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August 19, 2008
Another win in California
Posted by: Andoni
It may not make as big a splash as their decision on same sex marriage, but yesterday the California Supreme Court unanimously decided that an individual medical practitioner cannot refuse to treat a gay or lesbian person because of religious beliefs. In short they ruled that there is no religious exemption to civil rights laws.
The case revolved around two doctors who refused to perform an artificial insemination treatment for a lesbian whose other routes to pregnancy had failed.
"Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, exempt a medical clinic's physicians from complying with the California Unruh Civil Rights Act's prohibition against discrimination? Our answer is no."
So wrote Justice Joyce Kennard, in the 7 -0 decision.
This is huge. It basically puts lesbian and gay civil rights laws on par with prior civil rights laws based on race, religion, etc. In the early days of the Civil Rights Law of 1964 some people tried to wiggle around these laws claiming that their personal religious beliefs did not allow them to serve black people. Similarly they tried to say that their right to freedom of assembly allowed them to choose only white people to assemble with and exclude blacks. Those arguments worked as long as the organization was a bonafide private entity, such as a private club. This "private organization" argument was also the basis for the Boy Scout victory over James Dale, a gay Eagle Scout who was dismissed because he was gay. The Boy Scouts successfully proved that they were a private entity and one of their core beliefs and message was an anti-gay one.
Not so for medical clinics and doctors. Not so for restaurants and hotels and banks. Any business that is open to the public and is not set up to be an exclusive club cannot claim the the religious exemption or the free speech/assembly right. This principle was long ago established for blacks and now it is established for gays....at least in California.
On a similar front, pharmacists in some states are arguing that they have the religious right to refuse to fill prescriptions for birth control pills. In a just world --- using reason, logic and precedent, this argument would be thrown out immediately. However, in parts of the United States, these arguments are making headway. It will take years to determine whether religious law or civil law will prevail.
In my mind the answer is simple, but for some reason, in this country,it's going to be a battle.
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Comments
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I agree with both of you, too. We have to be sure that the courts don't allow the abuse of the relgious exemption just as much as we have to never overreach in using the courts to legislate from the bench.
So far so good, California. Let's not fumble the ball at the 10 yard line...Keep going...
If CA were only an independent country that could issue visas, I just might let go of my East Coast biases and consider living there. My husband just visited L.A. for the first time on a business trip, and as one would expect with a gay Brazilian from Sao Paulo, was besotted. (Bah humbug.)
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"Why should the photographer have to take pictures of anyone’s wedding (let alone a gay couple wanting someone who doesn’t respect their relationship to photograph it)? It’s the sort of litigation that feeds the anti-gay fire.
Becasue, Mademark, the photographer is not a 'private club" and is open to the general public for business. That includes everyone, regardless of sex, race, religious persuasion, political affiliations and sexual orientation. No exceptions.
Would you condone that very same photographer refusing to take pictures of a Jewish couple's wedding because it was against 'his' religion? Of course not. His ass would be before a Magistrate in the blink of an eye, as well as being sued to a fare-the-well.
The photographer refusing to take picture of a gay couple's wedding, is nothing more than blatant discrimination.
Why are you trivializing this?
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"Why should the photographer have to take pictures of anyone’s wedding (let alone a gay couple wanting someone who doesn’t respect their relationship to photograph it)? It’s the sort of litigation that feeds the anti-gay fire.
Becasue, Mademark, the photographer is not a 'private club" and is open to the general public for business. That includes everyone, regardless of sex, race, religious persuasion, political affiliations and sexual orientation. No exceptions.
Would you condone that very same photographer refusing to take pictures of a Jewish couple's wedding because it was against 'his' religion? Of course not. His ass would be before a Magistrate in the blink of an eye, as well as being sued to a fare-the-well.
The photographer refusing to take picture of a gay couple's wedding, is nothing more than blatant discrimination.
Why are you trivializing this?
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I didn't mean to trivialize anything. I just don't understand anyone wanting to force a photographer to take pictures of their wedding. If I went to a photgrapher to take pictures of mine and he or she declined because of their religious beliefs, I would find another photographer. Suing them seems malicious to me. I have no desire to antagonize Christians, and in some cases it only makes us look like we really are out to litigate them into submission. Would I force a Muslim photographer to take pictures of a Jewish wedding? Absolutely not. But no Jew in his right mind would want them to. Maybe it was a bad example since I'm on the side of the photographer. So sue me :)
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With respect to the photographer issue, it seems to me that's a classic case of the market taking care of people's biases. If you are a fundie Christian photographer who only wants to take pictures at weddings of people who share your beliefs, then I suppose you may find a nitch, but (at least in LA) you're not likely to be very successful. From all the press we've seen, there are wedding professionals lining up in droves to service the gay/lesbian community in California. They recognize it as the boon to their business that it will be. Those are the vendors who will ultimately succeed in the marketplace, while the bigots fall by the wayside.
Medical services are different, though. If doctors can refuse to treat people based on their sexual orientation, then, in theory at least, potential patients could suffer serious, irreperable damage.
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Thank you Susan, I agree. My only point was that I don't think litigation is always the best course. It likely only taught the photograper (who lost the case) to lie the next time and say she has a scheduling conflict. She told the truth and got sued for it. As you say, if she only wants to shoot Christian weddings, let her. I can spend my money elsewhere (and I even think there's something to be said for her honesty).
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mademark, I hate to say this, but you obviously do not have a good grip on American History, especially as it relates to the black civil-rights and the similar struggle gays are going through to obtain their civil rights.
Your argument in favor of the photographer simply gives validity and support to blatant discrimination. If a black person should not have to run around looking for a restaurant serving the public that will allow him to come through the front door for a cup of coffee and use the same water fountain as whites, then why should a LGBT person have to run around looking for photographer who is willing to take their picture, a physician to artificially inseminate them or any other service freely obtainable by the str8 public?
It took lots of litigation for blacks to win their civil-liberties and none of that litigation would be considered 'frivolous' in light of the discrimination that blacks faced.
Sorry, your 'turn the other cheek' argument holds no water. Seeking the understanding, approval and acceptance of religions right homophobes who have been brainwashed, will leave you wanting for your civil-rights long after you've been laid to rest in our grave. Personally, I don't feel like waiting that long.
I say, "Sue the ass off the bastards", if that is the only language they understand. As far as I am concerned, your Christian photographer just shot herself in the foot.
And with your continuing argument in support of such bigots, you are shooting yourself in the foot as well.
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mademark, I hate to say this, but you obviously do not have a good grip on American History, especially as it relates to the black civil-rights and the similar struggle gays are going through to obtain their civil rights.
Your argument in favor of the photographer simply gives validity and support to blatant discrimination. If a black person should not have to run around looking for a restaurant serving the public that will allow him to come through the front door for a cup of coffee and use the same water fountain as whites, then why should a LGBT person have to run around looking for photographer who is willing to take their picture, a physician to artificially inseminate them or any other service freely obtainable by the str8 public?
It took lots of litigation for blacks to win their civil-liberties and none of that litigation would be considered 'frivolous' in light of the discrimination that blacks faced.
Sorry, your 'turn the other cheek' argument holds no water. Seeking the understanding, approval and acceptance of religions right homophobes who have been brainwashed, will leave you wanting for your civil-rights long after you've been laid to rest in our grave. Personally, I don't feel like waiting that long.
I say, "Sue the ass off the bastards", if that is the only language they understand. As far as I am concerned, your Christian photographer just shot herself in the foot.
And with your continuing argument in support of such bigots, you are shooting yourself in the foot as well.
The comments to this entry are closed.
mademark on Aug 19, 2008 10:54:10 AM:
While I agree with the CA court’s decision, you’re right in saying it’s going to be a fight, and I don’t think we always choose our battles well. There was a couple who sued a photographer for refusing to take pictures of their wedding. Why should the photographer have to take pictures of anyone’s wedding (let alone a gay couple wanting someone who doesn’t respect their relationship to photograph it)? It’s the sort of litigation that feeds the anti-gay fire.
I think this instance is distinct in that it involved medical treatment. The wider issue and the central one was the ridiculous argument of a ‘religious exemption’ to something as vital as health care. (Or in public services: if a bus driver refuses to drive a bus with a gay ad on the side, then let her find another job, and pharmacists are in the business of providing prescriptions – they are free to become traffic cops if they can’t bring themselves to dispense birth control.) As for how it plays out, we’ll have to wait and see. Of course the argument would be very different if anyone were being refused services for being a Christian, something much more in the realm of choice than sexual orientation.