2813-Article Text-9190-1-10-20190730 PDF
2813-Article Text-9190-1-10-20190730 PDF
2813-Article Text-9190-1-10-20190730 PDF
I. INTRODUCTION
Michael and Richard Butler had been registered domestic partners
in the State of California for two years and had been certified to adopt in
that state at the time their application to have their profile posted on
ParentProfiles.com was rejected.1 The Web site offers a service allowing
prospective adoptive parents to post their profiles (for a fee) for review
by women planning to give their children up for adoption.2 Dale and
Nathan Gwilliam are Arizona residents who own and manage limited
liability companies that operate several adoption-related Web sites,
including ParentProfiles.com.3 When Michael Butler called to check on
the status of the application Dale Gwilliam informed him that the couple
would not be allowed to use the Web site’s services, as the business had
implemented a policy of permitting only opposite-sex couples to post
their profiles.4
On January 12, 2004, the Butlers filed suit against the Gwilliams
and their limited liability companies, Adoption Media, LLC and
Adoption Profiles, LLC.5 The Butlers claimed that the defendants had
violated the Unruh Civil Rights Act, as well as California’s unfair
competition and false advertising laws and the California Business and
Professions Code.6 The Butlers sought damages and injunctive relief and
moved for summary judgment on the issue of liability under the Unruh
1. See Butler v. Adoption Media, LLC, 486 F. Supp. 2d 1022, 1025 (N.D. Cal. 2007).
2. See id. at 1025-1026.
3. See id. at 1025.
4. See id. at 1026.
5. See id. at 1025.
6. See id.
173
174 LAW & SEXUALITY [Vol. 17
II. BACKGROUND
A. Public Accommodation Laws and the First Amendment
Public accommodation laws are rooted in English common law;
those who “made profession of a public employment” were prohibited
from refusing service to a customer absent a good reason.9 Public
accommodation statutes have been prevalent throughout the country for
some time and state legislatures have continuously broadened the scope
of the statutes to keep up with changing times.10 The United States
Supreme Court has deemed such statutes to be within the states’ power to
enact.11 The Court has also found, despite some claims to the contrary,
that such statutes generally do not violate the First or Fourteenth
Amendments.12
In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston the Court attempted to draw the line between constitutional and
unconstitutional application of public accommodation statutes.13 The
Court distinguished between commercial and noncommercial speech,
arguing that the Free Speech Clause of the First Amendment “has no
more certain antithesis” than the restriction of the latter; “[w]hile the law
is free to promote all sorts of conduct in place of harmful behavior, it is
not free to interfere with speech for no better reason than promoting an
approved message or discouraging a disfavored one, however enlightened
either purpose may strike the government.”14
7. See id.
8. See id. at 1025-26.
9. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 551,
571 (1995) (quoting Lane v. Cotton, (1701) 88 Eng. Rep. 1458, 1464-65 (K.B.)).
10. See id. at 571-72.
11. See id. at 572.
12. See id.
13. See id.
14. Id. at 579.
2008] BUTLER v. ADOPTION MEDIA, LLC 175
C. Choice of Law
As California was the forum state, its choice-of-law rules applied.23
California applies the “governmental interest” test in the absence of a
choice of law by the parties.24 According to the test, the court must first
determine whether there is a “true conflict” between the applicable
statute or rule of law of each of the implicated jurisdictions.25 Second, if
a conflict is found, the court must then decide which jurisdiction’s
interests would be more severely compromised if that jurisdiction’s law
were not applied.26 Although it might appear to be a matter of simply
weighing the interests, the test involves the determination of “the relative
commitment of the respective states to the laws involved.”27 In order to
make this determination, the court looks to several factors, including “the
history and current status of the states’ laws; [and] the function and
purpose of those laws.”28
The most recent case in which the California Supreme Court
implemented the “governmental interest” test was Kearney v. Salomon
Smith Barney, Inc.29 The case was brought by two California clients of
Salomon Smith Barney (SSB) who claimed that the brokerage firm had
violated California Penal Code section 637.2 when it tape recorded
telephone calls the plaintiffs had made to brokers in SSB’s Georgia office
without their consent.30 Penal Code section 637.2 provides for a civil
cause of action for any violation of California’s invasion-of-privacy
statutes, section 632 being the one specifically pertaining to the unlawful
recording of telephone conversations.31 The court first analyzed the
California statute, looking to the legislatively described purpose of
section 632, which is the protection of the privacy of California citizens.32
The court found that “[t]he privacy interest protected by the statute is no
less directly and immediately invaded when a communication within
California is secretly and contemporaneously recorded from outside the
state than when this action occurs within the state.”33
23. See Butler v. Adoption Media, LLC, 486 F. Supp. 2d 1022, 1036 (N.D. Cal. 2007).
24. See id.
25. See id.
26. See id.
27. Offshore Rental Co. v. Cont’l Oil Co., 583 P.2d 721, 727 (Cal. 1978).
28. Id.
29. 137 P.3d 914 (Cal. 2006).
30. See id. at 918-19.
31. See id. at 919.
32. See id. at 928.
33. Id. at 931 (emphasis in original).
2008] BUTLER v. ADOPTION MEDIA, LLC 177
The court then turned to analysis of the Georgia law and judicial
interpretation.34 Although the Georgia statute and stated purpose was
found to be similar to that of California, the court found that Georgia
courts have consistently interpreted the privacy statutes as being
inapplicable when conversations are recorded by one of the participants
in the exchange.35 Thus, the court found there to be a true conflict.36
California had a legitimate interest in having its law applied to the case
“because [the] plaintiffs are California residents whose telephone
conversations in California were recorded without their knowledge or
consent” and Georgia had a legitimate interest in shielding its residents
who acted in Georgia in reliance on Georgia law.37
Given this conflict, the court proceeded by attempting to discern
which state’s interest would be more impaired if the other state’s law were
to be applied.38 The court reasoned that since California’s statute
provided more privacy protection, rather than less, the application of
California law would not violate any privacy interests protected by
Georgia law.39 In addition, since the California law would only apply to
calls made to or from California residents to or from Georgia, the burden
on businesses in that state to monitor its recordation appropriately would
be relatively low.40 Finally, the court noted that calls between California
customers and Georgia businesses could still be made and recorded, but
only with prior consent, therefore, posing a very minor impairment of
Georgia’s interests.41 The court concluded that California law should be
applied to the case because California’s interests would be more impaired
by the application of Georgia law than would be Georgia’s interests if
California law were applied.42
California.44 Both plaintiffs and defendants agreed that the laws of the
two states differed, but each proffered their own theory as to why this
difference was significant.45 While the defendants found it dispositive
that the plaintiffs could not sustain a claim under Arizona law, the
plaintiffs focused on the fact that while Arizona does not have a law
prohibiting sexual orientation discrimination by businesses, it does not
have a law that condones it either.46 While the Arizona statute was
facially similar to earlier versions of the Unruh Act, which did not
include marital status and sexual orientation as protected characteristics,
Arizona courts have never held, as California courts have, that the list of
characteristics is merely illustrative.47 Therefore, as of 2002, when the
cause of action occurred, while Arizona did not prohibit discrimination
on the basis of sexual orientation or marital status, California law did
prohibit the former and “it was an open question” as to whether the latter
was prohibited.48
Second, the court considered whether a true conflict existed.49
Defendants asserted simply that Arizona had an interest in having its law
applied, while California did not.50 Defendants claimed
an interest in determining which business practices that occur in Arizona
will subject Arizona businesses to liability; in ensuring that businesses
operating within its borders are not subjected to liability for activities or
practices that are legal in Arizona; and in assuring that its citizens are not
penalized when they enter into or refuse to enter into contracts in Arizona
51
with persons from the minority of states with substantially different laws.
Defendants also asserted that in 2002, California had not demonstrated a
strong commitment to the policies underlying plaintiffs’ claims and that
the public accommodation at issue occurred in Arizona; therefore,
California’s public accommodation law was inapplicable.52 Plaintiffs also
contended that a conflict does not exist.53 They argue that this is because
only California has a legitimate interest in applying its law, as the cause
54. Id.
55. See id. at 1048.
56. Id.
57. See id.
58. Id. at 1050.
59. Id. at 1051.
60. Id.
61. See id. at 1052.
62. Id. at 1053.
63. Id.
180 LAW & SEXUALITY [Vol. 17
IV. ANALYSIS
The noted case signifies the new frontier in the movement to
eradicate discrimination based on sexual orientation. Although other
cases have come before that dealt with discrimination against
homosexual individuals by private businesses, none before have dealt
with such discrimination by private Internet businesses. Recent polls
show that nearly eighty percent of American adults not only access the
Internet, but spend an average of eleven hours a week in cyberspace.68
With so many Americans not only accessing the Internet, but also doing
business over the Internet, it has become “‘an emerging issue across the
country whether Internet businesses have to comply with state anti-
discrimination and consumer protection laws.’”69
The court’s decision has already inspired others to attack the legality
of discrimination on the Internet. In the same vein as the noted case, a
woman in San Mateo County, California has filed suit against the
popular online dating Web site, eHarmony, for refusing its services to
those who are seeking to be matched with someone of the same sex.70
The Web site defends the legality of its actions by claiming to have a
“legitimate business purpose” for its policy of exclusion, the fact that its
research database is comprised of one clinical psychiatrist’s observations
Ashleigh Bergeron *