Freedom of Religion or Discrimination?

August 3, 2007— -- When does the freedom to practice religion become discrimination?

The California Supreme Court is being asked to answer that question when it hears a legal dispute between a lesbian mom and two doctors who refused to artificially inseminate her for religious reasons.

The first-of-its-kind case is shaping up as one of the most controversial before the court in years. The court has not set a date to hear the case, but more than 40 groups already have filed briefs asking to be heard.

The court is being asked to decide how to accommodate a physician's religious views without violating California's anti-discrimination laws.

California is a major testing ground for this issue.

Longstanding dispute

What distinguishes the case of Guadalupe Benitez is that the physicians involved refused to provide a medical procedure to one patient that they readily provide to others, says Jill Morrison, legal counsel to the National Women's Law Center, an advocacy group that works to protect women's rights in the workplace, schools, sports, and health care. "Usually, providers who object to certain services object to them for everyone: 'I won't provide contraception.' In this case, they don't object to the service, just the patient. You can't pick and choose. You can't say, 'I will perform it for white people, but not for black people.' "

Kenneth Pedroza, the doctors' attorney, counters that an "all-or-nothing" rule will drive physicians out of certain specialties.

The dispute arose in 2000 after San Diego-area doctors Christine Brody and Douglas Fenton refused to artificially inseminate Benitez, a lesbian who lives with her partner, Joanne Clark, in Oceanside, north of San Diego.

By that time, Benitez had been a patient at the clinic for 11 months and been taking fertility drugs prescribed by Brody. The clinic was the only facility covered by Benitez' health insurance plan.

"I was very distraught," Benitez says. "I was very confused. I couldn't even bear to think that possibly I was never going to be able to have children."

In 2001, Benitez sued the doctors, claiming that they violated California's anti-discrimination laws that protect gays and lesbians.

Court wrangling over pretrial issues consumed three years. In 2005, an appeals court ruled that the doctors have the right to wage their religious freedom defense at the trial. Benitez appealed that issue, and the state Supreme Court last year agreed to hear the case.

After the Supreme Court rules on that narrow issue, the case will go to trial.

Some facts in the case are still in dispute. The doctors say in court papers that they refused to treat Benitez because she is unmarried, not because she is gay. Benitez, now 35, contends that the physicians originally told her the issue was her sexual orientation, then changed their reason.

Other Californians also say doctors citing an objection to single parenthood have refused them certain treatments.

Cheryl Bray, a real estate broker, says she was humiliated when her doctor refused to perform a routine physical to allow her to complete an adoption of a baby from Mexico. When the doctor discovered she was single, he says he told her his religious beliefs require that children have two parents.

"I'm upper-middle-class mainstream," Bray says. "That's why I was just so shocked."

Bray, 44, eventually found another doctor who performed the exam, and she adopted a baby girl.

In the case before the state court, Pedroza says his clients referred Benitez to another physician who would perform the procedure.

"We want to help the patient find whatever they want," he says. "But at the same time, this is a relationship. Don't force your physician to do something against their sincerely held religious belief."

Groups align on both sides

The interveners include two dozen gay or civil rights groups, such as the American Civil Liberties Union, which argues that state anti-discrimination laws prohibit doctors from refusing to serve certain patients.

The doctors have drawn support from 16 conservative law centers or religious organizations, ranging from former U.S. attorney general Edwin Meese, who wrote the brief for the American Civil Rights Union, to the Foundation for Free Expression, a California group that calls homosexuality a "sin" in court papers and compares gay activists to "suicide bombers who would destroy themselves while they murder others." That brief drew a rebuke from the two doctors, who say neither supports "the tone of some of the references" or the "offensive language."

Benitez, meanwhile, received treatment at another facility and has given birth to a son, now 5, and twin daughters, now 2.

"People ask me, 'Why are you doing this? You have your kids,' " she says. "I want to make a difference. These doctors are not God. They cannot manipulate who can have children and who cannot."