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May 6, 2004

Just the First Taste

A California lawsuit gives us a glimpse of litigation to come, should same-sex marriage become a reality:

A San Jose gay couple is suing an Internet-based adoption service after it refused them service.

In a decision issued Wednesday, federal district court judge Phyllis Hamilton ruled that a lawsuit against for discriminating against same-sex couples can proceed to trial. is the largest adoption-related internet business in the United States. Among other for-profit services, it permits prospective adoptive parents to post their personal profiles in hopes of connecting with potential birth mothers. They will not, however, permit same-sex couples to post their profiles.

In 2002, the company refused to accept an application from San Jose residents Rich and Michael Butler, a same-sex couple who have been together eight years and who sought to post their profiles on one of's websites.

Dale Gwilliam, a spokesperson for the company, allegedly told the Butlers that does not allow gay and lesbian couples to use their services.

Represented by the National Center for Lesbian Rights the Butlers filed a lawsuit challenging this discriminatory policy under California law, which prohibits businesses from discriminating on the basis of sexual orientation.

In his ruling allowing the suit to move forward Judge Hamilton rejected the company's argument that it does not have to comply with California's non-discrimination laws.

Two things disturb me about this — one a long-standing frustration, the other a relatively new consideration. The frustration is with the utter absence of the argument that differentiating between couples based on their makeup is not the same thing as discriminating on the basis of qualities those people possess. In other words, it isn't that the couple is gay, per se, but that the relationship does not contain a member of each sex. I realize that, for homosexuals, that amounts to the same outcome; however, laws pertaining to discrimination have to do with justification and judgment. Should marriage be redefined as any couple, these fundamentally different points of differentiation would collapse into one.

Note that also requires clients to be married, indicating that even that eminently legitimate point of discrimination is being threatened:

Because of varying state laws, not all hopeful parents who would like to be listed on can be listed. For example, we cannot accept people who are not legally married, people who have not completed a pre-adoption home study, or people who otherwise do not satisfy our eligibility requirements. Even though some states allow parents in these situations to adopt, others do not.

The second, relatively new, consideration gives, in many ways, more reason for concern. Although the article quoted above doesn't mention it, is based in Arizona, not California. I'm not an expert on the relevant laws, but it seems to me that the standard that could potentially be set with this case would undermine claims that a federalist solution is possible. Same-sex marriage in a state would open up any organization that wishes to deal with couples from that state to such discrimination lawsuits.

A state-by-state patchwork (for marriage, as opposed to civil union–type contracts) will not stand. Moreover, it isn't but so overwrought to suggest that no organization that resists demands to ignore differences will stand either.

Posted by Justin Katz at May 6, 2004 4:58 PM
Marriage & Family

"I'm not an expert on the relevant laws, but it seems to me that the standard that could potentially be set with this case would undermine claims that a federalist solution is possible." Oops.

Posted by: ELC at May 7, 2004 1:36 PM