"Lesbian Fertility Patient Loses To 'Religious Beliefs'"

[Steven Jamar]

sort of like discriminating in health benefits on the basis of  
pregnancy is not sex discrimination. . . .

On Dec 5, 2005, at 5:28 PM, Volokh, Eugene wrote:

> 	Interesting story, but it seems to me that the headline is quite  
> misleading.  Here are the most relevant excerpts from the case:
>
> Benitez filed the instant action in August 2001. In the first cause  
> of action of her first amended complaint she alleges defendants  
> violated the Unruh Act (Civ.Code, § 51.) by discriminating against  
> her on the basis of her sexual orientation. Defendants answered the  
> first amended complaint and asserted in their 32d affirmative  
> defense that Benitez is barred from recovery because their alleged  
> misconduct was "justified and protected by [their] rights of free  
> speech and freedom of religion" under the federal and state  
> Constitutions. Benitez moved for summary adjudication of the 32d  
> affirmative defense and the court granted the motion, precluding  
> defendants from raising the defense at trial. . . .
>
> For purposes of this case, we construe the Unruh Act as prohibiting  
> discrimination based on sexual orientation but not prohibiting  
> discrimination based on marital status. . . . Accordingly, if a  
> jury were to find that Dr. Brody's and Dr. Fenton's refusal to  
> perform IUI for Benitez was based solely on the fact she was  
> unmarried without regard to her sexual orientation, Benitez's Unruh  
> Act cause of action would be defeated. . . .
>
> Dr. Brody and Dr. Fenton Are Entitled to Assert Their  
> Constitutional Right to Free Exercise of Religion and Introduce  
> Evidence of Their Religious Beliefs As Part of Their Proof that  
> Their Refusal to Perform IUI for Benitez was Based on Her Marital  
> Status . . . .
>
> 	As I read this, the court did not hold that doctors' religious  
> beliefs give them the right to discriminate based on sexual  
> orientation.  Rather, the court holds that the doctors have a legal  
> right to discriminate based on marital status, rather than sexual  
> orientation -- and thus to refuse to inseminate a woman because  
> she's unmarried, without regard to her sexual orientation, though  
> not to refuse to inseminate a woman because she's a lesbian -- and  
> that their religious beliefs are *relevant evidence to show that  
> they were indeed discriminating based on marital status*,  
> presumably because they help show their motive.
>
> 	Eugene
>
>> -----Original Message-----
>> From: religionlaw-bounces at lists.ucla.edu
>> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Paul Diamond
>> Sent: Monday, December 05, 2005 1:51 PM
>> To: Law & Religion issues for Law Academics
>> Subject: Re: Swedish Pastor Beats "Hate Crime" Rap
>>
>>
>> try again; US article:
>> http://ktla.trb.com/news/la-me-gay3dec03,0,4033940.story?coll=
>> ktla-news-1
>> ----- Original Message -----
>> From: "Paul Diamond" <pauldiamond at btconnect.com>
>> To: "Law & Religion issues for Law Academics"
>> <religionlaw at lists.ucla.edu>
>> Sent: Monday, December 05, 2005 9:46 PM
>> Subject: Re: Swedish Pastor Beats "Hate Crime" Rap
>>
>>
>>> US article.
>>>
>>> Lesbian Fertility Patient Loses To "Religious Beliefs" ...
>>>>
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-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW
mailto:stevenjamar at gmail.com
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

"Any intelligent fool can make things bigger, more complex, and more  
violent.  It takes a touch of genius - and a lot of courage - to move  
in the opposite direction."

Albert Einstein


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