A blow to freedom of religion

Fertility treatment is big money, so there are gazillions of treatment centers in most communities.  One such center in San Diego County may well have been put out business, though, by a California Supreme Court ruling mandating that physicians have to provide treatment to lesbians and other unmarried women, even though doing so goes against their religious beliefs:

California doctors who have religious objections to gays and lesbians must nevertheless treat them the same as any other patient or find a colleague in the office who will do so, the state Supreme Court ruled unanimously Monday.

The justices rejected a San Diego County fertility clinic’s attempt to use its physicians’ religious beliefs as a justification for their refusal to provide artificial insemination for a lesbian couple. The ruling, based on a state law prohibiting businesses from discriminating against customers because of their sexual orientation, comes three months after the court struck down California’s ban on same-sex marriage.

“This isn’t just a win for me personally and for other lesbian women,” said the plaintiff, Guadalupe Benitez. “Anyone could be the next target if doctors are allowed to pick and choose their patients based on religious views about other groups of people.”


“This court is allowing two lesbians to force these individuals to choose between being doctors in the state of California or being able to practice their faith,” said attorney Brad Dacus of the conservative Pacific Justice Institute, which filed arguments backing the doctors.

Benitez, now 36, sued North Coast Women’s Care in Vista (San Diego County) and two of its doctors, saying they told her in 2000 that their Christian beliefs prohibited them from performing intrauterine insemination for a lesbian. The doctors later said they would have refused the treatment for any unmarried couple.

They referred Benitez to another clinic for the insemination, which cost her thousands of dollars because it wasn’t covered by her health plan, her lawyer said. She did not become pregnant then, but since has borne three children and is raising them with her partner of 18 years.

You can read the rest here.

I can’t do any better than to echo Dacus: “This court is allowing two lesbians to force these individuals to choose between being doctors in the state of California or being able to practice their faith.”  All of you know from my previous posts that I believe that, where a marketplace exists, it ought to control the outcome of these matters — and that’s true even if I disagree with the business owner’s beliefs or decision.

It would be different if this were a situation akin to the Jim Crow South and there was a monolithic wall of hatred against gays and lesbians seeking infertility treatments.  Here, however, the contrary is true, because there is a thriving market and fertility clinics make much of their money off of lesbians.  Even in conservative San Diego, as the story above indicates, there are people willing to serve that market.  Further, I find it very hard to believe that, in all of San Diego, the defendants’ office was the only one that worked with the gal’s health plan.

The bottom line for me is that, if that office wanted to do itself out of business based on religious principles, that’s a market decision, not a “court denying people their livelihood based on their beliefs” situation.  And this is, again, different from a monopoly situation such as that at the Minneapolis airport, where almost all the taxi drivers were Muslim, where airport passengers were a captive market, and where the Muslims refused to accept dogs or alcohol in their cabs.  That situation, obviously, was closer to the Jim Crow analogy, where there is no real marketplace.

One other point of interest.  The San Francisco Chronicle story from which I quoted above has an interesting caption:  “Doctors can’t use bias to deny gays treatment.”  Doesn’t that sound as if some ER doctor had before him a gay person who was dying on the table and just walked away because the doc was a homophobe?  That would certainly be a dreadful situation, worthy of that caption, especially because imminent death again implies no marketplace.  A busy marketplace, however, in which doctors turn away money because of their religious principles, strikes me as a different situation altogether, and one that does not deserve that type of lede.

For a good analysis of the legal errors in the Court’s opinion, go here.

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  • 11B40


    Just a little more “tyranny of the minorities.”

  • suek

    Is this a case that can go to the Supreme Court, or is it final at the State Supreme Court level?

    Pretty stupid in any case. How effective do you think the level of care is going to be in a situation where you have a procedure that is not 100% certain in the first place?

    Not that I think that was the point, however…

  • BrianE

    We are progressing to a freedom of religion that can be practiced behind the four walls of a building. Step outside and secularism reigns supreme, except for muslims, since they are just another oppressed minority.

  • Zhombre

    I’d like to know what insurance company agreed to foot the bill for an unmarried woman to get pregnant. Where’s the case for medical necessity? As for the doctors who were told by the California court that their religious scruples must yield to the state’s abiding interest in seeing lesbians pregnant, this is another example of the conformity of conscience required, thru coercion and sanction if you refuse to come along quietly, by the tenets of multiculturalism. People once fled to the American colonies to escape religious persecution and the demands of the state that compromised their religious beliefs. Now look what dogma followed them home.

  • BrianE

    For your reading enjoyment, a few of the comments to the story BW linked. Quite representative.

    Physicians traditionally take the hippocratic oath that involves doing no harm. To deny medical services for patients who need it is completely contrary to that doctrine. I wouldn’t trust any physician who would deny medical treatment, either required or elective, to a patient based on her or his own prejudice. As an aside, I encourage the Chronicle to add the bisexual and transgender communities to these articles, along with lesbians and gays, to reflect the full spectrum of the queer community that is affected by this ruling.

    I’m a teacher and my religion tells me that I can’t teach Christian children. Sorry, we can’t accept your kid. How dumb ! Any objectiion to this court’s decision is just plain ignorance and stupidity ! I am shaking my head in disbelief that “freedom of religion fundies” will take their selfish indoctrinations so far and try to get so many “special rights” that they rant about all the time. Garbage, garbage, garbage !

    Fundamentalism is a parasitic cancer growing on it host society no matter where in the world that society is. The Christian parasites are no better than the Muslim ones or any others !

  • suek

    >>Fundamentalism is a parasitic cancer growing on it host society..>>

    So…Obama wants to return the US to the greatness it once was…was that prior to the ’60s? Now…what big change has there been since the ’60s? Maybe that the US has broken free from all those “Fundies”??? Blue laws? Dry counties?

    Anything prior to the ’60s were times of persecution by “Fundies”??


  • jlibson

    I think that we need to calm down a bit. I’m a big fan of freedom of religion. But we are at our core a secular society. It is true that out rules were mostly taken from a biblical source for the big stuff (no killing, stealing etc) but we also made up a bunch of our own.

    One of those (in CA at least) is that businesses are not allowed to discriminate based on religious beliefs. As a conservative I applaud the fact that states are still allowed to make rules like that!

    As the arbiter and regulator of commerce the state and national govt has a right to enforce market rules created by those elected by we the people.

    As an example that I know got all of us in a tizzy…what about when the Muslim cab drivers wouldn’t drive people who had been drinking or people with seeing eye dogs? We are not a libertarian, “free market” society. We have rules that prevent people from discriminating in the realm of commerce. The agreement to practice as a doctor in CA according to the rules of CA trump one’s own personal religious beliefs.

    Now if only we could enforce that equally for all religions and not just pick on the Christians. :)

  • suek

    >>The agreement to practice as a doctor in CA according to the rules of CA trump one’s own personal religious beliefs. >>


    >>We are not a libertarian, “free market” society. >>

    That’s the problem. We _used_ to be.

    >>We have rules that prevent people from discriminating in the realm of commerce.>>

    But we shouldn’t. As long as the lives of people are not threatened, and as long as the same services are available elsewhere, there should not be a requirement that someone violate their religious beliefs. Would you support eliminating conscientious objector status?

    Personally, I think they should be looking to their health insurance for relief instead of demanding that the group do something against their principles. The market place in this case would mean that the insurance agency would probably find another group to do business with. The complaint of the lesbians isn’t that they couldn’t get a service performed, it’s that they had to pay for it.

  • suek

    Would you also require that a doctor perform abortions and if legalized, euthanasia?

  • BrianE

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    OK, so we know that “abridging the freedom of speech” means that any vile, offensive language or image cannot be regulated, but what does “no law prohibiting the free exercise therof” respecting religioun mean and is requiring a doctor to perform an elective procedure against his beliefs prohibiting free exercise? Does that mean he can tell the person they are sinning the whole time he performs the procedure?

    Or is that prohibited too? Or would that be protected under freedom of speech?

  • jlibson

    So why can’t I have a religion that says that I can only associate with those of my own race. A “radical segregationalist”.

    In that case I could post a sign outside my bar kindly asking non-“polack half-jews” to seek elsewhere for apple cider. I believe that this would be a direct violation of our anti-discrimination laws.

    We could argue the validity of those laws. Because they do in fact interfere with people’s ability to freely express ones beliefs.

    There is a “decency” argument that one could make here. As Book points out, there are a gajillion fertility clinics. I bet that you could find one that ONLY takes Lesbians. There isn’t any need to force yourself onto a business that doesn’t want you. Why *would* you?

    Brian: I think that the Dr SHOULD be able to say whatever they want to the person. Our anti-discrimination laws don’t protect you from hurt feelings (thank g*d!).

    Suek: I think that in our society the rule of law trumps your ability to express yourself. For better or for worse, I think that is how we are setup.

  • BrianE

    Here’s my problem with this.
    I’ll buy the argument that I have to serve some polack half-jew apple cider, since I don’t remember any commandment against serving polack half-jews or even associating with them.
    But I do remember specific passages pertaining to homosexuality or fornication. Requiring me to facilitate these specifically prohibited activities in my mind is contributing to these prohibited activities.
    I would have to pass.

  • jlibson

    Suek: as bad as it seems, I think that the “abortion” and “euthanasia” answer is “yes”. I don’t like it, but that seems consistent with the “contract” of agreeing to do business in a state that has certain regulations surrounding the conduct of that business. It seems really crappy, but it also seems consistent. on the other hand…as a Dr can’t you set yourself up in such a way that you simply don’t practice the “giving abortions” type of medicine? Can any doctors clarify that?

    Differences between the laws states provide a way for states to differentiate themselves and “compete” for the people in our country.

  • suek

    >>I think that in our society the rule of law trumps your ability to express yourself>>

    Well…except for that little old Constitution thingy….

  • Ellie2

    “We could argue the validity of those laws.” But that’s the point, isn’t it? We *can’t* argue the point, as is a legislative body because these “laws” are written by courts. After all it is only the Congress that is forbidden “to make no law” (the Founders foolishly not foreseeing that the Courts would one day make laws).

  • Ellie2

    Opps “as is a legislative body” s/b “as in”

  • suek

    >>…as a Dr can’t you set yourself up in such a way that you simply don’t practice the “giving abortions” type of medicine…>>

    You know…it wouldn’t surprise me if young men and women just decided that in light of government take over of health care, the insurance costs, the possibility that they’d have to practice in ways that were contrary to their religious beliefs…if they just quit medicine, and we’d end up like GB, with having to import more and more foreigners to do the work that Americans won’t do.

    Not a good idea, I think, to try to dictate to doctors how they should practice medicine. Even now, the shortages of OB doctors is getting pretty bad, I’m told.

  • Mike Devx

    If a fertility clinic doesn’t want to serve lesbians, it shouldn’t have to. Likewise, if it only wants to serve lesbians, it should be able to as well. The court decision is, for me, lunacy.

    This reminds me of arguments concerning libraries that choose to place, or not to place, particular books into their reading collections. They should be completely free to set their reading materials (and to suffer the subsequent protests or boycotts). Add “Heather Has Two Mommies” to the shelves? Or remove it? Either way, they should have total freedom to do so, and the same with Huck Finn or any other book. The books haven’t been banned by the government; they’re still available.

    Censorship is by definition only accomplishable by the government. All else should be free market choice. Libraries aren’t agents of censorship, nor are boycotters.

    I know that this changes when behavior is legislated (by law) and reaffirmed (by court decision) as in matters of race.

  • jlibson

    Ellie2: I thought that the anti-discrimination law was just that…an actual law. Was it really just an activist court extension of a more limited law?

    Another point…maybe the anti-disc law should only apply to the govt and must not be applied to private businesses and individuals.

    The “pure” way of applying this gets you “white-only” counters. On the other hand…a place that actually put up a “whites only” sign would get pummeled by demonstrations and quickly driven out of business.

    Hmmm….I guess I am back to letting the market take care of this. The anti-disc can (and must) be applied to government behavior but it can’t (and mustn’t) be applied to private behavior.

    Just took me a while to get there.

    I feel like Rosanne Rosanna Dana on SNL. “Never mind”. :)

  • David Foster

    Consider an individual who has a small business, writing marketing materials (ads, press releases, brochures) on a contract basis.

    Would he be required to do work for a company he doesn’t like, which make products of which he does not approve? Would a vegetarian be required to write ad copy for a sausage company? Would a pacifist be required to write press releases for Northrop Grumman?

    This court decision suggests that the answer would be “yes.”

  • http://bookwormroom.com Bookworm

    Good question, David. But I can’t seriously see an American court forcing someone to work for, say, a cigarette company, can you? In any event, cigarettes and sausages have not yet been worked into the “protected class” category. The latter might be one day, but I doubt the former ever will!

  • BrianE

    The California court never considered the possibility — the plain reality — that the anti-discrimination statute was a “subtle departure from neutrality” by which activists covertly sought to suppress mainstream religious beliefs. If it was, however, the law can’t be saved by pretending to neutrality. It can be upheld only if it furthers a “compelling” state interest and is the least burdensome means of so doing — an exacting standard made all the more impossible when we recognize that protecting (or, at least, refraining from interference with) freedom of conscience is itself a compelling state interest.

    From the article BW cited

    The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids subtle departures from neutrality” . . . and “covert suppression of particular religious beliefs[.]” [Citations omitted.] Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt.

    The Free Exercise Clause protects against governmental hostility which is masked… Hmm. Is there a chance that the California Supreme Court would admit to a masked hostility against Christians?

  • Ymarsakar

    You should borrow these three books from a library, Book.

    The Golden Age, by John C Wright.

    The Phoenix Exultant

    The Golden Transcendence

    The dichotomy between free will (economic boycotts) and government force (censorship) is discussed in great detail via extrapolations into humanity’s future.

    We, who are classical liberals, believe that death is fought, life is lived, and chaos controlled only through human ingenuity and free will. Prevent the individual from making choices that do not harm anyone other than themselves, and you lock down humanity into stagnancy. Yet, reality is consistent, A is A in identity, and actions have consequences. Human society does not yet have a reliable system or force or government or way of life that ensures that one human action does not harm any other. Thus our penultimate expressions of liberty must naturally deal with and adapt to issues of security and protection. We are not free, unless we are all protected, mentally, physically, and spiritually. Our thoughts, our life and limb, and our ability to choose.

    This is why we prefer economic boycotts where each individual makes his own decisions, over government sanction or censorship. The chaos of the free market, the chaos and sheer unpredictability of humanity’s free will, is the ultimate solution to the ethically wrong decisions and consequences in reality.

    For ethics, morality, and reality are all intertwined and consistent with each other, in one fashion or another. Even morality is consistent within their own sub-cultural identity, even if morality from one culture is not logically consistent with morality from another culture.

    This is the underlying premise from which all classical liberals adhere to and live their lives by. That reality is rational and sane. That A is A, that A cannot be B while also being A. That causality exists, that actions have consequences and consequences were created. This extrapolates and derives the fundamental core philosophical beliefs of the classical liberal in American history. Given that reality is rational and consistent, within all parts and from all parts to each part, this means that any sufficiently intelligent and enlightened being will come to the same ultimate conclusions on life, death, and ethics. They will live their lives differently according to their will and desires, but in the end, the philosophy of what life is and what it is meant for, will be the same.

    The totalitarian schools of thought, socialism, Marxist-Leninism, the greater alliance of the Left, and the Democrat subset of individual American politics, believe that chaos, free will, will disrupt the orderly manner and way of things in life. That it will create entropy, death, decay, and wars because people will want things that they cannot have and will disagree about fundamental issues that cannot be resolved except through violence. So their solution is to have an underlying or overwhelming organization that forces people to do the right thing. Like the Un, the EU, NATo, or what not; they are all organizations and institutions designed to control chaos, to make people and nations do the right thing even if such people and nations don’t wish it.

    Doctors must show no favoritism because the rights of the individual cannot be allowed to disrupt the orderly manner of life in which we currently live; The Golden Age must be preserved, even if it costs the individual.

    But who decides. Who decides what will or will not happen, if it is not the individual? Wise all knowing gods? UN corrupt and mendacious bureaucrats? EU tools and traitors? In the end, totalitarian and nihilistic systems always give you one answer to that question.

    The people who decide are the people with power.

    But I ask you, where does power come from and how does one acquire it? My answer is, they acquire it through the exercise of free will, by allowing free will in such things as the free market to make decisions wiser than any that could be made by limited individuals. People acquire power through the exercise of virtue and ethical behavior.

    The Totalitarian belief systems of the Islamic Jihad and of Leftism believe you acquire power by making people submit to your will and sacrificing their own. Doctors must sacrifice their will and desires for the greater good. And the greater good is whatever I decide it is, because i have the power. For I am the government and the government can always get more power by stealing it from citizens, if they so wish.

    Obama will make you work, he will make you care. For he will create paradise unto earth only by enslaving the minds and wills of free men and women.

  • Ymarsakar

    But we are at our core a secular society.

    As I have already demonstrated, whether it is primarily secular or primarily religious, none may escape reality, the rights of the individual, or the ethical obligations that all humans are under.