David's post about the ill-advised lawsuit against E-Harmony for failing to provide options for same-sex dating is another example of the conflict between diversity within institutions and diversity across institutions. If the plaintiff gets her way, E-Harmony and other dating services will have to cater to both homosexual and heterosexual daters. By the same logic, J-Date will have to cater to gentiles as much as Jews, and so on. And of course gay dating websites would have to work to facilitate heterosexual dating as well.
This result would greatly undercut the advantages of specialization and diversity. It would lead to the homogenization of dating websites, as all would have to cater to all groups equally. No site would be able to specialize in serving the distinctive needs of any one group, whether that group be gays, Jews, or evangelical Christians. Basic economics - and basic common sense - suggest that members of all these groups can benefit from diversity and specialization across dating websites. While many of the individual sites may have a very homogenous clientele that effectively "excludes" various groups, there is enormous diversity in the dating website market as a whole; that diversity is of course partly the result of the homogeneity of individual sites. And for those who do not want to limit their dating to a particular group, there are numerous generalist dating websites, such as Match.com.
If the suit succeeds, dating websites could try to mitigate the harm it causes by providing only pro forma equality to those groups they don't really want to cater too. For example, J-Date allows non-Jews to join on the same formal terms as Jews; but obviously the site is much less useful to those seeking gentile mates than those seeking Jewish ones, and it has many features that cater to the specific interests of Jews (e.g. - allowing participants to indicate which Jewish denomination they belong to, but not providing the same options for adherents of other religions). This kind of approach presumably would not satisfy the E-Harmony plaintiff. After all, E-Harmony already permits gays to join on the same formal terms as heterosexuals. It's just that the service it offers (the opportunity to date members of the opposite sex) has much less value for gays than for heterosexuals.
UPDATE: I should have noted that this case also has an interesting federalism angle. Since the case involves only California antidiscrimination law, not federal, a victory for the plaintiff technically would only affect people in that state. But because of California's obvious importance as a major market, a win for the plaintiff might well compel dating websites to alter the services they provide nationwide. The only alternatives would be to 1) create a separate and more "inclusive" site for California residents alone, or 2) refrain from offering services to California residents entirely. This dilemma is an example of the broader problems caused by states regulating commerce in ways that have major effects outside their own borders. A well-functioning system of federalism must constrain state governments, not just the feds. For a more detailed discussion, see this article.
Related Posts (on one page):
- Trivializing antidiscrimination law:
- Internet Dating Websites and Institutional Diversity:
- Eharmony Sue for Sexual Orientation Discrimination:
Thing is if they allow homosexuals on their website they lose that good "website" feel, due to homophobia, they are no longer a moral group.
They are allowed to do this, they shouldn't be sued for this reason. It would be different if they canceled a 6 month subscription without returning the fee if they ound out a person is gay. They don't do that, they don't won't be willing to mate you with somebody and if I understand it correctly you get your money back. No one is harmed, like a person who loses his apartment or job due to his sexual orientation.
I do not like this kind of argument because I am personally in favor of pro-family institutions where people who share traditional values can get together. I believe that disapproval of homosexuality is a legitimate viewpoint that reasonable people can agree (or, of course, disagree) with. Still, I wish that Ilya at least addressed that point, which I would suspect is a common left-wing rebuttal to Ilya's argument.
I don't understand this. It's been said several times in the other post. How many gay people would answer the following question yes: Do you think a gay person understands you better than a straight person? Isn't the very reason that there are gay clubs at schools because people want to associate with those they think they can relate to and who will understand them.
Eharmony also apparently won't attempt to match people: who are currently married, who have been divorced three or more times, who are under twenty one, or are severely depressed.
(emphasis added)
the suit will loose..and the LGBT community will look bad because off a few hotheads
Even if you have a homogenous "big community" on a dating site, isn't the point to describe that population with variables that allow them to segment efficiently? So my point is this - why not just assign them a "gay variable." if that's the case, then they enter a different "place" (although it's not a different website, it's just a different set of potential results given the positive instance of a "gay" variable.
Why segregate by sites, when you could do so much more efficiently adding a binary variable to a database?
Evangelical Christians (the group that founded E-Harmony) are not a majority of the population. In any event, there is no magic that happens when a group goes from being 50.1% of the population to 49.9%. If the latter can have its own site, so too should the former.
If this type of "discrimination" is banned under the law, it would ban unequal catering as well as total exclusion. Laws banning racial discrimination in employment, for example, forbid paying minorities lower salaries as well as refusing to hire them at all.
I don't see why this is necessarily true. Would eharmony have to spend the same amount of time and/or money advertising to homosexuals as it does advertising to heterosexuals? Would eharmony have to ensure that they have equal numbers of homo- and heterosexual people? Would eharmony have to ensure that it is as successful with homosexual matches as it is with heterosexual matches? I think the answer to all of these questions is pretty clearly no. (to see why just look to the cosmetic industry or the alcohol industry or the music industry or the food industry etc...) but in order for equal catering they would all have to answered in the affirmative.
The analogous situation to this is that both heterosexuals and homosexuals would have to be charged the same price for the same service not that they be catered to equally.
the classic anti discrimination sitaution is a bar that has a sign that says 'no people of race x allowed'
this disciminates unfairly becuase the X people can drink the same drinks the other people can if they just open the bar to them.
now..in a wwerid hypothetical.. suppose the discriminated party are aliens who drink only cyanide.. (lets pretend aliaens are a protected class by ada law)...we probly wouldnt say the bar has to start supplying cynide to these alians who are demanding a completely different product....the X people demanded the same product...the aliens demanded a different product and the bar to go out of its way to include...rather than out of its way to exclude...
of course...we go out of our way to include the handicapped...wheelchair access etc...but only to the point of reasonable accomidations (and even then not everyone has to comply)
is it a good policy to make every supplier of a product carry a seprate item (going way more out of its way then it would have to to comply with handicapped friendly legislation)...even when it has no idea how..and that product is avialable elsewhere?
what if that product costs more to produce (sine its a machmaking service not just a profile and search thing) ..does it still have to..as brian k says..charge the same price
and i STILL like the idea of the gynocologist that doesnt see male patients...oh and he has to charge the same price too
Why do you have to try and rail against all liberals when trying to make a legal argument? This has nothing to do with politics. I am a huge supporter of the Democratic party and I think this is a ridiculous law suit.
However, getting back to the diversity issue, at what point do individuals lose their right to associate freely with people of their own choice? Isn't forcing diversity on groups also taking away their right to associate freely with whomever they choose to associate ?
eHarmony is not a website that is autonomous in structure. The company takes the information gathered from the web users and then operates like a traditional match-making service. As such, merely allowing homosexuals to enter their data on to eHarmony would not change anything if the company itself refuses to match up men with men or women with women.
Not knowing what California antidiscrimination law is like I certainly have no idea how the lawsuit will likely play out; but, if it is successful, I don't think it would be that difficult to satisfy the order not to exclude. Several websites that sell wine already limit sales based upon the state a person resides in to account for the myriad alcohol laws in the US. I would think that eHarmony would be able to set up a subsidiary operation in California for homosexuals or, just exclude Californians altogether.
To answer Lenin's question ("Who, whom?"), the same people who endorse the test I have specified would have no problem with responding that bureaucracies staffed by "anti-discrimination experts and specialists" would decide which groups are oppressed and which groups are oppressors.
Ten dollars says that my rule is the one the California courts endorse, and, is, therefore, THE LAW.
While that view does exist it is, in my experience, a truly fringe view, not one endorsed by "left-wingers" generally (assuming that left-wing = people who consistently vote for democrats). If this is such a widespread belief that web sites should be able to cater to only Jews, but not only to straight people, how about we find an example of someone saying this (not an affirmative action example, which is not completely analogous).
So, what you have to do is look at the political correctness of the oppression of each side of a dispute, to determine whether or not discrimination is allowed. Thus, a Jewish dating service would be allowed, since it discriminates against Gentiles. But a Jewish heterosexual one would not, since that would discriminate against Gays, and Gays have a higher level of politically correct victimhood than do Jews.
If someone only wants to date black people, or Jewish people, or red-heads fluent in Mandarin who are between 5'6" and 5'8" tall, that's their own business. For obvious reasons, it would be difficult, and undesirable, for the government to restrict any sort of discrimination in dating. So something like JDate doesn't discriminate for its own purposes on the basis of religion (which would be bad), but it reflects that many people do discriminate on religion in who they date (which is unobjectionable), and makes it easier for them. So this type of discrimination, call it JDate-type discrimination, is just enabling the perfectly legitimate discrimination of people on who they are interested in dating.
On the other hand, eHarmony's discrimination seems to be simple corporate prejudice against homosexuals. This eHarmony-type discrimination has no impact on who eHarmony’s current members will meet, or how useful its service is to them.
As for the commentators who have asked if this means dating sites must cater to, for example, people who are into S&M, I think the answers is that’s not a prohibited ground for discrimination, while sexual orientation is.
Excluding gay people doesn't reflect straight customers' preferences because it's an entirely seperate population of daters. If I only want to meet Jewish people, JDate is useful, and it is less so if it accepts non-Jews.
If I only want to date Jewish women, it has no impact on me whatsoever that JDate also accepts homosexuals, because they won't show up in my search.
So if JDate accepted non-Jews (or BlackSingles non-blacks), the site would be less useful for their current users. If eHarmony accepted homosexuals, the only difference users would notice is they'd have to put in their sexual orientation. Aside from that, heterosexuals would have the exact same experience they do now.
it is true that many (if not most) on the far left think discrimination against "oppressors" is fine (privileged white males(tm) etc.) but not against oppressed (in their view of who is oppressed)
i think since eharmony is a for profit business (vs. say a church etc.) they are arguing under the california law - it can't discriminate
but i would like to see fi this is applied fairly
does curves (a woman's only for profit gym) have the ability to operate in california too? that's JUST as discriminatory as eharmony
can anybody who is in cali answer that? does curves gym operate in california?
I think you'll find that there are plenty of doms and subs who would suggest that their relationship preferences constitute a sexual orientation as much as is a gay man's relationship preferences.
I think it's marketed very explictly in those terms too, although not being in the target market I'm relying on recalling a post from Andrew Sullivan.
But assuming this is illegilate discrimination, I don't think it's really an answer that there's competition now. We wouldn't allow a restaurant not to serve blacks because the one next door will.
That's inconsistent. Jdate, which i know nothing about, could provide results that match your specific desires as easily as eharmony can provide gay-gay / straight-straight matches.
they are refusing to provide a service that gays want (intragender relationships).
while that still may be a violation of california law, it's not the same thing.
they are providing a service - matchmaking of men with women
again, it may be a violation of california law, but that's not the same thing as saying they refuse to serve gays.
the service they provide does not suit a homosexual orientation, but that is not the same thing as not serving homosexuals at all
fwiw, curves REFUSES to serve men. it's a woman only gym. i can't see how that could pass muster in california based this law.
It's discrimination I tell ya.
Dormant Commerce Clause cases take these sort of considerations into account. See, e.g., the Navajo Freightlines (?) (1959?) case, concerning state regulation of mudflaps on trucks in interstate commerce. Since the state's interest in the particular mudflap was minor, and the imposition on interstate trucking was considerable, the state restriction was struck down. But compare that to state laws limiting how many trailers a single truck can pull -- the state interest is seen as sufficiently weighty to withstand this scrutiny, and so trucking companies have to incur the logistical costs associated with different requirements in different states.
To me, the more interesting (and Lessig-prompted) question has to do with the way that the internet's infrastructure makes it costly or inexpensive for a content provider to comply with specific state laws.
News flash: our legal system allows people to file ridiculous suits.
Our legal system is filled with ridiculous suits.
I'd go for #2, and permanently post on the front page of the site exactly why.
Interestingly, this is the same argument that VMI's defenders used in arguing that VMI should remain all male. True, VMI is a public institution, but I'm not sure that ends the discussion, since many private institutions also could not exist without the public funds they receive. It is also the argument that some affirmative action critics make when they assert that imposing what passes for "diversity" on every institution results in less diversity over all.
I agree with that the lawsuit is silly, but how is this affected? People don't 'associate' on a website like they do at a bar. By adding gay people to eHarmony, how exactly would it inpair your ability to associate with other people that you would like to?
As far as I can tell, you would still be matched up with exactly the same people as before they allowed gays in.
A study of happily married hetrosexual couples may very well produce results that are not generalizable to all couples. Why does that seem even vaguely controversial? Heck, "happily married" hetero couples could very well have elements that are different from "happily dating" hetero couples (like the expectation of permanence).
I think this is an awful lot like asking eHarmony to "prove" a negative-- they have to prove that they weren't intentionally anti-gay when they set up their service... even though there is no evidence to support the allegation. (At least, none has been presented anywhere that I've seen.) In fact, it is the very lack of evidence that is so damning!! They were so careful to cover their tracks, which only proves how premeditated the whole thing was!
/sarcasm
Why should federal judges be in the business of requiring government to discriminate against people for no other reason than that they have different ideas about what kind of associations they regard as important to their lives? Why should judges get to pronounce on whether people's associations are sufficiently "intimate" or not? The minority whose associational priorities are different from the way federal judges and Professor Volokh think people should live their lives is quite large. Why should associational minorities be shut out of the political process by the artificial constitutionalization of what kinds of associations are protected?