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A war of the amici is under way as the California Supreme Court readies itself for what could become one of its most controversial cases in years. Forty groups have filed amicus curiae briefs, either individually or jointly, in a case that pits doctors’ rights to religious expression against patients’ rights to treatment without discrimination. The case involves two San Diego-area doctors who, based on their Christian beliefs, refused to provide artificial insemination to a lesbian in their care. They claimed they weren’t averse to treating gays, but rather had religious objections toward helping impregnate an unmarried woman. Twenty-four of the amici are gay or liberal civil rights organizations backing patients, while 16 are religious groups or conservative law associations siding with doctors. The case hasn’t yet been set for oral argument, but it already has people talking � and emotions are high on both sides.Opinions by the amici run the gamut � from the reliably liberal American Civil Liberties Union, which claims that state anti-discrimination laws prevent doctors from engaging in selective treatment, to the arch-conservative Foundation for Free Expression, which calls homosexuality a “sin” and compares gays to terrorists. Attorneys for the opposing parties welcome the briefs, for the most part, noting that they help flesh out the issue and provide a real-world perspective that might not get addressed otherwise. For example, Jennifer Pizer, the Lambda Legal Defense and Education Fund staff attorney who represents plaintiff patient Guadalupe Benitez, noted that a brief filed by Kaiser Foundation Health Plan Inc. and two other medical organizations draws on their doctors’ own experiences in treating lesbians, gays, bisexuals and transgenders. “They speak as medical providers with expertise and authority,” said the Los Angeles-based Pizer, “and [with] a track record that shows top quality care requires an uncompromising commitment to non-discrimination.” Kenneth Pedroza, the partner in Pasadena’s Cole Pedroza who represents Drs. Christine Brody and Douglas Fenton and the Vista-based North Coast Women’s Care Medical Group, couldn’t be reached for comment by press time. But several of his amici expressed moral objections, saying doctors don’t give up their liberty rights once they take the Hippocratic Oath, and shouldn’t be forced to ignore their religious convictions. “A medical profession free of conscience is indeed a frightening prospect,” Chicago lawyer Mailee Smith wrote for the Christian Medical and Dental Associations, Physicians for Life and the American Association of Pro Life Obstetricians and Gynecologists. The Supreme Court granted review after a state appeal court ruled in 2005 that Drs. Brody and Fenton, sued for alleged discrimination, should be allowed to present their religious objection defense to jurors. Several of the doctors’ amici � such as former U.S. Attorney General Edwin Meese III, who filed a brief on behalf of the Virginia-based American Civil Rights Union � call for a middle road that would let doctors with religious objections refer patients to others. But many groups backing the patients call that an unworkable form of discrimination. “If physicians were permitted � to refuse to treat a patient simply because a medically irrelevant personal characteristic of that patient � his or her skin color or gender or religion � conflicted with the physician’s own moral and religious values,” Morrison & Foerster partner Angela Padilla wrote for the Gay and Lesbian Medical Association and others, “a widespread inability of certain patients to obtain medical care would inevitably ensue.” INTO DELICATE TERRITORY Liberal groups have high hopes that the case will go their way. In recent years, the California Supreme Court has issued several gay-friendly rulings � holding, for example, that cities can refuse to offer discounted facilities to groups that have anti-gay policies and that businesses must grant registered domestic partners the same privileges as married couples. The court has also reinforced the rights of nonbiological parents in same-sex relationships, and approved second-parent adoptions. However, North Coast Women’s Care Medical Group v. Superior Court (Benitez), S142892, puts the court in the uncomfortable position of exploring the almost-sacred physician-patient relationship. The court must decide whether there’s any way to accommodate an individual doctor’s constitutional right to religious expression with the state’s Unruh Civil Rights Act, which outlaws discrimination of any type. The California Medical Association essentially has taken a neutral role at this point, after siding with the doctors at the appellate level with a brief that opponents viewed as anti-gay. The state attorney general has sided with patients. The case � which Meese labeled “potentially a landmark, historic case” � has pulled together a broad coalition on the conservative side. Christian, Islamic and Jewish groups have joined ranks to stand up for doctors’ religious rights, alongside pro-life groups and conservative public interest firms such as the Michigan-based Thomas More Law Center. The views of the plaintiff’s side of the debate are represented largely by prominent medical groups, health organizations and associations representing the rights of gays, women and immigrants. The brief that easily stands out for its extreme tone, though, is by the Foundation for Free Expression. Writing for the foundation, Swansboro, N.C., attorney Deborah Dewart attacks homosexuality head-on. She compares gays to “suicide bombers who destroy themselves while they murder others,” accuses the government of trying to force unwanted views of sexual morality on to unsuspecting doctors, and calls homosexuality “not a minor aberration, but a revolutionary attack on God’s creation and His plan for both the family and the church.” In a response brief, Pedroza, the doctors’ lawyer in the case, disavowed much of the “offensive language” and “tone” of the foundation’s arguments. He also claimed the foundation’s emphasis on gays was “misplaced” because, he said, Drs. Brody and Fenton refused to treat based on the patient’s unmarried status, not her sexual orientation. Jon Eisenberg, who’s serving as co-counsel with Pizer, believes, however, that the foundation’s brief says more about the doctors’ arguments than they let on. “Sometimes the mask of reason slips,” the Eisenberg and Hancock partner said. “This brief says exactly what the other amici curiae would like to have said, but knew better. They all but said, �God hates fags.’ And I think it sheds light on every single one of these amicus curiae briefs and where they are coming from. They have a pure anti-gay agenda.” Senior Writer Mike McKee’s e-mail address is [email protected]

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