A Path to Accommodating Sexual Orientation and Protecting Religious Freedom?

Conn Carroll /

On Monday, in North Coast Women’s Care Medical Group v. Benitez, the California Supreme Court ruled that two fertility doctors could not, without violating California’s civil rights laws, decline to artificially inseminate a lesbian woman because of the doctors’ deeply held religious beliefs about children being born with both a father and mother.

The case was billed by many as a fundamental clash between California’s interest in accommodating sexual orientation and a longstanding civil rights tradition protecting medical professionals’ conscientious objections in certain contexts. And indeed it was. However, although the Court ultimately concluded that the doctors’ religious beliefs were outweighed by the lesbian woman’s access to elective infertility treatment in this case (these doctors worked for the only in-network provider of infertility care in the lesbian woman’s health plan), did the Court – intentionally or unintentionally – also hand civil libertarians who defend religious liberties certain important, if incremental, victories?

For example, the Court took the doctors’ religious liberty concerns more seriously than it might have done by presuming that helping a lesbian couple become pregnant would “substantially burden” the doctors’ religious beliefs. In so doing, the Court not only implicitly rejected a key premise in the lesbian woman’s lawsuit – that religious liberty protects one’s right to “believe,” but not to “act” according to those beliefs – but also recognized that ordinary Californians, not just traditional houses of worship, have a serious interest in civil rights protecting the free and open expression of religious belief.

More importantly, however, the Court expressly stated that the doctors in this case would not have violated California’s civil rights law by referring the lesbian woman to colleagues in their practice who lacked similar conscientious objections. Although, as Justice Baxter’s concurring opinion observes, the Court did not decide in this case whether the practice itself could have “declined and referred,” this part of the Court’s opinion is significant – and perhaps even Solomonic – because it suggests a way out of future cases involving similar fundamental clashes between protections for sexual orientation and established civil rights protecting religious freedom.

In cases involving solo medical practitioners who have no colleagues to handle referrals, or in cases involving small businesses outside the medical field where customers are not limited in where they shop by overly restrictive HMOs, conflicts between sexual orientation and religious liberty could be peacefully resolved by turning to other providers or businesses that would welcome new paying customers. A solution like this would protect each party’s basic liberty interests without creating constitutional conflicts of crisis proportions.

Of course, GLBT activists decry “decline and refer” solutions as sanctioning “dignity harms” to gays and lesbians who are referred elsewhere due to a doctor’s or small business owner’s convictions about traditional marriage. Religious values, they say, should never provide a basis for hurting another’s feelings.

But, in the Benitez case, the California Supreme Court seemed to suggest that fundamental conflicts between accommodating sexual orientation and protecting religious freedom cannot be resolved by simply saying, as the plaintiff’s attorney has said in this case, that religious doctors in California can “do religion [in their churches], but not in the medical office.” Indeed, this type of zero-sum approach to public policy questions with important moral dimensions would be a sure way to undermine California’s prized tradition of social pluralism.

To the extent the Court rejected this winner-takes-all approach to some of California’s most controversial social policies, civil libertarians and friends of basic human rights like religious freedom – and indeed all Californians – have something to cheer about in this case, regardless of how they would have decided it.

[by visiting Heritage scholar Tom Messner]