Tuesday, August 09, 2005
Practicing your religion: Several years ago I was watching a debate on C-SPAN between Alan Keyes and Alan Dershowitz over the role of religion in public life. A major point of contention was what it meant to be able to "practice" your religion. Dershowitz's preferred definition appeared to allow you to do whatever your religion required as a mental exercise, but any action was not necessarily protected by the First Amendment.
If this is what lawyers meant when they say they "practice" law, then you'd never see any of them in a courtroom.
I was reminded of that debate when I read this story in Sunday's Union-Tribune about a couple of lesbians who are suing two doctors for refusing to artificially inseminate them.
The doctors' claims have shifted over time, likely because it may be illegal in California to deny services to lesbians because of religious beliefs, but not to unmarried persons.
That move was spurred when the CMA learned from a reporter of a declaration by Brody from October 2001. In it, the doctor said she "specifically informed" Benitez that she could not do a procedure called intrauterine insemination "because it was against my religious beliefs to actually perform IUI for a gay couple."
Since that declaration, filed early in the long-running case, the physicians and their lawyers have modified their stance, arguing that their religious convictions prohibit them from inseminating any unmarried couple – gay or straight.
That would be allowed under the Unruh Act. The law does not explicitly ban discrimination based on marital status, but it does bar discrimination based on sexual orientation.
The case is somewhat moot -- the two lesbians found another doctor to artificially inseminate one of them and they now have a 3-year-old son.
What is unfortunate is that the two doctors have to make their case on marital status and not sexual orientation.
I take a live-and-let-live approach to this issue for the most part, but that should be a two-way street -- and often isn't.
These two women refuse to allow doctors to follow their conscience and the dictates of their religious beliefs. Instead, they are suing the doctors in an effort to extend public acceptance of the homosexual lifestyle.
What this lawsuit may unfortunately do is to force doctors with deeply held religious beliefs out of the business. If forced to choose between their business and their religious beliefs, the business is going to lose -- and this is something that the doctors' opponents acknowledge.
"They need to offer the service equally, to everyone, or to no one at all," said Jennifer Pizer, a lawyer for the Lambda Legal Defense and Education Fund, a gay-rights group that also is representing Benitez.
An interesting parallel to draw would be be with the issue of abortion. A doctor could conceivably believe that abortion is morally wrong, except to save the life of the mother. That is the only situation in which the doctor will perform an abortion.
Could this doctor be sued -- and lose -- if he refused to perform an elective abortion because the mother simply didn't want the child?