By Jessica Christensen, Legal Satyricon Employment Law Correspondent
Guadalupe Benitez and Joanne Clark, a lesbian couple in a long term relationship, wanted to have a baby. After unsuccessful attempts at self-insemination using sperm bank material, the couple was referred to the North Coast Women’s Medical Center, Inc. (North Coast) for fertility treatment. Their doctor advised them that while she was happy to treat Ms. Benitez for fertility problems, her religion prevented her from assisting Benitez with artificial insemination because Benitez is a lesbian. The same religious objection was later re-asserted by another doctor at North Coast (the doctors later contended that their religious objection was to artificially inseminating any unmarried woman, regardless of sexual orientation).
Ms. Benitez sued, alleging discrimination under the California Unruh Civil Rights Act, which unlike the Federal Civil Rights Act, prohibits discrimination on the basis of sexual orientation in equal access to public accommodations and business services, including medical treatment. On August 18, 2008 the California Supreme Court issued a decision in the case embodies the new frontier for antidiscrimination law (at least in California).
North Center asserted a number of affirmative defenses to Benitez’s suit, including freedom of speech and freedom of religion under both the state and federal constitutions. Benitez moved for summary adjudication on the free speech and free exercise defenses. As to the free speech defense, the Supreme Court addressed the sometimes elusive distinction between expression and action, and found that the defense was barred:
For purposes of the free speech clause, simple obedience to a law that does not require one to convey a verbal or symbolic message cannot reasonably be seen as a statement of support for the law or its purpose. Such a rule would, in effect, permit each individual to choose which laws he would obey merely by declaring his agreement or opposition.
In other words, the doctors were free to express their views, but not to refuse services for based on those views. North Coast also argued that the facts at issue in the case involved “hybrid rights” – free expression, combined with other constitutional protections (free exercise) – and that as such, the court should apply the higher strict scrutiny standard of judicial review to find that California’s prohibition on sexual orientation discrimination placed an undue burden on their First Amendment rights. The Court rejected this argument, finding that if there was an exception to antidiscrimination laws wherever a constitutional protection also involved expression, the exception would swallow the rule. The Court went on to state that even if strict scrutiny were applied, North Coast’s argument would fail.
In affirming summary adjudication of North Coast’s free speech/free exercise defenses, the Court noted that all North Coast had to do to avoid liability was to make available physicians who had no religious objection to artificial insemination for a lesbian couple, or refuse to perform artificial insemination on anyone:
To avoid any conflict between their religious beliefs and the state Unruh Civil Rights Act’s antidiscrimination provisions, defendant physicians can simply refuse to perform the IUI medical procedure at issue here for any patient of North Coast, the physicians’ employer. Or, because they incur liability under the Act if they infringe upon the right to the “full and equal” services of North Coast’s medical practice … defendant physicians can avoid such a conflict by ensuring that every patient requiring IUI receives “full and equal” access to that medical procedure though a North Coast physician lacking defendants’ religious objections.
In his concurring opinion, Justice Baxter points out an interesting conundrum implicit in the court’s reasoning: how would this rule apply to a solo practitioner? Justice Baxter asks “…I question whether the state’s interest in full and equal medical treatment would compel a physician in sole practice to provide a treatment to which he or she has sincere religious objections,” particularly if referral to another practice can be easily achieved. Taking Justice Baxter’s logic further, if a solo physician could not lawfully refuse to perform the procedure based on her religious beliefs, wouldn’t the physician then have no choice but to not perform the procedure on anyone? If so, wouldn’t this constitute a governmental restraint on trade? In such a case, weighing the state’s compelling interest against the physician’s right to earn a living using her full skills abilities, and without offending her religious beliefs, might not be such an easy balance to achieve.
The Court majority also noted that although North Coast could not assert any First Amendment defenses, they were free to present evidence that they refused to perform the artificial insemination not because of Benitez’s sexual orientation, but rather because she was unmarried. At the time the facts underlying this case took place, the Supreme Court had not yet overturned the state’s ban on same-sex marriages . Given the new legal paradigm that comes from this ruling, same-sex couples would be well advised to get hitched before seeking medical assistance to conceive. The case also hints at what could be on the distant horizon for antidiscrimination law – i.e., constitutional protections based on marital status.