I Object: the Rluipa as a Model for Protecting the Conscience Rights of Religious Objectors to Same-sex Relationships

• Jurisdiction: United States,Federal
• Publication year: 2009
• Citation: Vol. 59 No. 1

I Object: The RLUIPA as a Model for Protecting the Conscience Rights of Religious Objectors to Same-Sex Relationships

Erin N. East

I OBJECT: THE RLUIPA AS A MODEL FOR PROTECTING THE CONSCIENCE RIGHTS OF RELIGIOUS OBJECTORS TO SAME-SEX RELATIONSHIPS^†

ABSTRACT

In most states, the battle over same-sex marriage has become a showdown with either gay rights activists or religious conservatives prevailing. Each side is fearful of losing ground to the other. Many scholars have noted the threats to religious liberty that arise upon the recognition of same-sex marriage, but few have given significant attention to how religious liberty might be protected without abolishing the rights of same-sex couples. This Comment focuses on one manifestation of the conflict between same-sex rights and religious liberty: the conflict that arises when individuals and organizations are compelled by their religious beliefs to violate state civil rights statutes protecting same-sex couples. Such violations expose them to civil liability for acting in accordance with their religious beliefs.

This Comment examines the shortcomings of the United States Supreme Court's current free exercise jurisprudence as well as current broad-based statutes like the Religious Freedom Restoration Act (RFRA) in protecting religious objectors in the context of same-sex rights. It then proposes a number of possible ways to protect religious objectors, concluding that while state statute-specific exemptions would be a more direct, and perhaps preferred, method of protecting religious objectors, the absence of state solutions and the need to implement a uniform approach to rights of conscience suggest a federal approach. A statute modeled on the Religious Land Use and Institutionalized Persons Act, (RLUIPA) would provide a more comprehensive and balanced approach than the funding legislation that has typically been used by Congress to protect other types of conscience rights. By providing some protection for religious individuals, such a federal conscience statute could lessen the tension between advocates for gay rights and advocates for religious liberty. While this Comment focuses explicitly on certain classes of religious objectors in the context of same-sex rights, the

[Page 260]

proposed solution could include provisions covering any class of religious objectors.

INTRODUCTION

But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

—Justice Robert Jackson¹

Guadalupe Benitez is a lesbian woman who decided with her partner Joanne to have a child.² After several unsuccessful attempts to become pregnant, Benitez was diagnosed in 1999 with polycystic ovarian syndrome, a condition that is characterized by irregular ovulation.³ As a result, Benitez was referred to the North Coast Women's Care Medical Group, Inc. (North Coast), where she met with Dr. Christine Brody, an obstetrician-gynecologist.⁴ Dr. Brody informed Benitez of the possibility of using a procedure called intrauterine insemination (IUI) to get pregnant.⁵ Unlike the more common practice of self-insemination that Benitez had been using, during IUI a doctor inserts semen directly into the patient's uterus through a catheter.⁶ In explaining this procedure, however, Dr. Brody told Benitez up front that if IUI became necessary, she would not be able to perform the procedure for Benitez because of her religious beliefs.⁷

Following their initial conversation, Dr. Brody continued to treat Benitez for infertility, performing diagnostic surgery and prescribing ovulation-inducing medication to be used in conjunction with self-insemination.⁸ At some point in 2000, based in part on Dr. Brody's advice, Benitez decided to try IUI.⁹ Dr. Douglas Fenton, another physician at North Coast, was asked to

[Page 261]

perform the procedure, but he also refused because of his religious beliefs.¹⁰ Dr. Fenton referred Benitez to a physician outside the North Coast practice who performed the IUI.¹¹ Benitez did not become pregnant as a result of the procedure but eventually resorted to in vitro fertilization, which enabled her to conceive in 2001.¹² Shortly thereafter, Benitez filed suit against North Coast, Brody and Fenton, alleging violation of California's Unruh Civil Rights Act, which prohibits discrimination on the basis of sexual orientation.¹³ Among other defenses, Brody and Fenton asserted that their refusal to perform IUI for Benitez was protected under the free exercise clauses of the U.S. and California constitutions.¹⁴

In August 2008, the California Supreme Court ruled on the doctors' defenses, holding that, to the extent their refusal to perform the procedure was based on Benitez's sexual orientation, the act of refusal was not protected under either the federal or state constitutions.¹⁵ Advocates for same-sex rights celebrated the decision as a victory over "fundamentalist Christian doctors."¹⁶ Benitez spoke out saying, "it's a win for everyone, because anyone could be the next target if doctors are allowed to pick and choose their patients based on religious views about other groups of people."¹⁷ Not everyone shared this enthusiasm, however. Americans United for Life, an anti-abortion advocacy group, issued a news release entitled "California Supreme Court Ruling Threatens Medical Care and Religious Freedom."¹⁸ The group argued that the decision will only worsen the shortage of healthcare workers and that,

[Page 262]

ultimately, forcing healthcare workers to perform procedures that violate their conscience will not benefit patients.¹⁹

The dispute in North Coast Women's Care Medical Group Inc. v. San Diego County Superior Court is just one example of the sort of conflict that can arise between the statutory right of a same sex couple to be free from discrimination and the right to religious freedom of a private party who refuses to perform procedures that violate their conscience. In recent years, similar conflicts have arisen between individuals seeking to effect their rights to reproductive health services, including abortion, and health care providers who, for example, refuse to perform abortions or dispense oral contraception.²⁰ This Comment specifically addresses conflicts that, as in North Coast, arise between the rights of same-sex couples and the religious liberty of those who object to performing certain services for same-sex couples. Part I of this Comment discusses the current landscape of rights afforded to same-sex couples under state and federal law and provides examples of specific conflicts that could arise.²¹ This Part suggests that in determining the proper scope of any religious exemptions, potential conflicts should be evaluated based on several factors, including the availability of alternative service providers and how directly the views of the individual or organization refusing to provide services conflict with the requirements of the law protecting same-sex couples. Part II presents both policy-based arguments and historical precedents for providing exemptions for certain categories of religious objectors whose duties conflict with same-sex rights.²² This discussion demonstrates that far from

[Page 263]

being a radical solution, religious exemptions are grounded in the American historical tradition.

Part III discusses the shortcomings of the Supreme Court's current free exercise jurisprudence, demonstrating that the U.S. Constitution, as currently interpreted by the Court, provides little functional protection for religious objectors in the context of same-sex rights. Part III also examines free exercise protections under state constitutions and concludes that, while state constitutions may offer more protection for religious objectors than the U.S. Constitution, the end result is often the same. Part IV analyzes the effectiveness of a variety of statutes that have been used to expand the free exercise of religion, including statute-specific exemptions as well as statutes such as the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), which raise the level of scrutiny for certain free exercise claims. Part IV concludes that these statutes do not adequately protect religious objectors²³ in the context of same-sex marriage.

Given the diversity of state statutes and constitutional provisions protecting free exercise and the weak interpretations by courts of these provisions, Part V argues that a federal statute that provides religious exemptions is the best way to achieve an appropriate balance between the rights of same-sex couples and the religious liberty of religious objectors. Specifically, a federal statute modeled on RLUIPA, which effectively requires the application of strict scrutiny to free exercise claims against states involving prisoners and land use, would provide a balanced, uniform approach to protecting the rights of religious objectors in all states without nullifying the rights of same-sex couples.

I. THE CONFLICT BETWEEN SAME-SEX RIGHTS AND RELIGION

Over the past few decades, much controversy has ensued over the issue of same-sex relationships.²⁴ Scholars have debated from religious, social, and economic perspectives the pros and cons of allowing same-sex marriage, civil

[Page 264]

unions, and other legal relationships.²⁵ Legislatures have responded to these debates in a variety of ways. Section A provides an overview of the current state of the law regarding the rights of same-sex couples. Section B examines the scope of the conflicts that arise between one party's civil rights to engage in same-sex relationships²⁶ and another party's rights to religious freedom, arguing that the more direct the religious objector's role in establishing marriage or family, the greater the need for religious exemptions from laws that establish the rights of same-sex...