Eharmony.com, the most profitable on-line dating service, is being sued under California law for discrimination based on sexual orientation for failing to include "women seeking women" or "men seeking men" categories on its website. Eharmony, for its part, claims that its services are based on research regarding what makes heterosexuals compatible, and because it has no similar research available for homosexuals, it does not provide services to them. Complicating matters is the fact that Eharmony's founder is an evangelical Christian with apparent ties to Focus on the Family.

The media reports I've found don't mention what is the underlying statutory basis for the lawsuit. I would imagine, however, that as an initial matter, the plaintiff will have to prove that this is indeed discrimination based on sexual orientation. Eharmony does not technically prevent gays and lesbians from using its services; rather, it provides services for people looking for partners of the opposite sex. Assumedly, any self-identified homosexual who decided to look for an opposite sex partner would be able to use Eharmony's services. Is this a distinction without a difference? I'm not so sure. I wouldn't think that a strip club featuring nude females could be sued for sexual orientation discrimination simply because few gay men would be interested in utilizing its services. On the other hand, if the club excluded gay men who did wish to ogle nude women (or hang out with men who did), that would clearly be discrimination based on sexual orientation.

If a court held that Eharmony's policy was nevertheless sexual orientation discrimination because in practice Eharmony has chosen to serve only a heterosexual clientele (and this would depend, I should think, on the relevant statutory language and how courts have intepreted it), Eharmony would still have the defense that its dating system (which, I understand, involves detailed questionaires) is based on heterosexual-specific compatibility research.

Finally, notwithstanding the recent Australian decision permitting the establishment of a gays-only bar, I wonder whether a favorable outcome for the Eharmony plaintiff would serve the interests of gays. If a dating site that serves only heterosexuals is guilty of sexual orientatation discrimination, so would a dating site that serves only homosexuals. Minorities, sexual and otherwise, tend to prize services specifically tailored toward them, and it woudl seem counterproductive to force Eharmony to serve people serving same-sex partners if the result was to inhibit or prohibit services specifically geared (perhaps with underlying research on compatibility) to such people.

As as aside, in You Can't Say That!, I discuss an Australian decision forbidding the establishment of a Jewish-only dating service. The decision was later overturned, but only because the owner of the service was able to present expert testimony about the "need" for such a service in a minority community. Of course, my view is that short of prohibiting fraud, the government shouldn't be in the business of regulating dating services, period.