim that homosexuality is a disorder that can be treated through therapy may be false. If the plaintiffs convince the jury JONAH’s claims were false, they may recover compensatory and punitive damages under New Jersey’s Consumer Fraud Act.

Plaintiffs’ strategy in this case was subtle, but effective. Rather than attack JONAH’s belief about homosexuality, which, according to its website is informed in part by its religious doctrine, the plaintiffs focused on JONAH’s advertisements to the consuming public. By doing so, the plaintiffs avoided a potential defense based on JONAH’s freedom of religious expression. The issue in this case is not whether JONAH’s religious beliefs are correct, but whether, under current scientific standards, JONAH’s representations to the public are false.

Defenses to discriminatory conduct based religious expression were most recently seen in Burwell v. Hobby Lobby, Inc. [5] where the United States Supreme Court allowed a closely held for-profit corporation to be exempt from the contraceptive mandate under the Affordable Care Act due to religious beliefs; and in Conlon v. InterVarsity Christian Fellowship [6]where the Sixth Circuit Court of Appeals ruled the defendant could terminate a divorced employee based on religious grounds.

Most states, including Tennessee, have consumer protection laws that prohibit service providers from engaging in deceptive and misleading conduct. [7] There are also state and federal laws which prohibit businesses from discriminating against employees and customers based on race, color, religion and sexual orientation. As shown in Hobby Lobby and Conlon, some businesses may withstand discrimination claims when the challenged conduct is motivated by religious belief. The JONAH case raises a unique approach to circumventing defenses based on religious belief by relying on consumer protection laws and focusing on representations made to the consuming public.