California extreme - Your faith or your job

Since 08-30-08

Maggie Gallagher - Guest Columnist

8/30/2008

http://www.onenewsnow.com/Perspectives/Default.aspx?id=232990

The California Supreme Court made one thing perfectly clear this month as a matter of constitutional law: When it's a case of religious liberty vs. sexual liberty, sexual liberty wins.

In the case of Benitez v. North Coast Women's Care Medical Group, the California Supreme Court asked: "Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California constitutions, exempt a medical clinic's physicians from complying with the California Unruh Civil Rights Act's prohibition against discrimination based on a person's sexual orientation?"

And the majority flatly ruled: "Our answer is no."

This is unfortunate, since religious liberty is actually guaranteed in the U.S. Constitution. Moreover, the sexual liberty at stake in this case was not the right of an individual to live as one chooses -- to be free from bullying, fear and harassment. It was the right to be protected by the government from the knowledge that one of your fellow citizens disagrees with some of the choices you have made.

The court ruled that even if it had applied the strictest scrutiny, and accorded the doctor's religious liberty the highest level of constitutional protection, the doctor would still lose because the state of California has a "compelling interest in ensuring full and equal access to medical treatment irrespective of sexual orientation, and there are no less restrictive means for the state to achieve that goal."

Equality trumps liberty in the eyes of our courts.

Guadalupe Benitez, a partnered lesbian, chose to be artificially inseminated. She has the freedom to make that choice under California law. The California Supreme Court just transformed that liberty of private action into a powerful new right: the right to use the power of government to force a doctor to inseminate her, regardless of the doctor's own views.

We are not talking here about necessary medical care but an elective procedure -- artificial insemination -- that is obviously fraught with moral issues which are necessarily different from, say, the decision to have your appendix removed or a knee replaced.

I understand even that there are real conflicts in this case. If you are happily planning to have a child, it would be a rude shock, an affront to your feelings, to be told that the doctor is not willing to help you do so.

In this case, the doctor said she was perfectly willing to help treat Guadalupe's infertility -- restoring a natural function of the body -- but she had moral qualms about impregnating (which is basically what the doctor does in these situations) a woman without a husband.

When a man at a bar has such qualms, he's a mensch.

When a doctor at a fertility clinic has the same moral qualms, the California Supreme Court says she is now an outlaw, an evil discriminator.

I understand that irrational prejudices must be contained and stigmatized if we are to have a decent society. I do not understand how any decent society can deem a moral reluctance to create a fatherless child is a hateful and irrational prejudice that must be stamped out.

Furthermore, while at the level of human feelings and dignity both Guadalupe Benitez and the doctor have interests that deserve our consideration and respect, it is very hard for me to view the interests of Guadalupe and the doctor as comparable.

If the California Supreme Court had upheld the right of conscience, and protected the doctor's religious liberty in this case, Guadalupe would have had to face the emotional indignity of learning that this particular doctor disapproves of her choice to make a fatherless child. But we live in a marketplace of abundance; she could (and indeed did) find other doctors who do not have the same qualms.

The doctor in this case has been given an extremely bleak choice: your faith or your livelihood.

Is this really the way a decent society behaves?