Early in November, the popular online dating company eHarmony settled with the New Jersey Attorney General’s Division on Civil Rights (DCR) over allegations that the company violated the state’s anti-discrimination law by limiting its matching service to heterosexual couples. In 2005, gay New Jersey resident Eric McKinley had filed a complaint with the state, and in July 2007 the director of the DCR issued a finding of probable cause that eHarmony had violated the statute. In the face of mounting legal costs and the risk of crippling civil and administrative liabilities–stemming not only from the New Jersey investigation but other potential litigation, such as a recently certified class action in California state court–eHarmony agreed to create, by March 2009, a new matching service for same-sex couples called CompatiblePartners.net. By the terms of the settlement, the company was not found to have actually violated the law. As counsel for eHarmony Theodore B. Olson states, “We believe these claims are legally baseless, but fighting a case like this to the end of the line can be expensive and a distraction for any company.”
The settlement also requires the company to provide free registration for the first 10,000 users of CompatiblePartners, to post photos of successfully matched same-sex partners in the “Diversity” section of the eHarmony website, and to “enlist the assistance of a media consultant experienced in promoting and ensuring fair, accurate and inclusive representation of gay and lesbian people in the media.”
This outcome has caused an uproar among social conservatives. From a legal standpoint, the consternation is understandable. The company’s founder, clinical psychologist Neil Clark Warren, developed a formula for making matches through three years of research into opposite-sex compatibility. The argument that eHarmony discriminates for lacking a same-sex matching service is somewhat analogous to finding a pharmaceutical company discriminatory for selling drugs for prostate cancer but not breast cancer.
For the state’s legal theory to make sense, one must assume that same -sex and opposite-sex chemistry can necessarily be predicted in substantially the same way, such that gay customers are being discriminatorily deprived of the right to purchase the existing service. Whether this is true as a matter of fact seems questionable enough that a private business whose success has flown largely from its high success rate at matching deserves deference in determining whether it has the capacity to offer a service that might otherwise require substantial new research costs. The term in the eHarmony settlement requiring that the same-sex service “be provided using the same or equivalent technology and service quality” as the original service almost guarantees this problem, especially since CompatiblePartners must be rolled out in just a couple of months.
Regardless of the legal merits of the settlement, the outcry against the company it has generated from observers on both sides of the debate is notable. A quick search of socially conservative blogs reveals numerous calls for boycotts of eHarmony, such as one by a former eHarmony user “sickened” by the company’s acquiescence to the demands of gay activists. Unfortunately for eHarmony, the same search reveals a similar number of proposed boycotts by gay match-seekers, such as one who labels the settlement “separate but not equal” and states “there are plenty of other websites for dating that will take our gay dollar$ and not segregate gays from heterosexuals.”
What this backlash highlights is the impossibility of expecting all corporate actors to function at all times as vehicles of political expression. A citizen’s power as a consumer to express disapproval of overt political action is a useful feature of a free state; recent examples include the boycott, by opponents of Proposition 8, of businesses whose owners had made donations in support of the initiative, or that of the Dixie Chicks by former fans disgusted by Natalie Maines’s comments about President Bush. In such cases the relevant commercial interest had chosen to enter the world of political discourse, and politically expressive consumer choices functioned as collective responses to those actions. But for a company that has not otherwise chosen to enter the realm of politics to be punished for the incidental political effects of a neutral business decision, such as the decision to settle a lawsuit, necessitates that productivity and innovation be permanently limited by the scope of compromise between competing ideological agendas.
EHarmony’s own history exemplifies a corporate choice to withdraw from the ideological realm, and perhaps explains why this particular case has generated so much discontent. When Warren, a Christian who also has a divinity degree, first started to advertise the eHarmony plan, he did so primarily to Christian markets, often in concert with Focus on the Family, which had published three of his ten books on relationships. Eventually, Warren sought to distance himself from this Christian focus, marketing the plan to secular audiences, no longer appearing on James Dobson’s radio show, and buying back the rights to his books from Focus on the Family. “We’re trying to reach the whole world–people of all spiritual orientations, all political philosophies, all racial backgrounds,” Warren told USA Today in 2005. “And if indeed, we have Focus on the Family on the top of our books, it is a killer. Because people do recognize them as occupying a very precise political position in this society and a very precise spiritual position.”
This was the statement of a savvy businessman seeking to increase market share; which, as good business decisions frequently do, benefited many consumers: the numerous non-Christians who have met partners through the site since its secular marketing push. But eHarmony’s Christian roots have almost certainly made it a particular target, not only, in the first instance, of gay rights groups, but also of social conservatives who deem the company to have some heightened duty not to capitulate in the face of legal action. (No one, for example, talks about boycotting Match.com, the other major dating website which already offered both same-sex and opposite-sex services).
It will be interesting to see, in a few months, whether the same-sex service eHarmony must so quickly develop will be as successful at creating long-term matches as its opposite-sex counterpart. If so, the settlement–however dubious the coherence of the underlying complaint–will have at least prompted the creation of a useful product, to the benefit of additional consumers and the company itself. EHarmony, and all companies in analogous situations, should be allowed to market this new product without being deemed to have assumed a position in the culture wars.
Erin Sheley is a writer and attorney in Washington, DC.
