Religion Versus Politics at the Supreme Court

The hits just keep on coming from the California Supreme Court. In August the court ruled that California's Unruh Civil Rights Act barred physicians at the North Coast Women's Care Medical Group from refusing, pursuant to their conscience and religious ethics, to provide infertility treatments to an unmarried lesbian. The result is a collision of morals, medicine, and law that should make everyone pause.

In 1999, Guadalupe "Lupita" Benitez, an unmarried lesbian living in Oceanside, was referred for infertility care to a San Diego-area medical group, which had a contract with her insurance plan. After a number of preparatory treatments, the doctors refused to perform donor insemination for her. These Christian doctors believed that performing artificial insemination for Benitez violated the tenets of their religion. Ultimately, they referred her to another doctor and Benitez was able to conceive. Depending on whom you believe, the exact reason for the refusal was that Benitez was a lesbian or because she was unmarried.

Benitez sued, and heavyweights weighed in before the court on both sides. Signing on to the briefs for the doctors were many religious groups including Muslims, Seven-Day Adventists, Catholics, Pro-Life doctors and organizations, and several Rabbis. For Benitez came the ACLU, the Kaiser Foundation Health Plan, Jerry Brown for the state, MALDEF, and a number of gay and lesbian groups. In its decision, the court ruled unanimously that the state's Civil Rights Act bars doctors from refusing to perform a procedure because of the sexual orientation of a patient. The case, however, will continue to decide other issues.

At first blush, the case seems easy. If a doctor or any other professional or business offers to provide a service to the public, but refuses to provide it to a certain group of people, that is discrimination. As we learned in the civil rights struggles, allowing businesses to refuse to provide services to black Americans frustrated legal regimes that banned discrimination. But the sincerely held religious beliefs of the doctors make this a noteworthy and difficult case. Of course the politics of fundamentalist Christians and those in the gay and lesbian community are the real reason that the case attracted so much attention. Honest Christians have been used by the Karl Roves of this generation for their political purposes and this is part of the story here too. But for me, this case is about more than the rights of gays, lesbians, and medical professionals or simply a fight between the electoral left and right. It also is about the role of religion and how society views the ability of us all to live our lives pursuant to moral and ethical beliefs that emanate from those beliefs.

Political winds come and go. While the voters of California will have the final say, it appears that residents believe gays and lesbians should be free from all forms of discrimination. I agree. In Benitez, the state court held that religious beliefs that teach otherwise must be subordinate to that political will. Yet this argument cuts both ways. At the national level, such a policy would cater to the decidedly hostile policies of George W. Bush and his Republican supporters.

The intersection of the popular will and religious morals has been before the court before, and it was dismissive of religious claims. In 2004 it held, in a case involving Catholic Charities of Sacramento, that the organization had to comply with a law requiring employers to include prescription contraceptives in any drug plan offered to employees. In that case the court made an amazing statement — that this legal requirement "conflicts with Catholic Charities' religious belief only incidentally, because those beliefs happen to make prescription contraceptives sinful." Forcing someone to commit what they consider to be a sin only conflicts incidentally with their beliefs? I don't think so. Similarly, in the Benitez case, the victorious Lambda Legal Defense and Education Fund called the doctors' reason for refusing treatment to Benitez an "excuse" on their web site. I would call sincere religious beliefs more than an excuse. Is it any wonder that "values" voters feel disrespected by the left?

Freedom of religion is easy in the abstract but very tough in its application. Californians enjoy a constitutional "liberty of conscience." If your religion has certain beliefs that are out of the mainstream, should you be able to act on them? Don't we want a society in which people consciously consider the ethics of their life and try to act in a way consistent with those ethics? The easy answer is that sure you can do this, but not if it has a bad effect on others. But the Christian Legal Society made a good point in its brief in the Benitez case criticizing the view that "the law must be crystal clear that each person's religious liberty ends where harm to a neighbor would begin." Calling this vision of liberty "anemic," these lawyers argued that "the preservation of liberty virtually always results in third parties suffering some measure of 'harm,'" such as the mental stress of Jewish residents of Skokie, when the courts allowed Nazis to march there. Or, when public figures can be legally "defamed" by journalists because they have put themselves in the public eye.

As we might expect, this issue is playing out in Washington today. The lame duck Bush administration has threatened to cut certain federal funding to states that force medical personnel to perform, assist in, or refer patients to abortion services. My friend Cecile Richards, head of Planned Parenthood, argues that the rule would also restrict many forms of contraception. Arguments here, not surprisingly, have devolved into disputes about rights. It boils down to the right to access to contraception and abortion versus, in the words of Bush administration official Mike Leavitt, the "fundamental freedom" to refuse to perform or even to advise about certain procedures.

When the moral tenets of one's religion conflict with state policies coming from the political will of the populace, we should tread very gingerly. We should all want citizens to think about their moral codes and act on them. Sure the issues are hard and compromises will have to be made to live in community. But characterizing sincere religious views as only incidental or an excuse serve no one in the long run.