In California, docs can't say, "Sorry, you're gay"

In a final decision on a 1999 lawsuit, the state Supreme Court rules that antidiscrimination law trumps "religious freedom."

Published August 20, 2008 1:33PM (EDT)

Gays and lesbians, as you may have heard, may now take wedding vows in California. And as of Monday -- yahoo No. 2 for the state Supreme Court! -- they can expect fair treatment "in sickness," too.

Ruling, for good, in the 1999 case of lesbian Guadalupe Benitez (covered here in Broadsheet), whose doctors had denied her fertility treatment in the name of [their version of] Christianity, which apparently says certain people should neither be fruitful nor multiply, the court -- unanimously -- "barred doctors from invoking their religious beliefs as a reason to deny treatment to gays and lesbians," the Associated Press reported Tuesday. Bottom line: "State law prohibiting sexual orientation discrimination extends to the medical profession."

"That holds true, Justice Joyce L. Kennard wrote in the 18-page decision, 'even if compliance poses an incidental conflict with the defendants' religious beliefs,'" the Washington Post reported. "If a doctor wants to refuse a service because of religious beliefs, the court found, he or she must refuse all patients, or provide a doctor who can provide the service to everyone."

In other words: Exercise of religion is a right. Practice of medicine, which requires a license from the state -- which, in turn, has a compelling interest in equal access to healthcare -- is not.

Jennifer C. Pizer, the Lambda Legal lawyer representing Benitez, "said that while the law protects doctors who refuse certain treatments on religious grounds, it does not allow them to do so on a discriminatory or selective basis," the Washington Post noted.

The doctors, by the way, have claimed both 1) that an unspecified error on Benitez's chart (a stickie reading "Dyke"?) led her to be referred to a second doctor in the practice who refused the procedure instead of one who would, and 2) that their refusal was based on the fact that she was unmarried, not that she was a lesbian. Rriiiiight. (There may actually be a loophole here, as the AP notes: "The Supreme Court did order a trial court to consider whether the Christian doctors were allowed to refuse inseminating Benitez because she was unmarried. The Legislature in 2006 amended the law to bar discrimination based on marital status, but it's unclear whether the doctors could legally withhold treatment in 2000.")

Benitez, by the way, took her business elsewhere long ago. She and her longtime partner -- bucking this trend -- are now mothers of three.

By Lynn Harris

Award-winning journalist Lynn Harris is author of the comic novel "Death by Chick Lit" and co-creator of She also writes for the New York Times, Glamour, and many others.

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