|The California Supreme Court has
agreed to decide a case involving two doctors who refused to
perform in vitro fertilization for a woman who is unmarried.
The doctors want the court to grant them a religious exemption
from state civil rights laws which prohibit businesses from
discriminating against consumers on the basis of marital status.
The case started about seven years
ago when Dr. Christine Brody and Dr. Douglas Fenton declined to
treat Guadalupe Benitez, a lesbian who had a long term partner
but who was legally unmarried. California law does not yet
recognize same-sex marriage.
Benitez sued the doctors, arguing
that their refusal to treat her violated the state's Unruh Civil
Rights Act which prohibits both marital status and sexual
orientation discrimination. In response, the doctors
claimed that their constitutional rights to religious freedom
should override the state civil rights law.
The trial court ruled that
businesses providing services to the public may not raise their
religious beliefs as an exemption from generally applicable laws
prohibiting discrimination. The doctors responded by
taking the case to the California Court of Appeal.
When the Court of Appeal
partially sided with the doctors and ordered a trial on the
merits of the case, Benitez asked the California Supreme Court
to decide the issue. Her request was granted and the stage
is now set for oral arguments before that court, with religious
organizations filing briefs to support the doctors and civil
rights groups siding with Benitez.
Whether a business person should
be able to claim a religious exemption from laws prohibiting
marital status discrimination is an issue the California Supreme
Court has grappled with before. I should know since I was
the attorney who represented one of the winning parties in the
landmark case known as Smith v. Fair Employment and Housing
Commission more than 10 years ago.
In the Smith case, landlord
Evelyn Smith refused to rent an apartment to an unmarried
opposite-sex couple. The tenants filed a complaint with
the Fair Employment and Housing Commission which sided with them
and ruled that Smith was in violation of California laws
prohibiting marital status discrimination.
With the help of various
religiously-based organizations, Smith asked the Court of Appeal
to intervene and to overrule the Commission. She argued
that it was her belief that cohabitation by an unmarried couple
is a sin and that she would be facilitating that sin if she
rented to any couple who was not married.
I found out about the case and
offered to provide legal assistance to the tenants without
charge. With the help of a colleague, David Link, we represented
the tenants and argued that once a person enters the marketplace
and offers goods or services to the public, the business owner
must obey the law like everyone else and cannot hide behind
religious beliefs to gain an exemption.
The Court of Appeal ruled in
favor of Smith, concluding that federal laws protecting the free
exercise of religion supersede state laws against marital status
discrimination. David Link and I then took the case to the
California Supreme Court.
After considering arguments on
both sides of the issue, the Supreme Court ultimately concluded
that business owners must obey laws of general application and
may not hide behind their religious beliefs as a basis for
engaging in illegal discrimination.
The Smith case was a close call
for the seven member court, with three justices dissenting.
Whether a majority of the currently constituted court will stand
by the court's prior ruling remains to be seen.
Whatever the California Supreme
Court decides will undoubtedly have national ramifications since
some 25 states have laws prohibiting marital status
discrimination in employment, housing, and other business
The losing side will likely take
the case to the federal courts.
The United States Supreme Court
has never directly decided whether the religious beliefs of
someone doing business with the public should trump civil rights
laws prohibiting marital status discrimination.
On more than one occasion the
nation's highest court has been asked to rule on this issue.
Each time, however, a majority of the justices have voted not to
hear these petitions. As a result, the court has allowed
to stand various state court rulings rejecting religious
exemptions from civil rights statutes.
So it seems the "culture wars"
will continue, with each side trying to win favor with the
judiciary. And the judges will look for ways to decide cases
without giving too much ammunition to either side.
To read other editions of
Column One, click here.
Unmarried America 2007
Thomas F. Coleman, Executive Director of Unmarried America, is an
attorney with 33 years of experience in singles' rights, family
diversity, domestic partner benefits, and marital status discrimination.
Each week he adds a new commentary to Column One: Eye on Unmarried
email@example.com. Unmarried America is a nonprofit
information service for unmarried employees, consumers, taxpayers, and