Sometimes things are different from what we think they are. This is so about a judgment of the California Supreme Court in August of this year. The case began several years ago when Guadalupe T. Benitez sued her doctors in the San Diego area who had been treating her infertility. She claimed that when the time came for her to have intrauterine vaginal insemination they refused on religious grounds, wholly and solely because she is a lesbian.
Criticized by some as an attack on religious freedom, the Supreme Court’s ruling on her behalf actually deserves our gratitude and praise. It merely requires us to treat others as we would have them treat us, an admonition that ought to have a familiar ring to those of us who think of ourselves as disciples of Jesus.
The first court summarily sided with Benitez, determining that California law does not allow religious defenses for discriminating against people because of their sexual orientations. The Court of Appeal set this ruling aside on the grounds that the doctors had not been given an ample opportunity to make their case. The Supreme Court granted Benitez’s petition for review.
Legal outcomes in situations like this depend upon some reading of the facts plus some interpretation of the law. In its unanimous ruling in the Benitez case, the California Supreme Court acknowledged the continuing factual dispute about whether her doctors refused her because she is not legally married, as they would have done with a single heterosexual woman, or merely because she is a lesbian; however, this was not its concern.
The Court addressed a focused legal question. “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?” it asked. “Our answer is no.”
From the point of view of Christian ethics this answer is exactly right. As it stated, the question the Court addressed pertained to an individual’s sexual orientation as suchthe kind of person he or she is in an important part of lifeand not upon a person’s activities, relationships, or desired medical procedures.
This question applies equally to homosexuals and heterosexuals, and whether they are celibate, faithfully married, or promiscuous. The Court addressed the sexual orientations of people, nothing more and nothing less. Failures to notice this might be the fountain of many misunderstandings and negative assessments.
Professional ethics, philosophical ethics, and theological ethics all agree that it is ethically wrong for doctors to accept or reject patients solely because of the kinds of persons they are in race, ethnicity, nationality, economic class, social standing, religion, philosophical perspective, political commitment, gender, sexual orientation, and so forth.
That this list from the world of ethics sounds much like California’s Unruh Civil Rights Act is a happy circumstance that can probably be explained historically. The important point is that health care professionals, especially those who think of themselves as continuing the healing ministry of Jesus, have been well acquainted with such norms for centuries, and most have acted accordingly.
The American Medical Association, one important source of professional ethics for doctors, puts it this way:
The creation of the patient-physician relationship is contractual in nature. Generally, both the physician and the patient are free to enter into or decline the relationship. A physician may decline to undertake the care of a patient whose medical condition is not within the physician’s current competence. However, physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity, or any other basis that would constitute invidious discrimination.
The ethical guidelines of all the medical specialties have similar norms. At least I know of no exceptions.
This is so because doctors, and other medical specialists, are not ethically unencumbered entrepreneurs. They are licensed professionals whom society gives opportunities and obligations it does not give others.
Along with law and ministry, medicine is one of the three primary professions in Western culture. No member of any of these professions, or any of the others that have emerged more recently, is free to post signs on office walls that say, “We reserve the right to refuse to serve anyone.”
Only prostitutes, only those who belong to the oldest “profession,” have an absolute right always to select their clients any way they want. Doctors, ministers, and lawyers do not have this right. This is part of what it means to be a professional.
When we turn to philosophical ethics, we recall that at least since the seventeenth century Western thinkers have highlighted the contractual nature of human societies in general. People like Thomas Hobbes, John Locke, Jean Rousseau, and others have all made permanent contributions in this area of thought.
In the twentieth century, John Rawls, an influential philosopher who long taught at Harvard University, developed social contract theory in a fashion directly related to our topic. He asked us to imagine that we are enjoying a lively discussion at the outset of our brand new society about the most basic rules and procedures we want it to have. There is a catch, however; this is that in this conversation we can know everything about the universe in general but nothing at all about our own personal characteristics.
Any one of us who can do so is free to explain the theory of relativity, for example. But we are not permitted to know whether we are male or female, black or white, rich or poor, theist or atheist, educated or uneducated, intelligent or unintelligent, heterosexual or homosexual, or anything else specifically about ourselves.
If in our imaginary conversation at the outset of our hypothetical new society we did not know whether we are gay or straight, would we want our basic policies to allow doctors to discriminate on the basis of sexual orientation alone? Or would we choose rules that would benefit all of us no matter which we are?
Our likely answer to this question is obvious. Not knowing this about ourselves we would prohibit doctors from excluding us from medical care solely on the basis of sexual orientation. This is part of what we learn from philosophical ethics. We should take it seriously.
Theological ethics is even clearer. It insists that we are all created in the image of God, that we have all sinned and fallen short of God’s glory, that God seeks reconciliationat-one-mentwith all of us, that the gospel includes breaking down the offensive walls of discrimination we build between all of us, that in the churchthe body of Christwe relate to each other and to those outside of the community of faith as mutually interdependent equals, that God’s plan for all of us includes everlasting joy if only we will accept it, and that in Jesus Christ there is neither Jew nor Greek, slave nor master, male nor female, and by legitimate extension, neither straight nor gay.
How, then, dare we even think of turning patients away solely and wholly because of their sexual orientations?
One of the sad features of our lives today is that we have leaders who sound as though they are pleading in our courts and elsewhere for religious freedom to discriminate against people in this way. I cannot imagine a reversal of Christian views and values that is more devastating than this one. Neither can I imagine a more severe violation of the Third Commandment: “Thou shalt not take the name of the Lord thy God in vain; for the Lord will not hold him guiltless that taketh his name in vain.”
As just one illustration of these ethically regrettable developments, I refer to some who have organized themselves into a group they call “Americans for Truth about Homosexuality.” Referring to the California Supreme Court ruling that we are discussing, the headline on its Web site screams “Pro-homosexual law kills religious freedom.”
This is not correct. The California Supreme Court knocked down one possible religious defense of the doctors’ actions; however, it left standing several others and it all but invited their lawyers to explore them.
Yet one thing the California Supreme Court said could not be clearer and, from the point of professional, political, and theological ethics, it could not be more right. This is that, whatever criteria doctors use in selecting their patients, they must apply them equally to homosexuals and heterosexuals alike. In and of itself, an individual’s sexual orientation is not enough to justify a religious refusal to provide medical care.
The Supreme Court did not kill religious freedom in this case, unless we mean the kind of religious freedom that some in previous generations insisted upon in their immoral defenses of slavery, racism, and colonialism. It simply requires us to do what we otherwise know we should.
This is especially so for those of us who are Christians. Never should we attempt to justify selecting among patients according to nothing but their sexual orientations. Never should we make Jesus say exactly the opposite of what he lived and taught. Never!
David Larson teaches in the School of Religion at Loma Linda University.
This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/1200