Monday, December 01, 2008

Gender and soul mates

I have been wanting to post on the e-Harmony settlement. I have the same reaction to its founder and his participation in its TV commercials as I do to George of the Men's Wearhouse. I am sure that he's a nice guy and all,but he might be a tad overexposed.

For those who missed it, eHarmony is a computer dating service that touts a system for matching men and women who are thought to be compatible based upon their answers to a series of questions. As I understand it, the system is based upon research on the experiences of heterosexual couples and premised upon the particular responses of men and women as to what they seek in an opposite sex partner and self identification of certain values and attributions. The selection of the questions is based on experience with married couples.

(I've thought it would be interesting to register and see if your are matched with your spouse, but the idea is hardly original. Green Acres did it in that age of punch cards.)

eHarmony doesn't provide this service for gays and lesbians and, for this reason, found itself subject to a discrimination complaint in New Jersey and California. Faced with significant litigation costs, it decided to settle the New Jersey matter and will develop a separate site for same sex matching.

The case hardly seems to be about discrimination in the traditional sense of the word. eHarmony developed a product designed for heterosexuals. It did not choose to develop one for same sex couples. That, in and of itself. cannot constitute discrimination. Harley's and Victoria's Secret do not discriminate by failing to sell, respectively, women's and men's clothing.

Those who support the idea of discrimination would respond by saying the analogy is inapt. There is a difference between clothing for men and women but not between heterosexual and homosexual couples.

That may be true but it's not self evident. Whether by socialization or otherwise, there are differences between men and women that affect relationships between them. This strongly suggests that a relationship between two men and two women will be different. Accepting a separate system for same-sex couples seems to be an acknowledgement of that.

Perhaps these differences are not relevant to the eHarmony system. I don't know and neither does the Attorney General for New Jersey. The case is not about that. It's about making the point that gender is irrelevant to sexuality other than for its obvious limitations on physical activities and the superficialities associated with socially constructed gender roles.

It also raises, again, the question of conscience protection as it relates to sexual orientation. Our society has decided that individuals cannot act in certain ways even if they belief that separation of the races is a moral imperative. Ought we treat beliefs about sexual orientation in the same way?

18 comments:

Nick said...

I agree. It's a foolish lawsuit. Can a meat-eater sue a restaurant that specialized in vegetarian food for not serving a rib eye? Of course not. There are other restaurants that do serve meat eaters.

And there are other dating sites that do specialize in matching homosexual couples. In fact, eHarmony will reject heterosexuals from joining for other reasons, depending on the answers to your profile questions.

I've also seen ads for other dating sites that use this rejection as a selling point, saying they will accept people who were rejected by eHarmony.

I looked at this and wondered why gay people would even want to be on eHarmony. After all, if their algorithms are keyed towards matching heterosexual couples for marriage, perhaps there is good reason to believe those algorithms won't work on homosexuals. Wouldn't you rather have a company matching you that WANTS to match you based on their good algorithms designed for you?

This attitude is not suprising however, and is only encouraged by how government involves itself too much in business. We should not be surprised at the attitude people take that companies should be forced to sell certain products, when we force car companies to design, build and market electric cars, or when we think we can force oil companies to start investing in wind/solar energy.

If the government can do it, some people reason, then why can't I force other companies to? As it turns out, they can.

Anonymous said...

I thought that equal protection claims regarding the private actions of individuals (at least under the 14th Amendment) require State Action; what is the State Action component in eHarmony's business?

Was the complaint in relation to State Constitutional protections?

sean s.

Paul, just this guy, you know? said...

This is very well presented. What continues to astound me is that such suits get traction, and results.

It also gives me no small amount of fear about where our society is headed.

Anonymous said...

Both the NJ and CA claims were under their respective State laws.

In the NJ case “Theodore B. Olson, an attorney for eHarmony, said that even though the company believed McKinley's complaint was ‘an unfair characterization of our business,’ [eHarmony] choose to settle because of the unpredictable nature of litigation. ” (1)

As part of that settlement, eHarmony is setting up a site for same-sex only couples (compatiblepartners.net).

As of November 19, the CA case is heading into mediation. (2)

Along with the issue of damages to for those who actually tried to use the site, the CA plaintiffs are seeking an injunction to force eHarmony to keep compatiblepartners site in operation; their NJ settlement commits them only to 2 years of service.

As a side note, eHarmony was sued in 2006 for denying service to a heterosexual male whose divorce was not yet finalized. I don’t know the outcome of that case.

So what are we to make of these cases? If (and only if) eHarmony’s business practices violate the applicable State laws, then the suits are entirely proper. Perhaps (only perhaps) these State laws are silly, but that doesn’t matter: the Law is the Law. “The best way to get rid of a bad law is to enforce it.” eHarmony insists it did not break any laws, but isn’t that always the claim? I don’t see any legal reason to object to the suits.

sean s.

(1) http://www.chron.com/disp/story.mpl/ap/business/6121126.html.
(2) http://legalpad.typepad.com/my_weblog/2008/11/eharmony-class-certified-despite-promised-gay-site.html

John Foust said...

Nick, what you say is on-target, but I'd clarify by saying that eHarmony has changed its policies over time as it no doubt discovered that it wanted to expand its market, broaden its appeal and please its customers. A company that spends a lot of money to offer a product to the general marketplace without any fine-print or disclaimers isn't going to make a potential customer very happy if they've spent 30 minutes answering a quiz, then being told they can't join because they're not sufficiently Christian in the eyes of the software developed by their evangelical Christian founder. (Sure, they "fixed" that in time - by not rejecting people because of their religious beliefs, taking their subscription money, then giving them minimal or lousy match-ups.) Speaking of "separation of the races", eHarmony wouldn't match across self-identified race for a while, either, until they let up on that. God's rules must've changed. Similarly, for a while there, eHarmony wouldn't match people across different sects of Christianity, either, insuring that Pentecostals never get paired with more "reformed" religions, to use Warren's words. To my sensitive nose, I don't think they were very concerned about matching people on an intellectual level, either. Similarly, eHarmony has backed away from its pseudo-scientific claims regarding the efficacy of Warren's 29 points of compatibility and the results of the unpublished, unverified "research". Warren has backtracked away from calling eHarmony a "web-based ministry", too. The company is changing - perhaps because of the market. Discrimination wasn't the best idea from a profit standpoint.

As for the Prof's claims, more hooey from Hooterville. It's been a few years since I tried eHarmony's quiz, but I recall that it said very little or nothing about the spectrum of sexuality. Hundreds of questions, maybe one or two vague questions about sex. Warren's long-time goal is about promoting or helping heterosexual marriage, with a deliberate deemphasis on the sexual. I think Warren thinks tab A goes into slot B and there's nothing more to it.

Publius said...

In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384]

The California State Supreme Court held:

“1) Gay men and Lesbians are commonly subject to biased treatment that has no basis upon their ability to be a contributing member of society.

Therefore, sexual orientation, like race, religion, or gender, is a suspect class for purposes of the Equal Protection Clause of the California Constitution. This suspect classification requires that the highest level of scrutiny be applied to laws potentially infringing upon the rights of these persons.

(2) Under the above standard the statutory denial of marriage licenses to same-sex couples is unconstitutional.”
This overturned a previous proposition, and led to Prop 8

This involves a relationship between a state, its citizens and those citizens’ rights to engage in a state contracted “marriage".

Prior to the 1970s life insurance companies charged a higher premium for African-Americans because their mortality statistics were higher, as are those for smokers, males, and motorcycle riders. Also being charged a higher premium were people with contributing health conditions (i.e. Cardiovascular disease, liver disease, and all the rest).

This practice obviously disappeared and the higher risk was obviously absorbed by:

You guessed it!

All the other premium payers.

As a card-carrying member of one of the most frowned upon minorities, “geeky old white guys”

I believe my people are commonly subject to biased treatment that has no basis upon their ability to be a contributing member of society.

Furthermore, I believe the e-harmony algorithm needs to be changed so that “geeky old white guys” are matched with far hotter women than they normally would be.


Alas. I will never be able to participate in the struggle for which I've been a proponent because my wife caught me filling out e- harmony applications and is monitoring my Internet use.

Anonymous said...

Are you discriminating if you use eHarmony and don't want to be matched with somone of the same sex?

Nick said...

@John Foust

I generally find a lot of what you say in your comment to be... well... pointless. While I know you enjoy ranting about people who happen to be religious, I personally find nothing wrong with people using a private company who's idea of a compatible match is someone of a similar religious and racial background.

Two of the biggest issues that tend to face any couple is having religious views that disagree and racial differences that cause family/societal friction. It makes perfect sense that a service would choose to match people within similar backgrounds to provide the best chance of success.

That is not to say that people should not be willing to date/marry outside those boundries. Of course they should, and hopefully we as a society are accepting of those people. I like to think I am.

But it is a far cry to say that not only should society be accepting, but that we should force a private website, that people pay to use, to force their customers to test the waters with their own romantic lives.

John Foust said...

Well, Nick, I wasn't saying we should force them to do anything. I was pointing out how eHarmony's approach to their product has changed over time. I would presume it was due to market forces and customer complaints or the increasing wisdom and tolerance of the people running their company.

If they're misleading people by misrepresenting their product, I do think that's a general concern to anyone. I and many other people do think they misrepresented their product in the past. By comparison, I'd offer the way that reunion sites like Classmates.com send out emails saying that three old friends have sent you messages (when it's not true, it's just a trick to get you to sign up.)

Only time and customer complaints have ferreted out the odd rules that eHarmony implemented in the past. As you can see with a product like this, the actual results can differ from what's expressly described and/or implied by their ads. Caveat emptor, once again.

As for the relative importance of racial and religious differences, ask any divorce attorney: the three biggies are disagreements over managing money, sex, and how to raise the kids.

Anonymous said...

..every ask yourself why pedophiles get: jail, parole, GPS trackers and the shame of being listed on public criminal databases..


..and homophiles(gays) are a protected group with rights to sue on-line dating services and employers..


When both are forms of sexual deviation?


..Or does that require a certain Moral Fortitude..Mankind no longer has?

GAMazy said...

When both are forms of sexual deviation?


..Or does that require a certain Moral Fortitude..Mankind no longer has?

Touche, Anon...

Very few words, but aptly said.

This seems to be the moral trend our society has taken. Our schools now include sexual orientation as a protected class, giving special rights and protections to gay and lesbian students over others. Somehow this seems biased and unfair and, dare I say it......discriminatory.

Anonymous said...

David and Tonia Parker from Massachusetts. David went to his son's school and explained that he wanted to opt out his kindergartner when homosexuality was being discussed. He was arrested, taken to jail, went through two trials that he lost, and the U.S. Supreme Court refused to hear the case;

Elaine Huguenin is the 25-year-old photographer who was fined $7,000 by the state of New Mexico for refusing to film a lesbian "celebration";

I believe liberals are taking freedoms away from people.

Anonymous said...

Anonymous at 5:43 pm said “ever ask yourself why pedophiles get: jail, parole, GPS trackers and the shame of being listed on public criminal databases.. ..and homophiles(gays) are a protected group with rights to sue on-line dating services and employers.. When both are forms of sexual deviation?

It’s easy. ‘Homophiles’ and ‘heterophiles’ are protected groups because their behaviors involve sexual relationships between consenting adults; there are no victims. Homosexuality is “sexual deviation” only with respect to the majority, a trait they share with the celibate too. Should we criminalize the celibate for their sexual deviance? Probably not; as again there is no victim.

Pedophilia has victims: children. That’s why it’s criminalized.

Anonymous at 5:43 pm said “..Or does that require a certain Moral Fortitude..Mankind no longer has?”; to which GAMazy commented “Touche, Anon... Very few words, but aptly said.

Not So Much.

No Moral Fortitude is required to be intolerant of those who are different. Moral Fortitude is required to be tolerant.

GAMazy commented further, “This seems to be the moral trend our society has taken.”.

I hope so, since tolerance of harmless differences is a sign of Moral Fortitude, the fortitude to not give in to our baser instincts.

GAMazy commented further, “Our schools now include sexual orientation as a protected class, giving special rights and protections to gay and lesbian students over others.

I don’t think this is limited to schools, but in any event it’s an odd thing to say, since heterosexuality is a sexual orientation too. If rights are conferred on those with a sexual orientation, then EVERYONE gets the right since EVERYONE HAS A SEXUAL ORIENTATION.

Pray tell us: name even one right that homosexuals have that heterosexuals lack? Just One.

GAMazy commented further, “Somehow this seems biased and unfair and, dare I say it......discriminatory.

How is it biased, unfair or discriminatory to protect everyone who harms no one? It cannot be.

sean s.

Anonymous said...

“No Moral Fortitude is required to be intolerant of those who are different. Moral Fortitude is required to be tolerant.”


"moral courage" is the ability to act rightly in the face of popular opposition, shame, scandal, or discouragement.” (Wikipedia)


Actually Sean, Moral Fortitude is holding to what ones knows is right despite, discouragement.

That is what I am doing, Now!


Until 1974,the DSM, held that pedophilia, homophilia and neurosis were mental illness. Then it became Politically Correct to “de-diseaseify” one of those, guess which one?

I have many friends who have mental illnesses; I love them just the same.

I just don’t believe they constitute a “protected class” in terms of the law.

anon 5:43 PM

Anonymous said...

Anonymous 5:43 PM wrote, “Actually Sean, Moral Fortitude is holding to what ones knows is right despite, discouragement. That is what I am doing, Now!

As I am too. And also those who work to protect the rights of Gays, Lesbian, Bisexual, Transgenders, etc, etc, etc. And the pedophile who sincerely believes his behavior is right for him to do.

Anything is justifiable if all we need to is claim is doing “what we know to be right despite social censure”. That’s what unrepentant pedophiles do. Moral Fortitude needs to mean more than just persevering against discouragement without becoming a morally empty term. I regard Moral Fortitude referring to at least to self-regulation, not “other-regulation”.

The DSM may have once classified homosexuality as a disease but I bet medical science has changed its evaluation of many conditions. Left-handedness was once considered a character disorder (hence: sinister), it is still associated with conditions in the DSM (such as alcoholism). You don’t want to even think about the stupid things medical science used to say about “negroes” and women. Yikes!

You imply that the DSM was changed in response to political correctness, but I suspect the APA had different reasons for the change. Politics may have played a role in the decision, but politics probably played a role in marking homosexuality as a “disease” in the first place. Politics aside, for what medical or psychological reason would homosexuality be regarded as a disease EVER?

BTW, I believe the DSM still categorizes homosexuality as a Sexual Orientation Disturbance. Since homosexuals can live “normally”–whatever that means–and conceal their orientation for their entire lives (not that they should, but they can) it seems more appropriate to regard their orientation as a disturbance at most, if not simply a natural variation. This is, of course, a significant distinction between homosexuality and a genuine mental illness.

Even if homosexuality WERE a “disease” there are many non-communicable medical conditions which people live with every day and no law discriminates against them. What is the legitimate interest in singling out homosexuality for discrimination when those who are impotent are not? The impotent are even allowed to get married; so much for the relationship between marriage and children!

And of course, if homosexuality IS a mental disorder, then all this trash about it being a choice is refuted. One cannot choose a mental illness.

Since the law extends to homosexuals no rights that heterosexuals are denied, their legal status is not really different from yours. In fact, I don’t know that the law regards them as a “protected class” though I also admit to not being sure what you mean by that term. I understand the term “suspect classifications”; such as race, religion, and gender. Is that what you are referring to? The very fact that State Constitutions are allowed to discriminate against homosexuals in the area of marriage makes me doubt they are a “protected class”. Since I am merely a law STUDENT, I guess I have yet to understand the legal meaning of “protected class”.

sean s.

James Pawlak said...

We will continue to march forward, under the rain-bow banners, to the AIDS wards.

Anonymous said...

There are so many homophobics. It is very sad people aren't more tolerant of others.

Anonymous said...

John Foust said in response to race and religion being considered important factors in compatible partnership:
"As for the relative importance of racial and religious differences, ask any divorce attorney: the three biggies are disagreements over managing money, sex, and how to raise the kids."

You don't think problems with 'sex' and 'how to raise kids' commonly come from religious differences? I have not done or seen a survey on the subject, but it would fit with my perceptions to find that people with similar religious beliefs have less of those problems. Your comment seemed a tad dismissive.

Sean, I do not think gays have 'rights' that heteros lack, but they do have laws and classes and from this new precedents (could) get set that would apply only to the protected parties.

I agree with the spirit of separation of church and state. Is the state encroaching on that separation by forcing Christians to learn about alternative life styles as a required class? I am not sure...

It does seem a bit unfair to me to punish students for praying voluntarily on school grounds while making them go to a class preaching something that goes directly against their religious beliefs.

I am not suggesting that homosexuality is a religion(although I think current beliefs put it in a caregory closer to religion than a disease) or that any topic that conflicts with a religion should be forbidden in public shools. However, I do feel it is not a topic on a par with the three Rs and should not have the level of impact in schools that it does, and if people are so convinced that it is a 'normal' state of being, it should not have any 'special' rating in the first place.

Yes, yes, awareness must be raised to change ideals, but isn't that then doing for the idea of homosexuality what activists have pushed so hard for to keep religions out of school?

It is somewhat hypocritical(or stupid at least), in my view, to forcibly preach tolerance, peace, and love as long as it does not have God in it.
Tuerqas