Raw Majority Power: Why Checks and Balances Matter
An epic battle played out on two levels at the California Supreme Court on March 5. On a surface level, attorneys fought over a technical issue of whether the Proposition 8 prohibition on gay marriage represented a revision or an amendment. On the deeper level, the question asked was whether there are any limits on the majority to impact the rights of the minority.
It was a powerful argument – that the people of the State of California have the “raw power” to change the state constitution in any way that they please.
Ken Starr, an esteemed advocate, may have won the battle but lost the war when he asserted that, “the right of the people is inalienable to change their constitution through the amendment process. The people are sovereign and they can do very unwise things, and things that tug at the equality principle.”
Chief Justice Ronald George stretched Starr’s argument to explore its dimensions. He leaned in and asked a hypothetical – if Proposition 8 said that homosexuals had no right to form a family relationship or raise children, could that still be done by amendment? Starr said it could. Then George took the argument to the constitutional wall – could the voters also remove the right to free speech? Starr said yes, the voters have this right.
ANALYSIS: California Supreme Court unanimously rules that physicians cannot withhold fertility treatments to homosexuals
Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, exempt a medical clinic’s physicians from complying with the California Unruh Civil Rights Act’s prohibition against discrimination based on a person’s sexual orientation? The California Supreme Court says “No.”
Today, the California Supreme Court unanimously issued its long awaited ruling in Benitez v. North Coast Women’s Care Medical Group. This case involved, Guadalupe Benitez, 36, of Oceanside who said that the doctors treated her with fertility drugs and instructed her how to inseminate herself at home but told her that their religious beliefs prevented them from performing the procedure. One of the doctors referred her to another fertility specialist where she ultimately received treatment.
In issuing the decision, the California Supreme Court relied on the 1990 United States Supreme Court case Employment Division v. Smith, the California Supreme Court said that the law requiring physicians to treat was neutrally worded not designed to discriminate against any particular religious belief.
Further, the court referenced the fact that the physicians had originally claimed not to want to treat the lesbian couple because they were “unmarried,” not because they were lesbians. Lawyers for the physicians had reasoned that because gay marriage was not legal, that this marriage defense would stand under the theory that sexual orientation was a clearly protected class.
Regardless of one’s view of the outcome, the fact that the court used Smith as a basis for its decision is troubling because smith stands for the protection that the actual language of a statute will survive even if it has a discriminatory effect so long as it is worded neutrally and was not intended to discriminate. What this means is that a legislature can pass a discriminatory law, and if it meets these criteria, it can stand even when it has an adverse effect on a minority group.
Other applications of this law, which is becoming enshrined in American jurisprudence, would protect the state in any situation in which a group was inadvertently disadvantaged by a generally applicable law that appeared to be neutral on its face. In other words, if your beliefs preclude something that the law requires, you will not be protected even if you could be easily accommodated.
If you are a Seventh-day Adventist, for instance, and the law requires a professional test is required to be held on Saturday, you may have to choose between forfeiture and violating your religious beliefs. After all, the law is neutrally worded and was not designed to single you out. Although you may be accommodated, that is only due to the good graces of the organizers. Otherwise, the law requires no exception even if reasonable alternatives are available.
The Benitez court relied on the overly broad strokes of Smith to write a decision that will make it difficult for California employees to be exempted from those job duties that require them to act against their faith. When added to the requirements of Hardison v. TWA, the U.S. Supreme Court case that said that employers do not have to accommodate the religious beliefs of their employees if it costs more than a “di minimis” amount, America’s religious employees are going to have a much more difficult time receiving accommodation if their faith conflicts with their job duties.
Of course, this raises the interesting question of just who is being discriminated against. Is it the lesbian couple who seeks a common medical procedure, or is it the doctors who are forced to provide the procedure against their religious beliefs? What if the doctor is fired for refusing to provide the procedure?
We live in an age when rights conflict, and when both sides can legitimately claim discrimination. However, when the courts make these decisions, we can only hope that they are based on solid legal ground. This decision was overly broad and its effect will cut both ways.
You can read the full decision at
| Aug 18 2008 |
S142892 [PDF][DOC] |
North Coast etc. v. Super. Ct. 8/18/08 SC |
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