An Internet dating service called eHarmony.com matches people based on a very long list of questions they answer about their likes and dislikes, lifestyle, philosophy, religious and political views, and so on. That's par-for-the-course with these services, but this one adds a twist. Unlike almost every other dating site, it will not match people with members of the same sex.
This upset a California lesbian, who sued eHarmony, claiming that this practice amounted to illegal anti-gay discrimination under state law. While eHarmony's practice is indefensible and likely bigoted, the lawsuit trivializes the serious phenomenon of anti-gay discrimination.
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. Generally speaking, employers should not be allowed to fire someone simply for being gay and apartment managers or home sellers should not be allowed deny housing to gay people.
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 regardless of whether they think it's good policy under the circumstances.
Some people have questioned whether eHarmony is even engaging in "sexual orientation" discrimination at all. Gays can join the site, they just have to settle for being matched with opposite-sex dates. That's not very persuasive.
Discriminating on the basis of a trait or conduct (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 outlawed only to same-sex sodomy and was ruled unconstitutional by the Supreme Court four years ago, did not prohibit homosexuals from having sex. Gays simply had to choose opposite-sex partners for the identical sexual activity. Yet I have no hesitation saying that law was anti-gay.
I'm also 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 with longstanding ties to James Dobson and the anti-gay group, Focus on the Family, 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.
But regardless of whether it is viable under California law, the suit against eHarmony is a bad idea.
Modern antidiscrimination law is expanding in two ways that are very unhelpful. First, it is being applied in ways that infringe important liberties outside the commercial context. The Boy Scouts case decided by the Supreme Court in 2000, 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 fairly harmless discrimination that goes well beyond core concerns about things like employment and housing. The exclusion of Catholic Charities from offering adoptions in Massachusetts last year was unjustified because it was difficult to show how the group's anti-gay policy actually hurt gay couples seeking to adopt.
The eHarmony lawsuit 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, like discrimination in a restaurant or hospital. 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. It also allows anti-gay activists to belittle claims that gays are subject to serious and ongoing discrimination that should be remedied in law.
The claim against eHarmony 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.