IGF CultureWatch

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.

Well, here we are again. It's Gay Pride month. If you are old and jaded, or for that matter young and jaded, your reaction is probably a sardonic "Oh, Whoopee-do." That is usually my first reaction too. But then I think about it for a while and end up deciding that gay pride is a pretty good idea.

Think back half a century. "When our American movement for full civil rights and equality for homosexuals got launched fifty-six years ago, we had a huge range of basic problems to tackle. We were denounced as immoral and sinful. We were punished as criminals and lawbreakers. We were labeled 'sick' and needing a 'cure.' We were mostly invisible as gay, which made it hard for gay men and lesbians to develop good social lives and to create a movement to battle injustice and prejudice." That's the late pioneer gay activist Barbara Gittings.

And now? Although we have not yet achieved social, legal, and political equality, there are ample grounds for feeling pleased, proud even, about the progress we have made.

In the 1950s barely a handful of gays and lesbians were out of the closet. Most were closeted not out of shame, I suspect, but because of a very real fear of discrimination and hostility and that people would automatically think less of them if they were known to be gay. Now there are millions of gays and lesbians, perhaps including you, who are confidently open about their orientation and think that if other people disapprove of homosexuality, so much the worse for them: they are simply ignorant. What a remarkable change!

Today many young people have the same fears that all gays did fifty years ago. But now we have created resources--books, websites, gay clubs in schools and colleges--that they can access to help them through those fears as a phase and not a life-long condition.

Partly because more people have gotten to know us personally, we have moved public opinion from almost universal disapproval of homosexuals to a kind of split decision. A 2004 Pew Center survey found that 49 percent of the public said homosexuality should be accepted by society, while only 44 percent said it should be discouraged. And the momentum is on our side as each generation expresses more gay-positive attitudes than the one preceding it.

In most cities we have formed numerous community groups to help promote gay economic, cultural, and political progress and to help other gay people with their quality of life--old gays, young gays, deaf gays, people with AIDS, parents of gays, etc. Large numbers of gay and lesbian volunteers help these organizations function effectively. Fifty years ago there was--nothing.

A friend remarked the other day that every time he passes by Chicago's new gay community center he sees people going in and out whom he has never seen before. It made him realize, he said, how many more people are actively involved in gay community programs than he had thought.

These are volunteers who could be doing something else with their time but who obviously find it rewarding, even self-actualizing, to contribute to the community. No doubt it is also an important way publicly to affirm the value of their identity by involving it in a contribution to society.

Fifty years ago, some employers fired gays and lesbians. By contrast, we are now an identifiable and quantifiably large market. That has helped persuade numerous companies to adopt non-discrimination and partner benefits programs for their gay employees. More than most social and political activists admit, economic behavior is the fundamental social force in society. Economic change brings other change in its wake, sometimes kicking and screaming but ineluctably. Businesses that want to maximize their income need to maximize our patronage.

The social and economic progress we have made in the last 50 years has been partly obscured because it has not been fully reflected in the political realm. But beneath the notice of hostile presidents and congresses we have won increasing social acceptance. The election of more supportive national officials from either party should help political progress catch up with our social and economic progress.

Finally, keep in mind that what the first gay activists undertook was a moral revolution. Fifty years ago, few prominent people challenged the idea that homosexuality was morally wrong or "sinful." It must feel very odd for recent Catholic popes to see within their lifetimes the rise of a mass movement of people who utterly reject 2000 years of tradition on a fundamental moral issue like homosexuality and say, in effect, "I reject what you preach. I'm moral; you're not." Popes hate that!

The day after Jerry Falwell's funeral, Mary Cheney-who is a LESBIAN, in case you've forgotten the Bush-Kerry debates-gave birth to a baby boy.

If I were the world's scriptwriter, I would have reversed the order: Cheney gives birth, then Falwell keels over. No matter: just as nature abhors a vacuum, so does right-wing foolishness. With Falwell gone, someone else will step up to blame the world's problems on Tinky Winky, environmentalists, and lesbian moms.

For the record, my condolences go out to the Falwell family. That the man said profoundly stupid things about gays and lesbians (among other subjects) does not alter the fact that he was also a husband, father, and friend.

If only Falwell and his followers could muster up similar empathy. Whatever one might think about lesbian parenting, Mary Cheney is a mother, and Samuel David Cheney is her son. None of this will stop the so-called "family values" crowd from accusing her of child abuse simply for bringing him into the world. It's a nasty accusation, and it needs to be countered forcefully.

Vice President Cheney seems to understand this point. Some months ago, CNN's Wolf Blitzer asked him to comment on criticisms of Mary, and the vice president responded with harsh verbal smack-down. Blitzer didn't deserve it (don't shoot the messenger-or in this case, the interviewer). But it was hard not to admire Cheney's exceedingly effective "Don't fuck with my family" attitude, or to be grateful that for once his belligerence was (almost) well-aimed.

When gay or lesbian couples decide to have children, they obtain them one of two ways. First, they may adopt, thus giving a home to a child who has none. Parenting is an act of loving sacrifice, and those who adopt children ought to be applauded and supported. To treat them otherwise not only insults them, it also harms their children-not to mention other needy children who may be deprived loving homes because of misguided "family values." Shame on those who stand in their way.

The other way-the one used by Mary Cheney and Heather Poe-is pregnancy, either by insemination or implantation of an embryo. I do not wish to minimize the moral questions raised by reproductive technology. Most of these questions, however, are not unique to lesbian and gay parents, who constitute a minority of its users.

But aren't same-sex families "suboptimal" for children? The research says otherwise. So does every mainstream health organization that has commented on the issue: the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychology, the American Psychiatric Association, and so on.

Jerry Falwell's crowd would have us believe that these organizations have all been hijacked by the vast "Homosexual Agenda." Trust me: if we had such power, we wouldn't be having this debate.

Forget the research for a moment and consider the following: if Mary Cheney had not chosen to become pregnant-by whatever means she used-Samuel David Cheney would not exist. After all, he is a genetically unique individual, as pro-lifers frequently remind us. The practical alternative to Samuel's existing in this lesbian household is his not existing at all, and it is hard to argue that he'd be better off that way. So the claim that they harm him, simply by bringing him into this situation, rings hollow.

Metaphysical subtleties aside, the fact is that Mary and Heather will provide this child with a loving home, not to mention many material advantages. The more people see that, the more ridiculous charges of "child abuse" sound.

And that last point gives me great cause for optimism. When I came out of the closet nearly twenty years ago, myths about gay and lesbian people abounded: we were sick, we were predators, we were miserable, we were amoral. Such myths still exist, of course, but they are far more difficult to float (and thus, far less common). The main reason is that we are much more visible now, and so people know firsthand that the myths simply aren't true.

While many people know openly gay or lesbian people, relatively fewer know gay or lesbian parents. That's changing, and as it does, so too will the ability of the right wing to float nasty myths about them. Their influence will wane in the face of simple evidence.

Samuel David Cheney begins his life in an America with fewer Jerry Falwells and more Mel Whites; fewer Pat Buchanans and more Andrew Sullivans; fewer Dr. Lauras and more Ellens. Good for him (and the rest of us).