Wednesday, August 20, 2008


As I wrote in May, doctors in California hoped to escape liability for refusing to provide fertility treatment to Lupita Benitez by arguing that her unmarried status, rather than her sexual orientation, led to their denial. They also argued that they had a religious objection to treating her and that this was protected by the First Amendment guarantee of religious freedom. This week, the California Supreme Court issued its opinion.

The Court ruled unanimously that the doctors could not claim a First Amendment basis for denying fertility treatment to lesbians. State law made clear that businesses could not discriminate on the basis of sexual orientation, and the doctors were required to comply with that law. So far, so good. But at the time the denial of treatment took place, discrimination on the basis of marital status was not banned in California. So the court's ruling says that the doctors can still defend the Benitez lawsuit by arguing as a factual matter that they denied her treatment because she was single, not because she was a lesbian.

When asked whether she would treat a married lesbian, one of the defendant doctors said, "I don't know." But that's the wrong question, isn't it? Marital status shouldn't determined who has access to fertility treatment. That's the law now in California and should be the law everywhere.

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