The California Supreme Court decided several weeks ago that doctors specializing in assisted reproductive technologies may not assert their religious freedom as a defense to California’s Civil Rights law requirement that businesses provide services without discrimination on the basis of clients’ sexual orientation. A fertility clinic willing to treat heterosexual patients must therefore also treat homosexual patients.
The prospective patient in North Coast Women’s Care Medical Group, Inc. v Benitez, (44 Cal. 4th 1145 ( 2008)) was an unmarried lesbian woman who sought intrauterine–insemination (IUI) from doctors at the North Coast fertility practice. Two of the doctors objected to inseminating unmarried women, although two additional doctors at the practice did not share this objection. Through a series of mistakes about which procedures Ms. Benitez was seeking, none of the doctors at North Coast eventually assisted Ms. Benitez, and she was referred to a doctor in another fertility practice. Benitez then sued North Coast, claiming discrimination under California’s “Unruh Civil Rights Act” which provided in part that: “All persons within the jurisdiction of this state are free equal and …entitled to the full and equal …facilities, …or services in all business establishments of every kind whatsoever.” (Civil Code sec. 51 (a)). By court interpretation and amendment, the Act was extended to ban sexual orientation discrimination in 2005. Under the Act, employees, not just businesses, are liable for covered discriminatory conduct.
While the California Supreme Court ultimately remanded (sent back) the case to a lower court for a determination as to whether the medical group’s refusal of treatment was due to Benitez’ unmarried status, versus her sexual orientation, the court also clearly articulated the rule that fertility clinics are required to offer services to homosexuals on an equal basis with heterosexuals.
How a court in the United States came to such a conclusion in a dispute between citizens motivated by their religious faith, and a homosexual would-be-parent, is a case of a very slippery slope in action, or rather three slopes. All of them converge on a place that should go by the name of “Don’t Say We Weren’t Warned.” In other words: over the last 20 years, observant citizens have been duly warned by theologians, public philosophers and legal scholars, that once our laws officially countenanced the separation of sex from procreation and from marriage, there would also be permitted (and sometimes proscribed) profound alterations in the traditional family structure, also impacting the liberty of religious citizens effectively to prefer one kind of family form over other intimate groups. The first slope leading to our current situation concerns the law of free exercise of religion. The second concerns the law (what little there is) governing “assisted reproductive technologies” (ARTs). And the third slope concerns the law governing the treatment of persons sexually oriented to members of the same sex, particularly in connection with family matters.
One can’t really understand how the California court came to its current position without understanding more about each of these areas of the law. While my explanations will be quite simplified, they can help illuminate the outcome in the Benitez case, and to suggest future, reparative, courses of action.
With regard to the free exercise of religion, before 1989, the U.S. Supreme Court interpreted the free exercise guarantee of our federal Constitution to ban state actions substantially burdening a religious practice unless justified by a “compelling state interest.” In 1989, however, in Smith v. Employment Division (494 U.S. 872), the Supreme Court held rather that religious believers may not be exempted from “neutral laws of general applicability.” No compelling state interest need any longer obtain in order for the state to enforce a law which could well compel citizens to choose between their livelihood, and obeying their religious conscience. The court reasoned that requiring states to demonstrate a “compelling state interest” before enforcing a law as against a religious believer is tantamount to providing religious persons a private right to ignore a generally applicable law.
The result for doctors who take the (already morally untenable) position that they both to adhere to a religious conscience (as they describe it) and wish to practice ARTs for “some” patients? Perform them for homosexual patients on the same basis as heterosexual patients; get one of your business partners to perform them, or get out of the business entirely.
The second area of law important for understanding the California Supreme Court’s mandate is very nearly an “empty set”: the laws “governing” ARTs. Despite the tens of thousand of fertility services performed annually in the United States since 1978 (the year the first “test tube”/IVF baby was born), there are almost no laws of consequence governing this billion dollar industry. In an environment of “reproductive freedom” created largely by the contraception and abortion cases of the 1960s and 70s, legislators have rarely even tried to impose laws on an industry performing procedures aiming to manufacture new human lives — procedures which in many cases are tantamount to experimentation upon the child, and sometimes upon the mother as well. (Scientific research on ART outcomes, in humans, were not regularly performed before doctors performed most ART procedures on an all too willing group of “guinea pig” patients. This includes procedures ranging from IVF and IUI to egg and embryo freezing)
Whether desiring to stay clear of the abortion controversy, or out of deference to infertile patients, or in service of a multi-billion dollar U.S. industry, legislators have passed almost no laws regarding central dilemmas created by the practice of ARTS. There are no laws controlling, who may obtain ART procedures whether respecting age, marital status or sexual orientation of the recipients. There are no laws controlling the number of donations from a single donor, the payments available to donors, or number of embryos that might be simultaneously implanted in one woman. There are almost no laws about fertility clinic marketing or recruitment strategies. There are no laws protecting children’s interests in knowing their genetic heritage, or establishing oversight concerning the safety of ART procedures for the very children created.
In sum, it is not difficult at all to understand how Ms. Benitez — an unmarried homosexual woman – could develop the idea that she has a “right” to a child via ARTs.
The final relevant area of law is too big and fast-moving to capture it here in any detail. It is the law governing the rights of homosexuals respecting marriage and family. Beginning several decades ago, some jurisdictions were eliminating or failing to enforce laws banning homosexual activity per se. At the same time, legislators and family courts across the U.S. were continuing to disqualify homosexual partners from marriage, were refusing to countenance homosexual adoption and were counting homosexuality as a negative factor in custody contests. All this is changing. Several states, California included, now allow homosexual marriages (or their legal equivalent, civil unions). Other states are willing to recognize same-sex marriages contracted out-of-state despite the banning of homosexual marriages within their own borders. Family courts increasingly refuse to characterize a parent’s homosexual activities as a negative factor in custody analyses. Finally, states and locales are increasingly including “sexual orientation” as a protected category within anti-discrimination statutes. In some states, this is forcing religiously-based adoption agencies out of business for refusing to treat heterosexual and homosexual clients on an equal basis.
Logically, the latter two legal arenas have been transformed on the basis of their (unspoken) acceptance of two very problematic principles: first, that the human body, its origins, and its form – including the complementary aspects of the male and the female – are irrelevant for lawmaking. Second: that children are more in the nature of “adult prerogatives” or possessions than they are like “gifts” or vulnerable parties commanding us to respond first, with a sense of duty (versus entitlement). In my opinion, both of these notions are gaining, not losing, traction.
What can a concerned citizen do, legally speaking? Using your vote is of course, an important option. But so is realizing that there are several legal fronts on which we might move forward. Success in any one will help establish principles that might benefit the others. Getting legislatures to provide conscience clause exceptions for religious citizens and institutions is one front; if we don’t win protection there, we won’t get it in courts any longer. Another front is citizen action in the name of lawmaking that “puts children first.” Such laws would eschew scientific and social experiments upon children in the context of ART procedures . They would also refuse to equate heterosexual marriage and homosexual intimate unions, on the grounds that children are not extrinsic or superfluous to marriage, but integral.
It doesn’t take an expert to see the chasm between legal trends and Catholic teachings on procreation, marriage and family But Our Holy Fathers John Paul II and Benedict XVI remind us that we have a story to tell, and insights to offer, which touch upon the innermost longings of human hearts. In season and out, before hostile legislatures and friendly ones, we should be telling that story.
Helen Alvare, J.D  . is Senior Fellow in Law for the Culture of Life Foundation