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The nation’s leading gay legal group has come down hard on the California Medical Association — long friendly on gay issues — for backing two Christian doctors who refused to inseminate a lesbian patient. In papers filed with San Diego’s 4th District Court of Appeal, Lambda Legal Defense and Education Fund criticizes the CMA for filing an amicus curiae brief in a suit that claims the doctors invoked religious beliefs as a subterfuge for discriminating against gays. In Lambda’s view, CMA is seeking to exempt physicians from state laws prohibiting discrimination based on sexual orientation. “Although CMA adamantly asserts that ethical and legal principles prevent physicians from discriminating based on sexual orientation,” Lambda and co-counsel say, “nonetheless it asserts, without support, that if discrimination has a religious motive, it somehow ceases to be discrimination and is permissible. “CMA’s proposal,” they continue, “would permit religious ideology, if sincerely held, to trump the needs of patients in virtually every case.” Curtis Cole, a partner in Thelen Reid & Priest’s Los Angeles office who represents CMA, said the doctors should be able to present their religious defense to a jury. “It should be for the jury to decide if defendants were exercising their religion or discriminating.” In a telephone interview last week, Jennifer Pizer, a senior counsel in Lambda’s Los Angeles office, called CMA’s decision to intervene in the case “surprising and disappointing.” “CMA has clear policies against sexual orientation discrimination,” she said. “And this was the first instance that I’m aware of where that policy needed to live and breathe. That’s why we were so disappointed to see them ignore the spirit, if not the letter, of that policy.” Guadalupe Benitez, a medical assistant who lives with her same-sex partner in northern San Diego County, sued the North Coast Women’s Care Medical Group Inc. in 2001 after Drs. Christine Brody and Douglas Fenton refused to inseminate her. They claimed their Christian beliefs prevented them from helping impregnate an unmarried woman. Both doctors had agreed to find other physicians willing to perform the insemination and vowed to have any additional costs borne by the medical group. Benitez has since undergone in vitro fertilization with another doctor and delivered a baby boy. Represented by attorneys at Lambda, Los Angeles’ O’Melveny & Myers and the office of Solana Beach, Calif., lawyer Albert Gross, Benitez filed suit in San Diego County Superior Court. She accuses the medical group and its two doctors of violating the state’s Unruh Civil Rights Act. “The act does not single out religious behavior for disparate treatment,” Margaret Carroll, counsel in O’Melveny’s Century City office, wrote in 4th District documents, “and its prohibitions are equally applicable to religiously and secularly motivated discrimination.” North Coast and the doctors are represented by attorneys in Carlsbad, Calif.’s DiCaro, Coppo & Popcke and the Alliance Defense Fund, the Scottsdale, Ariz.-based group that has fought San Francisco over same-sex marriage. They say that the California and U.S. Constitutions guarantee Brody and Fenton the free exercise of religion and, therefore, trump the Unruh act. In their amicus brief, lawyers for the CMA — the nonprofit association for more than 30,000 physicians — take no position on who is right or wrong in the dispute, and urge the 4th District to set no bright line favoring either a doctor’s constitutional right to religious freedom or a patient’s statutory right to be free of discrimination. Rather, the group asks that the court rule that individual disputes be resolved by jurors based on the unique facts of each case. In an interview, Thelen Reid’s Cole says CMA’s position falls in a middle ground. “Our position,” he said, “is that the doctors should at least be able to tell their story.” Neither side is happy that the CMA is straddling the fence, but attorneys for the doctors are satisfied that the association’s position supports their clients. Lambda, however, is incensed, arguing that the CMA’s amicus seems to contradict agency policies backing gay rights, especially in preventing doctors from discriminating against gays. “CMA tacitly proposes an open-ended religious exemption to any generally applicable law,” Lambda and co-counsel wrote. “CMA’s ‘solution’ impermissibly would elevate an individual’s religious belief as superior to the law of the land.” A “lack of rules, and CMA’s proposal to send everything to a jury,” they continued, “would keep business owners and patrons alike in the dark about their respective rights and duties, would cause discrimination to increase and would lead to a proliferation of litigation.” The questions being debated by all parties came in response to an order to show cause issued by the 4th District in response to a writ of mandate by the doctors. Neither side had sought the CMA’s amicus support, which while only advisory can have some persuasive effect with the court. Nonetheless, Cole’s brief points out that the Unruh act doesn’t prohibit discrimination based on marital status and that state law lets physicians decline to perform certain medical procedures due to reasons of conscience. “The Health & Safety Code allows physicians to refuse to perform abortions based on a ‘moral, ethical or religious basis,’” he argued. “Consistent with this position, both the CMA and the [American Medical Association] recognize that it is ethically permissible for a physician to decline a potential patient when the treatment sought is ‘incompatible with the physician’s personal, religious or moral beliefs.’” Physicians can even refuse to provide treatment that would prolong a patient’s life, they noted. Lambda responded to Cole’s arguments by saying CMA had offered “contradictory, confusing and erroneous positions.” They also note that the group failed to address Catholic Charities of Sacramento v. Superior Court, 32 Cal.4th 527, and Smith v. Fair Employment and Housing Commission, 12 Cal.4th 1143, two state Supreme Court rulings that prevent people involved in a commercial activity from superimposing their beliefs on others. “The lower court cites them,” Lambda’s Pizer said. “So what’s the purpose of submitting a brief that ignores controlling authority?” CMA’s logic, Lambda’s lawyers argue, would let Orthodox Jewish restaurant owners refuse to seat men and women at the same table, Muslim shopkeepers refrain from serving female customers not wearing veils and fundamentalist Christian business owners exclude gays. “The only pertinent question,” they wrote, “would be the sincerity of the businessperson’s religious beliefs.” The doctors’ lawyers at the Alliance Defense Fund, meanwhile, haven’t filed papers opposing CMA’s position. “We’ve got a strong position under the law, and CMA has taken a political position that doesn’t necessarily protect physicians to the same extent we think they deserve,” Murrieta attorney Robert Tyler said Tuesday. “I certainly do appreciate, though, that the CMA has come in at least on the side of the doctors recognizing that they do deserve protections.” An oral argument date hasn’t yet been set in the case, North Coast Women’s Care Medical Group v. Superior Court (Benitez), D045438.

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