San Diego, USA - When does the freedom to practice religion become discrimination?
The California Supreme Court is being asked to answer that question when it hears a legal dispute between a lesbian mom and two doctors who refused to artificially inseminate her for religious reasons.
The first-of-its-kind case is shaping up as one of the most controversial before the court in years. The court has not set a date to hear the case, but more than 40 groups already have filed briefs asking to be heard.
The court is being asked to decide how to accommodate a physician's religious views without violating California's anti-discrimination laws.
California is a major testing ground for this issue.
Longstanding dispute
What distinguishes the case of Guadalupe Benitez is that the physicians involved refused to provide a medical procedure to one patient that they readily provide to others, says Jill Morrison, legal counsel to the National Women's Law Center, an advocacy group that works to protect women's rights in the workplace, schools, sports, and health care. "Usually, providers who object to certain services object to them for everyone: 'I won't provide contraception.' In this case, they don't object to the service, just the patient. You can't pick and choose. You can't say, 'I will perform it for white people, but not for black people.' "
Kenneth Pedroza, the doctors' attorney, counters that an "all-or-nothing" rule will drive physicians out of certain specialties.
The dispute arose in 2000 after San Diego-area doctors Christine Brody and Douglas Fenton refused to artificially inseminate Benitez, a lesbian who lives with her partner, Joanne Clark, in Oceanside, north of San Diego.
By that time, Benitez had been a patient at the clinic for 11 months and been taking fertility drugs prescribed by Brody. The clinic was the only facility covered by Benitez' health insurance plan.
"I was very distraught," Benitez says. "I was very confused. I couldn't even bear to think that possibly I was never going to be able to have children."
In 2001, Benitez sued the doctors, claiming that they violated California's anti-discrimination laws that protect gays and lesbians.
Court wrangling over pretrial issues consumed three years. In 2005, an appeals court ruled that the doctors have the right to wage their religious freedom defense at the trial. Benitez appealed that issue, and the state Supreme Court last year agreed to hear the case.
After the Supreme Court rules on that narrow issue, the case will go to trial.
Some facts in the case are still in dispute. The doctors say in court papers that they refused to treat Benitez because she is unmarried, not because she is gay. Benitez, now 35, contends that the physicians originally told her the issue was her sexual orientation, then changed their reason.
Other Californians also say doctors citing an objection to single parenthood have refused them certain treatments.
Cheryl Bray, a real estate broker, says she was humiliated when her doctor refused to perform a routine physical to allow her to complete an adoption of a baby from Mexico. When the doctor discovered she was single, he says he told her his religious beliefs require that children have two parents.
"I'm upper-middle-class mainstream," Bray says. "That's why I was just so shocked."
Bray, 44, eventually found another doctor who performed the exam, and she adopted a baby girl.
In the case before the state court, Pedroza says his clients referred Benitez to another physician who would perform the procedure.
"We want to help the patient find whatever they want," he says. "But at the same time, this is a relationship. Don't force your physician to do something against their sincerely held religious belief."
Groups align on both sides
The interveners include two dozen gay or civil rights groups, such as the American Civil Liberties Union, which argues that state anti-discrimination laws prohibit doctors from refusing to serve certain patients.
The doctors have drawn support from 16 conservative law centers or religious organizations, ranging from former U.S. attorney general Edwin Meese, who wrote the brief for the American Civil Rights Union, to the Foundation for Free Expression, a California group that calls homosexuality a "sin" in court papers and compares gay activists to "suicide bombers who would destroy themselves while they murder others." That brief drew a rebuke from the two doctors, who say neither supports "the tone of some of the references" or the "offensive language."
Benitez, meanwhile, received treatment at another facility and has given birth to a son, now 5, and twin daughters, now 2.
"People ask me, 'Why are you doing this? You have your kids,' " she says. "I want to make a difference. These doctors are not God. They cannot manipulate who can have children and who cannot."
Some doctors refuse services for religious reasons
Doctors are becoming more assertive in refusing to treat patients for religious reasons, expanding the list of services they won't provide beyond abortion to include artificial insemination, use of fetal tissues and even prescribing Viagra.
The shift is prompting a new round of debate in courts and state legislatures over the balance between protecting the constitutional right to religious freedom and laws prohibiting discrimination.
More than half the states in the past two years have debated expanding legal protections for health care providers, including pharmacists who refuse to fill prescriptions for the "morning after" pill. Two states have passed them.
"We've wound up with statutes that are incredibly broad," says Alta Charo, a University of Wisconsin law professor who studies bioethics. She says the use of fetal tissue in the development of chicken pox and measles vaccines also has become an issue.
Most disputes arise out of beginning-of-life and end-of-life issues, such as assisted suicide. No doctor is required to perform particular treatments.
The collision between religious freedom and rules against discrimination occurs when physicians perform procedures selectively, offering them to some patients but withholding them from others, says Jill Morrison, legal counsel to the National Women's Law Center.
In Washington state, a gay man recently settled out of court with a doctor who refused to prescribe him Viagra.
"He told me he had prescribed certain drugs for married people, but he wasn't going to do that for me," Jonathan Shuffield says. "It was very painful having the trust broken between my doctor and me."
Patrick Gillen, legal counsel for the Thomas More Law Center, a Michigan-based public interest law firm that defends religious freedom, says the political clout of gays and lesbians has led to a situation that "is ripe for conflict." Gillen says no doctors should be required to perform procedures that violate their religious faith, especially "if the patients can get the treatment elsewhere."