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Trivializing antidiscrimination law:

I support antidiscrimination laws that prohibit certain types of group-based discrimination by government, including discrimination based on sexual orientation. I also support extending these principles to the private sphere on important matters like employment and housing, with some limitations and exemptions. On this, I may be less libertarian than some of my co-Conspirators. Nevertheless, I join David and Ilya in questioning the wisdom of the suit against eHarmony. My reasoning is a bit different.

I have no view on whether eHarmony's practice of excluding persons seeking same-sex mates violates any California antidiscrimination law. California courts should apply state antidiscrimination law — if the best construction leads to that conclusion — regardless of whether they think it's good policy under the circumstances.

I have no trouble saying, apart from whether this is right or even relevant as a matter of state antidiscrimination law, that eHarmony is engaged in "sexual orientation" discrimination. Discriminating on the basis of a trait (seeking same-sex mates) that is intimately tied to the status (homosexual) is the sort of discrimination that a sexual-orientation antidiscrimination law is properly concerned about. A policy that forbade yarmulkes, and only yarmulkes, is anti-Jewish even though Jews themselves aren't forbidden. Few policies that disadvantage gays take the form of, "No gays allowed." Even the Texas sodomy law, which applied only to same-sex sodomy, did not prohibit homosexuals from having sex — they simply had to choose opposite-sex partners for the identical activity. Yet I have no hesitation saying that law was anti-gay. Again, sexual orientation discrimination may not be problematic generally, or illegal in a particular case, or as applied to eHarmony's practice, but I think the practice at issue here is sexual-orientation discrimination.

I'm dubious about eHarmony's rationale for its practice: that its questions and answers are based on research tailored to heterosexuals that may not fit well for homosexuals. The dynamics of gay and straight relationships are very similar if not identical: the same sorts of problems arise (e.g., financial, division of labor, differences over child-rearing), the same traits are desired in mates (e.g., honesty), and so on. Given that eHarmony's founder is a Christian evangelical, the real objection is probably that eHarmony does not want to facilitate what it regards as immoral and unbiblical relationships. The business about its heterosexuals-only "research" seems pretextual, crafted to fend off litigation.

Ilya raises an interesting concern about federalism. California is a big market and its policies may, as a practical matter, have effects on interstate businesses. On the other hand, I'm not sure which way federalism cuts here. Federalism allows states to experiment with public policies and they shouldn't generally be required to meet the standard of the lowest-common discriminator, or the state with the most libertarian policies. Within broad limits, California should be able to experiment with forbidding anti-gay discrimination and not be put in a strait-jacket by other states' policies. There are constitutional limits on how far states can go to place burdens on the interstate economy when their policies are outliers, but that case has not been made here and I doubt it could be.

But I do think the suit is a bad idea. Modern antidiscrimination law is expanding in two ways that I think are very unhelpful. First, it is being applied in ways that infringe important liberties outside the commercial context. The Boy Scouts case, involving the exclusion of an openly gay scoutmaster, was an example of this. While the harm and indignity done to the gay scoutmaster, who'd been an eagle scout, was not trivial, requiring that the Boy Scouts let him lead troops violated the Scouts' associational and speech interests in very important ways.

Second, antidiscrimination law is increasingly being applied to trivial and/or pretty harmless discrimination that goes well beyond core concerns about things like employment and housing. The exclusion of Catholic Charities from offering adoptions in Massachusetts was unjustified because it was difficult to show how the group's anti-gay policy actually hurt gay couples seeking to adopt.

The eHarmony suit is an example of the trivialization of antidiscrimination law. It doesn't involve a core concern like employment or housing or even a traditional public accommodation. It's also very hard to see how any gay person is really harmed by the policy. Gays aren't lacking for match-making sites, either general ones or those tailored just to same-sex pairs. And personally, I wouldn't give my money to eHarmony regardless of what policy they adopt at this point.

The suit allows some opponents of antidiscrimination law to point, with some justification, to excesses as evidence that the underlying idea is bad. The claim against eHarmony, and a state law that sanctioned it, forgets the four most important words in public policy: up to a point. That point is passed when we make trivial and harmless discrimination, however dumb or prejudiced it is, a matter of legal concern.

fgdfgdfshh:
why do they need to say their research is different. They are two different types of services. If you have a dating service now, you are required to arrange same sex dates? That seems crazy. Is J-Date required to have a Christian dating service.
6.1.2007 6:44pm
DisenfranchisedJetsFan:
I don’t see how Mr. Carpenter can so casually say eHarmony is engaging in “sexual orientation discrimination” (regardless of the qualifier as to its rightfulness) without claiming that the circuit parties my father-in-law attends (where I, his heteroxexual son-in-law would be unwelcomed) is also sexual orientation discrimination (again, without regard to its rightfulness).

Quick facts: have known my father-in-law for 11 years, we usually visit (separate states) them 3-4 times a year and he has a partner that he states he’s been with since 1981. My wife and I have never had a problem thus in the Lebowski-sense we’re pretty cool that way.

That said, regardless of eHarmony’s intention it is laughable to read how Mr. Carpenter casually points out the similarities in heterosexual/homosexual relationships (finances, honesty, yadda yadda yadda) but neglects the biological differences. Not even my father-in-law would say that his relationship with his partner is exactly like mine with his daughter. The differences in women and men will never be understood by the other. I’ll never know what its like to have a menstrual period or wear a bra, she’ll never know the insecurities a man has concerning balding or erectile dysfunction (which fortunately neither is an issue with me….yet).

Even getting away from the simple biological differences, at least in my father-in-law’s situation he has a lot in common with his partner that many heterosexual couples wouldn’t have. They both enjoy football, working out together, listening to the same music, etc. That’s probably how they were attracted to each other. I love football too, and beer, and South Park. My wife tolerates that but she is more interested in fine cooking shows, classical music and collecting more shoes than Carrie Bradshaw, which I also tolerate. We certainly have a lot in common, but we have differences that we’ll never understand, and that alone is reason enough to me why someone would feel that advising a heterosexual couple is different than advising a homosexual couple. Case closed.

Unfortunately, this lawsuit and Mr. Carpenter’s strange “condemnation” of it seems to me another example of a special interest group aiming for the proverbial “having their cake and eating it too.” These groups, such as say a group of gay men, celebrate their uniqueness and diversity and bond with others like them (such as the circuit parties my father-in-law attends where I would be excluded) and thus enjoy that right, but don’t afford others the exercise of their right to exclude them when its inconvenient for them.

DC: If the circuit parties exclude heterosexuals, then yes, they’re discriminating on the basis of sexual orientation. That doesn’t mean it’s illegal. Depends on the state and the law. I didn’t say men and women are alike. I said that gay and straight relationships are very similar in very important ways such that I doubt eHarmony’s questions and analysis captures much that would be unimportant or irrelevant to gay couples.
6.1.2007 7:02pm
Dave N (mail):
I think DC makes some very cogent points--and although I suspect he and I differ a great deal on many issues, I agree wholeheartedly with him that trivializing anti-discrimination laws in this manner helps absolutely no one.
6.1.2007 7:02pm
Hans Bader (mail):
It's an interesting legal question of whether there is an equally compelling interest in eradicating discrimination of all types and in all settings.

The Supreme Court has never decided whether there's a compelling government interest in eradicating sexual orientation discrimination, which might justify restricting freedom of association in some contexts.

It appears to have assumed there is a compelling interest, but that such an interest was simply outweighed by freedom of expressive association, in its Boy Scouts v. Dale (2000) decision.

The decision it reviewed, from the New Jersey Supreme Court, held that the interest was compelling.

By contrast, the California Court of Appeal suggested there wasn't a compelling interest in eradicating sexual orientation discrimination outside the employment context. See Curran v. Mount Diablo Council, 29 Cal.Rptr.2d 580 (Cal. App. 1994), aff'd and opinion superseded, 17 Cal.4th 1670 (Cal. 1998).

As a matter of common sense, one would think there's a difference between the loss of a job and the inability to visit a particular bar or use a particular web site.

But the courts haven't really developed that distinction.

I think the real problem for dating services won't be sexual orientation itself (since many of the same dynamics presumably operate for gay couples as heterosexuals), but other classifications that get lumped into the broader LGBT category.

How many different classifications will they have to have? Not just men seeking women, women seeking men, women seeking women, and men seeking men, but what else?

Will they have to have one specifically for transsexuals (the federal gay-rights bill ENDA apparently covers transsexuals as well as gays and lesbians; it apparently doesn't reach beyond employment, but many state gay-rights measures do)?

It would be quite unremarkable for a boys club to have gay cop or firefighter as a counselor for the boys. (Although a religiously-oriented boys club might have a First Amendment defense to being compelled by law to do so).

It's another thing entirely to pass a law expecting them to hire a cross-dressing transsexual as a counselor and role model.
6.1.2007 7:10pm
DavidBernstein (mail):
I disagree with Hans's analysis of Dale. As I read it, none of the 9 justices argued that a compelling interest was at stake, but 4 justices thought the Scout's argument was just a post-hoc justification for invidious discrimination, and thus not a legitimate First Amendment defense to the New Jersey statute.
6.1.2007 7:20pm
John (mail):
A good alternative analysis. De minimis non curat lex!
6.1.2007 7:27pm
pmorem (mail):
True.com openly discriminates against both felons and married people. I think marital status is the interesting one here.
6.1.2007 7:33pm
Esquire:
If the reason Eharmony provides is actually a pretext for disagreement with homosexuality, is anyone else disturbed that some groups actually have to lie just to preserve their freedom of conscience? So who's discriminating against whom?
6.1.2007 8:05pm
Hans Bader (mail):
pmorem is right. Marital status could be a problem for dating services.

State marital status discrimination bans have been used to force landlords to rent to cohabiting unmarried couples, even when they have religious objections to that based on opposition to premarital sex. (Courts have mandated that, even though plenty of alternative housing opportunities exist for cohabiting unmarried couples, and the legislative history of these antidiscrimination provisions shows they were intended to protect unmarried women, not couples living "in sin.")

By analogy, I can see some ambulance-chasing lawyer arguing that dating services should have to allow married people seeking to cheat on their spouses to use them, based on the fact that barring would-be adulterers literally takes into account their marital status.

It's a truly asinine argument, but I can see some left-wing judge accepting it.

(When my wife and I were unmarried and living together, we had no difficulty finding a place to live, even without any local antidiscrimination law forcing landlords to rent to us. A free market in housing ensured that we always had a place to live).
6.1.2007 8:09pm
Hovsep Joseph (mail) (www):
"Trivializing antidiscrimination law" is a great way of phrasing the objection to this kind of suit in a way that will genuinely appeal to people most supportive of policing real and harmful discrimination. Thanks, I'll use it.
6.1.2007 8:10pm
Dave Hardy (mail) (www):
It sounds like a situation cured easily by someone establishing eGayHarmony and making some cash, too.
6.1.2007 8:25pm
hey (mail):
I don't like any anti-discrimination law - if people want to be idiots, they can be idiots - nor the Lawrence v Texas ruling (Thomas was spot on in his comments about silliness not being unconstitutional). Political change should only be pursued through regular political channels or constitutional amendments. Having the judiciary come in to save the day and save legislatures from their own stupidity is bad for democracy as it infantilises the legislative bodies and encourages them to pursue ever more useless and facile policies and behaviors that they know will have no effect. A town meeting or town council "impeaching" the President is just a wee bit different than congress doing it, hence why it happens with regularity, just like lefty cities going "nuclear free".

Outside of my own beliefs, however, I'd be happy with whatever outcome, as long as it truly is applied equally. Either eHarmony and ManLine are legal, or they are both illegal. The most likely outcome is that some fig leaf will be constructed so that ManLine is legal but eHarmony, True.com and Christian sites are illegal. This will just further the legal interests of radical minorities while punishing the same behavior by "normal" people.

The proper response to all discrimination is to ostracize theo who do it and give your business to people who appreciate you. ManLine won't be getting any of my business - which I'm sure they're horrified about, as like nearly every striaght male I'm deluded that I'm just soo attractive to all gay guys, despite looking nothing like the amazingly chiselled ideal of the predominant strain of gay preference. I won't get the best prices in Chinatown, Little Italy, or elsewhere because I look and sound like a Gweilo/"Mangia Cake"/derogative term of choice. I won't even get hit on at a gay bar (ok so not that much different from a straight bar, I really should hit the gym more). Heck, I'm not an eligble husband for lots of one of the types of girls I like because I'm not Jewish. Dat's life.

If eHarmony does lose, I look forward to everyone that supports that loss supporting the closing of all exclusionary establishments whether by specific discrimination or disparate impact. No gay bars, leather bars, clothing optional bars, no pork sausage, no vegetarian restaurants, kosher restaurants, halal, brahmin hindu... It would be horrible and idiotic, but at least it would be equitably horrific. Somehow, I don't think the activists have that in mind.
6.1.2007 8:34pm
AK (mail):
Wait a second. You mean to tell me that a law designed to address a social ill is being applied in ludicrous ways never intended by its authors?

Why, I am the picture of surprise.
6.1.2007 8:49pm
LM (mail):
The suit allows some opponents of antidiscrimination law to point, with some justification, to excesses as evidence that the underlying idea is bad. The claim against eHarmony, and a state law that sanctioned it, forgets the four most important words in public policy: up to a point. That point is passed when we make trivial and harmless discrimination, however dumb or prejudiced it is, a matter of legal concern.

Amen.
6.1.2007 9:03pm
Jake L (mail):
I don't know where the poster above got the idea that straights are barred from circuit parties, but so far as I know (and I'm guessing I know a lot more about circuit parties than s/he does), that's totally incorrect.

There seems to be a common perception among straights that gays are unwelcome at gay-oriented establishments and parties, yet in all my years of going to such places, I've honestly never seen that phenomenon. Hell, at gay pride parades, the group that often receives the loudest cheers from the crowd is PFLAG.
6.1.2007 9:11pm
theobromophile (www):
Why has no one sued the Society of Women Engineers (which, by a quick google check, has chapters in San Diego, San Fran, and many state-run colleges and universities) under California anti-discrimination law?

To be serious, the logical consequence of the privatisation of anti-discrimination law is to eradicate all specialised services, whether or not they are beneficial for traditionally oppressed groups. LGBT dating sites, women's networking groups, and non-Christian religious organisations will all suffer if straight people, men, and Christians can sue to gain admittance. The end result is that all services and groups will be somewhat uniform, which ultimately reduces options for everyone.
6.1.2007 9:11pm
eddy:
Do women's clothing stores discriminate against non-crossdressing men because they don't stock men's clothing?
6.1.2007 9:26pm
Recovering Law Grad:
I agree with much of DC's analysis. I will say, though, that I would be reticent to say that this is not a public accomodation. Obviously, it doesn't *seem* like a hotel or a bus station but it's obvious that the Internet is starting to make the old distinctions more problematic. I don't say, for sure, that eHarmony *is* a place of public accomodation, just that it's a far closer question than DC may acknowledge in light of rapidly evolving technology and that the issue deserves close scrutiny.
6.1.2007 11:27pm
Bravo:
Great point about prioritizing housing and employment discrimination.

But it is important to remember that there are hundreds/thousands of lawyers working on anti-gay discrimination in housing and employment, and far fewer lawyers working on these sorts of dignitary harms. It's not as though gay rights advocates are pursuing both types of claims with equal passion or resources. So they already acknowledge that housing and employment are the bigger priority.

More importantly, I think it is important to consider whether pushing the envelope on the dignitary harms has positive externalities for the employment/housing claims. Perhaps the efforts of gay rights advocates to show that discrimination goes all the way down increases sympathy generally and makes it easier for folks to accept that gays should at least have fair access to housing and employment. In a way, the housing/employment lawyers need those other lawyers to keep pushing against traditional social mores and thereby make their jobs easier.
6.2.2007 12:42am
Elliot123 (mail):
Perhaps DC can tell us how the operator's religion matters? If the operator were Jewish would it be a different issue? Buddhist? Atheist? Suppose the operator were a gay Hindu? Would the issue be different? How?
6.2.2007 1:29am
Ramza:
I agree with Dale that this lawsuit trivializes the real issue of discrimination and anti discrimination law.

I disagree on the Mass. Catholic Adoption issue and to a limited extent the boy scout issue (but not specifically the Boy Scout vs Dale court case). In both the cases private organizations accept public funds/tools, Mass. pays the catholic adoption fees for some of the cost to finding people homes, the Boy Scouts often use public schools and other public organization buildings to hold their meetings. In accepting these funds they accept they must meet certain guidelines and rules, else they can't receive these funds for the government forces all organizations to abide by these rules. One common rule these organization set are anti-discrimination policies, including sexual orientation (as in Mass.) If you break these policies you can't receive state funds.

Yes gays could still adopt in Mass., they could use a different adoption agency and the catholic adoption center occasionally performed adoption services even though it was against the dioceses position.

---------------------------------

If you want to be given someone else money you have to play by their rules, you aren't "obligated" to it, it isn't your money its their. This common sense rule applies both to public and private fields.
6.2.2007 1:50am
Daniel Chapman (mail):
Sorry... you lost me at "A policy that forbade yarmulkes..."

No one is preventing gay people from using the service offered. The clothing store analogy above is much more accurate.
6.2.2007 2:19am
Zoe E Brain (mail) (www):
Yes, the suit trivialises the issue, or as we say in Australia, it's BS.

Another issue was raised in the comments section that warrants mention:
It would be quite unremarkable for a boys club to have gay cop or firefighter as a counselor for the boys. (Although a religiously-oriented boys club might have a First Amendment defense to being compelled by law to do so).

It's another thing entirely to pass a law expecting them to hire a cross-dressing transsexual as a counselor and role model.

The same for one with a cleft palate, or a club foot, or mixed gonal dysgenesis, or any other congenital condition, I assume? Would it matter if they had had those conditions surgically corrected?

The legal view in all jurisdictions that have considered the matter from a scientific/medical rather than a religious viewpoint have decided that on the balance of probabilities, (I must emphasise that caveat) Transsexuality is just a form of Intersexuality, a biological Disorder of Sexual Development that affects the nervous system.

A crossdressing transsexual? Please define "crossdressing" to someone who is female in everything but (some or all of) her chromosomes.

See Deakin Law Review 2004 v22 :
Significant findings of Justice Richard Chisholm in respect of the expert medical evidence in that case as to the causation of transsexualism and as strongly affirmed by the Full Court on appeal
...
At paragraph [252]: ‘The traditional analysis that they are "psychologically" transsexual does not explain how this state came about. For example, there seems to be no suggestion in the evidence that their psychological state can be explained by reference to circumstances of their upbringing. In that sense, the brain sex theory does not seem to be competing with other explanations, but rather is providing a possible explanation of what is otherwise inexplicable’.
...
At paragraph [270]: ‘But I am satisfied that the evidence now is inconsistent with the distinction formerly drawn between biological factors, meaning genitals, chromosomes and gonads, and merely "psychological factors", and on this basis distinguishing between cases of inter-sex (incongruities among biological factors) and transsexualism (incongruities between biology and psychology)’.

At paragraph [272]: ‘In my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much “biological” as those of people thought of as inter-sex’.


A significant number of transsexual people have other Intersex conditions too. Not a majority, but contrary to studies performed in the 60's, rather more than the general population. Many had "corrective surgery" performed to assign them the wrong gender when young. Even today, Neurological and Chromosomal males are being surgically altered to look female shortly after birth because of malformed genitalia, because as one surgeon is on record as saying, "It's easier to make a hole than a pole".

Making such cases figures of fun is still socially acceptable now, though we no longer have Freak Shows - apart from Jerry Springer.

You don't have to worry about ENDA covering Transsexuals though - the version in the Senate appears to be excluding them. Gays are protected, Transsexuals aren't.
6.2.2007 5:09am
David Walser:
I agree with DC's main point: This law suit tends to "deligitimise" anti-discrimination suits. One of the commentors speculated that these suits might increase sympathy towards gays and therefore reduce discrimination in housing and employment. I very much doubt that will be the case. I think it more likely that, to the extent gays are viewed as a monolithic group (which I hope is not the view of most people) gays will be viewed as making unreasonable and trivial demands. Trivial use of anti-discrimination laws will erode support for such laws in general. If, by giving a group special access to the courts, society views the given inch as justifying the group's demands for a mile; society may be less likely to make such concessions in the future.
6.2.2007 6:05am
David Walser:
While I agree with DC's main point, I found the following worth comment:
I'm dubious about eHarmony's rationale for its practice: that its questions and answers are based on research tailored to heterosexuals that may not fit well for homosexuals. ... Given that eHarmony's founder is a Christian evangelical, the real objection is probably that eHarmony does not want to facilitate what it regards as immoral and unbiblical relationships. The business about its heterosexuals-only "research" seems pretextual, crafted to fend off litigation.
I don't accuse DC of religious bigotry, nor do I think he is a bigot; but the quoted language certainly smacks of bigotry. Why the need to question eHarmony's motives? Yes, some but not all evangelical's consider homosexuality a sin. I'm not an evangelical Christian and I do not presume to speak for them, but I'm going to go out on a limb and declare that not just some, but all, evangelical's consider dishonesty to be a sin. Who's to say which motivation is greater in the hearts of eHarmony's executives -- avoiding telling a lie or avoiding helping homosexuals hook up?

I understand that DC doubts that eHarmony's research and software is not equally applicable to homosexuals as it is to heterosexuals. I'm not an expert in conducting such research or in writing such software, nor am I familiar with the algorithms eHarmony uses to match "compatible" men and women. My personal area of expertise is taxation. Sometimes clients wonder about my unwillingness to answer a question without first doing some research. I can sympathize with their concern that all I'm trying to do is justify sending them a larger bill for a question that could have been answered based on my general knowledge of the area. However, my greater knowledge of the tax law makes me aware of nuances and complexities that sometimes give me a legitimate concern that an off the cuff answer might turn out to be wrong. Similarly, the experts at eHarmony may be aware of complexities in the area of couple compatibility that are not apparent to DC or any of us posting here -- complexities that give them legitimate concerns that their research and software may not be applicable to homosexual couples. I fail to see why the religion of eHarmony's founder should prevent us from granting eHarmony's professionals the same deference we usually accord the conclusions of experts. Such deference is not absolute, but usually such conclusions are given more weight than DC appears to have given them here. Instead, the way his argument is worded, one could be excused for believing that DC finds the religion of eHarmony's founder as evidence of bad faith.

Note: The fact eHarmony may have legitimate concerns that it's software may not provide reliable results for homosexual couples does not prevent the state from requiring eHarmony to serve the homosexual community. The FDA is unlikely to accept a pharmaceutical company's excuse for failure to certify a heart medication for use on women based on the fact the company only tested the drug on men. Instead, the FDA likely would require the company to conduct tests of the drug using both men and women. The state could require eHarmony to update its research and its software so it works with both gay and straight couples.

DC: A good comment. You’re right that the analysis of the questions and answers may contain levels of complexity that we don’t understand. I know eHarmony is proud of its long questionnaire. Just count me as dubious that all this complexity is going to turn out differently in any significant way for gay and straight couplings until we learn differently, if we do, in the litigation. I’d like to see some specifics.

I don’t think it’s wrong to note the religious faith of Neil Warren, eHarmony’s founder, in the context of speculating about what might be driving eHarmony’s exclusion of same-sex pairings. Warren may be among the minority of Christian evangelicals who regard homosexual relations as biblically acceptable, but the odds are against it. Add to that the fact that he was until 2005 strongly affiliated with James Dobson and the anti-gay organization, Focus on the Family, which published three of his books. It’s possible that, regardless of his views of homosexuality, the company he founded pays no attention to his convictions on these issues. I only say that these facts raise suspicions about why eHarmony really excludes same-sex pairings. The reliance on fancy-sounding algorithms follows from this moral starting point. The heterosexuals-only research justification, on this view, isn’t so much a “lie” as it is a make-weight.

I emphasize, however, that even if eHarmony’s underlying reason for excluding same-sex searches is a moral or religious objection that doesn’t change my view that it should be free to engage in this practice.
6.2.2007 7:00am
Gary McGath (www):
eHarmony is a privately run site. It caters to a specific market. Governments have no business telling its owners that they shouldn't.

The Boy Scouts are a significantly different case. If they were not so entangled with government, if they actually functioned as a self-supporting private organization, few people would object to their exclusion of homosexuals and atheists. But they are constantly trying to get special benefits from government, and they have strong support within the current administration, so they often succeed.
6.2.2007 8:55am
Russ (mail):
Much as the overreach of Nifong in the Duke Lacross case makes it less likely for legitimate claims of rape to be taken seriously, suits like this make it more likely for people to brush off legitimate claims of discrimination based on sexual orientation.
6.2.2007 11:22am
JosephSlater (mail):
I don't disagree with much in DC's original post, but some of these comments, IMHO, are making a mountain out of what so far could barely even be called a molehill. This is one complaint that has been filed -- not even one lower state court has accepted this theory yet. So the law hasn't been "applied in a ludicrous way" yet.

It's fine to ponder this as a matter of legal theory or political practice, and if courts start buying this approach, obviously it should be debated.

But to say one filing under one state law "trivializes" anti-discrimination law in a meaningful way strikes me as an overstatement. People have filed questionable suits under pretty much every federal state, or local law of any significance that allows private suits.

Thus I'm skeptical of claims that this, like the Duke lacrosse case, will make people skeptical of anti-gay discrimination. It might be a talking point for people who were already skeptical of it, though.
6.2.2007 12:07pm
Public_Defender (mail):
why do they need to say their research is different. They are two different types of services. If you have a dating service now, you are required to arrange same sex dates? That seems crazy. Is J-Date required to have a Christian dating service.

The interesting thing, though, is that aHarmony chooses to lie about its motivation rather than defend its position honestly.

I wonder what else eHarmony is lying about.

eHarmony is a privately run site. It caters to a specific market. Governments have no business telling its owners that they shouldn't [do].

So if eHarmony said, "We only cater to White people because we just don't understand Blacks, Asians and Hispanics," you'd believe them and say that it "caters to a specific market. Governments have no business telling its owners that they shouldn't do"?

Or if eHarmony started a dating system for underaged girls and adult men, you'd say that it "caters to a specific market. Governments have no business telling its owners that they shouldn't do"?

Or if eHarmony ran a brothel, you'd say that it "caters to a specific market. Governments have no business telling its owners that they shouldn't do"?

When (if ever) do you think government has the right to restrict a private business that "caters to a specific market.
6.2.2007 1:13pm
Vivictius (mail):
Hum... maybe, P_D, when the buisness is illegal to begin with, oh, wait that would eliminate most of your straw men. To go with your line of reasoning when (if ever) do you think government DOES NOT have the right to restrict a privet buisness?

theobromophile, the Society of Women Engineers does not limit membership to women. For a while when I was in school there weren't any women in the local Society of Women Engineers.
6.2.2007 1:46pm
Duncan Frissell (mail):
<i>eHarmony does not want to facilitate what it regards as immoral and unbiblical relationshipse</i>

I think eHarmony's intent was to sell traditionalist matchmaking targeted at marriage as opposed to the fornication-oriented sites like Match.com (which has since opened its own relationships site). By being the most profitable of these sorts of sites, eHarmony has proved its business model. There are clearly people who want to meet marriage partners electronically.

What kind of commie regulatory scheme prohibits a business model which effectively serves these voluntary interactions?
6.2.2007 2:53pm
Guest101:

So if eHarmony said, "We only cater to White people because we just don't understand Blacks, Asians and Hispanics," you'd believe them and say that it "caters to a specific market. Governments have no business telling its owners that they shouldn't do"?

I have to agree with Vivictius that the stuff about underaged girls and prostitution is an unhelpful straw man, since we're not talking here about a site that facilitates activities that are otherwise illegal, and taking Gary's comment out of the context in which it was made isn't particularly intellectually honest. The quotation above, though, raises an interesting point-- actually two. First, would we believe a site that catered only to whites on the ground that it didn't understand other ethnic groups well enough to match them? Probably not, but most of us, myself included, are rather skeptical of eHarmony's pretextual justification for not providing services tailored to gays. The more interesting question is whether this is a problem. From a policy perspective, I can't really see a problem with a whites-only dating site. While the Internet is perhaps a little bit like a "public accommodation," it isn't really, because there's certainly no scarcity of alternatives available online. The civil rights act was designed to redress a situation in which blacks could be effectively excluded from a community in which a finite number of hotels, restaurants, real estate brokers, etc., simply refused to do business with them; that situation just isn't present in online commerce. If a dating site refused to do business with African Americans, they aren't forced to leave town or suffer any great hardship-- they simply click over to another dating site at which they are welcome. Likewise, of course, whites aren't inconveninenced in any appreciable way by the existence of all-black, or all-Asian dating sites. As long as ethnic subcultures continue to exist-- and I don't foresee them disappearing in our lifetime-- then it seems like this approach is a legitimate way of serving the needs of those discrete groups.

I wonder how the "right of intimate association" that Prof. Volokh discussed in the context of roommate advertisements a couple of weeks ago might apply to this situation. If we accept the premise-- as I do-- that there are certain highly personal decisions, such as whom to live with, date, or marry, in which the right of personal autonomy outweighs whatever interest the government might have in prohibiting discrimination in private settings, why should we adopt a public policy that hinders people from expressing those preferences in a public forum? That is to say, if we assume that white people (or blacks, Asians, etc.) are free to choose to date only within their own ethnicity, why shouldn't a business be allowed to design a site that caters only to people who have adopted that preference?
6.2.2007 3:01pm
Cornellian (mail):
I think eHarmony's intent was to sell traditionalist matchmaking targeted at marriage as opposed to the fornication-oriented sites like Match.com

You do know that Eugene Volokh met his wife on Match.com don't you?

What kind of commie regulatory scheme prohibits a business model which effectively serves these voluntary interactions?

Presumably the same commie regulatory scheme that prohibits a restaurant from catering to white people who want to dine only with other white people. Live with it.
6.2.2007 3:15pm
Guest12345:
eHarmony's method is available for anyone to examine, since it's been patented. There doesn't need to be speculation on whether it is suitable for male-male or female-female couples. You can take the time to go learn about it and draw a real conclusion. I doubt anybody posting here has done that. But, based on the way they developed their method it's very valid that they don't want to put their reputation on the line by doing experimental match ups for couples they know they have no basis for matching.

It's also surprising, given the fundamental differences between men and women, that anyone would think that the fine factors (as opposed to the gross factors) that make a successful relationship will be the same between gay and straight couples.

If the courts decided that eHarmony must go out and spend the time and resources to identify what makes a successful gay couple so they can provide their services to gay individuals, will there be support here for forcing gay pride parade organizers to advocate for straights as well? Will the parades include 4% gay advocacy and 96% straight advocacy? Will they require that expert Chinese chefs also become expert French bakers?

It's curious that people want to paint eHarmony is such a bad light that they create entirely false statements about eHarmony just so they can say "see how wrong this kind of attitude is?" Given that there are dating sites that already engage in this sort of categorization and no one is up in arms about said sites, the only conclusion is that the hostility is more about the religion of the founder than it is in the website's failure to provide particular services.
6.2.2007 4:25pm
frankcross (mail):
Well, there's ample reason to criticize this regulation, but I don't think "trivializing" is itself the reason.

Would be speak of trivializing First Amendment rights by extending them to areas not central to the objectives of free speech? I don't think these rights have been undermined by their extension.
6.2.2007 4:32pm
Esquire:
I find the analogies to race to be a red herring -- at the very least we should have a strong presumption of individual liberty in every context. The burden is thus on those who *want* government intervention to justify it separately for EACH case, and not just passively invoke the fact the government has already intervened in some other context.

This is like when people compare the gay marriage debate to the Loving v. Virginia situation...you don't get to just do that summarily, ignoring the essence of the debate as to whether or not it's in fact comparable! Argue that it is, or argue that it's not, but at least aknowledge the debate over similarly-situatedness instead of presuming there isn't a valid one...
6.2.2007 6:06pm
hey (mail):
Lots of these sites would be vulnerable to many more suits: check boxes that focus on marital status or ethnicity could be illegal, just as they are under the Fair Housing Statue. Disparate impact suits against sites in other languages (tagalog excludes non philipinos [sp?], ukrainian excludes non-slavs...) or in how they pursue their advertising (BET vs CNBC vs...) could also be applied using similarly logical extensions of current policy.
6.2.2007 7:01pm
anonymous (mail):
[Deleted]
6.2.2007 7:25pm
Maureen001 (mail):
Ilya Somin's comments about diversity within institutions vs. diversity across institutions is entirely apropos to this topic, IMO.

A great deal of confusion has been caused by using the words "equal" and "same" as if they are interchangeable. They are not; 'equal' having its basis in Middle English, from Latin aequālis, from aequus, meaning even, level and 'same' having its basis in Middle English, from Old Norse samr, meaning one, together, with. Contemporary dictionaries utilize the word 'same' in defining 'equal' but the reverse is not the case.

There will be a marked loss to society if we opt for "same" in lieu of "equal". I sincerely hope the courts get this one clarified quickly.
6.2.2007 8:07pm
Maureen001 (mail):
Anonymous, that was particularly and unnecessarily nasty. Hence the anonymity?
6.2.2007 8:08pm
GM Roper (www):
Public Defender: "The interesting thing, though, is that aHarmony chooses to lie about its motivation rather than defend its position honestly.

I wonder what else eHarmony is lying about."

In the field of psychometrics, the group you standardize a measure on, is the group it should be used with. This is the reason psychologists have been trying to come up with culture free tests standardized on a large diversified sample vs. a semi-monolithic group. For example, the MMPI was initially standardized using many mentally ill people, so, when a "normal" person took the test, he was being compared against another group via his scores. So, a high depression score for example was initially thought to indicate a person was depressed, when all it really meant was that the person endorsed in the same direction that diagnosed depressed people did. Later, psychologists began using profiles based on three or more characteristics not just one.

So the original statement by Mr. Carpenter: "I'm dubious about eHarmony's rationale for its practice: that its questions and answers are based on research tailored to heterosexuals that may not fit well for homosexuals" doesn't really hold, he may be absolutely correct in that homosexuals have the same concerns/worries/aspirations that heterosexuals do, but eHarmony has not established that empirically. That work can be done, but to my uncertain knowledge it hasn't been done yet and obviously, eHarmony hasn't done it.

DC: There has actually been quite a bit of work done studying the dynamics of gay relationships and comparing gay to straight relationships. The findings point strongly to very similar stresses, desires, functions, needs, and so on. A good starting point for information and citations on the research would be the APA’s amicus brief in Lawrence v. Texas.

If anyone has specific examples of questions from the eHarmony system that are likely to be irrelevant or even less useful to gay couples than to straight couples it would be interesting to hear about them. Also, eHarmony says that it matches people on 29 dimensions of compatibility. Are any of these inapplicable to same-sex pairs?
6.2.2007 8:30pm
theobromophile (www):
Viv - true, but the scholarships are only open to women.
6.2.2007 8:56pm
Lee Moore (mail):
Discrimination by private persons is sometimes rational and sometimes not, sometimes fair and sometimes not, but either way, in a free country it's no business of the law courts.
6.2.2007 9:03pm
Random Numbers (mail) (www):
I have no view on whether eHarmony's practice of excluding persons seeking same-sex mates violates any California antidiscrimination law.


They do not exclude persons seeking same sex mates. They don't provide same-sex matchmaking.
This is not a listing or prersonals ad service. It is a matchmaking service with a system designed to match men to women. The system that they use take male-female attraction, and all of it's physiological cues, as a given.

Dallas Gentlemens' Club offers a service. It has women dancing nude on stage for entertainment. The service takes male-female attraction as a given. The club does not exclude gay men any more that eHarmony does, but gay men would not be satisfied with the sevice as it is geared toward heterosexual men.

Should Dallas Gentlemens' Club be forced to have male strippers to avoid "discriminating"?
6.2.2007 10:22pm
DisenfranchisedJetsFan:
^^^

Exactly. A point Ilya made earlier. Anybody can sign up for eharmony's services (thus its sexual orientation neutral), but the service provided is likely not going to be satisfactory to certain groups.
6.2.2007 10:46pm
Ed Sunder:
Gary,

Regarding the Boy Scouts, they are a "self-supporting private organization" that is not "entangled with the government" at all. People believe that they are "entangled with the government" but they are wrong. It's a misconception. That said, many troops do receive benefits (use of a meeting hall, special access to certain parks/lands etc.) from certain specific government agencies (cities, parks, military bases), but those same benefits are often offered to other groups (Girl Scouts, Pioneers, Awana, etc.) as well. If you really believe they are "entangled with the government" please tell me how because the national office would strong dispute that and I really want to nip this common misconception in the bud.
6.2.2007 11:02pm
Elliot123 (mail):
I'm fascinated by the idea that M/F relationships are based on the same factors as M/M or F/F relationships. Is the basis of this notion the idea that men and women are psychologically the same?

Some folks tells us the same issues are involved. I agree, they are. But men and women often approach those issues from very different perspecitives and have very different attitudes. This reminds me of the feminists who insist the only difference between men and women is the plumbing.

But it's great to know the lawyers have figured it all out for us. Maybe they can tackle cold fusion next.
6.2.2007 11:31pm
Jake L (mail):
Why is everyone assuming that EHarmony will gladly match up gay men with women, and lesbians with gay men? The site supposedly rejects people all the time for all sorts of reasons. I have a hard time believing that I, as a gay man, could apply to the site and say, "I have no desire to date women, and I'm not attracted to them, but I want to try eharmony!" and I would be one of the lucky ones who is accepted.

If, in fact, eharmony refuses to accept applications from gay men and lesbians, then the comparison to a women's only clothing store is incorrect - a better comparison would be to a women's only clothing store that only allows women to shop there.

For the record, I think that a private business should be able to discriminate against whoever it wants, and if a clothing store wanted to let only women shop there, I wouldn't want the government to step in and force them to change their policies.
6.2.2007 11:53pm
Jake L (mail):
In my previous post, I meant "lesbians with men", not lesbians with gay men.
6.3.2007 12:05am