Analysis of North Coast Women's Care Medical Group v. San Diego County Superior Court: Part I

The Center recently filed its reply brief in the Doe v. California Lutheran High School case now pending in the California Court of Appeals. The Doe case presents the question of whether the Unruh Civil Rights Act prohibits private religious schools from using religious criteria when making admission and discipline decisions. Is it impermissible sexual orientation discrimination for a private religious school to expel students for engaging in homosexual conduct in violation of the school's code of conduct? Preparing the reply brief for Doe gave me ample opportunity to consider the California Supreme Court's recent decision in North Coast Women's Care Medical Group v. San Diego County Superior Court. I have a number of thoughts about the decision. This post is Part I of those thoughts.

At the outset, it is important to understand how overreaching the California Supreme Court's decision really is. When Benitez initially filed the case, the physicians raised a number of defenses. One of those defenses was that their refusal to perform the fertility procedure was constitutionally protected. The physicians asserted that their "'alleged misconduct, if any' was protected by the rights of free speech and freedom of religion set forth in federal and state Constitutions." The defense was specifically conditioned on the doctors' actions being a violation of the Unruh Civil Rights Act. If the Act was not violated, then the question of whether the rights of free speech and freedom of religion provided a defense simply was not presented.

The physicians also claimed that they refused to perform the fertility procedure not because Benitez was a lesbian but because she was unmarried. The doctors alleged that they would not perform fertility procedures for any unmarried woman regardless of sexual orientation. While the Act prohibits sexual orientation discrimination, it does not prohibit marital status discrimination. Thus, if the physicians could show that their refusal was based on marital status rather than sexual orientation, the Unruh Civil Rights Act was not even implicated and there was no reason to decide whether the rights of free speech or freedom of religion provided a defense.

The case reached the California Supreme Court on a "summary adjudication" of the physicians' constitutional defense. No determination had been made about whether the physicians' conduct constituted sexual orientation or marital status discrimination. The Court acknowledged that the reason for the physicians' refusal was an unsettled question and even said that the physicians could present evidence at trial demonstrating that their conduct was premised on marital status rather than sexual orientation. Yet the Court charged ahead to the constitutional issue and held that the physicians' rights of free speech and freedom of religion provided no defense to a charge of sexual orientation discrimination under the Unruh Civil Rights Act.

The only explanation for the decision is that the Court wanted to decide a case of "gay rights" versus "religion." Even if the issue was not presented in the case, the Court was determined to make that the issue.