California Judges Require Religious Doctors to Artifically Conceive a Child for a Gay Woman

August 19, 2008 | 147 comments
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The title says it all. The California Supreme Court has required that doctors with religious objections to lesbian households must nonetheless assist a lesbian women in artificially conceiving a child.

According to the Court’s opinion, the case involved a fertility clinic with several physicians. Two of the physicians worked with the woman who wanted to get pregnant using a friend’s sperm or sperm from a sperm bank but told her that if she needed them to perform certain procedures they would refuse to do so for religious reasons. The physicians told the woman that the other physicians in the clinic didn’t have objections and would be able to help. It turned out the other physicians weren’t qualified to help, and the woman had to go to another clinic.

As a nation we have already accepted that faithful believers cannot be pharmacists. Now we add doctors to the list. Perhaps we’ll finish up as moneylenders in the ghetto, where bloggernacle bien pensants will tell us its our own fault for letting our religion affect what we say or what we do.

More here.

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147 Responses to California Judges Require Religious Doctors to Artifically Conceive a Child for a Gay Woman

  1. Dan on August 19, 2008 at 12:10 pm

    So let me get this straight (er, no pun intended). A woman required medical assistance and a doctor refused to give it to her because his religion said, well, what exactly? The doctor apparently argued that it wasn’t that she was a lesbian but that she was “unmarried” and that her religion expressly forbade her from assisting “unmarried” women from getting pregnant. Well, then it seems that this should easily be resolved by allowing those two women to be married. Problem solved. :)

  2. W on August 19, 2008 at 12:12 pm

    My body, my choice?

    Not for physicians, apparently.

  3. TT on August 19, 2008 at 12:15 pm

    What will they think of next! I am sure that someday we’ll find out that Evangelical doctors might actually have to help Mormons even though their religion clearly dictates that they should actually let us die in the street.

    [Ed.--This is a nasty slur on Evangelical religion.]

  4. greenfrog on August 19, 2008 at 12:19 pm

    Interesting case. Thanks for linking to it.

    Unintended consequences, galore.

    Beginning (to the extent these things ever have one particular beginning?) with Scalia’s opinion in Smith.

  5. mmiles on August 19, 2008 at 12:26 pm

    I am curious about the religious claim. Suppose the physician had claimed that he would not help her conceive not based on religious grounds, but because he believed (based on some research), it was unhealthy for the child (to not have a father) and/or mother (to raise a child without the father around). As a physician, could he claim that? Doctors can make decisions other doctors disagree with all the time, because they don’t think it is in the best interest of the patient. If the doctor does not think it is the best outcome for the patient (here the future child and/or the mother of the child) can the doctor legally refuse treatment?

  6. Velska on August 19, 2008 at 12:29 pm

    Dude, “medical assistance” can mean anything from CPR to plastic surgery. Giving fertility treatments is hardly medically necessary.

    Wow, it must have been really traumatic to have to go to another clinic!

    My body, my choice? A patently false idea when a child is involved. Doctors are required to perform adoptions, too, despite moral objections?

    And no, recognizing gay marriage doesn’t lead to *requiring* churches to perform or recognize them. That’s what we’ve been told. Well, we don’t buy that.

  7. Julie M. Smith on August 19, 2008 at 12:31 pm

    I’m not sure how I feel about this issue and so I’m trying to imagine that the morality is on the other foot, so to speak:

    Should a physician be legally allowed to refuse to work with a woman who is trying to get pregnant for the 10th time because he believes in population control?

    What if the woman is 21 and infertile (which she knows because she’s already been married for 4 years :) ) and the dr. thinks she’s too young to be a mother?

    Or what if a dr. doesn’t want to prescribe an anti-depressant because the woman’s real problem–says he–is that she’s a baby machine in a patriarchal religion?

  8. Adam Greenwood on August 19, 2008 at 12:32 pm

    Dan,
    you’re misreading the opinion. The court is ruling on whether doctors can refuse to artificially conceive children for lesbians. The court is quite clear that it is not ruling on the doctors’ claim that they can refuse to artifically conceive children for unmarried persons.

    MMiles,
    that’s an extremely interesting hypothetical.

  9. sscenter on August 19, 2008 at 12:36 pm

    I think that Dr.’s should be able to refuse to work on anyone they want to for any reason. Who really wants a Dr. to work on them against their will. If I had a Dr. who hated fat Mormons, I wouldn’t go there for any reason out of concern that I would not get the quality of care I wanted regardless of how unfair it may seem.

  10. Adam Greenwood on August 19, 2008 at 12:37 pm

    JMS,

    are you trying to argue that these are all morally equivalent situations? That in your mind having children in wedlock at 21 is just as wrong as having children as an unmarried lesbian woman?
    People don’t use the kind of analysis you are using when they have actual convictions about the underlying morality. No one really advocates for slavery because they worry that if we abolish owning men we can also abolish owning rabbits.

    In any case, if there are other medical services easily available, as in the California case, why are your hypotheticals so horrible?

  11. bbell on August 19, 2008 at 12:38 pm

    Adam,

    This is where we are headed. I fully believe in the ” slippery slope” arguments that Kaimi disagrees so strongly with.

    If I was a LDS/Catholic/baptist Dr in this field I would be packing my bags for another state.

  12. Dan on August 19, 2008 at 12:42 pm

    Well Adam, I read over the brief and I can’t side with the doctors on this. The law seems pretty clear.

    And your title doesn’t say it all, because it isn’t the “activist” judges who are “forcing” these doctors to do this, but the law itself. If you don’t like the law, get lawmakers who will write laws you like. Don’t blame the judges for properly judging what the law stipulates.

  13. Adam Greenwood on August 19, 2008 at 12:45 pm

    Dan,
    show me where I used the word “activist” in this post or complained about judges getting the law wrong. If you can’t do that, I’m removing any further comments you make along these lines.

  14. Julie M. Smith on August 19, 2008 at 12:47 pm

    Adam, I was trying to think of hypotheticals that would be as morally wrong to others as the creation of a child by a lesbian is to us.

    ‘People don’t use the kind of analysis you are using when they have actual convictions about the underlying morality. ”

    Hm. I think you just said that I have no actual convictions about morality. Is that what you meant to say?

    In any case, they do use that kind of analysis when they think that other people have different moral values that are just as valid as their own *in the public sphere*. I’m not sure A of F 11 can mean anything if we don’t allow other’s religious/political convictions to translate into the public sphere the same way that ours does.

    “In any case, if there are other medical services easily available, as in the California case, why are your hypotheticals so horrible?”

    That’s what I’m trying to flesh out: as I said, I wasn’t sure about this issue so I’m trying to work it out in my mind. And that’s where the hypotheticals came in. The problem comes in, maybe, with small towns and insurance issues and time-sensitive operations (never been down that road myself, but I understand a lot of IVF requires LOTS of very time-sensitive appts.) so that telling a woman to “just find another doctor” is another way of saying “just give up.”

    But again, I’m not sure how I feel about this.

  15. Dan on August 19, 2008 at 12:50 pm

    Adam,

    Your post here is consistent with numerous other posts of yours decrying California judges for the way they judge particular cases. The language you use (even in this post) lays the blame for the eventual decision on the judges and not on the laws they expound on. You say here that it is the judges that “require” religious doctors to do something against their religion. But that’s not the case. It is the LAW that requires it, not the judges. But you use the word “judges” because it goes with the narrative you have against California judges, and is consistent with many of your previous posts on similar topics. I understand your frustration on the topic, but lay the blame where it squarely belongs—the legislature that CREATES the laws you dislike.

    [Ed.--Nope, not good enough.]

  16. Adam Greenwood on August 19, 2008 at 12:51 pm

    The problem comes in, maybe, with small towns and insurance issues and time-sensitive operations (never been down that road myself, but I understand a lot of IVF requires LOTS of very time-sensitive appts.) so that telling a woman to “just find another doctor” is another way of saying “just give up.”

    That isn’t what the court ruled. For the purposes of this ruling, the facts were simply that the lesbian woman had to go to another clinic. There was no trouble with small towns or insurance issues or time-sensitive operations. You’re wriggling.

  17. Steve Evans on August 19, 2008 at 12:54 pm

    The text of the ruling is available in full here. It is an interesting decision.

    [Ed.--Thanks, Steve E. The post also has a link to the full text of the ruling.]

  18. Dan on August 19, 2008 at 12:54 pm

    Of course it isn’t good enough for you. No wonder I’ve never enjoyed actually debating with you Adam. Nothing but your own viewpoint is good enough for you. I shan’t be meeting you in any temple.

  19. Adam Greenwood on August 19, 2008 at 12:55 pm

    In any case, they do use that kind of analysis when they think that other people have different moral values that are just as valid as their own *in the public sphere*.

    How do you determine that the Church witness on slavery, e.g., is valid in the public sphere but the Church witness on abortion or homosexuality, e.g., isn’t?

  20. jeff hoyt on August 19, 2008 at 12:55 pm

    Julie;

    So you are sayng that it might be appropriate for the heavy hand of government to force physicians to go along with whatever the patients desires? Not being critical, just seeking clarity. Unfortunately, I think many believe that any government imposition in this area is appropriate. This is the singular reason I have told my children to avoid going into healthcare fields.

  21. Mark N. on August 19, 2008 at 12:57 pm

    Next thing you know, God will start withholding blessing from people who are not Mormon.

  22. Steve Evans on August 19, 2008 at 12:58 pm

    Adam, I think the facts were a little more complex than that, but the real problem (as Dan sort of points out) is not the CA Supreme Court, but the law. I don’t know how you can get around this kind of decision when the law of California states:

    All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

  23. Adam Greenwood on August 19, 2008 at 1:01 pm

    In a free country it is permissible to criticize the law.

    The judges didn’t interpret the free speech or freedom of religion claims the way they should have, in my opinion, but nothing they said was outrageous, *given* the law and *given* our modern culture’s attitude towards morally serious religion. I never said otherwise.

  24. Dan on August 19, 2008 at 1:01 pm

    Thank you Steve Evans.

  25. Julie M. Smith on August 19, 2008 at 1:02 pm

    “How do you determine that the Church witness on, say, slavery is valid in the public sphere but the Church witness on, say, abortion or homosexuality isn’t?”

    Can’t imagine–what do you think?

    But if are going down that route, will you sign my petition and donate to my campaign to make iced tea unconstitutional?

    jeff hoyt,

    That’s why I am not sure. I can see the case for force–after all, do you *not* want firefighters pulling gays out of burning buildings because they think they should be in the flames of hell anyway? There’s a point at which taking on a job means that you have to perform that job _even when it conflicts with your core beliefs_ or you shouldn’t be there giving people the impression that you will do the job. On the other hand, I’m with sscenter in that I’d never go to a doctor who didn’t want to treat me. Maybe the line should be drawn with emergency care versus non-critical care? But what about doctors who don’t want to treat certain races–esp. fertility doctors because there’s too many of “their kind”?

    Maybe the employee should have to state these things ahead of time so that the employer can decide if they want to hire a pharm who won’t give out bc pills and there has to be a sign on the wall so people can decide if they want to patronize a pharmacy that won’t dispense them? I’m really not sure where to draw the line here. That’s why I was experimenting with those hypotheticals.

  26. mmiles on August 19, 2008 at 1:03 pm

    Julie,
    Doctors make medical decisions on ethical grounds all the time. They also employ psychologists to evaluate the best outcome for patients in many cases (ie gastric bypass surgery, plastic surgeries, cancer treatments or ceasing treatments).

    If professionals (and especially doctors) all have to abide by one opinion, then our entire society will become legislated-all of us being forced to live the same way, following the dictates of some consensus.

    It frustrates me that a doctor can’t have a second opinion based on what he truly thinks is best for patients–

  27. Julie M. Smith on August 19, 2008 at 1:04 pm

    “sex, race, color, religion, ancestry, national origin, disability, or medical condition”

    This doesn’t mention sexual orientation. Did I miss something?

  28. Steve Evans on August 19, 2008 at 1:07 pm

    Adam, I agree with you, certainly in your first sentence, and certainly with regards to modern society’s opinions towards religion. It’s problematic for believers, who can rightly see decisions like these as symptomatic of a curtailing of their ability to live their beliefs across the board. Sometimes that curtailing is good (esp. when it’s someone else’s religion or a practice we don’t like such as animal sacrifice), and sometimes it’s bad (like here).

  29. Julie M. Smith on August 19, 2008 at 1:07 pm

    mmiles,

    There are limits to that, tho–given the statement Steve quoted, a dr. in CA can’t say, “I don’t think it is in the best interest of this [insert religious minority] woman to have a baby because of X, Y, and Z.” (Even if that belief is part of his core moral beliefs.)

  30. ECS on August 19, 2008 at 1:07 pm

    “So you are sayng that it might be appropriate for the heavy hand of government to force physicians to go along with whatever the patients desires?”

    Julie can speak for herself, but this kind of hyperbolic rhetoric is unproductive as well as an incorrect characterization of the California case. The woman in question sought routine professional medical assistance to conceive a child. In California, a physician violates state anti-discrimination laws if she refuses to treat patients based upon their sexual orientation. Perhaps the Mormon Church can begin a campaign to amend the California law along with its lobbying for Proposition 8.

  31. JimD on August 19, 2008 at 1:07 pm

    Re Julie’s hypotheticals: it strikes me that the underlying issue of this decision shouldn’t be how to enforce some objective standard of “right” and “wrong”, but the doctor’s individual right to act in accordance with his or her own conscience when administering elective medical procedures. Therefore, I would say that for the first two hypos–yes, the doctor should be allowed to refuse treatment. For the third, my inclination is that antidepressants are not an “elective” treatment and so the doctor has a duty to provide treatment (though I could go the other way depending on additional facts that weren’t a part of this hypothetical).

  32. Sean O'Neill on August 19, 2008 at 1:08 pm

    Dan,

    Regarding your comment 10, you have misinterpreted the Court’s opinion. My understanding is that the Court wasn’t merely deciding what the statute requires, but whether that statute is trumped by the First Amendment’s guarantee of Freedom of Religion.

    The fact is, I think that there is a slippery slope problem here, which I believe is why the Church is coming out against gay marriage and all the rights thus conveyed. I wonder why a Mormon Bishop couldn’t at least be theoretically required to marry a gay couple if the couple insisted on going to that Bishop to be married rather than to some other church (just like the lesbian at issue in this case who could have gone to many other doctors with no religious scruples to artificial insemination)? I don’t know what the particular statute says here, but if it generally prohibited discrimination on the basis of sexual orientation, the Bishop’s defense would be to object to performing such a marriage on the basis of his Constitutional right to practice his religion as he sees fit. I don’t really see why CA could require the provision of medical services but could not require the provision of marriage services, could you?

    Those who wish to ban gay marriage are often accused of imposing their religious views on others (that society should prohibit gay marriage). Yet, in this case, no one was trying to prohibit anything, but merely to conduct their own business in accordance with their religious values. Once the line is crossed from agreeing that the government should not use its police power to come down on gays (which most people now agree with), to forcing each individual to act in accordance with the side the government has taken in the culture war, the coin has been flipped, and the religious observer is the one whose views are being imposed upon. At a certain point, all that is left is the belief in one’s mind, but no ability to act in accordance with that belief. That’s not freedom.

  33. ECS on August 19, 2008 at 1:10 pm

    Julie, the statute was amended to include sexual orientation in 2005.

    From the court’s opinion:

    “In 1999 and 2000, the period relevant here, the Unruh Civil Rights Act did
    not list sexual orientation as a prohibited basis for discrimination. But before
    1999, California’s reviewing courts had, in a variety of contexts, described the Act
    as prohibiting sexual orientation discrimination. (See Harris v. Capital Growth
    Investors XIV (1991) 52 Cal.3d 1142, 1155; Curran v. Mount Diablo Council of
    the Boy Scouts, supra, 17 Cal.4th 670, 703 (conc. opn. of Mosk, J.); Hubert v.
    Williams (1982) 133 Cal.App.3d Supp. 1, 5; see also Stoumen v. Reilly (1951) 37
    Cal.2d 713, 716; Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 292.) Through
    an amendment to the Act in 2005, the Legislature expressly prohibited sexual
    orientation discrimination. (Stats. 2005, ch. 420, § 2.)

    The Unruh Civil Rights Act subjects to liability “[w]hoever denies, aids or
    incites a denial, or makes any discrimination or distinction contrary to [the Act].”
    (Civ. Code, § 52, subd. (a).) Thus, liability under the Act for denying a person the
    “full and equal accommodations, advantages, facilities, privileges, or services” of
    a business establishment (Civ. Code, § 51, subd. (b)) extends beyond the business
    establishment itself to the business establishment’s employees responsible for the
    discriminatory conduct.”

  34. Adam Greenwood on August 19, 2008 at 1:13 pm

    Can’t imagine–what do you think?

    If you really don’t have any particular reason for thinking we should oppose slavery, you need help. Saying that you have to ignore everything you believe to be true in public policy matters if someone else feels differently is the flaccid response of Pavlovian liberalism (I don’t mean liberalism as in the political left). If you really are at a loss–I suspect you aren’t, but are just being flippant–I can suggest several routes for sorting out what moral beliefs should affect public policy and which shouldn’t.

    I like your distinction between emergency care and non-critical care. I do not like your lame equation of Christian moral beliefs with racism.

  35. gst on August 19, 2008 at 1:14 pm

    Steve, the Court was not just reading the Unruh Act–it had to decide whether the religious freedom sections of the state and federal constitutions mandated a religious freedom exemption from the Act. The fact that the language of the Act is clear doesn’t end the judicial analysis.

  36. Julie M. Smith on August 19, 2008 at 1:15 pm

    Thanks, ECS for the clarification.

  37. Dan on August 19, 2008 at 1:15 pm

    Sean,

    I don’t see a slippery slope problem here, and neither did the court. We’re not talking about a religious institution refusing to provide a service it creates for its members (like the example you give of marriage) but of a secular practice (in this case fertilization). If this was a question of forcing a religion or a religion’s representative (say a Bishop) to do something against that religion’s practices and beliefs, then yes, I’d be with you. But it isn’t, and it isn’t close to that kind of a situation. These two doctors were not official representatives of their faiths but individual members.

    The point of a decision like this is that if you work in a field that provides a service to people who do NOT believe as you do, you cannot discriminate against them because they don’t share your beliefs. That’s the point of this decision.

  38. W on August 19, 2008 at 1:15 pm

    Julie, I’m sympathetic to the idea that problems can arise from letting doctors make ethical calls guided by their personal beliefs. But who’s to say the problems arising from forcing them to set those aside aren’t bigger? Especially in elective situations, forcing someone to perform a procedure they’re morally squeamish about seems fraught with potential for procedural disaster, on top of what I think is the larger issue, the personal consequences that are likely to follow someone who’s just participated in something they feel was wrong.

    And if there’s a diverse enough set of beliefs represented in the medical community, doesn’t it solve the problem and preserve freedom of conscience better all around to let patients find doctors whose values match their own?

    Why would forcing the hypothetical doctor in the last example you gave to prescribe antidepressants be a better option than finding a doctor who would?

  39. Julie M. Smith on August 19, 2008 at 1:17 pm

    “I can suggest several routes for sorting out what moral beliefs should affect public policy and which shouldn’t.”

    I’d love to see it.

  40. jjohnsen on August 19, 2008 at 1:18 pm

    In a free country it is permissible to criticize the law.

    The doctor isn’t criticizing the law, he’s breaking the law. I’m a little confused why the clinic he works for hasn’t just fired him. If I refuse to do my job, even if that job requires me to work on Sunday, I get fired. Now I can choose to keep working and miss church occasionally, or I can choose to get a job that won’t require me to work that occasional Sunday.

    If I were the clinic I would tell him to obey the law or find anther job. It’s totally his choice. Adam, if your job required you to do something that was legal, but you morally objected, wouldn’t you have the same choice as this doctor?

    [Ed.- *I* am criticizing the law.]

  41. Julie M. Smith on August 19, 2008 at 1:18 pm

    Just to be clear–because I was snarking with the “can’t imagine” line–that I really would like to see your metric for determining which of our moral beliefs we should fight to make legal issues.

  42. Adam Greenwood on August 19, 2008 at 1:18 pm

    a dr. in CA can’t say, “I don’t think it is in the best interest of this [insert religious minority] woman to have a baby because of X, Y, and Z.”

    Probably, but it matters a lot what reasons X, Y, and Z are. They would have to be reasons that would apply to almost all members of [religious minority] but wouldn’t usually apply to those who weren’t members of [religious minority.]

  43. mmiles on August 19, 2008 at 1:18 pm

    Jim,
    I disagree. If a psychiatrist had the opinion that someone’s religious practices were causing depression, and that prescribing medication was not a good treatment plan, that is a perfectly valid medical decision. If the patient disagrees, he/she can get a second opinion. Amongst Julie’s hypotheticals, population control is about the only one I see the doctor couldn’t claim as a valid argument for withholding medical treatment. If the patient disagrees, they are free (or should be under their insurance plan) to get a second opinion and seek treatment elsewhere.

  44. ECS on August 19, 2008 at 1:20 pm

    “I do not like your lame equation of Christian moral beliefs with racism.”

    This sentence shows how difficult it is for Christian religions to negotiate the shifting sands of morality. A few decades ago, the anti-miscegenation statutes struck down by the Loving decision were defended as a requirement of “Christian moral beliefs” by following God’s directive to maintain racial “purity”.

    [Ed. Equating revealed morality with race discrimination is wrong wicked and offensive. I will remove anything further along those lines.]

  45. gst on August 19, 2008 at 1:21 pm

    Julie and ECS: While the Unruh Act was amended to include sexual orientation (and marital status) in 2005, Benitez was treated by the defendant doctors in 1999 and 2000. Nevertheless, even before then, courts had interpreted the Act to prohibit sexual orientation discrimination even though it did not explicitly do so by its terms.

  46. jeff hoyt on August 19, 2008 at 1:22 pm

    Julie;

    The distinction, I believe, is public sector versus private sector. I agree with you about a firefighter. Unfortunately, those that hold LDS values in contempt will bludgeon us into submission with arguments about “public accomodation”. This case is stark evidence. Instead of just finding another physician a lawsuit was filed. For what purpose? I do not see how anyone can conclude it was for any purpose other than to beat down those with differing morals. The day will come when enemies of the Church seek to have their way, and moving west is no longer an option. We need to prepare now.

  47. Dan on August 19, 2008 at 1:22 pm

    Adam,

    [Ed.- *I* am criticizing the law.]

    You are criticizing the judges, not the law. If you were criticizing the law, you would state so. Nowhere in your piece do you show evidence of criticizing the law. Only upon being called on it do you start saying so.

  48. gst on August 19, 2008 at 1:31 pm

    I don’t think firefighters should be forced to do intrauterine insemination on lesbians.

  49. ECS on August 19, 2008 at 1:32 pm

    gst – right, which is why I included the quote from the opinion about the courts’ interpretation of the Act.

    Adam – this is your thread, of course, but you’d do better to engage the substance of the argument rather than calling people names. The parallels between racial discrimination and discrimination based upon sexual orientation are accepted by courts and in public discourse regarding the issue of same-sex marriage. Unless same-sex marriage opponents can provide a reasoned response distinguishing the two forms of discrimination (and there are some reasonable arguments out there), you will lose.

    [Ed. I have yet to see a reasoned argument for equating the two. Its just name calling, and I don't want it here.]

  50. Steve Evans on August 19, 2008 at 1:32 pm

    gst, your Victorianism is showing. Go rent some episodes of “Rescue Me” and report back.

  51. Kaimi Wenger on August 19, 2008 at 1:38 pm

    Adam,

    You don’t like Julie’s counter-hypotheticals, so let me pose a specifically religious, morally based one:

    Quaker doctor refuses to perform artificial insemination for woman whose husband is in the military in Iraq. Says that performing this would be in effect assisting in war, which is counter to his religious beliefs.

  52. Adam Greenwood on August 19, 2008 at 1:40 pm

    Julie S.,

    You have several options that do not require you to set aside revealed truth in the public arena.

    1. Even if you think the government and society should adopt revealed truth wholesale, you might recognize practical obstacles to a lot of this (i.e., no iced tea amendment).

    2. You might argue that revealed truth is consistent with the notion that some acts have value only when uncoerced (i.e., baptism) while others do not (i.e., refraining from murder).

    3. You might argue that revealed truth is consistent with the notion that governments are instituted for specific ends, and those ends are limited.

    4. You might argue that revealed truth is consistent with a distinction between celestial morality and terrestrial morality and the the former is inappropriate for government and society.

    5. You might argue that some commandments are malum in se and others are malum prohibitum–in other words, that sometimes the commandments reveal universal moral truths and sometimes they are only contingent and limited to the church. Some would argue that much of the Word of Wisdom falls into this latter class.

    6. You might argue that revealed truth shows us a number of moral goods; that among these is the good of being free to be an agent unto oneself; that these moral goods are often in conflict and must be balanced; and that we will therefore sometimes refrain from enforcing one moral good in law when it would interfere with the moral good of letting our fellow citizens have a sphere of freedom to screw up.

    I think a lot of these get you where you seem to be at–that even for reasons we would find morally distasteful (like population control, for instance) a physician should probably be allowed to decline service unless it was an emergency, medically necessary service or perhaps in some circumstances if the person seeking the service had no real alternatives.

  53. Mark N. on August 19, 2008 at 1:42 pm

    Should an obstetrician be able to refuse to provide labor delivery services to a pregnant lesbian soon-to-be mother?

    Should I refuse to work for any employer who drinks alcoholic beverages or who smokes cigarettes?

  54. Adam Greenwood on August 19, 2008 at 1:42 pm

    I don’t think firefighters should be forced to do intrauterine insemination on lesbians.

    It should be optional.

  55. Dan on August 19, 2008 at 1:43 pm

    So Adam, calling you out is wrong on this thread, but you can call someone wicked? I’m just curious what the rules really are for commenting here at T&S.

  56. Adam Greenwood on August 19, 2008 at 1:45 pm

    Quaker doctor refuses to perform artificial insemination for woman whose husband is in the military in Iraq. Says that performing this would be in effect assisting in war, which is counter to his religious beliefs.

    The Quaker doctor is an ass if he thinks he’s participating in the war or assisting it by getting a soldier’s girl pregnant. But let him be an ass if he wants to.

  57. A.J. on August 19, 2008 at 1:47 pm

    What if the doc refused to give the woman a prescription for anti-depressants because he is a sciencetologist or refused to do a blood transfusion because he is a jehovah\’s witness.

  58. Mark N. on August 19, 2008 at 1:48 pm

    Dan, he didn’t say ECS was wicked.

    He just accused him of doing something wicked.

    Love the sinner, hate the sin.

    I guess.

  59. Adam Greenwood on August 19, 2008 at 1:48 pm

    Should an obstetrician be able to refuse to provide labor delivery services to a pregnant lesbian soon-to-be mother?

    My personal opinion is, yes, if its not an emergency situation.

    Should I refuse to work for any employer who drinks alcoholic beverages or who smokes cigarettes?

    You should have the right to refuse to work for employers who drink or smoke if that’s what you want.

  60. Dan on August 19, 2008 at 1:49 pm

    I guess. Well then Adam is doing something wicked here by criticizing the judges who are truly blameless. Their only fault is in judging the law of California correctly.

  61. gst on August 19, 2008 at 1:55 pm

    Dan, you se’em to think that all of these judges had to do here was read the plain’ language of the Unruh Act. I’n fact, they had to reconcile th’e Act with the state an’d federal constitutional protections of religio’us freedom, or a’lternately recognize an exem’ption stemming therefrom. It’s called “judging,” not “reading,” and judge’s ar’e open to criticis’m for how they do ‘it.”’

  62. gst on August 19, 2008 at 1:57 pm

    Mark N., I don’t think ECS is a dude.

  63. Mark N. on August 19, 2008 at 1:57 pm

    “My personal opinion is, yes, [an obstetrician should be able to refuse to provide labor delivery services to a pregnant lesbian soon-to-be mother] if its not an emergency situation.”

    I guess my problem is that I’m having difficulty picturing God sitting in heaven saying to the nearest handy angel, “See: that obstetrician made the right decision by refusing his/her services to that evil lesbian. That’ll teach her.”

  64. Lee S. on August 19, 2008 at 1:58 pm

    Just a clarification on the structure of the decision itself:

    The problem was that there was a misunderstanding about one specific procedure that the two doctors with religious opposition (Dr.s Brody and Fenton) refused to do on moral grounds that the other two doctors at the clinic were unable to do. So the procedure could not be done within the clinic. Had the original doctor referred Benitez to another doctor at the clinic who was able to do the procedure, there would have been no conflict. It should also be noted that Benitez had the procedure done anyway at another clinic, then decided to file suit at the original clinic based on sexual orientation discrimination. This was a problem based on principle, not on specific practice.

    Furthermore, the court offered an \’out\’ for the physicians by saying that religious objections could be based on not helping single parents. If the original sexual orientation discrimination was based on the fear of a lesbian raising a child and the threats to family structures, wouldn\’t a similar worry apply to all unwed mothers? The Unruh act makes no statement against marital status, unless I\’m mistaken.

    I agree with several posters here that if you decide to go into a specific field, you should have to be willing to accept the obligations of that field with regard to the services provided. Why should we give a pass to a fertility treatment doctor who should by all rights have known that such an issue could (and would!) come up at some point? Especially if the physicians\’ ostensible defense was based on all single women (as the decision implies). To not have made arrangements to prevent the situation impeding their ability to perform their job seems to me to be irresponsible, if not negligent.

    I honestly don\’t understand why this is painted first as a religious rights issue when no one was forcing the physician to offer this service in general. This is different from the Seventh Day Adventist (cited in the decision) who was being forced by the job to work on Saturdays in order to keep his employment; a responsible doctor would have ensured that the option that the clinic was offering was available to anyone who came in, regardless of their personal status. Apparently it was only once Dr. Brody was faced with the prospect of actually performing a procedure that suddenly an ethical problem cropped up. I don\’t mean to be inflammatory, but Dr. Brody never raised the prospect of refusing to treat Benitez based on her personal status, and gave her a considerable amount of advice and assistance before suddenly refusing treatment with this particular procedure. Would the situation have turned out differently had Brody made her personal objections known up front? I don\’t know, but I think it would have been more responsible.

  65. Steve Evans on August 19, 2008 at 1:58 pm

    OK look gst, we all now realize how tough and complicated the analysis of the judges was. Quit bragging about it. (plus you misused an apostrophe!)

  66. Dan on August 19, 2008 at 1:59 pm

    gst,

    With my comments, I don’t mean to imply that the job of a judge is simple. Truly they are paid the amount of money we pay them for a reason. They’ve got to manage that fine line that cannot be reconciled independently. But that’s what we pay them for. In most cases the problem doesn’t lie with the judges but with the fact that the wording of the law allows for the situations that many of us find disturbing.

    I think that this case presented here is fairly simple. The two doctors were working in a field that provided a service to those who do not share the same beliefs that the doctors shared. Because of that, the two doctors could not discriminate against that individual who did not share their belief. You cannot hold people to standards they have not accepted to live by.

  67. gst on August 19, 2008 at 1:59 pm

    I already petitioned Adam to fix my apostrophe. Too bad he can’t so easily fix the entire body of your bloggernacle commentary, Steve-o.

  68. Steve Evans on August 19, 2008 at 2:01 pm

    ‘zwounds!

  69. Mark N. on August 19, 2008 at 2:01 pm

    “Mark N., I don’t think ECS is a dude.”

    Oops, sorry about that, ECS. I can’t say as I’ve tried very hard to keep track of genders for those with ambiguous signatures. My bad.

  70. gst on August 19, 2008 at 2:03 pm

    Adam, thanks for cleaning up the apostrophe situation in #61. Much better.

  71. Adam Greenwood on August 19, 2008 at 2:04 pm

    I guess my problem is that I’m having difficulty picturing God sitting in heaven saying to the nearest handy angel, “See: that obstetrician made the right decision by refusing his/her services to that evil lesbian. That’ll teach her.”

    Me too. There’s lot of things I don’t see God getting excited about that I think should be legal.

  72. Adam Greenwood on August 19, 2008 at 2:07 pm

    I honestly don\’t understand why this is painted first as a religious rights issue when no one was forcing the physician to offer this service in general.

    Its a religious rights issue when certain professions are de facto barred to serious religious believers. Perhaps religious rights shouldn’t prevail in every instance but they deserve more than a shrug.

  73. Kaimi Wenger on August 19, 2008 at 2:07 pm

    ““Mark N., I don’t think ECS is a dude.”

    Oops, sorry about that, ECS. I can’t say as I’ve tried very hard to keep track of genders for those with ambiguous signatures. My bad. ”

    Gender confusion — a direct result of lesbian insemination.

  74. angrymormonliberal on August 19, 2008 at 2:09 pm

    Re: 50, Adam Greenwood

    The issues being decided in this position are broader than one lesbian couple in one American urban area. One of the primary consequences of these ‘moral objecters’ to medical services for people they don’t like is that in vast areas of the country they can be the only provider of such services.

    I am on a biologically engineered drug to control Rheumatoid Arthritis. The only Rheumatologist even close to me is a 2 hour drive away. If he has a moral objection to using this drug, a chimera of animal and human proteins, I have a 5 hour + drive to find another, sole doctor, who could prescribe this. If both of them feel this way, I have no other options. There are other alternatives, but they have serious side effects. I could effectively be banned from using this drug simply because of my doctors moral objections.

    The doctor committed an ethical violation. Furthermore, if others can follow his example, the US will be a patchwork of places where medical care can be limited by the religious beliefs of the Doctor, NOT the requests of the patient/guardian.

  75. Dan on August 19, 2008 at 2:09 pm

    Adam,

    Its a religious rights issue when certain professions are de facto barred to serious religious believers. Perhaps religious rights shouldn’t prevail in every instance but they deserve more than a shrug.

    They get far more than a “shrug.” I realize religions continue to feel as “victims” but really they are not.

  76. Dan on August 19, 2008 at 2:12 pm

    Also, if I may add one more comment on this point:

    Its a religious rights issue when certain professions are de facto barred to serious religious believers

    I don’t particularly like the insinuation that “serious religious believers” discriminate against certain individuals. You are effectively saying that those who don’t discriminate are not “serious” in their religious beliefs. Please, go ahead and delete this comment. You only like my comments for your eyes only, Adam.

  77. ECS on August 19, 2008 at 2:12 pm

    I think it’s perfectly appropriate for Adam and others to vent their frustrations with respect to the current situation in California. A healthy, respectful discussion of why people feel the way they do about same sex marriage can be productive and useful. We need to understand each other on this issue. There’s too much acrimony on both sides.

    That said, the legality of same-sex marriage will be decided by the legislatures and the courts. Julie’s excellent post highlighted the difficulties in operationalizing our personal religious beliefs into the kinds of reasonable, cogent arguments accepted by judges and legislators. It’s simply not enough to say that homosexual behavior is counter to Christian moral values. Moral disapproval is fast becoming an insufficient basis upon which to ground our laws.

    For those interested in reading a primer of the constitutional issues with respect to same-sex marriage without the clutter of legal jargon, I recommend Evan Gerstmann’s book “Same-Sex Marriage and the Constitution”. Gerstmann makes his bias known from the very beginning, and the book is a highly readable introduction to (and refresher of) equal protection and due process analysis. Given the Church’s high profile efforts in California, I believe that it’s crucial that members of the Church know something about the evolution of the same-sex marriage issue in the public sphere, so they are able to discuss the issue intelligently and reasonably with others.

  78. Sean O'Neill on August 19, 2008 at 2:14 pm

    Dan,

    While I can agree with you that the marriage example is different from the medical example, I am not sure that answers the question of whether we have a slippery slope here. While marriage has more of a religious character than a secular character like medical services, the distinction is actually quite blurry. After all, governments themselves grant marriage licenses. In fact, it is government that makes it possible for a Mormon Bishop to have the authority to solemnize marriages that are legally recognized. Marriage and government are inextricably intertwined. It is not as though marriage even comes close to fitting neatly in a “religious” category. Another distinction you make is that marriage is a service created by the church for its members. Yet, Bishops don’t marry only members of the church. A Mormon gay man could request of his Bishop that he marry that man and his non-member gay partner. Such a request would be turned down, and how can you be confident that the CA court COULD NOT find the church has violated the statute at issue here vis a vis the harmed non-member?

    If that example seems preposterous, take a look at what happened to “Catholic charities” in Massachusetts. Under state antidiscrimination laws, the Catholic church would have been required to place adoptive children in gay families, so Catholic Charities no longer performs that service. This isn’t just an individual who was affected by the state law, but the church itself. My question is, how can anyone be certain that states could not begin to infringe on the church’s activities in more pervasive ways, in the name of antidiscrimination? I’d like to think that you are right that there is a real line in the sand that can be drawn behind which churches are safe to practice their beliefs, I just don’t know that such a thing exists.

  79. Adam Greenwood on August 19, 2008 at 2:20 pm

    Angry Mormon Liberal,
    how is your situation helped if your nearby doctor quits because he’s told he can’t practice medicine and religion at the same time?

  80. Aluwid on August 19, 2008 at 2:20 pm

    AngryMormonLiberal,

    Why is your ability to choose where you live more important than the right of a doctor to not perform procedures that they find morally wrong?

    Yeah having to move to get the service you want is a large sacrifice to make, but then again so is being blacklisted from an entire profession due to your religious beliefs.

  81. gst on August 19, 2008 at 2:23 pm

    Sean, FYI, the Unruh Act applies only to “business enterprises,” which should exclude churches. (It’s a closer question when the church rents out its facilities for hire, but I think the exemption should still hold.)

  82. Dan on August 19, 2008 at 2:23 pm

    Sean,

    #74

    I don’t mind strong vigilance against incursions on freedom of religion, but I just don’t see real incursions on my freedom to practice my religion, or my church’s ability to be free to practice as it wishes (within certain bounds of course—like no human sacrifices). I haven’t studied up on the details of the Catholic charity in Massachusetts (though I know it has been brought up numerous times as an “aha!” example by many), but just from a cursory glance it seems that that Catholic charity was working within public domain, and not as a private institution. I may be wrong on that point. But if you offer services to the public, with public tax financing, then you better follow the law as stated. If not, then go back to being private.

    In the case of marriage, particularly in regards to our church, we have to realize that there are two sets of marriages that are performed. A bishop (or a temple president) is legally authorized to perform what will be viewed as a legal transaction, a civil marriage. The Temple president also performs a temple sealing which has absolutely no legal bearing, thusly this practice cannot be touched by any law. Now, as far as I know (and I admit much ignorance in this domain), a bishop who is authorized to perform civil marriages can refuse to perform marriages if he so wishes. You can correct me on what the law actually stipulates.

  83. gst on August 19, 2008 at 2:27 pm

    By the way, I stand by my apostrophe misuse.

  84. gst on August 19, 2008 at 2:28 pm

    ‘ ‘ ””’ ””””””” ””
    apply them as you like

  85. mmiles on August 19, 2008 at 2:30 pm

    So if this law applies only to businesses, and not churches–what about bleary lines? When does a church become a business enterprise?

  86. gst on August 19, 2008 at 2:33 pm

    mmiles, that’s a great question, and one that smart lawyers are working to resolve, in the interests of truth and justice.

  87. Adam Greenwood on August 19, 2008 at 2:33 pm

    This decision does not entail that the Church will have to perform gay marriages. The decision does entail that serious religious believers may be excluded from subsets of important professions.

  88. Steve Evans on August 19, 2008 at 2:34 pm

    Someone wrote a memo on this case and is a relentless showoff (despite certain grammatical failings).

  89. ECS on August 19, 2008 at 2:35 pm

    “If that example seems preposterous, take a look at what happened to “Catholic charities” in Massachusetts. Under state antidiscrimination laws, the Catholic church would have been required to place adoptive children in gay families, so Catholic Charities no longer performs that service.”

    This is not accurate. Did you know that Catholic Charities had already placed at least a dozen adoptive children with same-sex households before they decided not to renew their contract with the Massachusetts Department of Social Services? Please do some research and get your facts straight before you contribute to the political posturing over this issue.

  90. gst on August 19, 2008 at 2:36 pm

    Sorry again, Steve. If I could stick to just commenting from ignorance maybe you’d let me join BCC as a perma-blogger?

  91. Steve Evans on August 19, 2008 at 2:39 pm

    Oh sorry gst, I guess you wrote the memo then? A shot in the dark on my part; I didn’t know you wrote memos. I thought you just won awards for your internet pot-shots.

  92. gst on August 19, 2008 at 2:40 pm

    Adam, I’m going to lunch. Could you ban Steve for the next 75 minutes or so? Thanks.

  93. Amanda B. on August 19, 2008 at 2:41 pm

    The state specifically states that “all persons are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition…” Later, sexual orientation is added to that list.
    Except for religion, all of the other protected persons have no choice in their definitive status. A person can’t choose their sex (well..now they can!), ancestry, disabilities, color, etc.
    Regardless if you believe homosexuality is something you are born with or something you choose, that choice has to be allowed, just as religion is allowed. And even in Mormonism, the ability to practice our own agency is essential. What if all doctors decided to refuse their services to persons who practice homosexuality based on religious reasons? That just wouldn’t work.

    But how do we have that same law protect our desire to follow our religious beliefs? Do I have to offer my secretarial services to a company that advocates and supports homosexuality? Will it be legally possible to protect our temples and churches from being forced to perform homosexual marriages? The law does not “relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
    If same sex marriage legalized, does the right to wed become a valid and neutral law?

  94. Lee S. on August 19, 2008 at 2:43 pm

    Adam-

    I’m not sure why this is implied exclusion and your example from the original post seems like it’s postured hand-wringing rather than rational argument.

    Dr. Brody worked in a practice and TREATED Benitez (the lesbian plaintiff) for quite a while before finally refusing treatment on religious grounds. Had Brody ensured that the treatment she would not do was available within the same clinic, there would have been no case.

    How is this any different from a doctor with some physical ailment from making sure that care is available? No one is saying that Dr. Brody can’t treat patients in general. If Brody had refused all single women on religious grounds, the Supreme Court said they would have had a problem with barring that behavior. And had Brody done that, any single woman could have gone to one of the other doctors in the clinic. The fact of the matter is that Brody is not being a responsible physician because she did not make sure that treatment was available from others within the same clinic. It is her failure to realize a possible conflict of interest in advance and prevent it from becoming a problem that raised the whole issue in the first place, not the fact that she had “serious” religious convictions.

  95. Adam Greenwood on August 19, 2008 at 2:46 pm

    I like the scare quotes around “serious.”

  96. Gina on August 19, 2008 at 2:47 pm

    Another way to think about this is society’s investment as a whole in the services a profession provides. Although doctors take on considerable personal debt, they are still a limited resource in our society, and one our society as a whole invests in through subsidising medical schools, medical research, etc. We have a limited number of fertility doctors that we as a whole have invested in. When going into any career, particularly one that requires a great deal of investment up front by the individual and the society such as medicine, it would be wise to see that training as part of a committment to perform the tasks for which you are being trained. It seems by accepting the training a doctor is accepting the responsibility to provide those services for the larger society. It is strange for someone to go into a field in which they would be unwilling to perform their services without discrimination. If they feel a moral obligation to do otherwise, maybe they could go into dermatology or something.

  97. Raymond Takashi Swenson on August 19, 2008 at 2:49 pm

    What this particular case illustrates is the difference between prohibiting discrimination on the basis of race, gender and religion and prohibiting discrimination based on “sexual orientation” or engaging in certain sexual practices. Prohibiting discrimination on racial grounds was a response to very real hardships placed on members of racial minorities, including blacks in the South and Asians and Hispanics in California, for example. The ability to support yourself and your family are areas where you have a vital interest, while the interest of someone in a commercial relationship with you–an employer, a landlord, a seller of goods or services–to avoid doing business with you on racial grounds is much more attenuated, and in the judgment of our fellow citizens, not legitimate in any way.

    In the area of personal services–renting out an apartment in one’s home, acting as a physician, acting as legal counsel–one’s personal views and feelings about a person with whom you are entering into a closely personal transaction are more important to you. Yet for the customer, the personal aspect of these services is far less important. There is nothing in California anti-discrimination law that forces a gay person to patronize a particular attorney, or doctor, or rent a particular home. Nor does the law force a heterosexual person to patronize a gay doctor, lawyer or landlord. In these kinds of one-on-one transactions, where the reason for the discrimination has moral dimensions, and where the customer has many options, why should government step in on the side of one participant in the transaction to force a business deal, but not on the other?

    What is the fundamental harm to homosexuals of discrimination in personal transactions? Gay customers with money will find providers willing to take it. Gay people in America tend to have more disposable income than heterosexuals. Gay people are not disproportionately homeless, unemployed, lacking in medical services or legal representation, or any other aspect of their material lives. What is the need for government to intervene to punish people who decline to enter into personal services transactions of an extended nature with homosexuals?

    The only reason for government intervention of this kind is to punish people who hold the view that homosexual activities are morally objectionable. Government’s only interest in this class of transactions is to force people to do things against their will, and to communicate the judgment that traditional sexual moral views are not acceptable in society. In this class of transactions, government is telling people that its judgment of morality is different than that of their own religion, and that they are prohibited from expressing their own view of morality in how they make their living. The direct benefit obtained by a homosexual plaintiff is a pat on the back and reassurance that their behavior is endorsed by government. The plaintiff also gets a feeling of power over other people, to force them to do things against their will.

    It is not at all clear to me that the competing personal interests involved in personal services transactions justify government coercion against one class–people with traditional sexual morality–while giving extra power to people in another class–homosexuals–when there are many other ways for the protected class to get equivalent personal services.

    What we have come to in this case and in others is a rather strange state of affairs. Religious freedom, which is explicitly protected in the First Amendment and most state constitutions, has little recognized substance in any arena regulated by government. On the other hand, sexual behavior (not gender), which has no explicit recognition in the text of the Constitution, has been given a zone of autonomy that bars all government legislation, concerning types of sexual behavior and the consequences of sexual behavior (including abortion), so that government regulation of any aspect of these activities is subordinated to the “self-rule” of the autonomous individual. What one believes about the purpose of life and how one should live is legally restricted to the zone of one’s own head, while sexual thoughts can largely be given free rein in one’s actions, without legal consequences. The net result is that many of our courts in general, and the California Supreme Court in particular, have told us that traditional sexual morality is, in the eyes of government, immoral, and it cannot even be expressed by legislation enacted by elected representatives nor by voters in direct referenda. The behavior of people in accordance with their religious compass can be freely restricted, but any restriction on behavior directed by sexual hormones is literally sacred and will be protected with government coercion, financial penalties and even imprisonment.

  98. Lee S. on August 19, 2008 at 2:51 pm

    Adam –

    Your ignoring of the argument aside, the quotes are because I’m not sure why Dr. Brody raised religious issues only AFTER assisting Benitez for months. If the sexual orientation issue was a problem all along, why didn’t she immediately refer Benitez to someone else in the clinic or in another clinic?

    Also, see Dan’s comment for problems with your continuing use of “serious religious believers” as opposed to others.

  99. Dan on August 19, 2008 at 2:54 pm

    Raymond,

    Gay people in America tend to have more disposable income than heterosexuals

    Where do you get this statistic from?

  100. Mark B. on August 19, 2008 at 2:54 pm

    This is ridiculous. A person wants an elective medical procedure. There was no argument that the procedure was necessary to preserve her life or health. In fact, one could make the argument that undergoing the procedure successfully would in fact be detrimental to her health. And yet we’re going to force a physician to provide that service for her?

    And if she later decides that having the child will be detrimental to her health? Could we require that same physician to abort the fetus? Would the religious objections to the abortion be trumped by the doctor’s view that the baby shouldn’t have been conceived in the first place?

  101. Amanda B. on August 19, 2008 at 2:55 pm

    missed a couple comments there. #80 and 81…

  102. Dan on August 19, 2008 at 2:58 pm

    Mark,

    And yet we’re going to force a physician to provide that service for her?

    No, we’re going to punish the physician for refusing to provide the service on sexual orientation grounds. That’s perfectly within the bounds of the laws of California.

  103. angrymormonliberal on August 19, 2008 at 3:05 pm

    For many people, it’s not a matter of choosing. You have the land, the lease or the house, you live there and you don’t make enough money to move. I dare you to tell a Utah farmer he has to move because of a preventable medical condition.

    You know what? The old Rheumatologist quit and the city was without one for years… so they made it a priority and recruited a new one. That helped the situation. At least it didn’t give the impression of medical care without the substance.

  104. Larry on August 19, 2008 at 3:06 pm

    Is there a substantial difference between elective medical services and other services (ie. gas stations, renting, providing mortgages, providing childcare, etc.)? If so, what are they?

    What if a gas station attendant refuses customers based on sexual-orientation? There are other gas stations in the neighborhood. Across the street, even. What if a landlord refuses to rent to gay tenants? There’s a building on the next block with identical units available for the same price. And so on.

    If these kind of “personal transactions” are okay, is there a limit to their scope? If only one landlord in town is refusing services to gay tenants, is that okay? What if all landlords in town have the same serious religious belief? These are not flippant questions. Have situations such as these been upheld or struck down in courts in CA or elsewhere in the country?

  105. Adam Greenwood on August 19, 2008 at 3:09 pm

    Some commenters have wondered why the doctor treated the lesbian woman for a while before making her religious objections known.

    The answer is that she didn’t. According to the court opinion, the doctor told the lesbian woman at the first consultation that she could help her in some ways but that she would not be able to assist here with “”intrauterine insemination” on religious grounds.

  106. Larry on August 19, 2008 at 3:09 pm

    I meant to include in my previous comment (99) that there seems to be another kind of slippery slope if refusing services based on one’s beliefs becomes common and widespread.

  107. TT on August 19, 2008 at 3:10 pm

    Wow, this really took off since I went to lunch. I just wanted to apply to that nosey Ed who keeps intruding on peoples’ comments with non sequitiers and other such nonsense.

    Comment 3 reads: What will they think of next! I am sure that someday we’ll find out that Evangelical doctors might actually have to help Mormons even though their religion clearly dictates that they should actually let us die in the street.

    [Ed.–This is a nasty slur on Evangelical religion.]

    I know that Ed struggles with irony, but this is the position that was being attributed to Adam. The comment was meant to raise the persistant theme in this thread that very few people have anything substantive to say about: Where is the balancing line between religious “beliefs” and the obligation to perform medical services? As far as I can tell, Adam seems to suggest that the only religious “belief” that requires legal protection is that lesbians are unworthy of children. He seems to think that the other moral examples offered here where medical and religious beliefs are in conflict are not worthy of protection. Why should the religious belief that homosexuals should be discriminated against constitute a priveleged form of belief, in a way that blood transfusions or assessment of psychology should not?
    This raises for me another point. Since when is it a core religious belief that lesbians cannot have children? Does this doctor consider it a religious belief that the state should forcibly remove children from their gay parents? For me, the only “nasty slur” on any religion is the assertion that it requires one to prevent a certain class of people from having children, whether they be of a certain race or kyakers. . I certainly hope that my religion is not slurred by Adam’s attribution of this belief to Mormonism.

  108. John Mansfield on August 19, 2008 at 3:16 pm

    In some ways, I would really like it if California courts would produce next month a ruling similar to the one in this case, and another one in October.

  109. Adam Greenwood on August 19, 2008 at 3:17 pm

    Heh.

  110. Dan on August 19, 2008 at 3:20 pm

    John Mansfield,

    Why is that exactly? To work a wedge issue politically?

  111. Mark B. on August 19, 2008 at 3:24 pm

    Dan

    Well, then, to paraphrase Mr. Bumble, the laws of California is a ass.

    They (legislators and courts and everybody else) seems to ignore the fact that nearly every blow for enforced equality is a blow against liberty. Where the medical “treatment” the woman here sought was not necessary (don’t mislead us with talk of cardiologists and rheumatologists–this is more akin to finding out that the local GP won’t give me my botox injections), liberty ought to trump government-enforced equality.

    Next we’ll be fining people for refusing to photograph “weddings.”

  112. Mark N. on August 19, 2008 at 3:30 pm

    “There’s lot of things I don’t see God getting excited about that I think should be legal.”

    I’m confused. I thought you were concerned about being forced to do something you consider to be morally wrong, but you seem to be saying here that morality has nothing to do with it, and that you (and God, for that matter) are just concerned about the legality of the thing.

  113. Lee S. on August 19, 2008 at 3:34 pm

    Adam – That’s true, the doctor did state that she wouldn’t do that procedure, but assured her that others within the clinic would be able to do that. While Brody was mistaken about the specific type of procedure, it still led to Benitez (‘the lesbian woman’) being unable to receive treatment due to her sexual preference.

    Mark B. – I think that reproductive rights are slightly more significant than botox injections. This was an agreed-upon course of treatment that would have led to Benitez becoming pregnant (which she was unable to do based on physical problems), not having a smooth face. Is your general liberty more important than her liberty, specifically her freedom to bear a child?

  114. ECS on August 19, 2008 at 3:36 pm

    “that nearly every blow for enforced equality is a blow against liberty”

    Ah, but whose liberty, Mark B.?

  115. Mark B. on August 19, 2008 at 3:41 pm

    Lee

    We’re not talking about her freedom to bear a child. We’re talking about her freedom to force Dr. Benitez to inseminate her.

    ECS

    Fair question. But it’s one that legislators and judges should ask, rather than dwelling in the make-believe land that “all equality all the time” is costless.

  116. Adam Greenwood on August 19, 2008 at 3:43 pm

    While Brody (“the doctor”) was mistaken about the specific type of procedure, it still led to Benitez (’the lesbian woman’) being unable to receive treatment due to her sexual preference.

    Benitez still had the treatment done at another clinic.

  117. Sean O'Neill on August 19, 2008 at 3:44 pm

    ECS,

    Yes, I was aware that Catholic Charities had placed some babies up for adoption with gay couples, but how is that relevant in any way, shape or form? The issue is whether a state should be able to prohibit a church from providing a service such as adoption where the church does not believe in gay adoption. The fact that Catholic Charities placed some babies up for adoption with gay couples, while interesting, is totally irrelevant to the issue. The Charity did it without the knowledge or consent of the Catholic Church’s leadership, but that doesn’t even matter. Are you saying that if a local charity run by the Catholic church fails to act in accordance with the Church’s teachings that the church somehow loses the moral authority to claim that it should not be forced to place babies up for adoption with gay couples?

  118. mmiles on August 19, 2008 at 3:46 pm

    What if the doctor refused insemination to anyone on religous grounds (thought babies should only come via ‘natural’ sexual intercourse), would that be ok?

  119. Kaimi Wenger on August 19, 2008 at 3:47 pm

    Sean,

    CC was not forced by the state to change its practices. It came under investigation, yes. During the course of that investigation, it also had a big internal fight. After the internal fight, it pulled up shop.

  120. TT on August 19, 2008 at 3:51 pm

    Sean,
    Churches don’t perform adoptions. Social Services organizations that are affiliated with churches do. AFAIK, it is not a church’s right to perform adoptions as a matter of free exercise of their religion.

  121. Lee S. on August 19, 2008 at 3:52 pm

    Forcing Dr. Brody to inseminate her? Once again, had Brody ensured the procedure was available from another doctor at the clinic, there would have (could have) been no suit in the first place! She didn’t demand that Brody inseminate her, she wanted the treatment that she was being recommended by Brody to be done at all. It was within Brody’s rights to personally refuse as long as she (and her practice, as the business entity) could get it done. They did not. She sued. End of story.

  122. Adam Greenwood on August 19, 2008 at 3:52 pm

    It pulled up shop because as a result of its internal fight, it decided that it no longer wanted to do gay adoptions.

  123. gst on August 19, 2008 at 3:56 pm

    Lee S., what does the sole practitioner do? He’s a business entity, right? He can’t refer to someone else in the same business entity. (The concurring opinion suggests that Justice Baxter thinks that there may be an exemption for sole practitioners.)

  124. Dan on August 19, 2008 at 3:57 pm

    Do social services organizations tied to religions get any kind of tax money? If they do, they cannot discriminate against anyone in accordance with the law.

  125. Steve Evans on August 19, 2008 at 4:02 pm

    Are the 75 minutes up yet?

  126. Mark B. on August 19, 2008 at 4:03 pm

    “had Brody ensured that the procedure was available from another doctor at the clinic”

    So we either force Brody to engage in something that she finds morally repugnant or to make sure that she has the 21st Century equivalent of the Shabbos Goy around to do it.

    And we want to gang up on people and force them to this choice?

    We’re not talking about treatment this woman needs to preserve her life or health. And it’s probably not covered by insurance, so we’re not even talking about money. We’re talking about the inconvenience of driving across town to a different clinic.

  127. mmiles on August 19, 2008 at 4:04 pm

    What about the Jewish Orthodox medical school in NY that was forced to allow gay couples in their dormitories?

    If BYU was in California, then would they be forced into the same situation?

  128. gst on August 19, 2008 at 4:06 pm

    Steve, I’m back from lunch (hot pastrami on rye), so whether or not the time is up, I waive the remainder.

  129. Adam Greenwood on August 19, 2008 at 4:07 pm

    Yes, Steve E. Please rip into gst.

  130. Lee S. on August 19, 2008 at 4:17 pm

    GST – I agree with Justice Baxter in this case (that individuals may have an exemption), but the other option for a lone practitioner would be to either not do the procedure on principle or take the other out which the Supreme Court provided which is refusing to do it for all single parents, as marital status is not covered under the anti-discrimination law and clearly falls under religious preference.

    Mark B – the difference is that a fertility clinic is not, last time I checked, a place of worship nor in any way affiliated with one. And the other doctors at the clinic are trained doctors, not menial laborers who are kept around just so that they can do what other doctors can’t or won’t based on religious principles. I would imagine that most doctors in clinics have specialties to which other doctors defer when they can’t or won’t do a procedure for any reason, be that religious and moral or simply inexperience.

    And we’re not talking about something as simple to dismiss as money or inconvenience. We’re talking about being able to get the treatment that you were offered. Brody told Benitez that other doctors in the clinic could do the procedure so that her religious convictions would not prevent Benitez’s course of treatment. Since she was not able to get the course of treatment at that clinic, Brody’s religious convictions prevented Benitez’s ability to get that treatment. You’re right, this is a matter of principle, but I find it curious that you’re so willing to dismiss Benitez’s rights as a patient and a human being over Brody’s rights as a religious practitioner and medical provider. Turn the tables. If a Catholic doctor refused fertility treatments to someone in your family because he/she didn’t think your religious or personal beliefs would make you an adequate parent, would you let this slide?

  131. Steve Evans on August 19, 2008 at 4:25 pm

    I give up. I cannot assail a man who opted for the kosher meal.

  132. Adam Greenwood on August 19, 2008 at 4:26 pm

    And we’re not talking about something as simple to dismiss as money or inconvenience.

    On the contrary.

    If a Catholic doctor refused fertility treatments to someone in your family because he/she didn’t think your religious or personal beliefs would make you an adequate parent, would you let this slide?

    Yep.

  133. gst on August 19, 2008 at 4:28 pm

    Marital status discrimination is in fact covered by the current law. I think the court just noted that it didn’t rule on that issue because it did not want to opine on whether marital status discrimination was prohibited before the 2005 amendment without that issue before it in the record. (I’m confident that they would have decided that it in fact was covered if it had been an issue presented.)

    So if it’s okay for a sole practitioner to refer someone to another practice, why is it all of a sudden unconscionable for a practice with as few as two doctors do the same thing?

  134. gst on August 19, 2008 at 4:31 pm

    My last comment was directed to Lee S. (I’m still formulating a response to Steve’s last.)

  135. Mark B. on August 19, 2008 at 4:31 pm

    Turn the tables. If a Catholic doctor refused fertility treatments to someone in your family because he/she didn’t think your religious or personal beliefs would make you an adequate parent, would you let this slide?

    Damn straight I would. I don’t much like the idea of being treated by a doctor who really doesn’t want to be there. I find it hard to believe that anyone believes he or she would be better off having professionals forced to do stuff they don’t want to.

    And, I know that this opens up the race card or the gender card too. But, frankly, it shows the limits of the law as an instrument to change people. And when we’re talking about professional services, as compared, say, to driving a bus, I think we should be troubled by the concept of forcing people to do things against their will.

    Brody’s religious conviction did not prevent Benitez from getting the treatment. She went to another clinic and got inseminated.

    And if it’s a matter of not getting the treatment she was initially offered: why didn’t she bring an action in breach of contract? And if she had, the jury could have calculated the damages–if there were some extra costs involved because of duplication of pre-procedure treatments, she could have collected them.

  136. gst on August 19, 2008 at 4:32 pm

    Steve, very gracious of you.

  137. Peter LLC on August 19, 2008 at 4:35 pm

    106:Next we’ll be fining people for refusing to photograph “weddings.”

    Didn’t Adam cover that one a few months ago?

  138. Dan on August 19, 2008 at 4:37 pm

    Peter,

    He did (and Adam referenced to it in his post). The comment was meant to be funny.

  139. fifthgen on August 19, 2008 at 4:41 pm

    Re: 133: Some might call this a re-hash of the photographer post. And Dan, I got the joke.

  140. Lee S. on August 19, 2008 at 4:55 pm

    Adam – very well, I guess I didn’t see before that there is actually no real way for me to argue against your viewpoint based on the depth of your convictions on this point. I’ll agree to disagree about the significance of discrimination based on any criteria.

    GST – it’s unconscionable because there is another option within the practice when there is a second person. A second person creates an option within the entity, and if both people are unwilling to offer a specific procedure to specific groups of people, the medically responsible thing is to not offer the procedure at all. I’d say that this should be the case for the single practitioner too, but since Justice Baxter wants to create a distinction, I’ll try and work within the spirit of the decision.

    My apologies about the marital status thing, I was working off of an earlier comment in the post that didn’t cite it.

    I guess my greater concern is at what point individuals’ responsibilities as a religious person override their responsibilities to their chosen vocation. I don’t want to force Brody to do the procedure…quite the opposite. I don’t think she should be purporting to do the procedure at all if she’s going to be picking and choosing who to do it on. Now since she’s in a practice, that can be alleviated by having others who are equally capable of performing the procedure who are willing to do it. If she was on her own, then she should have her religious duties come first, then decide which practices she’s comfortable doing, rather than later infringing on others’ rights to treatment (and yes, they are rights according to the laws cited in the decision).

    In other words, the law shouldn’t be used to change people, people should already be respectful of the law and their personal limitations (religious, sexual oriented, or otherwise) when making their decisions.

  141. JimD on August 19, 2008 at 5:25 pm

    Lee, in earlier posts you seem to find it odd that the doctor spent some time treating the patient before refusing to do the insemination. I don’t find this inconsistent. The patient had been diagnosed with PCO. Not only does that condition affect fertility, but it is also in and of itself can cause excruciating pain.

    Should the doctor have refused to treat the patient’s painful condition, on the grounds that somewhere down the road the patient may also wish the doctor to help her become pregnant?

  142. Lupita on August 19, 2008 at 6:11 pm

    My husband is a physician and we recently moved back to CA. Who knew what political delights were awaiting us? You all did ( index finger pointing) but no one warned us.
    As for the decision, regardless of your stance, it doesn’t bode well for physicians in CA. As soon as physicians have to spend more time watching their backs for lawsuits, patients suffer.
    “The fact of the matter is that Brody is not being a responsible physician because she did not make sure that treatment was available from others within the same clinic.” I agree with this statement. My husband won’t perform certain procedures but it legally bound to tell patients where they can receive the treatment. I’m not sure if it has to be within the same clinic, however.

  143. jimbob on August 19, 2008 at 6:55 pm

    ECS:

    You said: “This is not accurate. Did you know that Catholic Charities had already placed at least a dozen adoptive children with same-sex households before they decided not to renew their contract with the Massachusetts Department of Social Services? Please do some research and get your facts straight before you contribute to the political posturing over this issue.”

    Boiled to its essense, this comment is not much more than “I’m smarter than you on this issue, so shut the hell up.” And that might even be okay if you weren’t making a distinction which makes almost no difference to the CC analysis. I mean, what difference does it make to the analysis that CC flip-flopped on this issue? Are the relevant constitutional protections at issue in that case somehow conditioned upon CC’s absolute fidelity to one point of view? Golly, I hope that isn’t your point.

  144. Paula C on August 19, 2008 at 7:35 pm

    This brings to mind an experience I had long forgotten. Years ago, when I was 19, I had a summer receptionist job in the OB/GYN dept of a large clinic where I sometimes worked in the . I was told on my first day that occasionally people might want an abortion and I would have to schedule it. My first thought was, “OH NO! I canNOT be party to an abortion!!! That would be wrong!!!!” It bothered me so much that I went home that night and prayed about it. The answer I received was that in this case, it was not my problem. The person who was choosing to end the unplanned pregnancy was responsible. Any “sin” or culpability was on their head, not mine. My responsibility was to carry out the duties which I had been hired to fulfill – to answer the phone and mark the appointment down on the calendar. So….the one and only time I was asked to schedule an abortion, I was sad, but really only sad for the person making the mistake and the fact that I live in a country where procreation and future human life is taken so cavalierly.

    How many of us have professions in which the products and/or services provided by our labors are,in the end, used in a manner totally contrary to our beliefs. What if someone uses the software *I developed* to disseminate kiddie porn? What if the sporting equipment I design is used to break the Sabbath? What if someone rents a room in my hotel and uses it to have an extramarital affair? We cannot always control how others use us; the end result is their responsibility. What if nobody developed software or sporting equipment or owned hotels because of the sins of a few? We would all suffer. One of the “downsides” of living in a free country is that people with whom we disagree ALSO live in a free country and are thus free to make choices that we feel are “wrong”. We have to take the good with the bad.

    As the moral and political environment rapidly changes around us, maybe those who feel they cannot in good conscience be a party to actions that go against their principles need to be very careful not to enter professional arenas where they might directly run into potential conflict.

  145. Adam Greenwood on August 19, 2008 at 7:39 pm

    Or maybe we should try to do something about changes in the moral or political environment. I understand what you’re saying, but the fact that changes are happening doesn’t make them right.

  146. queuno on August 19, 2008 at 8:49 pm

    The obvious solution is for doctors to leave California. There’s cheaper real estate in Texas, anyway.

  147. Adam Greenwood on August 19, 2008 at 11:06 pm

    Comments are closed. If you have anything further to add, please email me at adam at times and seasons dot org.

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