June 22-28, 2008 Issue |
Posted 6/17/08 at 10:50 AM
Another clash
of rights is occurring in California. Recently, the California Supreme Court —
the same court that recently legalized same-sex “marriages” in that state —
heard argument in a case that pits religious belief against statutory rights
with respect to fertility treatments.
At issue is the conflict between
Christians who refuse to provide services that they consider in violation of
their sincerely held religious beliefs, and laws that, in seeking to prohibit
discrimination and enforce equal treatment, require the provision of those
services.
In a case involving a California
fertility clinic, the plaintiffs are arguing that they were improperly refused
fertility treatments. Two of the clinic doctors — both Christians — refused to
provide treatment based on the patients’ sexual orientation, and the plaintiffs
sued under a California equal access law.
The trial court ruled in favor of
the plaintiffs, but an intermediate appellate court reversed that decision, and
found the doctors could refuse treatment based on their religious beliefs.
The California equal access law that
is at the center of the case provides:
“All persons within the jurisdiction
of this state are free and equal, and, no matter what their sex, race, color, religion, ancestry,
national origin, disability, medical condition, marital status, or sexual
orientation, are entitled to the full and equal accommodations, advantages,
facilities, privileges, or services in all business establishments of every
kind whatsoever.”
Admittedly, that statute is
extremely, and deliberately, vague, and it endorses a principle of fair
treatment that is deeply engrained in the American character.
No one would support improper
discrimination or the denial of equal treatment.
But laws like this also raise
important questions about the meaning of religious liberty in an age where the
law, inspired by a particular view of equality, reaches into areas previously
considered private.
In particular, these laws reflect
what Robert Vischer, a law professor at the University of St. Thomas in
Minnesota, has characterized as a legal battle between consumer and provider.
In this contest, the old adage “The
customer is always right” takes on new meaning, because it is backed by state
power.
On this view, the rights of the
consumer — whether a pharmacy customer, prospective adoptive parent, or, as in
this case, a patient at a fertility clinic — always trump that of the provider,
even if the provider has a religious basis for objecting to the consumer.
Often, as here, the law, as Vischer
notes, creates a zero-sum game. One side must win, and the other must lose. Too
often, the losing side is that of religious believers, as they are the largest
private provider of services that raise these issues.
One of the California judges starkly
presented the choice facing religious believers: According to a newspaper
account, during the argument one of the judges suggested that religious persons
either “choose a field of practice that doesn’t conflict with those beliefs or
provide their services to anyone who needs them.”
In addition to insulting the
millions of religious believers by implying that their contributions are
somehow inconsistent with American traditions of tolerance, it is in practice
an untenable choice.
First, this choice could force
religious voters to guess where the government would choose to act next. Who
would have thought, for example, that California and New York would force Catholic
hospitals to provide contraceptives as part of their health insurance coverage,
or that Massachusetts would drive Catholic Charities out of providing
adoptions?
Given the wide-ranging government
involvement now in areas such as health care, this would be tantamount to
closing down many worthy charitable or social institutions. Moreover, if this
were the choice facing religious believers, it would be easy for interest
groups to force legislators to enter areas precisely in order to drive
religious believers out.
This is apparently what happened
with the contraceptive case in California, where the legislative history
indicates that the law was specifically targeted at Catholic institutions to
force them to violate their religious beliefs.
Second, and more ominously, forcing
Catholics and other religious believers to “stay out of the way” would
compromise the practice of their faith and also surrender important avenues of
the Church’s social ministry — such as medical care, adoption and other
services — to the state. It fundamentally misunderstands the primary place
religious liberty has in our constitutional structure.
It
also shortchanges the history of good works sponsored by religious groups, who
bring their own faith traditions into the larger culture.
Rather, the law should permit a wide
variety of moral positions in society, allowing religious groups to present
their views in the marketplace.
The goal these laws aim to achieve
is in some respects a laudable one: No one wants to return to an era of rampant
discrimination.
Unfortunately, the underlying
problems with these laws have gone largely unnoticed by commentators, Catholic
or otherwise. That should change.
Gerald
Russello is a fellow
of
the Chesterton Institute
at
Seton Hall University.
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