The Right to Say “No”

FormerlyGay has picked up on a news story in California:

California’s highest court on Monday barred doctors from invoking their religious beliefs as a reason to deny treatment to gays and lesbians, ruling that state law prohibiting sexual orientation discrimination extends to the medical profession.

The ruling was unanimous and a succinct 18 pages, a contrast to the state Supreme Court’s 4-3 schism in May legalizing gay marriage.

Justice Joyce Kennard wrote in the ruling that two Christian fertility doctors who refused to artificially inseminate a lesbian have neither a free speech right nor a religious exemption from the state’s law, which "imposes on business establishments certain antidiscrimination obligations."

In the lawsuit that led to the ruling, Guadalupe Benitez, 36, of Oceanside said that the doctors treated her with fertility drugs and instructed her how to inseminate herself at home but told her their beliefs prevented them from inseminating her. One of the doctors referred her to another fertility specialist without moral objections and Benitez has since given birth to three children.

Nevertheless, Benitez in 2001 sued the Vista-based North Coast Women’s Care Medical Group. She and her lawyers successfully argued that a state law prohibiting businesses from discriminating based on sexual orientation applies to doctors.

FormerlyGay had this to say:

Now look. I’m fat and I’m disabled and I was once gay. If that’s not the trifecta of discrimination, I don’t know what is. In terms of mental anguish for someone refusing to treat you themselves and referring you to another provider who will provide those services free and clear — frankly, you got off rather well. There are other people who would provide you poor service, if any, and there are others who would make sure you were as uncomfortable as possible. That they told you to move along is sad and ignorant, defnitely not a Christ-like example, but the results could have been so very much worse.

However. And this is a big freakin’ caveat:

What if it’s not just insemination services the next time? What if it’s breast cancer? A virus? HIV? What if it’s a disease where days and hours make a difference between life and death? There is a “morning after” pill available from pharmacists if you think that you have been accidentally exposed to the HIV virus that makes contracting the disease less likely. If a pharmacist declines to issue you those medications because they don’t approve of your “lifestyle,” that moral judgment they make could have a direct and disastrous impact on your health!

Hmmmm. Here’s my response:

Can I offer another perspective? Here in the UK legislation has been passed that forces adoption agencies to treat same-sex couples identically to other couples, not permitting them to not offer children for adoption because of religious beliefs. The Roman Catholic adoption agencies offered to refer any same-sex couples that came to them to other agencies, but the Government wouldn’t have any of it. The result is that most of the RC adoption agencies are going to shut down rather than violate their consciences.

Surely such a decision (to refer a client to someone else when there is a clash with your conscience AND the condition is not requiring immediate action) is different to denying emergency medical treatment? I also can’t see the similarity between this and treating cancer, HIV etc, because in each case the treatment of the illness doesn’t in any way support directly an unholy lifestyle?

I’m the first to pull conservatives up for behaviour that is blatantly homophobic, but in this case I think the point you are trying to make is stretched slightly.

It’s a subject that I’ve written on before and I’m still divided on what I actually think. I’m opposed to discrimination on the grounds of sexual orientation, but I’m also in favour of those with traditional religious beliefs being allowed to hold them in conscience.

What do you think?

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12 Comments on “The Right to Say “No”

  1. For me, I think, the question is one of consistency. Basically, I’m in favour of freedom of conscience and I question the efficacy of equalities legislation in preventing discrimination anyway. So I think that, if we are to allow doctors, adoption agencies or churches the right not to work with people who are gay, then we need to accept a similar prerogative to protect the consciences of those who oppose people born with red hair or who choose to worship aliens. It’s a much wider question than of the specifics of sexual morality. But if we are only to talk about questions of conscientious objection to providing medical treatment or social services merely in relation to minority sexual orientations, then we end up vilifying and marginalising LGBT people yet further. Does that make sense?

  2. Yes Grace, I think it does make sense. I would want to come back to you though and say that here in the UK we have an established religion (Church of England) so built into the constitution is the fundamental principle that some “truths” are actually true. The Christian conscience is something that the State recognises, so surely that should elevate it above other opinions?

  3. Interesting response. You’ve got me thinking! OK…

    “The Christian conscience is something that the State recognises…”
    Legally, yes. But as we are all too aware, what constitutes a Christian conscience is very much a matter for debate even within the Church of England, let alone wider British Christianity, or society as a whole. The consciences of some Anglicans will lead them to oppose all legislation involving any sort of tolerance or equality towards LGBT people, the consciences of others will lead them to campaign for the full social inclusion and approval of all LGBT people and all same-sex sexual practices… and there’s everything in between, too. And Christian consciences change, too, with space and time. For centuries, the Church did not regard black people as human beings, and even now in parts of the US South, will not allow black people to marry white. Does British law allow for the fact that there is a multiplicity of Christian consciences?

    “…so surely that should elevate it above other opinions?”

    Legally, perhaps… but morally, I think, not. I’m aware there’s a much wider debate about established versus non-established religion here, but on a gut level, I’m not really comfortable with relying on the legal advantage I’m offered over those of other faiths. It feels rather like going through passport control in a minor tinpot dictatorship, knowing that my white skin and British passport will protect me from the hassle I can see being meted out to everyone else in the queue… just unfair. Or should we accept what I perceive as unfairness as God’s way of working in the UK?

    Essentially, though, I think that most doctors exercise freedom of conscience,  or allow their views or judgments to affect their treatment of patients… whether they’re legally entitled to or not. There’s a lot of data to prove that members of certain BME groups and people with learning disabilities get far less from the NHS than others, and various bits of research suggesting that “likeable” patients receice better care. So I think that, really, those who don’t want to treat LGBT people will always find a way to do so, regardless of legislation..

  4. Oh dear, how do we (= human beings) get ourselves in such messes – especially, it sometimes seems, when we are actually trying to do good! I agree with Grace about several things, in particular that it seems very dubious to rely on the historical accidents that have given the CofE a privileged legal position (which I suspect is gradually disappearing anyway), and that people who really want to get round the law will often manage it (not that that is in itself an argument against having laws), and I also agree with Peter when he points out that being treated by someone who is deeply unsympathetic to what you are asking of them (and/or to you personally) is not something I would want unless there was no alternative (as in an emergency when there is no time to find anyone else – or if there happens by chance not to be anyone else available, which of course will vary greatly depending on circumstances). This case seems to be yet another example of the difficulty of distributing freedom (in the legal sense) equally – the more some people are allowed to do some things, or to be exempt from certain type of interference, the less others can be allowed to do anything that conflicts with those freedoms; I don’t see how this sort of problem can be resolved at the legal level except by a fair amount of give and take. There is also the problem, lurking not far below the surface, of how far it is right for Christians to prevent others from doing wrong by various types of force (this is particularly problematic in a largely non-Christian society, I think).

  5. I have been thinking about this story since writing my last, off the cuff comment.  I seem to remember there was a similar case not too long ago in a north London suburb where one of the registrars took out a case against her employer (the local council) because on conscientious grounds she did not want to conduct ceremonies for civil partnerships, which is now considered to be part of a registrar’s job in England. She claimed that there were plenty of other registrars who could do that part of the job while she stuck to regular marriage ceremonies, but her bosses had “persecuted” her because of her stance.  One thing that occurs to me is that judges in such cases have to consider the possible results of their decisions, not only in the case in question but also in possible similar cases for which their decision may be taken as a precedent. If public officials are given the right to opt out of carrying out public decisions about who is to receive their services, it is one thing to claim that other officials are available to do the required task; but once the principle is allowed that officials have the right to opt out of serving particular people or groups of people, then it follows that in principle they all have the right to opt out simultaneously, and if that happens someone would be deprived of their legal rights – I would imagine judges are anxious to avoid such situations.  I’m afraid I can’t remember what the court decided in the registrar case; can anyone else remember?

  6. I believe that this is the case you are talking about. The tribunal ruled that since when the plaintiff began her job as a registrar Civil Partnerships didn’t exist, it was unreasonable to expect her to now accept a fundamental change in her job that conflicted with her religious beliefs.

    I wonder what a tribunal would rule here in the UK on the issue of a doctor not wanting to give fertility treatment to a gay couple. Could it be argued that the job specification had changed?

  7. Another related point is that health staff in the NHS who oppose abortion on moral/religious grounds are and have traditionally been allowed to refuse to participate in providing abortions. The courts have now given in some ways a comparable right to registrars in regard to civil partnerships. I wonder how similar the two issues are. There are certainly people who think that having an abortion is also a “human right”.

  8. Thanks to Wicked C for drawing attention to that article on the Islington registrar case, it is quite a good one.  But what it says about the RC adoption agency problem worries me slightly – if an agency which places a child with a same-sex couple is morally complicit with their SSA, would it not also be complicit with any other undesirable factor in the lives of any couples that it placed children with – how would a RC agency be able to place a child with non-RCs, for example, without becoming complicit in heresy or atheism etc?  (Perhaps they don’t – it would be interesting to know, at the risk of side-tracking this discussion.)

  9. I think the RC agencies place children on the basis of suitable parenting (married couples) rather than religion. That is the criteria upon which they would not offer children to gay couples. On this site the Westminster Catholic agency says that not being a catholic isn’t an issue, but you must either be properly single or married.

    You do raise an interesting issue though Robert. Are RC agencies picking and choosing which bits of their beliefs they prioritise?

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