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In Which I Pretend To Be A Law Student

By Jesse Taylor
Tuesday, August 19, 2008 12:27 EDT
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imageI realize that I’m treading on incredibly shaky ground by addressing a legal argument two weeks before I start law school, and risk ruining the entirety of my career by falling flat on my face complaining about a National Review columnist. But hey, I gotta call stupid where I see it.

Andrew McCarthy’s druthers are up about the recent California Supreme Court decision (North Coast Women’s Care v. Benitez) that disallowed discrimination on the basis of sexual orientation as it relates to health care. The problem, you see, is that the obvious intent of anti-discrimination laws is to stop people who want to discriminate from discriminating. McCarthy discusses a doctrine called “strict scrutiny” – the simplest explanation of which is that if a law is challenged based on the perception of discrimination, the state must prove that the law furthers a compelling state interest and that it’s the least restrictive alternative for advancing that interest. Ironically enough, its focus is doing no (or the least) amount of harm in order to protect the greater body of rights. McCarthy:

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.

Of course they did.

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.

First, the purpose of anti-discrimination laws is to aid those who are being discriminated against. If there is no such discrimination, there’s no point for the laws. A law that bans the overt practice of discrimination for whatever reason when intersected with a form of discrimination that is most prominently religious in nature must be weighed on the side of those who find themselves discriminated against, not those who practice the bigotry. The abolitionists and suffragists found themselves often against powerful and pervasive religious arguments, but if the point of the First Amendment is to declare religious supremacy over all other rights, it’s really not clear in the text.

Anti-gay Christians have every right to be anti-gay. But they don’t have the right to put others’ lives or health on the line as a part of that bigotry. Would a doctor belonging, say, to a radical black separatist church have the right to deny care to a pregnant white woman in an emergency situation?

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.”

Small problem: the state has a compelling interest in insuring that gay and lesbian citizens are not discriminated against based on their sexual orientation. And if the argument of the doctors is “don’t make me perform a valid medical procedure because I don’t like the people I’m performing on”, then my argument is go get a box of Legos and build me a castle, because you shouldn’t be practicing medicine. His problem isn’t the law, his problem is that he just really likes bigotry. By his definition, virtually all anti-discrimination statutes are violations of strict scrutiny, because they plainly target those who discriminate over those who don’t.

There’s a plain point where your right to a religious belief interferes with my right to live my life. Where does McCarthy believe that point is?

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 rigeur at the time … and remembered now only for their close-minded noxiousness.

You are perfectly free to hold those beliefs. You are not free to practice them in a way that unjustly interferes with others’ lives. This is not difficult.

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.

Things that tear the nation asunder: bigots forced to deal with things and get past their bigotry. Things that keep the nation together: telling sizable blocks of our population that they’re at continual risk of having their medical care imperiled based on the luck of the draw. Other things that keep the nation together: separate water fountains.

Jesse Taylor
Jesse Taylor
Jesse Taylor is an attorney and blogger from the great state of Ohio. He founded Pandagon in July, 2002, and has also served on the campaign and in the administration of former Ohio Governor Ted Strickland. He focuses on politics, race, law and pop culture, as well as the odd personal digression when the mood strikes.
 
 
 
 
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