The recent California Supreme Court decision in the Benitez case, shows who will be missing out with the focus on the right to marriage in the GLBT movement: Unmarried and single people.

The doctors for Lupita Benitez refused to provide fertility treatment to her because she was a lesbian, oh, and because she was not married. The doctor claimed that her religious views would prevent her from doing her job.

The California Supreme Court did not agree with that:

Accordingly, the First Amendment’s right to the free exercise of religion does not exempt defendant physicians here from conforming their conduct to the Act’s antidiscrimination requirements even if compliance poses an incidental conflict with defendants’ religious beliefs.

So, a doctor cannot use their religion to trump anti-discrimination legislation because the state has an interest in ensuring access to medical care for everybody. This is great news, of course, and a step in the right direction. It is great news both for gays and lesbians and also for secular humanists and others who support the separation of religion and state.

But, actually, the doctor didn’t claim religious troubles because of Benitez’ sexual orientation. No, she refused the fertility treatment because Benitez was unmarried and, as footnote 1 states,

her religious beliefs preclude her from active participation in medically causing the pregnancy of any unmarried woman, and therefore her refusal to perform IUI for Benitez was based on Benitez’s marital status, not her sexual orientation.

In this case, this was a convenient distinction since Benitez couldn’t marry because she is a lesbian. However, it turns out there was more to that distinction: At the time the doctor refused the treatment, discrimination based on sexual orientation was illegal under the Unruh Civil Rights Act, but discrimination based on marital status was perfectly fine. In this particular case, the smoke-screen was lifted by the courts and discrimination based on sexual orientation was assumed. Nevertheless, this case points to the dangers of using marriage as a panacea: It leaves out a slew of other people! If the two women in this case could have married but chose not to (maybe because they didn’t want to support the patriarchal institution of marriage), the doctors could have refused fertility treatment on those grounds and might have won.

The California state law has since been amended to also forbid discrimination based on marital status. Discrimination is wrong no matter what line is draw to create the groups. That is inclusive. That is a step in the direction of viewing all of us as simply human.

(Hat tip to Nancy Polikoff.)

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