Below The Beltway

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Once Again, The Law Is An Ass

by @ 7:44 am on November 20, 2008. Filed under Individual Liberty, Legal, Right to Contract

I support gay marriage. I think gay people should be allowed to serve in the military and adopt children. I think people who refuse to hire people based on sexual orientation are stupid and bigoted. And, I thought that laws against sodomy were stupid unconscionable intrusions into individual liberty long before Lawrence v. Texas.

And yet, I consider this to be a miscarriage of justice:

NEW YORK (CNN) — Online dating site eHarmony will create a service for same-sex matching in a settlement of a 2005 complaint that the company’s failure to offer such a service was discriminatory.

Under terms of the agreement with the New Jersey attorney general’s office, eHarmony Inc. will start the service, called Compatible Partners, by March 31.

“With the launch of the Compatible Partners site, our policy is to welcome all single individuals who are genuinely seeking long-term relationships,” said Antone Johnson, eHarmony vice president of legal affairs.

The company and its founder, Neil Clark Warren, admit no wrongdoing or liability.

“Even though we believed that the complaint resulted from an unfair characterization of our business, we ultimately decided it was best to settle this case with the attorney general, since litigation outcomes can be unpredictable,” eHarmony attorney Theodore B. Olson said.

Under the settlement’s terms, eHarmony will post photos of successful same-sex couple matches on the company’s Web site and in promotional material. The company has also agreed to revise statements on its Web sites, handbooks and other publications to indicate that it does not discriminate on the basis of sexual orientation.

The settlement also requires eHarmony to pay plaintiff Eric McKinley $5,000 and to pay the New Jersey Division on Civil Rights $50,000 to cover administrative expenses.

Why shouldn’t someone be allowed to establish a dating service that caters to a specific group ?

Does this mean that a website that caters exclusively to single Jews violates laws against religious discrimination ? How about one that caters to Native Americans ? Or single libertarians ?

Dale Carpenter at The Volokh Conspiracy pointed out the dangers of this type of “civil rights” litigation more than a year ago:

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.

Condor Friedersdorf also makes an excellent point:

[I]sn’t it kinda reasonable for a dating Web site that has some complicated algorithm for compatibility and a desire to maximize profit to focus on straight people?

After all, coming up with a whole section for gay men and another for lesbian women sounds like a pretty expensive proposition to serve a quite small percentage of the population, and one relatively unlikely to patronize a company run by an evangelical Christian.

And, more importantly, shouldn’t eHarmony have the right to decide who it does business with ?

2 Responses to “Once Again, The Law Is An Ass”

  1. [...] General said on Wednesday.” (Reuters, Nov. 19, Friedersdorf, see also Mataconis). Earlier coverage: Jun. 1 and Jun. 8, 2007; Mar. 26, 2006 (married man wants [...]

  2. The question is, where do you draw the line? The law (at least, the Federal law, I don’t know about New York law) applies only to “public accommodations.” If eHarmony holds itself out as being available to anyone, then that means it’s open to the general public, then I think a suit alleging that it discriminates against gay people is well-taken. And the law needs to look at the reality of what’s going on — a restaurant cannot re-brand itself a “private club” and sell memberships at the door to any white person who wants to come in for a dollar and call that “freedom of association.”

    As I understand it, eHarmony’s defense was that its matchmaking algorithm “just doesn’t work well” for gays and lesbians; it assumes certain things about women looking for men and men looking for women that don’t apply to homosexual people looking for love. That sounds kind of like B.S. to me; based on anecdotal evidence that what makes gay relationships work, or not, is pretty much the same set of things that make straight relationships work, or not. I can only assume that this was elaborated on in more detail in the lawsuit, which has been going on for nearly two years.

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