eHarmony Caves In to Intimidation Litigation

New Jersey resident Eric McKinley, 46, a self-described homosexual, decided to sign up for the California-based online dating service in 2005. He says he couldn't get past the first screen, “because the pull-down menus had categories only for a man seeking a woman or a woman seeking a man.”

So naturally the aggrieved McKinley ignored the plethora of “gay” on-line dating Web sites and filed a complaint with the New Jersey Division of Civil Rights (NJDCR).

The claim makes as much legal sense as if McKinley had sued Victoria's Secret because it doesn't sell jockstraps. But after three years of litigation, the Christian-owned dating service caved, announcing on Nov. 20 that it would establish a same-sex dating service early next year. In the face of intimidation litigation, eHarmony chose to settle, rather than defend its rights under the U.S. Constitution or cease doing business in New Jersey.

The surrender followed a finding by the NJDCR of probable cause to believe that McKinley was unlawfully discriminated against because eHarmony didn't provide same-sex matches. If McKinley's intimidation litigation continues its trajectory, New Jersey may have the first Victor/Victoria's Secret.

It wasn't that eHarmony refused to do business with McKinley because of his homosexual “orientation.” eHarmony founded its business model on traditional man-woman marriage as explained on its Web site:

Based on his 35 years of marriage counseling and studies of thousands of married couples, eHarmony founder Dr. Neil Clark Warren exhaustively researched what makes marriages succeed and fail. His findings? Chemistry is not enough. Almost all marriages start out with good chemistry, yet 3 out of 4 couples end up unhappy or divorced.

Bear in mind that NJDCR never ruled on the actual merits of McKinley's claim, but here's the deal:  In addition to paying New Jersey $50,000 and McKinley $5,000, eHarmony will provide same-sex relationship matching services called “Compatible Partners” by March 31, 2009, and give the first 10,000 same-sex registrants a free six-month subscription.

According to a statement issued by eHarmony, “Under the settlement agreement, the company reserves the right to inform those using the new same-sex matching service that the Compatibility Matching System™ developed by eHarmony is solely based on research involving married heterosexual couples.”

Theodore Olsen, attorney for eHarmony, issued a statement claiming that eHarmony “did not agree to offer gay matches willingly. 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.”

Apparently the certainty of losing is more compatible than the possibility of winning. Contrary to some media, eHarmony wasn't “forced” or “compelled” to comply with McKinley's demands; eHarmony surrendered to his demands.

Jim Campbell, an attorney with the Alliance Defense Fund, a religious liberty legal organization, told Baptist Press. “Unfortunately, in this case, eHarmony surrendered to their demands. We feel they could have had a valid argument and could have taken a stand against this.”

Since married people are expressly prohibited from using or registering to use eHarmony's singles service and the (LAD) prohibits discrimination based on marital status, how long will it be before some budding adulterer sues because eHarmony doesn't facilitate that swinging option? Will it expand its new “Compatible Partners” to include  ménage á trois types, spouse swappers, sadomasochists, cross-dressers and transgenders?

Intimidation litigation is what's happening to privately owned businesses, especially Christian-owned businesses, churches, and para-church organizations when state anti-discrimination laws, which were meant to end discrimination based on immutable characteristics like race, are amended to include “sexual orientation” and “gender identity.” For example:

    March 2006: After 100 years of finding homes for special needs children, Catholic Charities in Massachusetts announced it would no longer provide adoptions rather than place children in same-sex households, as “required” by state law in order to be licensed. The Massachusetts legislature failed to enact a religious exemption that would have allowed Catholic Charities to continue providing adoptions in keeping with its religious beliefs even though it was willing to forgo any state funding. July 2007: A New Jersey lesbian couple filed a civil rights complaint against a United Methodist Church retreat that refused to rent its boardwalk pavilion to facilitate their “civil union” ceremony. The state revoked the tax exemption for the pavilion. The church has appealed and filed a federal countersuit claiming “that the state of New Jersey has no right to dictate to a religious group how they use their own privately-owned facilities.” January 2008: Two girls and their parents had sued California Lutheran High School in 2005 claiming that the school unlawfully discriminated against the girls when it expelled them because of their perceived “sexual orientation.”  A judge dismissed the suit, rejecting the claim that the school was a business that must abide by the state's anti-discrimination law. He reasoned that Christian schools have the right to make admissions and disciplinary decisions consistent with their Christian beliefs.

·       April 2008: The New Mexico Human Rights Commission fined Christian photographer Elaine Huguenin $6,000 for declining to take photos of a lesbian commitment ceremony.

    July 2008: A homosexual man sued two Christian publishers for $70 million “for emotional distress and mental instability he received during the past 20 years from their versions of the Bible that refer to homosexuality as a sin.”

·       July 2008: Two homosexuals filed a discrimination complaint with the New York Attorney General's office claiming they were barred from posting their online adoptive parent profile by Arizona-based Adoption Profiles, LLC and Adoption Media, LLC solely because they are a same-sex couple in violation of New York antidiscrimination laws. The company ceased doing business in California in 2007 after a federal judge ruled against it in a similar suit brought by two California homosexuals.

·       August 2008: The California Supreme Court extended the state's anti-discrimination law to the medical profession. The court ruled unanimously that two Christian fertility doctors who refused to artificially inseminate a lesbian couple could not claim a free speech or religious exemption from the California law.

·       November 2008: The California Fair Political Practices Commission announced that it will investigate a complaint by homosexuals that the Mormon church did not accurately describe its role in the campaign to pass Prop. 8 defining marriage as the union of one man and one woman.

On its Web site, eHarmony says that “the most important areas of life – like values, character” matter to the success of long-term relationships. But its surrender to intimidation litigation says loudly that its corporate bottom line matters more.

Worse yet is the demoralizing effect that eHarmony's capitulation is likely to have on those defending similar suits – and the emboldening effect on the bullies who file them.

Jan LaRue is on the Culture and Media Institute's Advisory Board.