On the California "Lesbian Infertility Treatment" Ruling
The most important point to recognize in the California Supreme Court’s unanimous ruling (i.e., that health care professionals cannot legally refuse, on religious grounds, to treat gays and lesbians) is that the decision was based exclusively on California’s notorious Unruh Civil Rights Act and not the California or federal constitutions.
Recall that Unruh basically forbids any commercial establishment — from bars to dry cleaners to sports stadiums to eHarmony to fertility clinics — from ever discriminating against, well, pretty much anyone. Under Unruh, if you’re open for business, then you must be open to all, on fully equal terms. Your property rights, your right to refuse to contract with someone at all, and your right to treat different customers differently, are all summarily nullified.
The general propriety of imposing non-discrimination requirements on private actors is a topic for another day. The key observation now is only that Unruh is a statute, and this was a case of statutory interpretation rather than constitutional interpretation.
This will be an important rebuttal to the screeches, which will inevitably come, that this was yet another case of “activist judges” finding “new rights” and attempting to “legislate from the bench.” The court was doing nothing more than applying Unruh’s plain mandates in the only way possible. No activist judges here — only activist legislators.
Of course, that’s not what the bigots will say, especially in the run-up to the Proposition 8 vote to repeal gay marriage rights in the state. This case will be used, incorrectly and disingenuously, as an auto-repeating track of “We warned you! They want to abolish freedom of religion! Next they will sue to force your clergy to perform same-sex weddings in your churches!” Be ready for it.
The case is North Coast Women’s Care Medical Group v. Benitez, No. S142892 (Supr. Ct. Cal., Aug. 18, 2008) (PDF – 23 pages). More detail at Lambda Legal.
Previous Unruh Posts:
–Is the eHarmony eLawsuit eFrivolous?
–Mother’s Day Stadium Promotion: What’s “Frivolous” About It?
Previous “Religious Objector” Posts:
–On Compulsory Pharmacology
–More on “Plan B” and “Conscientious Objector” Pharmacists
–Healthcare Provider “Right to Refuse” Movement Gaining Momentum
Filed under: Freedom of Contract, Gay Rights and Issues, Law, Society, Religion, Culture Wars
"This case will be used, incorrectly and disingenuously, as an auto-repeating track of “We warned you! They want to abolish freedom of religion! Next they will sue to force your clergy to perform same-sex weddings in your churches!” Be ready for it."
So, under the Unruh Act, would they be right?
I'm sorry, that was bad phrasing.
Do you think the Unruh Act does apply to churches which perform wedding ceremonies?
Unruh only applies to business establishments. Churches and any other organizations that are not "business establishments" are not covered.
This is a recurring problem with theocrats: they forget that a fertility clinic is not a church, neither is a pharmacy nor a government courthouse nor a beach pavillion that is rented out, etc.