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Wednesday, October 12, 2005 | In the latest in a line of recent ground-breaking cases concerning the rights of gay couples, an appeals court considered Tuesday the case of Guadalupe Benitez of Oceanside, who claims her doctors refused to artificially inseminate her because she is a lesbian.

The defendants argue that they have the right to refuse to perform a medical procedure on the basis of their deeply-held religious beliefs. At the heart of the matter is the question of whether a doctor can use the defense of freedom of religion to refuse to offer certain treatments to homosexuals.

The California Court of Appeals, Fourth Appellate District, Division One, heard oral arguments in the latest stage of the long-running legal battle.

The lawsuit, which Benitez first brought in 2001, is being held up while attorneys battle over the sticky issue of constitutional privilege versus anti-discrimination statute law and case-law.

Associate Justice Gilbert Nares said the case is likely to go all the way to the California Supreme Court.

Benitez, who is a lesbian, was employed by Sharp Mission Park, a medical group in North San Diego County. In 1999, she and her partner, Joanne Clark, decided they wanted to have children. Benitez approached her health care provider and was referred to North Coast Women’s Medical Care Group Inc., a health care service that contracted with Sharp to provide obstetrical and gynecological services to Sharp participants.

Because Benitez suffers from a common gynecological condition, she began to receive treatment for infertility from the medical care group. That’s where she said the trouble started.

Benitez alleges that from the get-go, she was discriminated against because of her sexual orientation. Her attorneys claim that from the first meetings Benitez held with her doctor, Christine Brody, Brody informed her that she had religious-based objections to treating homosexuals to help them to conceive.

Nevertheless, Brody did treat Benitez for 11 months, writing her prescriptions for fertility drugs and instructing her on a number of self-insemination methods. When none of these were successful, Benitez approached her doctors and requested they perform intrauterine artificial insemination (IUI).

Benitez alleges the doctors denied her such treatment.

Specifically, Benitez claims she was told by Dr. Douglas Fenton, a colleague of Brody’s, that because of the religious beliefs of various members of the medical staff, he would be unable to perform the artificial insemination for Benitez. Benitez claims she was told that the doctors would be unhappy assisting with such a procedure because of her sexual orientation.

Attorneys for the health care providers contest this point, saying that Brody merely stated that she objected to performing certain procedures on non-married women, regardless of their sexual preference. They say the doctors provided Benitez with the option of treatment from another doctor and that they promised to pay for that treatment.

Benitez, who contests the fact that the defendants offered to pay for treatment elsewhere, then sought the help of a doctor outside of her medical plan, at considerable personal expense. She now has a healthy, happy 3-year-old, Gabriel, and in August gave birth to twins, Sophia and Shane.

Attorneys for Benitez argue that the behavior of Brody amounted to discrimination either on the grounds of sexual orientation or marital status.

They claim the damage was done the moment Benitez was told she would receive different treatment because she is a lesbian. That, they said, represents one of the last bastions of discrimination still openly permissible in California today.

Attorneys for the medical center argued that the doctors in question have a defense for their conduct in the form of their First Amendment Right to freedom of religion. When the defendant attorneys raised that defense in the trial court, however, Benitez’s attorneys, who include lead attorney Jennifer C. Pizer of Lambda Legal in Los Angeles, filed a motion for summary judgment to strike that defense.

The defense attorneys took umbrage at that.

“The judge, much to our astonishment, granted their motion and essentially eliminated our defense of religious freedom and freedom of speech,” explained lead defense attorney Carlo Coppo, of DiCaro, Coppo & Popcke.

The defendants appealed to the Court of Appeal on that one point of law. The Court of Appeal agreed to hear the case – a rare occurrence for such an appeal. Hence yesterday’s oral arguments, which sought to establish whether the freedom of speech defense should be allowed to be heard as part of the trial proceedings.

The hearing itself was a complex jumble of legal argument that sometimes skirted around the central issue and revealed little of how the justices feel about the case.

Justice Richard D. Hoffman grilled Pizer about apparent conflicts between statutes. Some statutes, notably a new bill just signed by California Gov. Schwarzenegger, appear to mandate that companies allow their employees to exercise their religious freedom in refusing to undertake certain duties. These statutes appear to conflict with the Unruh Civil Rights Act, under which Benitez is bringing her case.

The Unruh Civil Rights Act outlaws discrimination by a business against a customer. Pizer argued that while other statutes give some leeway to employers to accommodate their employees’ religious beliefs, they do not give an employee free reign to discriminate by picking and choosing when they will perform a certain task.

“Those laws say if there’s a sincere religious objection to a procedure, then that religious objection has to be honored,” said Pizer, “but if the sincere religious belief that they have is that they will only do this for certain people, then that conflicts with [The Unruh Civil Rights Act].”

The key point, however, according to Pizer, is not the discrepancy between statutes but an apparent conflict between the Unruh Act and the constitutional right to freedom of religion.

In essence, lawyers for Benitez are arguing that the constitutional freedom has its bounds, notably when the exercise of such freedom amounts to discrimination, be that discrimination on the grounds of race, sexual orientation or marital status.

“The law that we have about religious objections, as given to us by the Supreme Court, says, as an important basic principle, your religious rights are protected, but only up to a certain point,” said Pizer. “You’re not allowed to burn down your neighbor’s house, you’re not allowed to refuse to pay your taxes, you’re not allowed to go speeding down the freeway.”

Not so, says Coppo. It’s the other way round.

“A statute,” he said, “the way it’s applied, has to allow for an accommodation of a constitutional right or liberty.”

On this central point, it’s anyone’s guess which way the justices are leaning.

“I think that some of the questions we heard today show that they’re grappling,” she said. “I certainly saw some moments where different justices seemed to have a little light bulb go off …”

Coppo said he hopes the justices will allow the defense of religious freedom to stand. He said he’s hopeful about the outcome of the case, and hopes to get the matter back to trial speedily.

That’s not likely to happen.

The justices have 90 days to consider the case and the attorneys expect they will probably use most of that time. When a decision is made, both attorneys agree that they will appeal an unfavorable decision to the California Supreme Court.

Benitez never dreamed her case would snowball like this.

“All I wanted was to have a baby,” she said. “We wanted to have a family … I just don’t understand why they seem to have the power to tell people ‘You can have a baby, you cannot.’ Why are they taking the role of God?”

Please contact Will Carless directly at

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