Column One:
Eye on Unmarried America

August 6,  2007  



Doctors seek exemption from civil rights laws

By Thomas F. Coleman

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 transactions.

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 America. E-mail: Unmarried America is a nonprofit information service for unmarried employees, consumers, taxpayers, and voters.