National Catholic Register


When Your Faith Is Illegal

BY Gerald Russello

June 22-28, 2008 Issue | Posted 6/17/08 at 11:50 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.