Filed 8/18/08 IN THE SUPREME COURT OF CALIFORNIA NORTH COAST…

Filed 8/18/08


      IN THE SUPREME COURT OF CALIFORNIA


NORTH COAST WOMEN'S CARE               )
MEDICAL GROUP, INC., et al.,           )
                                       )
           Petitioners,                )
                                       )                            S142892
           v.                          )
                                       )                     Ct.App. 4/1 D045438
SAN DIEGO COUNTY SUPERIOR COURT, )
                                       )                      San Diego County
           Respondent;                 )                   Super. Ct. No. GIC770165
______________________________________ )
                                       )
GUADALUPE T. BENITEZ,                  )
                                       )
           Real Party in Interest.     )
______________________________________ )


        Do the rights of religious freedom and free speech, as guaranteed in both
the federal and the California Constitutions, exempt a medical clinic's physicians
from complying with the California Unruh Civil Rights Act's prohibition against
discrimination based on a person's sexual orientation? Our answer is no.
                                           I
          This case comes to us after the trial court granted plaintiff's motion for
   summary adjudication of one affirmative defense, thereby determining that no
triable issue of material fact existed as to the defense and that plaintiff was entitled
   to judgment on the defense as a matter of law. (See Code Civ. Proc., § 437c,
subds. (c), (f)(1).) The Court of Appeal issued a writ of mandate setting aside that
ruling on the ground that it failed to completely dispose of the affirmative defense



                                           1
    and thus was contrary to the statutory requirements for summary adjudication.
(See Code Civ. Proc., § 437c, subd. (f)(1).) Because this case reached us pretrial,
     after the trial court granted plaintiff's motion for summary adjudication, our
    factual description comes primarily from the parties' statements of undisputed
                      facts filed in connection with that motion.
        Plaintiff Guadalupe T. Benitez is a lesbian who lives with her partner,
Joanne Clark, in San Diego County. They wanted Benitez to become pregnant,
and they decided on intravaginal self-insemination, a nonmedical process in which
a woman inserts sperm into her own vagina. Benitez and Clark used sperm from a
sperm bank. In 1999, after several unsuccessful efforts at pregnancy through this
method, Benitez was diagnosed with polycystic ovarian syndrome, a disorder
characterized by irregular ovulation, and she was referred to defendant North
Coast Women's Care Medical Group, Inc. (North Coast) for fertility treatment.
        In August 1999, Benitez and Clark first met with defendant Christine
Brody, an obstetrician and gynecologist employed by defendant North Coast.
Benitez mentioned that she was a lesbian. Dr. Brody explained that at some point
intrauterine insemination (IUI) might have to be considered. In that medical
procedure, a physician threads a catheter through the patient's cervix and inserts
semen through the catheter into the patient's uterus. Dr. Brody said that if IUI
became necessary, her religious beliefs would preclude her from performing the
procedure for Benitez.1 According to Dr. Brody, she told Benitez and Clark at

1      The parties dispute the factual basis for Dr. Brody's religious objection to
performing IUI for plaintiff. Dr. Brody claims that 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. But Benitez, whose complaint
does not allege marital status discrimination, asserts that Dr. Brody objected to
performing IUI for a lesbian, and consequently the alleged denial of the medical
                                                           (footnote continued on next page)


                                           2
that initial meeting that her North Coast colleague, Dr. Douglas Fenton, shared her
religious objection to performing IUI for an unmarried woman, but that either of
two other North Coast physicians, Dr. Charles Stoopack and Dr. Ross Langley,
could do the procedure for Benitez. According to Benitez, however, Dr. Brody
said that she was the only North Coast physician with a religious objection to
performing IUI for Benitez, and that "all other members of her practice -- whom
she believed lacked her bias -- would be available" to do this medical procedure.
        From August 1999 through June 2000, Dr. Brody treated Benitez for
infertility. The treatment consisted chiefly of prescribing Clomid, an ovulation-
inducing medication, followed by Benitez's use of intravaginal self-insemination
with sperm obtained from a sperm bank. To determine whether Benitez's
fallopian tubes were blocked, Dr. Brody had her take a medical test
(hysterosalpingiogram), which was negative. After performing a surgical
procedure (diagnostic laparoscopy), Dr. Brody determined that Benitez's infertility
was not the result of endometriosis.2



(footnote continued from previous page)

treatment at issue constituted sexual orientation discrimination. The trial court
ruled that the factual basis for Dr. Brody's objection presented a disputed issue of
material fact to be resolved at trial.
        In so ruling, the trial court apparently concluded that, at the times relevant
here, California's Unruh Civil Rights Act did not prohibit discrimination based on
marital status. The Court of Appeal in this case expressly so held. Because
Benitez's claim for relief under the Unruh Civil Rights Act is not based on marital
status discrimination, we do not address that issue.
2       "Endometriosis is a condition in which tissue similar to the lining of the
uterus" occurs on the ovaries, the fallopian tubes, or elsewhere in the body.
Between 30 and 40 percent of women with this condition may suffer from
infertility. (See  [as of Aug.
18, 2008].)



                                          3
       According to Benitez, when in April 2000 she still had not become
pregnant, she decided "with the advice and consent of Dr. Brody," to try IUI,
which, as explained earlier, is a medical procedure in which a physician uses a
catheter to insert sperm directly into the patient's uterus. Instead, in May 2000,
Benitez resorted to the nonmedical procedure of intravaginal self-insemination
that she had used before; but this time, rather than using sperm from a sperm bank
as she had done earlier, she used fresh sperm donated by a male friend. When
Benitez thereafter missed a menstrual period, she thought she was pregnant. But a
home pregnancy test was negative, and a pregnancy test done at defendant North
Coast's facilities on July 5, 2000, confirmed that she was not pregnant. Benitez
then decided to try IUI, using her friend's fresh sperm.
       The parties agree that when Benitez told Dr. Brody she wanted to use her
friend's donated fresh sperm for the IUI, Brody replied that this would pose a
problem for North Coast. Its physicians had performed IUI either with fresh
sperm provided by a patient's husband or sperm from a sperm bank, but never
with fresh sperm donated by a patient's friend. To do the latter, Dr. Brody said,
might delay the procedure as North Coast would first have to confirm that its
protocols pertaining to donated fresh sperm would satisfy the requirements of
North Coast's state tissue bank license and the federal Clinical Laboratory
Improvement Amendment (42 U.S.C. § 263). After hearing this, Benitez opted to
have the IUI with sperm from a sperm bank. Dr. Brody so noted in Benitez's
medical records and then left for an out-of-state vacation.
       During Dr. Brody's absence, her colleague, Dr. Douglas Fenton, took over
Benitez's medical care. Dr. Fenton contends that he was unaware of Dr. Brody's
record notation of Benitez's decision not to use her friend's fresh sperm for the
IUI, because the secretary who had typed that notation in Benitez's file left it in
Dr. Brody's in box awaiting her return from vacation. Therefore, according to

                                          4
Dr. Fenton, he mistakenly believed that Benitez intended to have IUI with fresh
sperm donated by a friend. The parties agree that unlike sperm from a sperm
bank, fresh sperm (even when provided by a patient's husband) requires "certain
preparation" before it can be used for IUI, and that "[c]ertain licensure" is
necessary to do the requisite sperm preparation. Of North Coast's physicians, only
Dr. Fenton was licensed to perform these tasks. But he refused to prepare donated
fresh sperm for Benitez because of his religious objection. Two of his colleagues,
Drs. Charles Stoopack and Ross Langley, had no such religious objection, but
unlike Dr. Fenton, they were not licensed to prepare fresh sperm. Dr. Fenton then
referred Benitez to a physician outside North Coast's medical practice,
Dr. Michael Kettle.
       The IUI performed by Dr. Kettle did not result in a pregnancy. Benitez was
unable to conceive until June 2001, when Dr. Kettle performed in vitro
fertilization.3
       In August 2001, Benitez sued North Coast and its physicians, Brody and
Fenton, seeking damages and injunctive relief on several theories, notably sexual
orientation discrimination in violation of California's Unruh Civil Rights Act.
Defendants' answer to the complaint asserted a variety of affirmative defenses.
Pertinent here is affirmative defense No. 32 stating that defendants' "alleged
misconduct, if any" was protected by the rights of free speech and freedom of
religion set forth in the federal and state Constitutions.




3       In vitro fertilization is a medical procedure of assisted reproduction in
which eggs and sperm are combined in a laboratory dish. When fertilization
results, the embryo is transferred to the woman's uterus for development. (See
 [as of Aug. 18, 2008].)



                                           5
       Benitez moved for summary adjudication of that defense. The trial court
granted the motion, ruling that neither the federal nor the state Constitution
provides a religious defense to a claim of sexual orientation discrimination under
California's Unruh Civil Rights Act. Defendants challenged that ruling through a
petition for writ of mandate filed in the Court of Appeal. That court granted the
petition with respect to the two physician defendants only, thereby allowing
Drs. Brody and Fenton to later assert at trial that their constitutional rights of free
speech and religious freedom exempt them from complying with the Unruh Civil
Rights Act's prohibition against sexual orientation discrimination. We granted
Benitez's petition for review.
                                           II
       Benitez's claim of sexual orientation discrimination is based on
California's Unruh Civil Rights Act (hereafter sometimes Act). (Civ. Code, § 51,
subd. (a).) At the times relevant here, it provided: "All persons within the
jurisdiction of this state are free and equal, and no matter what their sex, race,
color, religion, ancestry, national origin, disability, or medical condition are
entitled to the full and equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind whatsoever." (Civ. Code,
§ 51, former subd. (b), as amended by Stats. 2000, ch. 1049.)
       The Unruh Civil Rights Act's antidiscrimination provisions apply to
business establishments that offer to the public "accommodations, advantages,
facilities, privileges, or services." (Civ. Code, § 51, subd. (b); see Curran v.
Mount Diablo Council of the Boy Scouts (1998) 17 Cal.4th 670, 700; Warfield v.
Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 622-623.) A medical
group providing medical services to the public has been held to be a business
establishment for purposes of the Act. (Leach v. Drummond Medical Group, Inc.
(1983) 144 Cal.App.3d 362.)

                                           6
       In 1999 and 2000, the period relevant here, the Unruh Civil Rights Act did
not list sexual orientation as a prohibited basis for discrimination. But before
1999, California's reviewing courts had, in a variety of contexts, described the Act
as prohibiting sexual orientation discrimination. (See Harris v. Capital Growth
Investors XIV (1991) 52 Cal.3d 1142, 1155; Curran v. Mount Diablo Council of
the Boy Scouts, supra, 17 Cal.4th 670, 703 (conc. opn. of Mosk, J.); Hubert v.
Williams (1982) 133 Cal.App.3d Supp. 1, 5; see also Stoumen v. Reilly (1951) 37
Cal.2d 713, 716; Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 292.) Through
an amendment to the Act in 2005, the Legislature expressly prohibited sexual
orientation discrimination. (Stats. 2005, ch. 420, § 2.)
       The Unruh Civil Rights Act subjects to liability "[w]hoever denies, aids or
incites a denial, or makes any discrimination or distinction contrary to [the Act]."
(Civ. Code, § 52, subd. (a).) Thus, liability under the Act for denying a person the
"full and equal accommodations, advantages, facilities, privileges, or services" of
a business establishment (Civ. Code, § 51, subd. (b)) extends beyond the business
establishment itself to the business establishment's employees responsible for the
discriminatory conduct.
       Below, we discuss defendant physicians' claims, first under the federal
Constitution, and then under the California Constitution.
                                         III
       The First Amendment to the federal Constitution states that "Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech . . . ." (U.S. Const., 1st
Amend.) This provision applies not only to Congress but also to the states
because of its incorporation into the Fourteenth Amendment. (See Employment
Div., Ore. Dept. of Human Res. v. Smith (1990) 494 U.S. 872, 876-877 (Smith).)
With respect to the free exercise of religion, the First Amendment "first and

                                          7
foremost" protects "the right to believe and profess whatever religious doctrine
one desires." (Smith, supra, at p. 877.) Thus, it "obviously excludes all
`government regulation of religious beliefs as such.' " (Ibid.) Below, we discuss
pertinent decisions of the high court construing the First Amendment's guarantee
of the free exercise of religion.
       Sherbert v. Verner (1963) 374 U.S. 398 (Sherbert) involved South
Carolina's denial of unemployment benefits to a Seventh-day Adventist who
refused on religious grounds to work on Saturdays. The high court held that
restricting unemployment benefit eligibility to those who could work on Saturdays
was a "substantial infringement" of the claimant's First Amendment rights, and it
declared the state law unconstitutional because it lacked a "compelling
[governmental] interest." (Id. at pp. 406-407.)
       Nine years later, the United States Supreme Court reiterated that test in
Wisconsin v. Yoder (1972) 406 U.S. 205 (Yoder). At issue there was a Wisconsin
law that required all children ages seven to 16 to attend school. Members of the
Old Order Amish religion and the Conservative Amish Mennonite Church,
however, kept their children out of school once they completed the eighth grade.
(Id. at pp. 208-209.) Yoder held that under the First Amendment's clause
guaranteeing the free exercise of religion, the Amish were exempt from obeying
the state law in question because their "objection to formal education beyond the
eighth grade [was] firmly grounded" in their religious beliefs, and the State of
Wisconsin lacked a compelling interest in applying the compulsory education law
to Amish children. (Id. at p. 210; see id. at pp. 214, 219, 234.)
       But then in 1990, in Smith, supra, 494 U.S 872, the high court repudiated
the compelling state interest test it had used in Sherbert, supra, 374 U.S. 398, and
in Yoder, supra, 406 U.S. 205. Instead, it announced that the First Amendment's
right to the free exercise of religion "does not relieve an individual of the

                                           8
obligation to comply with a `valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that his religion prescribes
(or proscribes).' " (Smith, supra, at p. 879.) Three years later, the court reiterated
that holding in Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S.
520, 531 (Lukumi), stating that "a law that is neutral and of general applicability
need not be justified by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice."
       Thus, under the United States Supreme Court's most recent holdings, a
religious objector has no federal constitutional right to an exemption from a
neutral and valid law of general applicability on the ground that compliance with
that law is contrary to the objector's religious beliefs.
       Just four years ago, in Catholic Charities of Sacramento, Inc. v. Superior
Court (2004) 32 Cal.4th 527 (Catholic Charities), we considered the claim of a
nonprofit entity affiliated with the Roman Catholic Church (Catholic Charities)
that the First Amendment's guarantee of free exercise of religion exempted it from
complying with a California law, the Women's Contraception Equity Act
(WCEA), which required employers that provide prescription drug insurance
coverage for their employees to include coverage for prescription contraceptives.
In rejecting that claim, we applied the test the United States Supreme Court had
adopted in its 1990 decision in Smith, supra, 494 U.S. 872. We explained: "The
WCEA's requirements apply neutrally and generally to all employers, regardless
of religious affiliation, except to those few who satisfy the statute's strict
requirements for exemption on religious grounds. The act also addresses a matter
the state is free to regulate; it regulates the content of insurance policies for the
purpose of eliminating a form of gender discrimination in health benefits. The act
conflicts with Catholic Charities' religious beliefs only incidentally, because those



                                            9
beliefs happen to make prescription contraceptives sinful." (Catholic Charities,
supra, at p. 549.)
       In this case, too, with respect to defendants' reliance on the First
Amendment, we apply the high court's Smith test. California's Unruh Civil Rights
Act, from which defendant physicians seek religious exemption, is "a valid and
neutral law of general applicability" (Smith, supra, 494 U.S. at p. 879). As
relevant in this case, it requires business establishments to provide "full and equal
accommodations, advantages, facilities, privileges, or services" to all persons
notwithstanding their sexual orientation. (Civ. Code, § 51, subds. (a) & (b).)
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. (Lukumi, supra, 508 U.S. at p. 531; Smith,
supra, at p. 879.)
       Defendant physicians, however, insist that the high court's decision in
Smith, supra, 494 U.S. 872, has language on "hybrid rights" that lends support to
their argument that under the First Amendment they are exempt from complying
with the antidiscrimination provisions of California's Unruh Civil Rights Act. The
pertinent passage in Smith states: "The only decisions in which we have held that
the First Amendment bars application of a neutral, generally applicable law to
religiously motivated action have involved not the Free Exercise Clause alone, but
the Free Exercise Clause in conjunction with other constitutional protections . . . ."
(Smith, at p. 881.) But the facts in Smith, the court explained, did "not present
such a hybrid situation." (Id. at p. 882.) Defendants here contend that they do
have a hybrid claim, because compliance on their part with the state's Act
interferes with a combination of their First Amendment rights to free speech and



                                          10
to freely exercise their religion. We rejected a similar hybrid claim in Catholic
Charities, supra, 32 Cal.4th 527.
       In that case, we explained that "[t]he high court has not, since the decision
in Smith, supra, 494 U.S. 872, determined whether the hybrid rights theory is valid
or invoked it to justify applying strict scrutiny to a free exercise claim." (Catholic
Charities, supra, 32 Cal.4th at p. 557.) We added, however, that Justice Souter's
concurring opinion in Lukumi, supra, 508 U.S. 520, 567, was critical of the idea
that hybrid rights would give rise to a stricter level of scrutiny: " `[I]f a hybrid
claim is simply one in which another constitutional right is implicated, then the
hybrid exception would probably be so vast as to swallow the Smith rule . . . .' "
(Catholic Charities, supra, at pp. 557-558, quoting Lukumi, supra, at p. 567 (conc.
opn. of Souter, J.).) We also noted that the federal Court of Appeals for the Sixth
Circuit had rejected as " `completely illogical' the proposition that `the legal
standard [of review] under the Free Exercise Clause depends on whether a free-
exercise claim is coupled with other constitutional rights.' (Kissinger v. Board of
Trustees [(1993)] 5 F.3d 177, 180 & fn. 1.)" (Catholic Charities, supra, at
p. 558.) Nonetheless, after assuming for argument's sake that "the hybrid rights
theory is not merely a misreading of Smith, supra, 494 U.S. 872," we concluded
that Catholic Charities had "not alleged a meritorious" claim under that theory.
(Ibid.) We also rejected the contention by Catholic Charities that requiring it to
provide prescription contraceptive coverage to its employees would violate its
First Amendment right to free speech "by requiring the organization to engage in
symbolic speech it finds objectionable." (Ibid.) As we explained, "compliance
with a law regulating health care benefits is not speech." (Ibid.)
       Here, defendant physicians contend that exposing them to liability for
refusing to perform the IUI medical procedure for plaintiff infringes upon their
First Amendment rights to free speech and free exercise of religion. Not so. As

                                          11
we noted earlier, California's Unruh Civil Rights Act imposes on business
establishments certain antidiscrimination obligations, thus precluding any such
establishment or its agents from telling patrons that it will not comply with the
Act. Notwithstanding these statutory obligations, defendant physicians remain
free to voice their objections, religious or otherwise, to the Act's prohibition
against sexual orientation discrimination. "For purposes of the free speech clause,
simple obedience to a law that does not require one to convey a verbal or symbolic
message cannot reasonably be seen as a statement of support for the law or its
purpose. Such a rule would, in effect, permit each individual to choose which
laws he would obey merely by declaring his agreement or opposition." (Catholic
Charities, supra, 32 Cal.4th at pp. 558-559.)
       Defendant physicians also perceive a form of free speech infringement
flowing from plaintiff's purported efforts "to silence the doctors at trial." But the
First Amendment prohibits government abridgment of free speech. Here, plaintiff
is a private citizen. Therefore, her conduct as complained of by defendants does
not fall within the ambit of the First Amendment.
       Plaintiff's motion in the trial court for summary adjudication of defendant
physicians' affirmative defense claiming a religious exemption from liability
under California's Unruh Civil Rights Act merely sought to preclude the
presentation at trial of a defense lacking any constitutional basis. In ruling on the
motion, the trial court granted summary adjudication of the defense only insofar as
it applied to plaintiff's claim of sexual orientation discrimination as prohibited by
the Act. (See p. 17, post.) Nothing in that ruling precludes defendants from later
at trial offering evidence, if relevant, that their denial of the medical treatment at
issue was prompted by their religious beliefs for reasons other than plaintiff's
sexual orientation.



                                           12
                                           IV
       We now turn to the California Constitution. As here relevant, it provides:
"Free exercise and enjoyment of religion without discrimination or preference are
guaranteed." (Cal. Const., art. I, § 4.)
       Part III, ante, dealt with defendant physicians' First Amendment claim. To
that federal constitutional issue, we applied the high court's test articulated in
Smith, supra, 494 U.S. 872. That test's main inquiry is whether the law being
challenged is a " `valid and neutral law of general applicability.' " (Id. at p. 879.)
If it is, it "need not be justified by a compelling governmental interest even if the
law has the incidental effect of burdening a particular religious practice."
(Lukumi, supra, 508 U.S. at p. 531.) That test, we noted, was a departure from the
compelling state interest test that the high court had applied in Sherbert, supra,
374 U.S. 398, and in Yoder, supra, 406 U.S. 205. (See p. 9, ante.)
       Here, defendant physicians seek a religious exemption from a state law that
is " `a valid and neutral law of general applicability' " (Smith, supra, 494 U.S. at
p. 879; see p. 10, ante.) To date, this court has not determined the appropriate
standard of review for such a challenge under the state Constitution's guarantee of
free exercise of religion. (See Catholic Charities, supra, 32 Cal.4th at pp. 561-
562.) Because construing a state constitution is a matter left exclusively to the
states, the high court's Smith test is not controlling here. (Catholic Charities,
supra, at pp. 559-561.) As in Catholic Charities, however, this case presents no
need for us to determine the appropriate test. For even under a strict scrutiny
standard, defendants' claim fails.
       Under strict scrutiny, "a law could not be applied in a manner that
substantially burden[s] a religious belief or practice unless the state show[s] that
the law represent[s] the least restrictive means of achieving a compelling interest."
(Catholic Charities, supra, 32 Cal.4th at p. 562.) Presumably, for defendants to

                                           13
comply with the Unruh Civil Rights Act's prohibition against sexual orientation
discrimination would substantially burden their religious beliefs. Yet that burden
is insufficient to allow them to engage in such discrimination. The Act furthers
California's compelling interest in ensuring full and equal access to medical
treatment irrespective of sexual orientation, and there are no less restrictive means
for the state to achieve that goal.
       To avoid any conflict between their religious beliefs and the state Unruh
Civil Rights Act's antidiscrimination provisions, defendant physicians can simply
refuse to perform the IUI medical procedure at issue here for any patient of North
Coast, the physicians' employer. Or, because they incur liability under the Act if
they infringe upon the right to the "full and equal" services of North Coast's
medical practice (Civ. Code, § 51, subd. (b); see id. §§ 51, subd. (a), 52, subd. (a)),
defendant physicians can avoid such a conflict by ensuring that every patient
requiring IUI receives "full and equal" access to that medical procedure though a
North Coast physician lacking defendants' religious objections.
       Both defendant physicians urge this court to adopt and apply here a
standard that is significantly different than strict scrutiny. They rely on this
language from our state Constitution, article I, section 4: "Free exercise and
enjoyment of religion without discrimination or preference are guaranteed. This
liberty of conscience does not excuse acts that are licentious or inconsistent with
the peace or safety of the State." (Italics added.) According to defendants, the
italicized language indicates that religious objectors are free to disregard a
particular state law unless doing so compromises the peace or safety of the state or
is licentious -- situations that are not present here. Defendants also assert that our
decision in Catholic Charities has language, italicized here, that left open the
possibility of the test proposed by defendants: "A future case might lead us to
choose the rule of Sherbert, supra, 374 U.S. 398 [requiring that a state law

                                          14
adversely affecting religious rights satisfy strict scrutiny], the rule of Smith, supra,
494 U.S. 872 [recognizing no religious exemption to valid and neutral laws of
general applicability], or an as-yet unidentified rule that more precisely reflects
the language and history of the California Constitution and our own
understanding of its import." (Catholic Charities, supra, 32 Cal.4th at p. 562,
italics added.) We reject defendants' contention.
       Our statement in Catholic Charities, supra, 32 Cal.4th at page 562, that this
court in the future might adopt some "as-yet unidentified rule" governing free
exercise of religion claims under the state Constitution contemplated only three
possible tests: (1) The strict scrutiny standard the United States Supreme Court
established in Sherbert, supra, 374 U.S. 398, and later used in Yoder, supra, 406
U.S. 205; (2) the high court's subsequent test established in Smith, supra, 494 U.S.
872, and in Lukumi, supra, 508 U.S. 520, under which religious objectors'
challenges to valid and neutral laws of general applicability are rejected out of
hand; or (3) an intermediate standard, less exacting than the rigorous first option
but more so than the second. Because the standard that defendants propose would
exempt a religious objector from complying with a valid and neutral law of
general applicability regardless of a compelling state interest supporting the law,
and regardless of the absence of lesser restrictive means for furthering that
compelling state interest, their proposed standard is not an intermediate standard
but rather a standard that is more stringent than strict scrutiny. Nothing in
Catholic Charities suggests that the appropriate test for free exercise of religion
claims under article I, section 4 of the California Constitution would be stricter
than strict scrutiny, and we decline to adopt such a standard here.
                                           V
       The Court of Appeal set aside the trial court's order granting plaintiff's
motion for summary adjudication of affirmative defense No. 32. According to the

                                          15
Court of Appeal, the trial court's ruling was inconsistent with the purpose of Code
of Civil Procedure section 437c, which governs motions for summary
adjudication. Relevant here is that statute's subdivision (f)(1), which states: "A
party may move for summary adjudication as to one or more causes of action
within an action, one or more affirmative defenses, one or more claims for
damages, or one or more issues of duty, if that party contends that the cause of
action has no merit or that there is no affirmative defense thereto, or both, or that
there is no merit to a claim for damages, . . . or that one or more defendants either
owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary
adjudication shall be granted only if it completely disposes of a cause of action, an
affirmative defense, a claim for damages, or an issue of duty." (§ 437c, subd.
(f)(1), italics added.) As the italicized language in the last sentence indicates, a
grant of summary adjudication of an affirmative defense is proper if it "completely
disposes" of that defense.
       Here, in reversing the trial court's grant of plaintiff's motion for summary
adjudication of affirmative defense No. 32 with respect to plaintiff's Unruh Civil
Rights Act claim, the Court of Appeal noted that section 437c was added to the
Code of Civil Procedure at the request of the California Judges Association, and
that the statute was intended to "save court time," to "reduce the cost of litigation"
and to "stop the practice of . . . adjudication of issues that do not completely
dispose of a cause of action or defense."
       The Court of Appeal then concluded that summary adjudication of
affirmative defense No. 32 was "improper as to Dr. Brody and Dr. Fenton because
it effectively preclude[d] them from presenting any evidence at trial that their
refusal to perform IUI for Benitez was based on their religious beliefs regarding
the propriety of performing the procedure for unmarried women," conduct that the
Court of Appeal further concluded was not prohibited by the Act in 2000, the time

                                            16
of that refusal. The court added: "Because there is a triable issue of fact as to
whether Dr. Brody and Dr. Fenton refused to perform the procedure for Benitez
based on her marital status and not her sexual orientation, . . . Dr. Brody and
Dr. Fenton are entitled to present evidence that their religious beliefs prohibited
them from performing IUI on any unmarried woman, regardless of the woman's
sexual orientation."
       But in granting plaintiff's motion for summary adjudication of affirmative
defense No. 32, the trial court did not at all preclude defendant physicians from
later offering evidence at trial of their religious grounds for refusing to perform the
IUI medical procedure for plaintiff because of her marital status as an unmarried
woman rather than her sexual orientation as a lesbian. In granting Benitez's
motion, the trial court stated that it had merely determined that affirmative defense
No. 32 lacked any basis in law as a defense to plaintiff's Unruh Civil Rights Act
claim of sexual orientation discrimination, but that it was not precluding
defendant physicians from "tell[ing] the jury what happened in this case," that is,
presenting evidence that their religious beliefs prohibited them from medically
inseminating an unmarried woman. This is clear from the following colloquy
between the trial court and plaintiff's counsel.
       Counsel for plaintiff asked the trial court: "What basis would there be for
[defendant physicians to] present[] their motive to the jury if not to say it was okay
that you violated Unruh because you had this religious belief?" The trial court
responded that the jurors "are still going to know what the motive [was]," and that
defendants "have to tell the jury what happened in this case." Plaintiff's counsel
then argued that testimony about defendant physicians' religious motivation for
refusing to perform the IUI medical procedure for plaintiff would be "legally
irrelevant." The trial court replied: "Facts are the facts, and the jury is instructed
on the law and . . . is going to follow the law." Ultimately, the trial court agreed to

                                          17
allow plaintiff to reassert at trial her objection to defendants presenting any
evidence of religious motive to support their claim that their refusal to perform the
IUI medical procedure was based on plaintiff's marital status as a single woman
rather than her sexual orientation as a lesbian. Although the trial court reserved
any final ruling on the matter, it added that plaintiff's position would make "an
interesting argument," and that it had "a hard time envisioning how this case
would be presented without telling the jury what happened."
       Thus, the trial court's ruling left defendant physicians free to later offer
evidence at trial that their religious objections were to participating in the medical
insemination of an unmarried woman and were not based on plaintiff's sexual
orientation, as her complaint alleged. The trial court's ruling simply narrowed the
issues in this case by disposing of defendants' contention that their constitutional
rights to free speech and the free exercise of religion exempt them from complying
with the Unruh Civil Rights Act's prohibition against sexual orientation
discrimination. In concluding to the contrary, the Court of Appeal erred.
                                   DISPOSITION
       The judgment of the Court of Appeal is reversed.


                                                   KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.




                                          18
                   CONCURRING OPINION BY BAXTER, J.



       I join the majority's narrow conclusion that, on the facts of this case,
defendants have no affirmative defense, based on the free exercise of religion
clauses of the federal and state Constitutions, against plaintiffs' Unruh Civil
Rights Act claims of discrimination on the basis of sexual orientation. With
respect to the application of article I, section 4 of the California Constitution to
this issue, I do not necessarily believe the state has a compelling interest in
eradicating every difference in treatment based on sexual orientation (cf. In re
Marriage Cases (2008) 43 Cal.4th 757, 875-877 (conc. & dis. opn. of Baxter, J.)
[sexual orientation is not suspect classification; statutory definition of marriage as
between man and woman satisfies rational basis test]). However, I agree that
California has a compelling interest, furthered by the Unruh Civil Rights Act, "in
ensuring full and equal access to medical treatment irrespective of sexual
orientation" (maj. opn., ante, at p. ___ [p. 14], italics added), including a right to
full medical assistance in establishing a pregnancy.
       Of course, assuming that a strict scrutiny standard applies under the
California Constitution, the state's interest --here represented in a statute -- must
be balanced, in appropriate cases, against the fundamental constitutional right to
the free exercise of religion. I am persuaded that, in the circumstances before us,
the burden imposed on this constitutional right was not sufficient to overcome the
state's interest. As the majority indicates, defendants in this case, who are


                                           1
members of a group medical practice, can avoid any conflict between their
religious beliefs and the Unruh Civil Rights Act's requirements "by ensuring that
every patient requiring [intrauterine insemination] receives `full and equal' access
to that medical procedure through a North Coast physician lacking defendants'
religious objections." (Maj. opn., ante, at p. ___ [p. 14], italics added.)
        I am not so certain this balance of competing interests would produce the
same result in the case of a sole practitioner, who arguably is a "business
establishment[ ]" for purposes of the Unruh Civil Rights Act (Civ. Code, § 51,
subd. (b); see Washington v. Blampin (1964) 226 Cal.App.2d 604, 606-607), but
who lacks the opportunity to ensure the patient's treatment by another member of
the same establishment. At least where the patient could be referred with relative
ease and convenience to another practice, I question whether the state's interest in
full and equal medical treatment would compel a physician in sole practice to
provide a treatment to which he or she has sincere religious objections. One might
well conclude that, in that situation, application of the Unruh Civil Rights Act
against the doctor would not be the means " `least restrictive' " on religion of
furthering the state's legitimate interest. (Maj. opn., ante, at p. ___ [p. 14];
Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527,
562.)
        These issues are not before us here, however, and the majority does not
express any views on them. On that basis, and with that understanding, I concur in
the majority's reasoning, and in its result.
                                                          BAXTER, J.




                                           2
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion North Coast Women's Care Medical Group, Inc. v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 137 Cal.App.4th 781
Rehearing Granted
__________________________________________________________________________________

Opinion No. S142892
Date Filed: August 18, 2008
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Ronald S. Prager
__________________________________________________________________________________

Attorneys for Appellant:

Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza, Matthew S. Levinson; DiCaro, Coppo & Popcke,
Robert C. Coppo, Gabriele M. Prater, Andrew T. Evans; Advocates for Faith and Freedom, Robert H.
Tyler; Alliance Defense Fund, Timothy D. Chandler and Douglas L. Edgar for Petitioners.

Robert G. Ho for Pacific Justice Institute as Amicus Curiae on behalf of Petitioners.

Law Offices of Karen D. Milam, Karen D. Milam; Americans United for Life and Mailee R. Smith for
Christian Medical and Dental Associations, American Association of Pro Life Obstetricians and
Gynecologists and Physicians for Life as Amici Curiae on behalf of Petitioners.

James L. Hirsen and Deborah J. Dewart for The Foundation for Free Expression as Amicus Curiae on
behalf of Petitioners.

Duane Morris, Mitchell L. Lathrop and Bridget K. Moorhead for Catholic Exchange, Inc., and Human Life
International as Amici Curiae on behalf of Petitioners.

Patrick T. Gillen; Charles S. LiMandri and Teresa L. Mendoza for Thomas More Law Center as Amicus
Curiae on behalf of Petitioners.

Alan J. Reinach; Alan E. Brownstein; Bassi, Martini & Blum and Fred Blum for Seventh-day Adventist
Church State Council as Amicus Curiae on behalf of Petitioners.

Center for Law & Religious Freedom, Samuel B. Casey and Gregory S. Baylor for Christian Legal Society
as Amicus Curiae on behalf of Petitioners.

Higgs, Fletcher & Mack, Richard D. Barton and John Morris for The Islamic Medical Association of North
America, Rabbi Elliot Dorff, Rabbi David Frank and Rabbi Arthur Gross-Schaefer as Amici Curiae on
behalf of Petitioners.

Public Affairs & Religious Liberty, Alan J. Reinach; Sweeney & Greene, James F. Sweeney and Stephen J.
Greene for California Catholic Conference as Amicus Curiae on behalf of Petitioners.
Page 2- counsel continued ­ S142892

Attorneys for Appellant:

Edwin Meese III and Peter Ferrara for American Civil Rights Union as Amicus Curiae on behalf of
Petitioners.

Thelen Reid & Priest and Curtis A. Cole for California Medical Association as Amicus Curiae on behalf of
Petitioners.
__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Albert C. Gross; Lambda Legal Defense and Education Fund, Jennifer C. Pizer, Jon W. Davidson;
Eisenberg & Hancock, Jon B. Eisenberg; O'Melveny & Meyers, Robert C. Welsh, Margaret C. Carroll,
James J. McNamara and Lee K. Fink for Real Party in Interest.

Steven R. Zatkin, Stanley B. Watson, Mark S. Zemelman; California Medical Association, Catherine I.
Hanson and Susan L. Penney for Kaiser Foundation Health Plan, Inc. The Permanente Medical Group, Inc.,
and The Southern California Permanente Medical Group as Amici Curiae on behalf of Real Party in
Interest.

Winston & Strawn, Benjamin Russell Martin, Gail J. Standish, Peter E. Perkowski and Kyle R. Gehrmann
for National Health Law Program, Asian Pacific Aids Intervention Team, Asian Pacific American Legal
Center of Southern California, Bienstar Human Services, California Latinas for Reproductive Justice,
California Pan-Ethnic Health Network, California Women's Law Center, Coalition for Humane Immigrant
Rights of Los Angeles, Jordan Rustin Coalition, Khmer Girls in Action, Latino Coalition for a Healthy
California, Merger Watch Project, Mexican American Legal Defense Fund and Educational Fund, Zuna
Institute, Anti-Defamation League, American Academy of HIV Medicine, American Medical Students
Association, Gay and Lesbian Medical Association, International Association of Physicians in AIDS Care,
The Mautner Project, National Center for Lesbian Rights and National Health Law Program as Amici
Curiae on behalf of Real Party in Interest.

Shannon Minter, Vanessa H. Eisemann, Melanie Rowen and Catherine Sakimura for National Center for
Lesbian Rights, Lyon-Martin Women's Health Services, Inc., The Mautner Project, Bay Area Lawyers for
Individual Freedom and Lesbian and Gay Lawyers Association of Los Angeles as Amici Curiae on behalf
of Real Party in Interest.

Morrison & Foerster, Angela L. Padilla and Elizabeth O. Gill for Gay and Lesbian Medical Association,
American Medical Student Association, American Academy of HIV Medicine and International
Association of Physicians in Aids Care as Amici Curiae on behalf of Real Party in Interest.

James D. Esseks; Sondra Goldschein; Margaret C. Crosby, Alex M. Cleghorn; Clare Pastore; and David
Blari-Loy for American Civil Liberties Union Foundation, American Civil Liberties Union of Northern
California, ACLU Foundation of Southern California and American Civil Liberties Union of San Diego
and Imperial Counties as Amici Curiae on behalf of Real Party in Interest.

Edmund G. Brown, Jr., Attorney General, Manuel M. Medeiros, State Solicitor General, Thomas J. Greene,
Chief Assistant Attorney General, Louis Verdugo, Jr. , Assistant Attorney General, Angela Sierra and
Antonette Benita Cordero, Deputy Attorneys General, as Amici Curiae on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kenneth R. Pedroza
Cole Pedroza
200 S. Los Robles Avenue, Suite 678
Pasadena, CA 91101
(626) 431-2787

Jennifer C. Pizer
Lambda Legal Defense and Education Fund
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA 90010-1729
(213) 382-7600