Thursday, May 29, 2008
News reports of yesterday's oral argument are suggesting that the California Supreme Court is likely to rule against the doctors who claim a constitutional right to refuse to perform artificial insemination for a lesbian patient. I do not believe that a doctor should be legally compelled to provide such a service when it violates his conscience, provided the patient has access to the service elsewhere (as the patient did in this case). The fault, though, lies with the California legislature, not the courts. Consider the wildly expansive language of the applicable state law, the Unruh Civil Rights Act:
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.
In a society that purports to care deeply about the vitality of conscience, that's a bad law. At this stage, though, I'm not sure what the California Supreme Court is supposed to do about it. Legislators can and should take account of context: 1) our society's conversation about sexual orientation is still in its early stages; 2) requiring a physician to help bring a child into a family setting that the physician believes is unhealthy and immoral is more intrusive than the application of anti-discrimination law in the run-of-the-mill "business" context; and 3) there are (apparently) plenty of physicians willing to provide their services to gays and lesbians even absent legal coercion.
When courts are asked to recognize a "right" to discriminate, it's much more difficult to bring such factors to bear on the analysis, particularly under the framework of Employment Division v. Smith. (Perhaps the California constitution gives the court more flexibility, but the justices sounded skeptical.) If the court recognizes the physician's constitutional right to refuse services to a lesbian, the resulting right would be more categorical than contextual, likely extending to the protection of discrimination against interracial couples looking to have a child, or against a lesbian requesting cosmetic surgery. Maybe the courts are the only hope for conscience at this point, but we should bear in mind that they are not operating on a blank slate -- they're constrained by a conscience-trumping (but constitutional) statute.