Friend Of The Court Brief Defended Physicians

1. whether sincerely held religious belief or practice based on that belief is substantially burdened;
2. whether the actions are licentious or inconsistent with the peace or safety of the state; and
3. whether the restriction on religious liberty is the least restrictive means of achieving a compelling state interest. (p. 17 of brief)

The brief defended the physicians:

What Defendants in this case have done is act to uphold their traditional moral values, rooted in their Christian religious beliefs, reflecting the same beliefs of so many others, based not only on their Christian religion, but other religions such as Islam and Judaism, and even secular moral values, and scientific social research. There is nothing invidious about it. Indeed, believing in and acting upon such traditional moral values is not even properly characterized as discrimination.

Therefore, the question of whether Defendants shall have the freedom to maintain the traditional moral religious values they express in this case, and act to uphold them and remain faithful to them, goes to the very core of the religious liberty protected by the California Constitution. We submit that these views and their conduct cannot remotely be characterized as licentious or inconsistent with the peace and safety of the state.

Banning Christians, Muslims, Jews and others from the practice of infertility treatment because of their religious views and commitment to remain faithful to those views is exceedingly harsh, not an option by which people of faith can easily avoid liability. Imposing costly liability on Defendants because of their actions to uphold their traditional, Christians beliefs regarding pregnancy of unmarried women, reflecting longstanding, widely held beliefs throughout our society and others from time immemorial and the desirability of raising children in intact two parent families with both mother and father present, would also be quite harsh, for such traditional moral values cannot be rightly characterized as invidious discrimination.

• The New Mexico Human Rights Commission has ruled that an evangelical Christian photographer was guilty of illegally discriminating against a lesbian couple who wanted him to photograph their same-sex commitment ceremony. The commission ordered Elane Photography to pay the lesbian couple $6,600 in attorney fees. UCLA Law School Professor Eugene Volokh says this ruling is troubling: “Just as a freelance writer couldn’t be required to write copy for a pro-Scientology Web site or a pro-same-sex marriage Web site, we would recognize that that would be compelling him to speak – and compelling him to compose words that he does not believe in. A photographer ought not to be required to produce artistic works that she finds ideologically repugnant.”
  
  
• In Houston, a so-called transgender woman named Izza Lopez sued a radiology company after it refused to hire him after the firm discovered that “she” was really a “he.” The homosexual law firm Lambda Legal sued the company on behalf of Izza. The company eventually settled out of court. Lambda declared victory in the case.
  
  
• In 2007, a lesbian sued e-Harmony over its refusal to list homosexuals as potential couples. E-Harmony is run by an evangelical Christian who objects to homosexual behaviors.
  
  
• In 2006, the Boston Archdiocese Catholic Charities said it would stop providing adoption services in the state because of a state law requiring adoption agencies to provide children to homosexual couples. The state’s anti-discrimination law resulted in the destruction of a religious-based adoption service.
  
  
• In 2003, a homosexual couple in California sued an Arizona-based adoption web site because the site refused to post their request for a mother to conceive a child for them. U.S. District Judge Phyllis Hamilton approved the lawsuit against Adoption.com even though the site is based in Arizona. Glen Lavy with the Alliance Defense Fund questioned Hamilton’s decision: “We were surprised that the judge decided it was OK to apply California law to an Arizona business. If held up on appeal, this would mean California law can regulate every Internet business in the world, which strikes me as extreme.” This case was settled in 2007. The settlement stipulated that Adoption.com had to treat all couples equally or stop doing business in California. The settlement extended California’s pro-homosexual “anti-discrimination” laws into cyberspace!

These are but a handful of such cases in the U.S. Canada and other foreign nations are even more severe in their laws violating religious freedom and forcing homosexual and cross-dressing behaviors upon an unwilling public.

Same-Sex Marriage Threatens Religious Freedom

The legalization of same-sex marriage in Massachusetts; the recent circumventing of state law by New York governor David Paterson; and the legalization of homosexual marriage in California – all pose a serious threat to the First Amendment’s guarantee of religious freedom in America.

Roger Severino, legal counsel for the Becket Fund for Religious Liberty, wrote a lengthy paper on this topic for the Harvard Journal Of Law & Public Policy in June 2007.

In his paper, Severino discusses the Massachusetts Supreme Judicial Court decision forcing Massachusetts to legalize same-sex marriage. He writes:

The conflict between gay rights and religious liberty over marriage seems inevitable because of four concurrent phenomena. First, marriage, as a uniform concept, pervades the law; (6) second, religious institutions are regulated, both directly and indirectly, by laws that turn on the definition of marriage; third, religion has a historic public relationship with marriage that resists radical change as a deep matter of conscience; and fourth, gay marriage proponents are similarly resistant to compromise since many believe, with the Goodridge concurrence, that "[s]imple principles of decency dictate that we extend to [same-sex couples], and to their new status, full acceptance, tolerance, and respect." (7)

Although it is difficult to predict with certainty the long-term effects of this profound change in the law, it is clear that the effects will be far-reaching. The legal definition of marriage does not exist in isolation; changing it alters many areas of the law. For example, the definition of marriage plays an important role in the law of adoption, education, employee benefits, employment discrimination, government contracts and subsidies, taxation, tort law, and trusts and estates. In turn, these legal regimes directly govern the ongoing daily operations of religious organizations of all stripes, including parishes, schools, temples, hospitals, orphanages, retreat centers, soup kitchens, and universities. Moreover, current law provides little room for non-uniform definitions of marriage within a state and even across states because of difficult questions like child custody. (8) The high stakes reinforce the uncompromising posture of the contending sides.

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Religious institutions will soon face serious legal risks that include the substantial possibility of civil liability and targeted exclusion from government benefits. Whether that risk translates into legal penalties will depend upon the outcome of a whole cascade of litigation; this Article aims merely to point out the contours of the emerging conflicts rather than predict the prevailing parties in each particular case. But, after much careful study, two results seem certain if same-sex marriage becomes generally accepted in law. First, neither side should be so confident of its legal position as to expect victory in every or almost every category of litigation described in this Article. Second, the inevitable litigation will be protracted, costly, and result in widespread legal confusion resulting in pervasive church-state conflict and a substantial chilling of religious expression.

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If other courts follow the Massachusetts Supreme Judicial Court's lead and declare a right to same-sex marriage, (141) laws prohibiting discrimination based on sexual orientation or marital status will have new power. Courts will be much more likely to find severe burdens on religious expression justified by a new compelling reason--the eliminating of sexual orientation discrimination. It will then be much more likely that religious institutions will be required by law to extend many of the benefits and services listed above to homosexual "spouses," or lose the ability to provide them at all.

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Religious institutions that refuse to treat same-sex spouses as equivalent to traditional spouses may face staggering financial losses if state or federal authorities revoke their tax exemption because of their "discrimination."