It is a mistake to view some of these changes in the law expanding homosexual rights in a vacuum, because they often come at the expense of religious freedom. A case involving a Christian doctor and a lesbian makes the point. Guadalupe Benitez of San Diego wanted to have a baby, but faced two immediate obstacles. She is a lesbian and had fertility problems. Her health care provider referred her to the North Coast Women's Care Medical Group (NCWMG), reportedly the only OB-GYN provider under her health plan. Her assigned physician, Dr. Christine Brody, told Benitez she would be willing to treat her in the early phases, but would not artificially inseminate her because of the doctor's religious convictions. Brody allegedly assured
Benitez that other doctors in the group could assist her.
After treating her for eleven months, Dr. Brody and her colleague Dr. Douglas Fenton both refused to inseminate Benitez, which she claims forced her to seek treatment outside the plan. Benitez filed a lawsuit against NCWMG under the California civil rights statute that forbids businesses to discriminate on the basis of sexual orientation. She sought to recover her out-of-pocket medical expenses and compensation for the trauma she experienced as a result of being "dumped" by the doctors because of her homosexuality. NCWMG responded that the doctors' constitutional right to free exercise of religion under the First and Fourteenth Amendments trumped Benitez's statutory right and thus barred the suit. The stage was set for a classic confrontation of these conflicting rights, but the trial court didn't address the issue, dismissing the action for other reasons. The California Court of Appeals, however, reversed the trial court and ordered that the matter could proceed to trial.
It is yet to be seen whether the Benitez case will go to trial and whether the defendants will assert their free exercise rights as a defense. But eventually courts are going to be called on to determine whether a state government has a compelling interest in preventing discrimination on the basis of sexual orientation sufficient to overcome the free exercise rights of the person being accused of discriminating. Are we approaching the point where Christian doctors will be forced to act against their religious convictions? What about tolerance for the beliefs of Christian doctors-or is tolerance, in such cases, only a one-way street? The question for the gay rights movement is whether it is tolerance they seek or conformity to their worldview they demand.
Christians who express the view that homosexual behavior is sinful often find their religious freedom under assault. In 1998, a group of pro-family ministries printed a series of full-page ads called "Truth in Love" in newspapers throughout the United States. The ads referred to scriptural admonitions against homosexuality and included overtures to homosexuals to seek forgiveness and freedom through Jesus Christ. The ads also contained information regarding the adverse health consequences that could result from the homosexual lifestyle. The San Francisco Board of Supervisors was outraged at the ad and sent a letter to its sponsors condemning it as "hateful rhetoric." The supervisors argued that "there is a direct correlation" between hate crimes against homosexuals and the religious message communicated in the ad. The board also passed resolutions linking hate crimes and the murder of homosexuals to the "anti-gay" ads. When the board went further and lobbied local television stations not to broadcast ad campaigns centered on "converting" homosexuals, the American Family Association's Center for Law and Policy filed a federal lawsuit on behalf of the ad's sponsors. In the suit, the plaintiffs alleged that by officially opposing the religious message, the city and county were violating their First Amendment rights under the Establishment Clause and the free exercise clause.
A three-judge panel for the Ninth Circuit Court of Appeals held that the authorities had not violated the plaintiffs' free exercise rights, because they passed no laws inhibiting religious expression; they merely lobbied against the plaintiffs. As to the Establishment Clause claim, the court conceded that "official disapproval or hostility toward religion" can amount to an unconstitutional endorsement of religion. Nonetheless, it ruled against the plaintiffs in this particular case, saying the board also had a secular purpose in opposing the plaintiffs' religious views, namely, to protect homosexuals from violence. The court found the city's opposition to the plaintiffs' religious views was "only incidental and ancillary." But this was disingenuous at best, as dissenting judge John T. Noonan made clear when he wrote that it is "difficult to think of a more direct attack" on a group's religious views than occurred in this case. The plaintiffs' chief attorney Stephen Crampton also noted that the decision "would mean that as long as a city threw in a plausible secular purpose for its actions, it could trample the free exercise of religious rights of Christians."
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