.- The California Supreme Court’s unanimous Monday decision against two doctors who declined to artificially inseminate a lesbian could have significant implications for religious freedom in the United States. Critics have attacked the decision, which said religious freedom and free speech guarantees do not exempt the doctors from complying with anti-discrimination laws protecting sexual orientation.
Drs. Christine Brody and Douglas Fenton had claimed the First Amendment’s protections of freedom of religion and free speech shielded them from a lawsuit filed in 2001 by Guadalupe Benitez, a lesbian who had asked them to provide artificial insemination services, Cybercast News Service reports.
The two doctors, who work at North Coast Women’s Care Medical Group in Vista, Calif., told Benitez they were not comfortable providing the service and advised her to find another doctor.
Benitez claimed the doctors refused service because she is a lesbian while the physicians, who are Christians, deny the allegation. They claim they don’t inseminate any unmarried women.
Speaking for the California Supreme Court, Justice Joyce Kennard decided the case in Monday’s decision, writing:
“Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, exempt a medical clinic’s physicians from complying with the California Unruh Civil Rights Act’s prohibition against discrimination based on a person’s sexual orientation? Our answer is no.”
California’s Unruh Civil Rights Act, enacted in 1959, says:
“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
Legal protections for sexual orientation, gender, and marital status were added to the Unruh Civil Rights Act in 2005.
Gary McCaleb, senior counsel for the Alliance Defense Fund (ADF), argued that the court let anti-discrimination law trump constitutional protections for freedom of conscience.
“It really is as if California has banned its citizens from having moral consciences,” he said, according to Cybercast News Service. “You must merely obey what the state says, you have no right to follow your own moral guide.”
McCaleb said the case was “not an emergency situation.”
“These were doctors who did not feel right morally about performing the procedure. They actually treated the lady in many aspects but at a certain point said, ‘No, we can’t participate in this for moral reasons, because the person is not married,’ and referred her to another doctor who would have provided the treatment but just couldn’t do it immediately.”
University of Wisconsin law professor, speaking to Cybercast News Service, said not every state has a law similar to the California law, which specifically protects people from discrimination and differential treatment on the grounds of sexual orientation.
“It really is a rather unique situation nationally,” she claimed.
However, she continued, religious people are not exempt from generally applicable laws and licensed professionals like physicians have a legal obligation to offer their services in a “nondiscriminatory way.”
She said religious exemptions can cloud the issues, citing a case in Minneapolis where Muslim taxi drivers from Somalia were refusing to pick up passengers who carried duty-free alcohol because the consumption alcohol violates their religious beliefs.
In another example, she added, “Imagine somebody who runs a store for maternity clothing who refuses to serve single women or gay women, because the owner believes that it is immoral for such a woman to have had sex, let alone to have a child.”
UCLA law professor Eugene Volokh said that even if the case is appealed it may not arrive at the U.S. Supreme Court, and it is not clear that the court would side with the doctors’ religious freedom arguments.
“Up until the 1960s, the court’s general view was that the Free Exercise (of religion) clause (in the U.S. Constitution) does not give anybody the right to exemption,” Volokh told Cybercast News Service. While some theoretical right to exemption was acknowledged between 1963 and 1990, recent jurisprudence has returned to the earlier model.
Current jurisprudence, he explained, only defends First Amendment protection against laws that single out religion for “special burdens.”
Dr. David Stevens, CEO of the Christian Medical Association, assailed the decision, saying it is “discrimination against healthcare professionals on the basis of their sincerely held ethical standards.”
He also warned of the decision’s lasting consequences, saying “This decision reaches beyond the medical profession. Taking away the First Amendment rights of healthcare professionals puts at risk the rights of every working American.”