June 3, 2010

Tensions Between Rights of Conscience and Civil Rights

Should doctors, pharmacists and other health care workers have the right to refuse to provide services that conflict with their religious beliefs? Until recently, the debate over “conscience protections” for health care workers centered largely on abortion and birth control. But in the past few years, new cases have emerged that have expanded the debate and raised questions about the tensions between individuals’ rights of conscience and the need to protect certain groups against discrimination, notably gays and lesbians. These new cases involve health care workers – in one case doctors at a California fertility clinic, in another case a graduate student in Michigan studying to become a counselor – who refused to treat gay and lesbian patients because they felt that doing so would compromise their core religious beliefs. While religious organizations and institutions are exempt from certain nondiscrimination laws, there is debate over whether private individuals and businesses should have similar rights. To explore this issue, the Pew Forum turned to Professors Ira “Chip” Lupu and Robert Tuttle.

Featuring:
Ira “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School

Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School

Interviewer:
David Masci, Senior Research Fellow, Pew Research Center’s Forum on Religion & Public Life


 

Briefly, describe the Michigan case, Ward v. Eastern Michigan University. What led to the lawsuit and what are the key legal issues involved?

In March 2009, Julea Ward, a student at Eastern Michigan University (EMU), was dismissed from her graduate-level counseling program when she refused to counsel a gay man about a same-sex relationship. The program, run by the University’s Department of Counseling and Education, aims to give students real world experience by requiring them to counsel several clients, who pay a small fee, over the course of a semester. After reading this client’s file, Ward asked a supervisor to refer him to another student counselor and to assign her another client. In making this request, Ward stated that her Christian beliefs about homosexuality would prevent her from affirming the client’s relationship with another man. The supervisor claimed that Ward’s refusal violated the ethical obligations of a counselor not to discriminate against clients based on sexual orientation or to impose one’s personal beliefs on clients. Based on this judgment, the school expelled Ward from the counseling program.

Ward filed suit in federal district court in the Eastern District of Michigan, alleging that the school violated her constitutional rights to free exercise of religion and freedom of speech. In particular, she argued that she had been expelled because the supervisor objected to her religious beliefs about homosexuality. EMU, citing the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988), as well as several lower court decisions in which courts had shown deference to academic officials in disputes involving educational issues, asked the court to dismiss the lawsuit. Ward claimed, however, that the school’s rationale for her dismissal was merely a pretext for the faculty’s hostility to her religious beliefs about homosexuality, which she had expressed in class as well as to her supervisor. In addition, she argued that counselors do not have a professional obligation to counsel all clients about all issues. Instead, she said, they are permitted to refer clients to other counselors if a client’s needs conflict with the counselor’s moral convictions.

In March 2010, the court rejected the school’s motion to dismiss the case. The lawsuit will now go forward in district court, focusing on whether EMU’s expulsion of Ward arose from its application of a reasonable school policy or from hostility toward Ward’s religious beliefs.

Have other health care providers or people in related professions sought religiously based exemptions from rules that would require them to serve gays and lesbians? If so, in what contexts did those requests arise, and what has happened in these cases?

Disputes over the duty to serve gays and lesbians on equal terms have arisen in a number of settings, from housing and adoption to online dating services and wedding photography. (See “A Clash of Rights? Gay Marriage and the Free Exercise of Religion.”) But only a few of these disputes have involved health care services.

Before Ward v. Eastern Michigan University, the most prominent case was North Coast Women’s Care Medical Group v. Benitez, which was decided by the California Supreme Court in 2008. In North Coast, Guadalupe Benitez, a lesbian, brought suit against North Coast Women’s Care, a medical clinic that was treating her for infertility. Two doctors at the clinic declined to perform artificial insemination for Benitez. Because no other doctors at the practice were qualified to perform the procedure, she was referred to another clinic for treatment. Benitez argued that the doctors’ refusal was based on her sexual orientation, and thus violated her rights under California’s Unruh Civil Rights Act (the Unruh Act), which prohibits discrimination based on a host of factors, including race, gender, religion, disability and sexual orientation. The doctors claimed that they had a religious objection to providing the treatment to Benitez, so they should be exempt from liability under the Unruh Act.

The California Supreme Court ruled against the doctors. The court concluded that their religious objections did not outweigh Benitez’s right to receive medical services without discrimination. Under the U.S. Constitution’s Free Exercise Clause, the court reasoned, individuals have no right to be exempted from general laws that incidentally burden their religious beliefs. Indeed, the court stated, the Free Exercise Clause protects only against laws that single out religion for special disfavor, which was not the case here. (See A Delicate Balance: The Free Exercise Clause and the Supreme Court.)

The lawsuit in Michigan and the decision in California are the only recent U.S. cases involving health care and gays and lesbians. However, a case very similar to the Michigan suit was decided in England in 2010. In that case, McFarlane v. Relate Avon Ltd., the England and Wales Court of Appeal ruled against a counselor who had been fired for refusing to work with a same-sex couple. While the counselor claimed that it would violate his religious beliefs to provide psycho-sexual therapy to same-sex couples, his employer said that all counselors were required to serve all couples. After he was fired, the counselor filed suit, alleging that he was being discriminated against based on his religious beliefs. The court ruled that the counselor had no legal right to be excused from serving same-sex couples.

How do the Michigan and California cases differ from cases involving doctors and abortion, or cases involving pharmacists and birth control?

The most important difference centers around the fact that federal and state legislatures have enacted laws granting exemptions for obstetricians and other health care professionals with respect to abortions (and, in a much more limited way, for pharmacists with respect to birth control). The abortion-related legislation reflects the view that people should not be forced to perform an act that they perceive as life-destroying. At the same time, legislatures have not been inclined to exempt health care professionals from laws forbidding discrimination based on characteristics such as race, gender or sexual orientation. Courts might not want to fill this gap and create those exemptions. Courts generally see anti-discrimination laws as serving important social purposes, and they are often concerned that such laws could be undermined by exemptions.

Another important distinction involves the possible extent to which services are withheld. Indeed, there might be a considerable difference, particularly from the government’s perspective, between an obstetrician’s refusal to perform abortions and a therapist’s refusal to counsel a gay man. The obstetrician has not refused to care for an individual or group of people, but only to perform a specific service. By contrast, the therapist’s refusal denies all services to anyone in a same-sex relationship with issues arising from that relationship, even though the therapist remains willing to provide comparable services to those in heterosexual relationships. The therapist’s decision could therefore be seen as undermining the state’s interest in protecting gays and lesbians from discrimination.

What arguments have been made by those who, like the student therapist in the Michigan case, seek moral or religious exemptions?

People who seek these exemptions usually make the following arguments. First, they assert that they are not opposed to serving gay or lesbian clients; rather, they are religiously opposed to aiding or facilitating certain aspects of same-sex relationships. For example, in the EMU case, Ward argued that she did not want to counsel a client with respect to his homosexual relationship but was willing to counsel him about other aspects of his life. Second, they contend that federal or state constitutional protections of religious liberty entitle them to these exemptions. Finally, proponents of such exemptions argue that granting an exemption will cause little or no harm to gay and lesbian clients because equally competent professionals are ordinarily willing to provide the services. Indeed, they say, as long as the number of exemption-seekers is small, and the number of professionals willing to serve such clients is large, the gay and lesbian clients will have adequate service.

Ward explicitly relied on the American Counseling Association’s Code of Ethics in arguing that she should be entitled to refer a client to another counselor in the EMU program if she determines that her personal moral convictions make it impossible for her to work effectively with that client. In the California case, the North Coast Women’s Care Medical Group made a similar argument about referral, though in that case, the referral would have been to a fertility specialist outside the North Coast group, because no one within the group was both willing and qualified to treat Benitez.

What arguments have been made by those, like Eastern Michigan University, that oppose such exemptions?

The opponents of exemptions typically make several arguments. First, they deny that state or federal constitutional law authorizes any such exemption. In Employment Division v. Smith (1990), they point out, the U.S. Supreme Court ruled that the clause of the First Amendment protecting the “free exercise of religion” does not entitle individuals with religious objections to exemptions from generally applicable laws. Likewise, state courts in Michigan have interpreted their state constitution’s guarantees of religious liberty in a similar manner. Citing Smith, the university argues that because its nondiscrimination policies are “generally applicable” (they apply with equal force to all students in the program), they are not subject to religious exemption claims.

Second, opponents assert that the state has very good reasons for refusing to grant exemptions based on religion or conscience. Specifically, they contend that any refusal to provide services harms the dignity of gay and lesbian patients and reduces the availability of qualified professionals to treat them.

Third, some opponents of religious exemptions see them as being at odds with professional obligations. In the Eastern Michigan case, for example, the faculty in the Department of Counseling and Education asserted that Ward had behaved unethically by “imposing values that are inconsistent with counseling goals,” which include working to promote the psychological well-being of all eligible clients. The faculty also asserted that the professional code of ethics does not apply in this situation because it conflicts with the nondiscrimination requirements that apply to all clients served by the EMU counseling program’s curriculum.

Are we likely to see many more conscience-related disputes that involve sexual orientation? If so, how are these cases likely to be resolved?

As illustrated by the Michigan and California cases, future health care-related cases are likely to involve counseling for those clients who seek advice with respect to same-sex relationships and medical treatment on matters of fertility and reproduction. These are the areas in which some professionals who are religious may have difficulties because they do not want to facilitate or promote same-sex intimacy. In contrast, we do not expect to see cases in which medical professionals refuse to treat a patient for physical ailments or psychological problems solely on the ground of the patient’s sexual orientation.

Similarly, future conflicts also are likely to arise out of same-sex weddings and commitment ceremonies. There have already been disputes in England and Canada over whether public officers – marriage license clerks or officers empowered to preside at weddings – may refuse to participate in formalizing same-sex partnerships. In addition, there have been cases of photographers and others in the business of providing wedding-related services who have refused on religious grounds to work at same-sex wedding ceremonies and receptions. (See “A Clash of Rights? Gay Marriage and the Free Exercise of Religion.”)

In the roughly half of states that prohibit discrimination against gays and lesbians, we think the disputes are likely to be resolved against those seeking exemptions, unless state legislatures create specific rights of exemption with respect to same-sex wedding celebrations. Thus far, at least in the states that have legislatively recognized same-sex marriage, lawmakers have refused to recognize the right of public employees, or commercial providers of goods and services for weddings, to refrain from serving same-sex couples. Unless that political trend changes, we think most of these disputes will be decided against the person claiming the exemption.

Because medical services are more personal, the outcome of disputes about health care providers is somewhat harder to predict, especially if the objecting professionals are willing to refer the patient, in accordance with the ethical norms of their profession, to others willing and able to serve. Even in this context, however, the growing number of laws guaranteeing equal treatment for gays and lesbians suggests that professional organizations may not be as inclined as they once were to give any official ethical approval to their members’ refusal to treat such patients or clients.

Photo credit: Courtesy of Alliance Defense Fund/Gene Parunak