Posted by Dale Carpenter: Trivializing antidiscrimination law: http://volokh.com/archives/archive_2007_05_27-2007_06_02.shtml#1180733324
I support antidiscrimination laws that prohibit certain types of group-based discrimination by government, including discrimination based on sexual orientation. I also support extending these principles to the private sphere on important matters like employment and housing, with some limitations and exemptions. On this, I may be less libertarian than some of my co-Conspirators. Nevertheless, I join David and Ilya in questioning the wisdom of the suit against eHarmony. My reasoning is a bit different. I have no view on whether eHarmony's practice of excluding persons seeking same-sex mates violates any California antidiscrimination law. California courts should apply state antidiscrimination law -- if the best construction leads to that conclusion -- regardless of whether they think it's good policy under the circumstances. I have no trouble saying, apart from whether this is right or even relevant as a matter of state antidiscrimination law, that eHarmony is engaged in "sexual orientation" discrimination. Discriminating on the basis of a trait (seeking same-sex mates) that is intimately tied to the status (homosexual) is the sort of discrimination that a sexual-orientation antidiscrimination law is properly concerned about. A policy that forbade yarmulkes, and only yarmulkes, is anti-Jewish even though Jews themselves aren't forbidden. Few policies that disadvantage gays take the form of, "No gays allowed." Even the Texas sodomy law, which applied only to same-sex sodomy, did not prohibit homosexuals from having sex -- they simply had to choose opposite-sex partners for the identical activity. Yet I have no hesitation saying that law was anti-gay. Again, sexual orientation discrimination may not be problematic generally, or illegal in a particular case, or as applied to eHarmony's practice, but it I think it is sexual-orientation discrimination. I'm dubious about eHarmony's rationale for its practice: that its questions and answers are based on research tailored to heterosexuals that may not fit well for homosexuals. The dynamics of gay and straight relationships are very similar if not identical: the same sorts of problems arise (e.g., financial, division of labor, differences over child-rearing), the same traits are desired in mates (e.g., honesty), and so on. Given that eHarmony's founder is a Christian evangelical, the real objection is probably that eHarmony does not want to facilitate what it regards as immoral and unbiblical relationships. The business about its heterosexuals-only "research" seems pretextual, crafted to fend off litigation. Ilya raises an interesting concern about federalism. California is a big market and its policies may, as a practical matter, have effects on interstate businesses. On the other hand, I'm not sure which way federalism cuts here. Federalism allows states to experiment with public policies and they shouldn't generally be required to meet the standard of the lowest-common discriminator, or the state with the most libertarian policies. Within broad limits, California should be able to experiment with forbidding anti-gay discrimination and not be put in a strait-jacket by other states' policies. There are constitutional limits on how far states can go to place burdens on the interstate economy when their policies are outliers, but that case has not been made here and I doubt it could be. But I do think the suit is a bad idea. Modern antidiscrimination law is expanding in two ways that I think are very unhelpful. First, it is being applied in ways that infringe important liberties outside the commercial context. The Boy Scouts case, involving the exclusion of an openly gay scoutmaster, was an example of this. While the harm and indignity done to the gay scoutmaster, who'd been an eagle scout, was not trivial, requiring that the Boy Scouts let him lead troops violated the Scouts' associational and speech interests in very important ways. Second, antidiscrimination law is increasingly being applied to trivial and/or pretty harmless discrimination that goes well beyond core concerns about things like employment and housing. The exclusion of Catholic Charities from offering adoptions in Massachusetts was unjustified because it was difficult to show how the group's anti-gay policy actually hurt gay couples seeking to adopt. The eHarmony suit is an example of the trivialization of antidiscrimination law. It doesn't involve a core concern like employment or housing or even a traditional public accommodation. It's also very hard to see how any gay person is really harmed by the policy. Gays aren't lacking for match-making sites, either general ones or those tailored just to same-sex pairs. And personally, I wouldn't give my money to eHarmony regardless of what policy they adopt at this point. The suit allows some opponents of antidiscrimination law to point, with some justification, to excesses as evidence that the underlying idea is bad. The claim against eHarmony, and a state law that sanctioned it, forgets the four most important words in public policy: up to a point. That point is passed when we make trivial and harmless discrimination, however dumb or prejudiced it is, a matter of legal concern. _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
