CA Justices Rule in Dispute over Artificial Insemination

Less than two weeks after stunning the nation by upholding marriage rights for same-sex couples, the California Supreme Court in May seemed poised to deliver another victory for gay rights. North Coast Women's Care Medical Group v. Superior Court (Benitez), S142892, May 28, 2008.

Specifically, the court gave every indication during oral arguments in San Francisco that it would rule that doctors cannot invoke their religious beliefs to deny gays and lesbians medical services. Justice Joyce Kennard all but announced a win for the gay community when she asked Los Angeles lawyer Jennifer Pizer, who represented a San Diego County lesbian who had been denied intrauterine insemination, whether she would be satisfied with a narrowly tailored ruling in her client's favor, or whether she was hoping for a ruling that touched on a variety of issues.

'Is it safe to say,' Kennard asked, 'if we agree with you, you would be content with a win?' Justice Ming Chin seemed to be the sole holdout, as he asked a few pointed questions that seemed to favor the doctors.

Doctors' Point of View

Kenneth Pedroza, a partner with Pasadena's Cole Pedroza, who represented two doctors, sued for refusing the fertility treatment, conceded afterward that the outcome did not look hopeful for his side. The court, he noted, had shown little interest in his argument that freedom of religion as guaranteed by the state and federal Constitutions should have been the focus.

The case, which attracted an extraordinarily high 40 amicus curiae briefs ' most pro-gay rights ' was initiated in 2001 when Guadalupe Benitez sued Drs. Christine Brody and Douglas Fenton, who claimed their Christian faith prevented them from providing intrauterine insemination. Benitez argued that the two physicians, who practiced at the North Coast Women's Care Medical Group in Vista, CA, discriminated against her based on sexual orientation. Brody and Fenton, however, insisted they declined based on the fact that Benitez is an unmarried woman. San Diego County Superior Court Judge Ronald Prager sided with Benitez. Nevertheless, the San Diego branch of the 4th District Court of Appeal reversed in 2006, saying the doctors should have been allowed to present their religious objection defense to jurors. Most of the justices on the supreme court seemed more interested in hearing whether the doctors' refusals had violated the state's Unruh Civil Rights Act, which prohibits business establishments from discriminating on the basis of race, national origin, religion, gender or sexual orientation. They also seemed to leave for another day the doctors' arguments that their religious beliefs kept them from providing certain fertility treatments to unmarried women.

Invoking Other Opinions

In addition, the justices repeatedly raised two California Supreme Court opinions that held that civil rights laws, such as the Unruh Act, survive the strict scrutiny test if they do not impose a substantial burden on religious practice, serve a compelling state interest and are narrowly tailored to forbid only harmful conduct. Those cases are 2004's Catholic Charities of Sacramento Inc. v. Superior Court (Department of Managed Health Care), 32 Cal. 4th 527, and 1996's Smith v. Fair Employment and Housing Commission, 12 Cal. 4th 1143.

In fact, Justice Marvin Baxter asked both Pizer and Pedroza whether the court's ruling in Catholic Charities was controlling. In that case, the court held that a religiously affiliated social service agency violated the Women's Contraception Equity Act by refusing to provide female patients with contraceptives.

Pedroza distinguished Catholic Charities with the instant case by pointing out that Brody and Fenton had tried to accommodate Benitez's demands by referring her to another doctor who had no religious objections to the service.

'A patient can be accommodated,' he told Baxter. 'A doctor can be accommodated.'

Justice Carol Corrigan cornered Pedroza by saying that still seemed to sound like a refusal that might not fly under the Unruh Act. 'What about the question, if you can't provide this kind of service, then don't go into this kind of practice?' she said. 'Can you offer a service to one person, but say [to someone else], 'Oh, you. I'm not offering it to you”?

Under further questioning by Corrigan, Pedroza argued that a person's right to be free from discrimination under the Unruh Act should not trump the right to religious freedom under the Constitution ' or vice versa.

'There should be a way to work together on both interests,' he said, adding that the issue should be decided on a case-by-case basis at trial. Corrigan said, however, that she viewed a doctor's choice not to offer certain services ' at the expense of losing some patients ' as 'a business decision, not a religious decision.'

Chief Justice Ronald George was curious why doctors should not be allowed to refer patients to physicians if their religious beliefs might be compromised by providing a particular service. Pizer, senior counsel for Lambda Legal, said that would be like letting restaurant employees who didn't want to serve minorities refer them to other establishments or have a co-worker wait on them instead. 'It's inflicting a dignitary harm, and it creates segregation,' she said. 'Doctors can choose their procedures,' Pizer added later. 'But they cannot pick and choose between their patients.'

After the hearing, Benitez, who was accompanied by partner Joanne Clark, said she felt 'very positive' and was 'just hoping' the court will issue a decision that ends discrimination based on religious beliefs. Benitez, who has a 6-year-old son and twin 3-year-old girls with Clark, said she still worries about facing discrimination again.

A ruling is due by the end of September.

Mike McKee is a senior writer for The Recorder, a sister publication of this newsletter.

Less than two weeks after stunning the nation by upholding marriage rights for same-sex couples, the California Supreme Court in May seemed poised to deliver another victory for gay rights. North Coast Women's Care Medical Group v. Superior Court (Benitez), S142892, May 28, 2008.

Specifically, the court gave every indication during oral arguments in San Francisco that it would rule that doctors cannot invoke their religious beliefs to deny gays and lesbians medical services. Justice Joyce Kennard all but announced a win for the gay community when she asked Los Angeles lawyer Jennifer Pizer, who represented a San Diego County lesbian who had been denied intrauterine insemination, whether she would be satisfied with a narrowly tailored ruling in her client's favor, or whether she was hoping for a ruling that touched on a variety of issues.

'Is it safe to say,' Kennard asked, 'if we agree with you, you would be content with a win?' Justice Ming Chin seemed to be the sole holdout, as he asked a few pointed questions that seemed to favor the doctors.

Doctors' Point of View

Kenneth Pedroza, a partner with Pasadena's Cole Pedroza, who represented two doctors, sued for refusing the fertility treatment, conceded afterward that the outcome did not look hopeful for his side. The court, he noted, had shown little interest in his argument that freedom of religion as guaranteed by the state and federal Constitutions should have been the focus.

The case, which attracted an extraordinarily high 40 amicus curiae briefs ' most pro-gay rights ' was initiated in 2001 when Guadalupe Benitez sued Drs. Christine Brody and Douglas Fenton, who claimed their Christian faith prevented them from providing intrauterine insemination. Benitez argued that the two physicians, who practiced at the North Coast Women's Care Medical Group in Vista, CA, discriminated against her based on sexual orientation. Brody and Fenton, however, insisted they declined based on the fact that Benitez is an unmarried woman. San Diego County Superior Court Judge Ronald Prager sided with Benitez. Nevertheless, the San Diego branch of the 4th District Court of Appeal reversed in 2006, saying the doctors should have been allowed to present their religious objection defense to jurors. Most of the justices on the supreme court seemed more interested in hearing whether the doctors' refusals had violated the state's Unruh Civil Rights Act, which prohibits business establishments from discriminating on the basis of race, national origin, religion, gender or sexual orientation. They also seemed to leave for another day the doctors' arguments that their religious beliefs kept them from providing certain fertility treatments to unmarried women.

Invoking Other Opinions

In addition, the justices repeatedly raised two California Supreme Court opinions that held that civil rights laws, such as the Unruh Act, survive the strict scrutiny test if they do not impose a substantial burden on religious practice, serve a compelling state interest and are narrowly tailored to forbid only harmful conduct. Those cases are 2004's Catholic Charities of Sacramento Inc. v. Superior Court (Department of Managed Health Care) , 32 Cal. 4th 527, and 1996's Smith v. Fair Employment and Housing Commission , 12 Cal. 4th 1143.

In fact, Justice Marvin Baxter asked both Pizer and Pedroza whether the court's ruling in Catholic Charities was controlling. In that case, the court held that a religiously affiliated social service agency violated the Women's Contraception Equity Act by refusing to provide female patients with contraceptives.

Pedroza distinguished Catholic Charities with the instant case by pointing out that Brody and Fenton had tried to accommodate Benitez's demands by referring her to another doctor who had no religious objections to the service.

'A patient can be accommodated,' he told Baxter. 'A doctor can be accommodated.'

Justice Carol Corrigan cornered Pedroza by saying that still seemed to sound like a refusal that might not fly under the Unruh Act. 'What about the question, if you can't provide this kind of service, then don't go into this kind of practice?' she said. 'Can you offer a service to one person, but say [to someone else], 'Oh, you. I'm not offering it to you”?

Under further questioning by Corrigan, Pedroza argued that a person's right to be free from discrimination under the Unruh Act should not trump the right to religious freedom under the Constitution ' or vice versa.

'There should be a way to work together on both interests,' he said, adding that the issue should be decided on a case-by-case basis at trial. Corrigan said, however, that she viewed a doctor's choice not to offer certain services ' at the expense of losing some patients ' as 'a business decision, not a religious decision.'

Chief Justice Ronald George was curious why doctors should not be allowed to refer patients to physicians if their religious beliefs might be compromised by providing a particular service. Pizer, senior counsel for Lambda Legal, said that would be like letting restaurant employees who didn't want to serve minorities refer them to other establishments or have a co-worker wait on them instead. 'It's inflicting a dignitary harm, and it creates segregation,' she said. 'Doctors can choose their procedures,' Pizer added later. 'But they cannot pick and choose between their patients.'

After the hearing, Benitez, who was accompanied by partner Joanne Clark, said she felt 'very positive' and was 'just hoping' the court will issue a decision that ends discrimination based on religious beliefs. Benitez, who has a 6-year-old son and twin 3-year-old girls with Clark, said she still worries about facing discrimination again.

A ruling is due by the end of September.

Mike McKee is a senior writer for The Recorder, a sister publication of this newsletter.