New Sherwood

The slide continues

No religious freedom for California physicians:

SAN FRANCISCO — — Doctors may not discriminate against gays and lesbians in medical treatment, even if the procedures being sought conflict with physicians’ religious beliefs, the California Supreme Court decided today.

In the second, major gay-rights victory this year, the state high court said religious physicians must obey a state law that bars businesses from discriminating on the basis of sexual orientation.

“The 1st Amendment’s right to the free exercise of religion does not exempt defendant physicians here from conforming their conduct to the . . . antidiscrimination requirements,” Justice Joyce L. Kennard wrote for the court.

This ruling (pdf) seems to apply to all businesses across the board. Some of you may remember the bit of trouble I got into some years back when I owned a print shop and refused to print materials for a homosexual group. I lost some customers and was subject to a few weeks of small-time harassment (phone calls, letters, e-mails and probable vandalism), but there was no legal action. Now, it appears, the homosexualist agitators will be able to force all California businesses to accommodate their “lifestyle”. Printers will be forced to print their perverted literature; photographers will be forced to shoot their “weddings”; caterers will be forced to cater their receptions; etc. I wouldn’t be surprised if OB students were forced to do AI procedures on lesbians as a part of their “training”. Hmmm. Got a son or a daughter headed for med school in California?
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August 19, 2008 - Posted by | Uncategorized

25 Comments »

  1. One of the things I appreciate most about owning my own business is being able to turn down work for clients with whom I have profound moral disagreements. I do public opinion research, primarially for conservative and Republican candidates or causes, but sometimes work in tandem with Democratic pollsters for certain projects. On more than one occasion, I’ve politely explained that I couldn’t/wouldn’t take a particular project (pro-abortion GOP state Rep being challenged by a pro-lifer, Planned Parenthood, etc). The clients understood, and I was happier to have my integrity than their money.

    What if I still lived in CA, and a gay group asked me to do polling to help them defeat the marriage ammendment on the upcoming ballot? Perhaps (and this is not uncommon) because they wanted to publish poll results from a “Republican pollster” to lend credibility to any good numbers they might get? Could they threaten to sue me if I didn’t do the work, and if I didn’t use precisely the (biased) poll question wording they insist I employ?

    Thank God my wife insisted we get out of that crazy loony tunes Golden State. If you guys ever want to follow us, the housing market here in MI is really affordable. And we have the 1962 Mass every Sunday just 15 miles down the road!

    Like

    Comment by Chris | August 19, 2008 | Reply

  2. I didn’t know that about your print shop. In Canada a printer in exactly that situationw as fined by the “human rights commission” (grrr). Now I guess it will be California levying such fines, though they won’t need a human rights commission to do it. Anti-discrimination will do it all by itself. I would think that this must have come up as an employment issue for many Christian (or even just morally traditional, if there are any who aren’t Christian) employers already.

    Like

    Comment by Lydia | August 19, 2008 | Reply

  3. A thought I had for a “back door” means of avoiding working for such folks: Simply quote a price that is far out of line with what others in the marketplace are asking. They’ll take their business elsewhere on their own.

    This may not work in the heavily-regulated medical profession, where prices and reimbursement rates are set by insurance companies. But for independent professionals in other kinds of businesses, they may be able to get away with it.

    Like

    Comment by Chris | August 19, 2008 | Reply

  4. Hmmm. Lawyers have always been able to choose what cases they will or will not take. I recall my Dad in Massachusetts refusing to take the divorce case of a friend in town because he believed (knew) that she was violating her sacred bond. She had not even sought an annulment.
    When same-sex “marriage” (cough) was initiated in MA I asked my Dad how this would affect him. He replied,”I’ll be happy to assist them in their divorces!” ;)

    Like

    Comment by Maria | August 19, 2008 | Reply

  5. Actually, Maria, he shouldn’t do that. Homosexual divorce law precedents reinforce the existence of homosexual “marriage.” Sorry if that’s taking the joke too seriously, but in law, it’s actually an important matter.

    The back door means Chris mentions would get you in trouble if it could be proven that you had quoted different prices to people that tracked their “sexual orientation.”

    Like

    Comment by Lydia | August 20, 2008 | Reply

  6. What I found interesting about this story, or the version of it I read this morning, is that these doctors are already trafficking in something they shouldn’t be – IVF. It’s a slippery slope, then, when a Lesbian couple wants you to artificially inseminate them. How are you now drawing lines on this when you didn’t draw the line short of playing God in the first place?

    This isn’t an issue, as I understand it, of GPs saying they won’t treat Gays for a sinus infection. This is a very specifically sexually-related area of practice, and one that “Christian Fertility Doctors” shouldn’t be in in the first place.

    Like

    Comment by Steve | August 20, 2008 | Reply

  7. Steve –
    That’s an excellent point. If, as a doctor, you’ve been violating the natural law by inseminating heterosexual couples…how can you suddenly claim rights of conscience and expect the courts to back you up? Reminds me of all the heterosexual couples who contracept for years and then are shocked that homosexuals want to separate marriage from procreation, too.

    Like

    Comment by Chris | August 20, 2008 | Reply

  8. Steve & Chris:

    Certainly the medical practitioners in this case had been drawing their lines in the wrong place. But that’s really beside the point. The logic and application of this decision is not limited to this particular case. Everything is now going to need to be defined in great detail by the courts or the legislature. If the doctors did not provide AI services in the first place, the problem would not likely have come up for them. But this decision changes things. It seems likely that OB-GYNs who *could* competently provide AI, but who have thus far refused on religious grounds, might now be compelled to do so. It’s a totally new precedent hinging now on the motives of the recalcitrant business. It’s hard to see where this might go but it doesn’t look good from here …

    Like

    Comment by Jeff Culbreath | August 20, 2008 | Reply

  9. “how can you suddenly claim rights of conscience and expect the courts to back you up?”

    Whaddaya mean, _how_ can you suddenly claim rights of conscience? So somebody who is doing A wrong can’t rightly have a conscience about B? Suppose you have a slave-owner who balks at having his slaves beaten. You shouldn’t say, “If he’s been violating the natural law by buying and owning slaves, how can he claim rights of conscience against having them beaten?” Come on. I think that’s quite misguided. Of course the doctors could be wrong about artificial insemination but have a genuine (and, in fact, correct) conscience problem with helping a lesbian woman to procreate.

    Like

    Comment by Lydia | August 20, 2008 | Reply

  10. “Thank God my wife insisted we get out of that crazy loony tunes Golden State. If you guys ever want to follow us, the housing market here in MI is really affordable. And we have the 1962 Mass every Sunday just 15 miles down the road!”

    Central MI sounds quite nice (especially the neighbors). But dang it, Chris, it isn’t California. I’m a 4th generation Californian, 3rd generation native, and this is the only home I’ve ever known. What’s happening here is criminal but we haven’t been thrown out just yet. At some point there’s bound to be a reaction, especially here in the Valley and eastward. Sometimes I pick up the road atlas in the evening and try to imagine living somewhere else. It gets harder and harder with every week that goes by. Anywhere else I would be an exile, a refugee, always longing for the homeland. I guess there are worse things, but I’m not giving up yet.

    Like

    Comment by Jeff Culbreath | August 21, 2008 | Reply

  11. “It seems likely that OB-GYNs who *could* competently provide AI, but who have thus far refused on religious grounds, might now be compelled to do so.”

    From my reading of the decision, this is not the case. A doctor may legally choose not to perform a certain procedure for religious reasons, but if they choose to provide a certain service, they may NOT choose to provide it selectively, based on race, age, sexual orientation, etc.

    Like

    Comment by Mistereks | August 21, 2008 | Reply

  12. Jeff –
    I understand completely, and intended the comment as much as a joke as anything. I like it here, but I’m a 4th generation Washingtonian and 3rd generation native of that state. No other place can ever really be “home” for me, no matter how long I live there. But I suppose that’s the price you pay when you marry someone for whom another region the country is extremely important. Someone has to choose. Think “Midnight Train to Georgia,” but with a twist: I’d rather live in her world, than have her be miserable living in mine.

    Like

    Comment by Chris | August 21, 2008 | Reply

  13. Mistereks: You’re right, the decision states this explicitly. My mistake. But the Court’s reasoning is incoherent and all over the map. In the preceding paragraph it states that California law ensures “full and equal access to medical treatment irrespective of sexual orientation”. That would imply that medical treatment of any kind cannot be refused to homosexuals on religious grounds. Furthermore the decision relies heavily on the precedent of the Catholic Charities case, in which the Court required Catholic Charities to provide contraceptive insurance coverage to employees because it also provided “prescription drug” coverage. Previously, it had not provided contraceptive coverage at all.

    If contraceptives can be lumped together under “prescription drugs” in the mind of the Court, without moral distinction, then expect IUI to be lumped together with “fertility treatment” next time around, without moral distinction.

    So the immediate, concrete effect of this decision, on the ground, is that businesses which provide a specific service to the public cannot refuse that service to homosexuals on the basis of religious belief. It is obvious that printers, publishers, photographers, caterers, DJs, or anyone being asked to provide services to homosexual events of any kind, (especially a “wedding”), have completely lost their right to refuse. Lawyers who do adoptions and family law will also be forced to facilitate homosexual adoptions, divorces, pre-nuptials, and all the rest.

    Like

    Comment by Jeff Culbreath | August 21, 2008 | Reply

  14. Chris: Well, I hope you weren’t joking and will keep the porch light on for us! One never knows. But I do understand your situation and, if it were mine, I’d probably do the same thing. The younger you are the better, however. Change is hard when you’re over 40.

    Like

    Comment by Jeff Culbreath | August 21, 2008 | Reply

  15. The light is definitely on for you, Jeff. We can introduce you to an excellent (and, above all, HONEST) real estate agent if you ever want to explore the possibilities in mid-Michigan. And, of course, we’d be honored to have the Culbreaths stay with us during the search.

    Like

    Comment by Chris | August 22, 2008 | Reply

  16. Jeff –

    I think you’re right that family law professionals will have to provide services equally. But really, if a lawyer is willing to assist in divorces at all, isn’t that lawyer already abetting sin? Is it worse if he helps a homosexual couple divorce or if he helps a heterosexual couple divorce?

    For photographers and caterers, I think any discrimination that happens will be mutual. If I were getting married and wanted a photographer, I’d want one that was excited and enthusiastic about the nuptials.

    But if a certain printer had a specific design that I wanted to use, why should he be able to refuse to serve me based solely on my sexual orientation (or religion or race or any other suspect class)?

    I can understand if a printer didn’t want to, say, print images of Muhammed, but that would apply to all customers, which I think is the accommodation being made here.

    But when it comes to actually performing same-sex ceremonies, I think any clergy member (lay or not) or church should be allowed to opt out. That’s a religious accommodation that makes sense for me. In fact, going forward, I think we’re going to have to work out that line between equality and religious accommodation.

    I’d invite you to read this page: http://writ.lp.findlaw.com/amar/20080801.html

    It’s a brief from findlaw.com that establishes the case that religious freedom and marriage equality are tied to each other in case law.

    Freedom isn’t the same for everyone, so you have to make accommodations:

    “Just as the free exercise of religion is useless to an Orthodox Jew if it only protects his right to observe Sunday as the Sabbath, so too the right to marry is an empty guarantee if it only protects a lesbian’s right to marry a man.”

    There are going to have to be accommodations on both sides, because we’re in this freedom thing together.

    Like

    Comment by Mistereks | August 23, 2008 | Reply

  17. Mistereks:

    Thank you for the reply. We may be “in this freedom thing together”, but not all freedoms are equal, nor should they be treated as such. What we are witnessing is the collapse of a society that no longer agrees on the fundamentals of public morality.

    Catholicism has always been somewhat uncomfortable in the American milieu for that reason. But American ideas of liberty, within a generally Christian moral framework, made public life tolerable and accommodations possible. This historic consensus is no more.

    Based on your examples it sounds as though you are a homosexual. Are you also a Catholic? If so, you might know that homosexual acts are considered gravely sinful. Which means that not only is homosexual behavior sinful, but any action that cooperates, facilities, approves or justifies homosexual behavior is also sinful. That means that the printer who prints a newsletter for a homosexual group, in which homosexuality is advocated and excused, is also offending God and committing sin.

    If the state mandates this activity, a Catholic printer is forced to either cooperate with immorality or stop printing. In better days, this was the stuff of martyrdom. St. Dominic Savio’s cry was always “death before sin!”

    Let’s be clear about this. What is happening here isn’t simply a matter of making accommodations for both sides: it is a matter of making society intolerable for Catholics. Catholics can no longer simply live in peaceful disagreement with their neighbors, but are forced to **materially cooperate** with gravely immoral behavior or face legal penalties. The effect will be to drive Catholics completely out of certain professions.

    And it is a rich irony, too, that the first field under attack is that of health and medicine – a secular field which has always been a priority for the Church, and which is the most consistent with the Church’s mission of mercy to a suffering world.

    Like

    Comment by Jeff Culbreath | August 24, 2008 | Reply

  18. Jeff –

    I appreciate your thoughtful nature and your clearly sharp mind.

    “any action that cooperates, facilities, approves or justifies homosexual behavior is also sinful. That means that the printer who prints a newsletter for a homosexual group, in which homosexuality is advocated and excused, is also offending God and committing sin.”

    And that’s part of my point. If a printer prints divorce forms for the state, or letterhead for a family law attorney who handles divorces, are they not also offending God and committing sin? Therefore, how can they claim a religious exemption to deny printing materials that advocate homosexuality, when they also print materials that are used in divorce proceedings? Is one sin greater than another?

    “Catholics can no longer simply live in peaceful disagreement with their neighbors, but are forced to **materially cooperate** with gravely immoral behavior or face legal penalties.”

    What if this were a different religious matter? What if Lewis Farrakhan made a statement that said white people are demons and should not receive the expertise of any person of color? (A bit odd, I’ll grant you, but Farrakhan has said some pretty odd things in the past.) Would a follower of his be able to claim a religious exemption for refusing to provide services to a white person?

    Like

    Comment by Mistereks | August 24, 2008 | Reply

  19. “I appreciate your thoughtful nature and your clearly sharp mind.”

    Thank you for the kind words, Mistereks, but the sharpest thing in my head is my tongue, which often enough sends me to the confessional. The courteous tone of your own remarks has helped to keep that in check. :-)

    “If a printer prints divorce forms for the state, or letterhead for a family law attorney who handles divorces, are they not also offending God and committing sin?”

    Not necessarily. The Church permits civil divorce in some cases. Certainly when a marriage is annulled it is also accompanied by a civil divorce. Even when a marriage is not annulled, the Church may permit a civil divorce while still forbidding the spouses to remarry. A printer is not usually going to know the details of what kinds of divorces his customer is handling.

    That being said, if a printer knew that a certain family law attorney was heavily involved in breaking up valid marriages, then yes, printing materials for his practice could be sinful.

    The difference is this: unlike homosexual behavior, civil divorce is not intrinsically evil. Homosexual acts, on the other hand, are always sinful every time, no exceptions.

    “Therefore, how can they claim a religious exemption to deny printing materials that advocate homosexuality, when they also print materials that are used in divorce proceedings? Is one sin greater than another?”

    Certainly some sins are greater than others. A bank robber might draw the line at murder. Should we say that since a fellow is already a bank robber, he has no right to oppose the act of murder?

    I don’t know whether homosexual acts are a greater sin than divorce. Both are mortal sins and that’s good enough for me. A case might be made that homosexuality is more grave because, unlike divorce, homosexual acts are also a sin against nature. Until the coming of Christ divorce was grudgingly permitted by God; homosexual acts were always condemned.

    In any event, the printer in your example is not being forced to print for anyone. According to his conscience, he may still refuse to print for an attorney whose work he disagrees with. If he were being forced by the state to print for attorneys who handle civil divorces your example would be more relevant.

    “What if this were a different religious matter? What if Lewis Farrakhan made a statement that said white people are demons and should not receive the expertise of any person of color? (A bit odd, I’ll grant you, but Farrakhan has said some pretty odd things in the past.) Would a follower of his be able to claim a religious exemption for refusing to provide services to a white person?”

    I think there are two issues here, and these are often confused in the public mind. In the first place Farrakhan would be objectively wrong, his prescription immoral, and therefore his views should not be countenanced by the law. So there is no moral reason why the law must consider his views and make room for them.

    However, in the American context we have a tradition of free association that has served our relatively diverse population well. Personally, I have no problem with our laws of commerce permitting anyone who believes such a teaching to refuse to serve white people according to his belief. I would make exceptions in some cases – for example, in trades relating to public health and safety – but would otherwise allow the small businessman to serve whomever he likes. That’s just my opinion. As it happens, such practices are presently illegal, and I can live with that too.

    The fundamental difference is this: the Supreme Court, with respect to forcing physicians to provide IUI services to lesbians, is mandating something that is intrinsically evil. That is the very definition of tyranny. Today’s laws would force Farrakhan’s followers to offer – let’s say – ordinary medical treatment to white people, and this is not mandating something that is intrinsically evil. It’s the difference between forcing someone to do the right thing and forcing someone to do the wrong thing.

    Like

    Comment by Jeff Culbreath | August 24, 2008 | Reply

  20. “the sharpest thing in my head is my tongue”

    Mine can be pretty edgy too, and I occasionally regret what it cuts.

    “Certainly some sins are greater than others. A bank robber might draw the line at murder. Should we say that since a fellow is already a bank robber, he has no right to oppose the act of murder?”

    No. But neither should he have the expectation of heaven. Cannot unrepented thievery condemn one to perdition just as well as unrepented murder?

    My point, I believe, stands, even though I accept your logic that some divorce is permissible under. If you print divorce forms, some might be used for church-approved annulments, but I would think the vast majority would be used for divorces the church would categorize as grave sin.

    If a printer is going to deny service to some people because their behavior is sinful (at least their behavior as it relates to the specific print job being performed, e.g., a same-sex wedding), it seems they must, to maintain moral honesty, deny service to anyone whose behavior is sinful, again, as it relates to the print services. If a printer refused to print a same-sex couple’s wedding invitations on moral grounds, I’d want to make sure they hadn’t also printed flyers for a local strip club.

    “In the first place Farrakhan would be objectively wrong, his prescription immoral, and therefore his views should not be countenanced by the law.”

    And yet, in my example, Farrakhan would believe he is following the divine word of Allah, and that his views are therefore not objectively wrong, but divinely right. This is where the problem lies — when one calls upon the authority of an invisible superbeing, instead of the authority of the Constitution.

    Like

    Comment by Mistereks | August 24, 2008 | Reply

  21. “This is where the problem lies — when one calls upon the authority of an invisible superbeing, instead of the authority of the Constitution.”

    The Constitution doesn’t say anything about what sorts of activities the states are supposed to criminalize. We criminalize bank robbery not because the Constitution demands it, but because it is deemed immoral by some other, external authority.

    All laws – and all constitutions, for that matter – are based on someone’s idea of morality. Those ideas are either true or false. Historically, those ideas have had their origin in the “authority of an invisible superbeing” that was more or less recognized by everyone. With the breakdown of this consensus, lawmaking and government is reduced to a contest of wills and powers.

    Same-sex marriage is either a metaphysical reality which the state must respect, or it is a mere figment of the human imagination. What it isn’t is something that can simply be brought into existence by an act of judicial or political muscle. Similarly, Louis Farrakhan may believe all kinds of lies, but the fact that he believes them doesn’t make them true. And the state, like all men, has a duty to uphold the truth.

    Like

    Comment by Jeff Culbreath | August 26, 2008 | Reply

  22. “The Constitution doesn’t say anything about what sorts of activities the states are supposed to criminalize. We criminalize bank robbery not because the Constitution demands it, but because it is deemed immoral by some other, external authority.”

    But the Constitution is the document that determines whether or not a law against bank robbery can be a law of the land.

    “All laws – and all constitutions, for that matter – are based on someone’s idea of morality.”

    Whose? Yours? Mine? A Muslim’s? With OUR Constitution, you have the right to practice whatever religion you like, but historically, a call to divine power doesn’t hold any sway over the SCOTUS. There must be rational reasons behind the law. Bank robbery is a property crime. We all understand that without the security that comes from knowing that society will stand with you if someone steals your property, helping to find and punish the thief and recover your property, there would be chaos. Smoking bans in public places are based not on divine authority, but on evidence that second-hand smoke is harmful, as well as the fact that most people would prefer not to inhale someone else’s exhaust.

    Our Supreme Court has determined — unanimously — that it’s wrong to discriminate against a person when delivering medical treatment. It’s fine for a doctor to discriminate against a PROCEDURE, but not against a PERSON.

    “lawmaking and government is reduced to a contest of wills and powers.”

    I hope not. I hope it is a contest of evidence and rationality.

    “Louis Farrakhan may believe all kinds of lies, but the fact that he believes them doesn’t make them true.”

    But his adherents could claim that just because YOU don’t think they are true doesn’t make them any less so. And they would have the same amount of tangible evidence as you that their position has the stamp of divine approval.

    Like

    Comment by Mistereks | August 29, 2008 | Reply

  23. I note that Misterekx evidently _does_ think that there is a “rational reason” behind requiring doctors to provide IVF to lesbians but, if I understand him correctly, _doesn’t_ think there is a “rational reason” (only a religious one, perhaps? which is ipso facto, not rational?) for opposing same-sex marriage.

    I wonder what, say, a 19th century agnostic would have thought about those conclusions, if you could have gotten him to understand what we were talking about. He would have thought it was insane, that’s what! To call the first “rational” and the second “non-rational”!

    Like

    Comment by Lydia | August 29, 2008 | Reply

  24. “I note that Misterekx evidently _does_ think that there is a “rational reason” behind requiring doctors to provide IVF to lesbians but, if I understand him correctly, _doesn’t_ think there is a “rational reason” (only a religious one, perhaps? which is ipso facto, not rational?) for opposing same-sex marriage.”

    You are exactly right, Lydia.

    What is the rational states’ interest behind denying marriage equality?

    Like

    Comment by Mistereks | August 29, 2008 | Reply

  25. But the Constitution is the document that determines whether or not a law against bank robbery can be a law of the land.

    Actually, that’s only true in a very limited sense.

    The Constitution, of course, determines what the Federal government may do — so if you ignore State lawmaking, your statement is true. I suppose if your model is that Federal law is “the law of the land”, and that State lawmaking powers are (or should be) entirely subservient to the National government, then you’re closer.

    But originally, the Constitution made no determination of what the States could legislate within their borders. Only since the 14th Amendment has the notion of applying Federal rights to citizens (as “due process to citizens”) been applied to State lawmaking.

    So yes, the Constitution constrains State lawmaking on bank robbery — but only if you can show that there’s a “right” to rob banks, inherent to all citizens, which States infringe by criminalizing robbery.

    peace,
    Zach

    Like

    Comment by Zach Frey | August 29, 2008 | Reply


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