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Two Southern California doctors will get a chance to prove that a lesbian patient’s sexual orientation didn’t have anything to do with their refusal to provide artificial insemination. On Friday, San Diego’s 4th District Court of Appeal ruled that Drs. Christine Brody and Douglas Fenton should be allowed to present evidence that they aren’t biased against gays, but rather have religious-based objections to inseminating unmarried women — homosexual or heterosexual. At the time of the doctor’s treatment refusal, the 4th District held unanimously, marital status discrimination wasn’t a violation of the state’s Unruh Civil Rights Act. The decision, authored by Justice Terry O’Rourke, overturns a summary judgment that rejected the doctor’s religion defense. It also ignores the pleas of more than 15 civil rights and medical groups that had sided with the plaintiff, Guadalupe Benitez. Benitez sued the two doctors and Vista, Calif.-based North Coast Women’s Care Medical Group in 2001 after being refused an intrauterine insemination. Brody and Fenton said their religious beliefs prohibited them from administering that particular treatment, and argued that they were shielded by the federal and state rights to free speech and freedom of religion. Benitez and her domestic partner, Joanne Clark, contend that the doctors said their religious beliefs pertain to treating lesbians, whereas the doctors say they apply only to single women. “Dr. Brody and Dr. Fenton are entitled to present evidence that their religious beliefs prohibited them from performing IUI on any unmarried woman,” O’Rourke wrote, “regardless of the woman’s sexual orientation.” The case got some attention earlier this year when gay groups angrily protested the California Medical Association’s participation as an amicus curiae for the doctors. The CMA attempted to withdraw its brief in September and replace it with a new one clarifying its position as gay-friendly, but the court refused. Instead, the court treated CMA’s request as an abandonment of its original position. In Friday’s ruling, O’Rourke noted that in August the California Supreme Court issued an opinion — Koebke v. Bernardo Heights Country Club, 05 C.D.O.S. 6731 — that “arguably” applies the Unruh act to marital status. He also pointed out that a month later Gov. Arnold Schwarzenegger signed legislation expressly including marital status and sexual orientation under the terms of the act. Nonetheless, O’Rourke found that neither the ruling nor the legislation applied retroactively and, therefore, had no bearing on Benitez’s case. Joined by Justices Richard Huffman and Gilbert Nares, however, O’Rourke ruled to construe the Unruh act as prohibiting sexual orientation discrimination, but not bias based on marital status. They also held that even if Koebke could be applied retroactively, the language of the ruling “suggests that whether a claim of marital status discrimination is cognizable under the Unruh act must be decided on a case-by-case basis, and that [such] discrimination is unlawful … unless it is justified by a legitimate business interest.” Jennifer Pizer, one of Benitez’s lawyers, criticized the decision on Friday, saying the justices had confused the two parties’ claims and ignored state and federal precedents. “It is not permitted under California or under U.S. law for somebody operating a business to cause harm to others in the name of religion,” said Pizer, senior counsel in the Los Angeles office of Lambda Legal Defense and Education Fund. “We will be seeking California Supreme Court review.” The case is North Coast Women’s Care Medical Group v. Superior Court (Benitez), D045438.

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