First Amendment does not exempt physicians from prohibition on sexual orientation discrimination

August 26, 2008

The Supreme Court of California held August 18 that the federal and state constitutional rights to free speech and freedom of religion do not exempt a physician from complying with the California Unruh Civil Rights Act's prohibition on sexual orientation discrimination.

This material originally appeared in the August 22, 2008, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association (www.healthlawyers.org).

The Supreme Court of California held August 18 that the federal and state constitutional rights to free speech and freedom of religion do not exempt a physician from complying with the California Unruh Civil Rights Act’s prohibition on sexual orientation discrimination.

Plaintiff Guadalupe T. Benitez is a lesbian who lives with her partner, Joanne Clark, in California. Benitez went to North Coast Women’s Care Medical Group, Inc. (North Coast) for fertility treatments.

In August 1999, Benitez and Clark first met with defendant Christine Brody, MD, an obstetrician and gynecologist employed by defendant North Coast.

After trying various fertility treatments, Benitez decided to try IUI, which is a medical procedure in which a physician uses a catheter to insert sperm directly into the patient’s uterus.

Benitez informed Brody that she would use sperm donated by her male friend. Brody then told Benitez that using fresh sperm might delay the procedure as North Coast would first have to confirm that its protocols pertaining to donated fresh sperm would satisfy certain state requirements, so Benitez opted to use a sperm bank.

After Brody left on a vacation, another North Coast physician, Douglas Fenton, MD, took over Benitez’s medical care. There was some confusion, however, over which sperm would be used and Fenton believed that Benitez was going to use fresh sperm.

Although Fenton was licensed to prepare the fresh sperm for the fertility procedure, he refused to do so because of a religious objection to performing the procedure on a lesbian.

Two other North Coast physicians had no such religious objection, but unlike Fenton, they were not licensed to prepare fresh sperm. Fenton then referred Benitez to a physician outside North Coast’s medical practice.

Benitez subsequently sued North Coast, Brody, and Fenton, seeking damages and injunctive relief on several theories, including sexual orientation discrimination in violation of California’s Unruh Civil Rights Act (Act).

Defendants proffered several affirmative defenses including that their action was protected by the rights of free speech and freedom of religion set forth in the federal and state Constitutions.

Benitez moved for summary judgment on that affirmative defense. The trial court granted the motion, ruling that neither the federal nor the state Constitution provides a religious defense to a claim of sexual orientation discrimination under the Act.

Defendants appealed and the appeals court granted the petition with respect to the two physician defendants only, thereby allowing Brody and Fenton to later assert at trial that their constitutional rights of free speech and religious freedom exempt them from complying with the Act’s prohibition against sexual orientation discrimination. Benitez appealed.

The California high court turned first to the federal Constitutional rights to free speech and freedom of religion. The court noted that, under the United States Supreme Court’s most recent holdings, a religious objector has no federal constitutional right to an exemption from a neutral and valid law of general applicability on the ground that compliance with that law is contrary to the objector’s religious beliefs.

After finding that the Act is “a valid and neutral law of general applicability,” the high court found “the First Amendment’s right to the free exercise of religion does not exempt defendant physicians here from conforming their conduct to the Act’s antidiscrimination requirements even if compliance poses an incidental conflict with defendants’ religious beliefs.”

Turning next to defendants’ arguments under the state constitution, the high court noted that, “[t]o date, this court has not determined the appropriate standard of review for such a challenge under the state Constitution’s guarantee of free exercise of religion.” However, the court declined to make that determination, finding that “even under a strict scrutiny standard, defendants’ claim fails.”

After rejecting defendants’ argument that religious objectors are free to disregard a particular state law unless doing so compromises the peace or safety of the state or is licentious, the high court concluded the state constitution also does not exempt defendants from complying with the Act.

The high court next addressed the appeals court’s finding that summary judgment is improper because Brody and Fenton are entitled to present evidence at trial that their religious beliefs prohibited them from performing IUI on any unmarried woman, regardless of the woman’s sexual orientation.

The high court found, however, that granting Benitez summary judgment on defendants’ affirmative defense would not preclude such evidence at trial.

According to the high court, the trial court’s ruling “simply narrowed the issues in this case by disposing of defendants’ contention that their constitutional rights to free speech and the free exercise of religion exempt them from complying with the Unruh Civil Rights Act’s prohibition against sexual orientation discrimination.”

Thus, leaving them free to later offer evidence at trial that their religious objections were to participating in the medical insemination of an unmarried woman and were not based on plaintiff’s sexual orientation, as her complaint alleged, the high court explained.

Accordingly, the high court reversed the court of appeal’s decision and granted plaintiff’s summary judgment motion.

North Coast Women’s Care Med. Grp., Inc. v. Benitez, No. S142892 (Cal. Aug. 18, 2008).