Home Forums Everything Else Sexual orientation laws trump religious freedom, California

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    Here’s something interesting:

    [quote:tnq012qk]Sacramento, Aug 23, 2008 / 08:47 pm (CNA).- 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.”

    Since freedom of religion is part of the Bill of Rights wouldn’t it trump these supposed “anti-discrimination” laws? Essentially the judges are legislating morality. It’s absolutely terrible!


    There is also the problem of artificial insemination itself. Here we have two evils. We have a court mandated requirement that doctors who already preform an act that the Church condemns as immoral, and unacceptable to extend it to persons who reject the even more of the moral teaching of the Catholic Church.

    Married, single, homosexual or heterosexual the Church artificial insemination is immoral. The Magesterium has defined that children should be concieved by natural means, and barring that, married couples who wish to have children but are unable to conceive through those natural means are encouraged to adopt children who have no parents equipt to care for them.

    Homosexuals, and unmarried individuals and couples who reject the moral guidance of the Church point to us and question, if we don’t follow our own moral beliefs, why should they? I think the have a good, (albeit flawed) argument, or rather challange to us as Catholics. Why should they live according to the morals we dictate, if we ourselves don’t?


    Good point about insemination – I didn’t even notice that as I read the article.

    Even better point about the challenge to Catholics. I’ve heard proponents of gay marriage a number of times say that divorce does more harm to marriage than 2 people actually getting married. Again, it’s a good challenge to live out the standards that are set for us. It reminds me of Jesus’ saying to mind the log in our own eye before we worry about the speck in someone else’s. Likewise, though, we are to admonish our brothers and sisters in Christ about matters of the faith. Sometimes it’s hard to define that line.

    Regardless, I think the issue with pharmacists distributing birth control may provide a solution to this issue. At the moment, I think, pharmacists can refuse to fill the prescription, but refer customers to someone else.

    This raises the question about cooperation in the moral evil. Is the pharmacist cooperating in the evil by enabling access to it? Likewise if the doctors were to refer people to a different clinic for medical treatment against the doctor’s religious beliefs would the doctor still be participating in the evil?

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