Must eHarmony Run a Gay Dating Service?
Blogging the case over at
Reason and
Overlawyered.UPDATE: also
Dale Carpenter on Volokh.com Also
DeNovo and
Ex-Gay Watch join the fray. Also Rob Vischer at
Mirror of Justice and
Ms. Morality. Here's something new from
Gay Patriot.UPDATE:
Must eHarmony Run an Adulterous Dating Service? Follow the links from Overlawyered and you learn about another lawsuit against eHarmony.com. This one from John Claasen, a lawyer who thinks failing to let him find a new girl before he is actually divorced is marital status discrimination. Weird thing is,
he may be right.
UPDATE: Rick Rosendall's thoughts:
"I haven’t done anything up yet on this, but in brief I would distinguish between the eHarmony case and an adoption case in that the latter involves the welfare of a third party – the child. In the case of a dating service, (A) I am not inclined to make a big deal of it, and at least on face value the business’s lack of research on the gay population seems at least plausible as a reasonable basis for them to specialize on what they know about; and (B) in any case, what’s sauce for the goose is sauce for the gander, and if eHarmony is required to serve people seeking same-sex partners, then the gay dating service that I understand has launched in response to eHarmony’s policy should be held to the same standard and required to serve opposite-sex couples. What I seek is equality, not to cherry-pick benefits.
In the case of adoption, the welfare of the child is paramount. No one has a “right” to adopt a child. We are not talking about a pet shop here. It is a serious responsibility, and I don’t know any gay adoption advocates who focus on the rights of the prospective parents instead of on the welfare of the children. The point is not that gay people have a right to adopt, but that they should not be excluded as a class from being considered as prospective adoptive parents. The adoption process is not simple for anyone, and various factors are routinely considered including financial stability and other things. The close scrutiny that is given to any prospective adoptive parent is entirely appropriate. But there is no reasonable basis for automatically excluding gay people as a class. The standard must be the best interest as a child. There are thousands of children waiting for loving homes, and they languish in the foster care system because they are “too old” or have physical or developmental problems that cause them to be overlooked by most straight couples seeking to adopt, because those couples usually want a “perfect white baby.” Gay people and couples have disproportionately adopted the orphaned babies and children whom others refuse to consider, including babies with HIV. I know a couple who were foster parents of such a baby (this was before same-sex second parent adoption was legal in DC, which happened as a result of a 1995 court ruling, and which was upheld by Congress in 1999); baby Joshua’s life was all too short, and it was heartbreaking to see him at play with the breathing tubes going up his nose, but he could not possibly have been better loved. It is simply cruel to put one’s ideology ahead of the interests of babies like Joshua, who are better protected by legal adoption and by having two legal parents instead of one."
posted by maggie at
2:37 PM | link
MG: Must eHarmony Run a Gay Dating Service?
MB: I go back and forwards on this one. On the one hand, I think freedom of religion is important, and pretty much paramount in ritual and individual contexts. On the other hand, I think anti-discrimination trumps freedom of religion in public accommodations. On the third hand, I think dating services are getting into the territory where making limited exceptions makes sense - people can be as choosy as they like about who they date provided only they can find a consenting adult to choose them back, and if companies want to maximize their competitive advantage by specializing in niche markets within people's fickleness, that's entirely legitimate and I'd support changing the law to recognize that. And my better nature says that that's where it should stop.
The only trouble is that on the fourth hand, that's not actually what the eHarmony case is about. Their lawyers have to _say_ that it's about better serving the preferences of a (very large) niche group of customers, and hope that they have enough plausible deniability to get away with it, but in reality it's about the proprietor imposing his conservative Christian preferences on the customers - see "on the other hand" above. So part of me really wants to see him slapped down and I can't be bothered apologizing for that.
But then I take a few deep breaths, and recall that that wouldn't be helpful. It's not actually as if I'd dream of joining his service even if it were legally forced open to allow me in. If I were in the market for a partner, I'd _want_ a specialist gay service.
And then I think maybe I can have my cake and eat it too. If the cost of giving a black eye to Neil Clark Warren is a token straight section on gay.com, I think I can cope.
- Mark B.
I went into Dress Barn last week and didn't find a single pair of work-boots or men's dress shirts. In fact, everything in the store was for women!
Should I sue them for gender discrimintation?
M: Should I sue them for gender discrimintation?
MB: That one's too easy. What happened when you went to buy a dress? If they threw you out, then yes. They're allowed to discriminate on the stock, what they're not allowed to discriminate on is the customers. The reason the dating service case is hard is because there the customers _are_ the stock.
-Mark B.
OK Mark B, but just as I'm allowed to buy myself a nice dress at Dress Barn, I'm sure a lesbian would be allowed to shop for a date -- a male one -- at eHarmony.
But since I typically don't wear dresses, I don't often shop at Dress Barn. Likewise a woman who typically doesn't date men probably shouldn't be shopping at eHarmony.
Right?
M: Likewise a woman who typically doesn't date men probably shouldn't be shopping at eHarmony.
MB: Sure, I get it that eHarmony is offering "merchandise" that is of little interest to gays and lesbians. And I agree that stores normally have the right to offer any merchandise they like. If a company decides to stock nothing but his'n'hers pyjama sets and other items of little interest to gay people or gay couples, I could care less.
My point is that eHarmony _doesn't_ get as much freedom to pick and choose its merchandise at a typical business because its merchandise is its customers, and antidiscrimination laws about not picking and choosing customers according to certain suspect categories take precedence. The fact that eHarmony's merchandise is of little interest to me is no defence because eHarmony made its merchandise of little interest to me precisely by discriminating against its customers - by turning away lots of other people like me.
- Mark B.
Nah, their merchandise is their software, their questions and surveys and their matching algorithms and screening procedures. They didn't have any customers when they started, what attracted customers to them was the promised ability of their algorithms to produce a good match, and their idea of a good match is a person of the other sex, just like Dress Barn's idea of a good piece of clothing is a dress. If you don't like that, shop at a store that has the matching algorithms that you like.
They would have to come up with questions and algorithms that work well gay people, but they have no competency in that, or interest in developing it. It's like telling a mechanic he has to work on typewriters.
No Mark, eHarmony is not "turning you away" anymore than Dress Barn is turning me away.
I'm sure you'd be welcome to use their service to find a heterosexual soulmate -- their merchandise -- if you were interested in doing so.
I sympathize a little Mark B. but I'm with the others on this one. EHarmony is a private enterprise and I don't think that people have any business sueing them over how they choose to appeal to their customers. Besides, the better route is the one taken by Chemistry.com which has made its' inclusiveness of gays in its' sevice a marketing point in advertisements that poke at eHarmony. (Something eHarmony has filed suit over I believe)
JH: They didn't have any customers when they started, what attracted customers to them was the promised ability of their algorithms to produce a good match, and their idea of a good match is a person of the other sex, just like Dress Barn's idea of a good piece of clothing is a dress.
MB: Well, which is it? Are they selling opposite-sex matchups, or are they selling good ones (from the point of view of their customers)? These are only the same thing if they've already discriminated on their customers.
-Mark B.
eHarmony's argument is that they have trained psychologists attempting to provide the best match. Which is why they are expensive and it is complicated to get through to an actual date. So yes, they are selling good matches. And they are simply not qualified (or so they claim) to match up same-sex couples. It's as if you went to a cardiologist because you were having stomachaches. Sure, he's a doctor and sure he probably knows something about stomachaches since he did go to medical school, but it is perfectly reasonable to deny you medical attention because he does not feel qualified enough to stake his reputation and business on treating you.
I think this also comes down to availability, which we can relate to the recent case in Australia where a gay club/hotel got the right to be exempt from discrimination laws and only let gay males in. In the case of that, straight people have a gagillion other places they can go to get similar club-like experiences; it should be perfectly fine to have a gay-only club. Similarly, there a gagillion other dating services, many of which are tailored to gays specifically, that gays can go to to find a match. Of course, viscerally, it's a bit more complicated because it does involve the customers as a the product, but I think that eHarmony will (and should) win this case.
Also, to eHarmony does seem to value customer satisfaction; I had a friend use them before and she hadn't realized the extent of the religiousness of the people who use it, and she wrote to them and told them that this really wasn't for her and they gave her a full refund.
anonymous: EHarmony is a private enterprise and I don't think that people have any business sueing them over how they choose to appeal to their customers.
MB: If that were definitely the issue, I'd agree. And eHarmony is of course doing its best to present that as being the issue. That's their right, and if it were another company I'd tend to believe them. However in this case, what's very clearly going on behind the figleaf is a company picking and choosing its customers according to a certain criterion, when there's a law intended precisely to forbid that sort of thing. So it's of interest to look _very_ closely to whether the law does in fact forbid what it's intended to forbid. I fancy it does, but it's genuinely debatable.
-Mark B.
M: And they are simply not qualified (or so they claim) to match up same-sex couples.
MB: Indeed. And in one sense, I don't disbelieve them - I'm sure they _are_ clueless. The question is how do we treat willful cluelessness used as a figleaf for deliberate discrimination, which is most likely the case here?
M: In the case of that, straight people have a gagillion other places they can go to get similar club-like experiences; it should be perfectly fine to have a gay-only club.
MB: Certainly I'd like to see de-facto gay-only clubs, as well as de-facto straight-only clubs. But I do feel very strongly that it needs to be truly de facto. I want to see gay clubs maintained by offering entertainment of interest to gay people. I don't want to see it done by throwing straight people out, especially not with lame pretexts like, "Oh, we're so not qualified to play opposite-sex dance music." It shouldn't be necessary. A rainbow flag out the front and a bit of gay porn on the video monitors should be more than enough. If as often happens a few straight women come in because the dance music is good and they don't get pawed at by drunken straight men, that's all to the good. (Ditto for straight men, although I have no idea whether that's common.) If as occasionally happens, a gay club gets taken over by straights, at least the former patrons will have the right to invade some other club.
- Mark B.
Mark B.
Like I said, I sympathize, but only a little. I'm pretty well with Dale Carpenter on this. I think the presumption for the freedom of a company should be very strong unless it involves very basic necessary goods (food & shelter for instance). What ever eHarmony's reasons, fig leaf or not, they are allowed to not provide their service to gay people. It is costing eHarmony money to deny these services to gay people (business that is being eagerly picked up by eHarmony's competitors along with the business of gay-friendly heterosexuals much to eHarmony's chagrin). What business do we have suing them over their bad business decisions. It is PC overkill; insanely stupid politically. It's not helping anyone, no one at all. It's not like any gay people would actually want to use eHarmony's service after this anyhow. For goodness sake leave the social conservatives alone.
Just because they hounded gays furiously for decades doesn't mean it's any better for gays to hound them back. Two wrongs don't make a right and all those other hoary cliches. Plus this can only do harm to our own real causes.
Why would you need separate matching software to pair men with men and women with women? Apart from the choice set for the sex of the partner, what parameters in choosing a mate would differ by sexual orientation?
anonymous: I think the presumption for the freedom of a company should be very strong unless it involves very basic necessary goods (food & shelter for instance).
MB: May I ask: what considerations went into striking that balance? In particular, what considerations went into deciding that this was a matter where it was sensible to strike a balance in the first place? After all, you wouldn't take the same attitude to fraud - you wouldn't say that the presumption in favour of freedom to defraud should be very strong unless it caused the customers serious inconvenience. You're perfectly happy to set the freedom to defraud at exactly zero. Why should the freedom to commit vigilante actions against innocent groups of people not likewise be exactly zero? Why should gay people have to put up with any of this crap at all? Why is their freedom from harrassment a matter to be compromised away?
anonymous: It is PC overkill; insanely stupid politically.
MB: I don't see it. SSM is a tricky sell which has suffered a bit from backlash, but as far as enactment and enforcement of plain old anti-discrimination law is concerned, I think we should just steamroller forward. Social conservatives will rant about political correctness, but they'd do that anyway - it's part of their schtick.
anonymous: It's not like any gay people would actually want to use eHarmony's service after this anyhow.
MB: You never know. Maybe Neil Clark Warren will get fed up with the hassle and sell out to someone less bigoted. It happened with Coors beer. (For people who may not know the story, Coors was not sold in gay bars for the longest time because Pete Coors is one of the biggest sponsors of anti-gay organizations in the US.)
anonymous: What ever eHarmony's reasons, fig leaf or not, they are allowed to not provide their service to gay people.
MB: Err, to the extent that "not providing their service to gay people" is a fair characterization of what they're doing (and as I've conceded, it's not entirely clear), then no, as a matter of California law, they're not allowed. And quite rightly so, I think.
anonymous: Just because they hounded gays furiously for decades doesn't mean it's any better for gays to hound them back.
MB: Sure. Past slights are in the past and best forgotten. But this isn't about retribution for past slights, this is about preventing continuing slights.
- Mark B.
Julianb, it's just a guess, but I suspect that the matching software is the result of years and years of study of heterosexual compatibility: men seeking women, and vice versa.
Do you honesty think that same research would hold up in a homosexual environment? Top seeking bottom?
Marty,
For the most part, I suspect that the characteristics that people match on for m/f, m/m, and f/f are pretty much the same. My suspicion is that the stereotypes of top/bottom or butch/femme apply more to those seeking sex, not actual relationships, and represent only a portion (and probably a smaller portion that most people think) of the GLB dating scene. My experience is that most people seeking a life companion, gay or straight, probably match primarily on things like having similar interests, religion, age, wanting to have kids, etc.
JB: My suspicion is that the stereotypes of top/bottom or butch/femme apply more to those seeking sex, not actual relationships, and represent only a portion (and probably a smaller portion that most people think) of the GLB dating scene.
MB: I can't speak for lesbians, but note that top/bottom per se isn't a stereotype. Many guys have firm preferences, and it can easily be a dealbreaker for an otherwise highly satisfactory potential relationship that works on many levels besides sex. The stereotype is the idea that the top has to affect manliness, whereas the bottom has to be effeminate.
- Mark B.
Julian, if that were true, then why are gay people so adamantly opposed (it's impossible, they claim) to having an intimate relationship with someone of the opposite sex?
Or is it really just gender bias, pure and simple?
Marty,
That's an odd question. There's quite a big difference between how one has sex and with whom one has sex. We all have preferences about how we like to have sex. Our orientation toward the sex of our partners, however, is not a preference. It's an orientation and for most, straight and gay, it's immutable.
Mark B.,
I have no doubt that this is a big issue for some. My point is that it is not a big issue for many, and perhaps most, gay and lesbian people. I stongly disagree with your statement about the stereotype issue. It is a stereotype that gay and lesbian people have such strong preferences about these things. Some do, but a very large portion do not.
JB: Some do, but a very large portion do not.
MB: Not remotely so large that a dating agency can afford not to ask about it. Let's get real here. It would make a very heartwarming story if the number of questions where the gay and straight questionnaires needed to differ was exactly zero, but it's not. It's quite small, mind you - small enough to make the argument of the apologists for eHarmony very weak indeed. At the same time it's not exactly zero and no good will come of pretending it's exactly zero.
- Mark B.
Does eHarmony ask women for their breast size? There are many, many more heterosexual men who have strong preferences with regard to breast size than gay men who have preferences for specific types of sexual activity.
JB: Does eHarmony ask women for their breast size?
MB: I don't know. Since they're a pretty conservative bunch, I would imagine not. So? Are you suggesting it _wouldn't_ be useful information in conjunction with corresponding preference data?
JB: There are many, many more heterosexual men who have strong preferences with regard to breast size than gay men who have preferences for specific types of sexual activity.
MB: So?
- Mark B.
As far as I'm concerned, Dale totally nails it. I see no value in trivializing anti-discrimination laws in this way. In fact, I think in practical terms gay and lesbian people are probably better off using the dating services that are already gay-friendly than trying to get a service started by an evangelical Christian with religious objections to homosexuality to do matchmaking.
(And I of course have no sympathy at all for the would-be adulterer.)
Lynn Gazis-Sax
The court case is frivolous. The complaint displays animus based on gay identity politics. There is nothing more to it than that.
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