Once again, judges in California have taken sides in the culture wars. On Monday, in North Coast Women’s Care v. Benitez, the Golden State’s highest court ruled that doctors may not rely on their religious principles to refuse in-vitro fertilization for same-sex couples.
The decision runs roughshod over the First Amendment’s free-exercise clause, seeking to supplant Judeo-Christian principles with the state-imposed religion of secularism. This is a false choice under the federal Constitution, which makes room for both.
Early press reporting indicated that the California court had found the state’s “compelling” interest in preventing discrimination outweighed the complaining doctors’ religious scruples. That is not exactly accurate.
The so-called “strict scrutiny” test is the most demanding one used by courts. It is commonly invoked by judges to rationalize the invalidation of state laws deemed violative of constitutional rights. To defend, the state must demonstrate that the challenged regulation furthers a “compelling” public interest and is – here’s the hard part – the “least restrictive alternative” for safeguarding that interest. In other words, if there is any reasonable way the state interest could be advanced without suppressing individual rights, the statute must be thrown out.
Ordinarily, strict scrutiny has no bearing on cases involving the First Amendment right to exercise one’s religion. The U.S. Supreme Court has held that the test does not apply to a “neutral law of general application.” In non-lawyer-speak, these are laws that do not target religion and apply across the board to everyone.
A good example is found in the most important Supreme Court case in this area, Employment Division v. Smith (1990). At issue was an unremarkable criminal statute banning the possession, use, or sale of various narcotics. A religious sect, the Native American Church, argued that the ban violated its free-exercise right to make sacramental use of peyote. There was no indication the narcotics statute had targeted the sect in any way; it was a standard anti-drug law that happened to collide with the sect’s religious beliefs.
Writing for the Court, Justice Scalia explained that strict scrutiny analysis would be particularly inappropriate in cases involving religious practices. First, if courts entertained claims that an individual’s private convictions outweighed society’s laws, each person would become a law unto himself, potentially able to ignore any statute on purported religious grounds. That would invite anarchy.
Worse, it would put the courts in the unseemly position of ruling on which tenets in a belief system were central and deserving of immunity, and which, by contrast, could be regulated because they were of less theological significance. In a nation founded on religious freedom and dedicated to the proposition that the state does not oversee the sphere of spirituality, this would be unacceptable.
Consequently, the Smith Court adopted the “neutral law of general application” test. In essence, if a law is not hostile to religion (and most laws have nothing to do with religion), all persons are expected to follow it, and there is no free-exercise exemption based on the requirements of one’s faith.
In Monday’s ruling, California’s supreme court purported to follow this test. The state’s so-called “Unruh Civil Rights Act” subjects to civil liability any person who discriminates on the basis of sexual orientation. Seeing nothing overtly hostile to religion in the text, the judges found the Act to be a neutral law of general application. Thus, they reasoned that physicians could not rely on religious convictions to deny in vitro fertilization to a same-sex couple. Case closed.
Not so fast. The Court got it wrong on at least two counts.
First, the text of a statute is important, but it is not the end of the inquiry into whether a law is “neutral” and of “general application.” Construing its Smith precedent in Church of Lukumi Babalu Aye v. City of Hialeah (1993), the U.S. Supreme Court observed that mere “facial neutrality” in a law “is not determinative.” Rather,
The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids subtle departures from neutrality” . . . and “covert suppression of particular religious beliefs[.]” [Citations omitted.] Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt.
The California anti-discrimination statute, which was amended specifically to add sexual preference to a menu that did not originally reach that victim class, is plainly designed to ostracize good-faith religious objections to homosexuality. Among its transparent purposes is to give the secular side of the culture war victory over the religious side. Furthermore, it has exactly that effect even if the legislators’ intention was to ban discrimination against gay people based on less lofty motivations.
The California court never considered the possibility – the plain reality – that the anti-discrimination statute was a “subtle departure from neutrality” by which activists covertly sought to suppress mainstream religious beliefs. If it was, however, the law can’t be saved by pretending to neutrality. It can be upheld only if it furthers a “compelling” state interest and is the least burdensome means of so doing – an exacting standard made all the more impossible when we recognize that protecting (or, at least, refraining from interference with) freedom of conscience is itself a compelling state interest.
It is preposterous to suggest, as did the California court, that the anti-discrimination statute meets this rigorous test.
California has thousands upon thousands of medical practitioners. The doctors in this case were not seeking to ban in-vitro fertilization for gay couples. They were simply saying, “Don’t make me do it.”
What they want is freedom: freedom to hold their convictions just as gay couples are free to hold theirs. Freedom to depart from a secular-belief system tyrannically imposed by government – governments having been known to impose any number of beliefs deemed de rigueur at the time . . . and remembered now only for their close-minded noxiousness.
In modern America, plenty of room has been made for gay couples and their life choices. We needn’t vanquish religious believers to make those accommodations. Trying to do so, as California is, will not result in harmony and societal progress. It will add to the campaign of political correctness slowly and needlessly tearing the nation asunder.
– Andrew C. McCarthy is NR’s legal-affairs editor and the author of Willful Blindness: A Memoir of the Jihad.