eHarmony and Homosexuals: A Match Not

Transcription

EHARMONY AND HOMOSEXUALS: A MATCH NOT MADE IN
HEAVEN
Phyllis Coleman*
I. INTRODUCTION
When a gay New Jersey man tried to join eHarmony in 2005 he
discovered the drop down menu did not provide a "man seeking man"
option.' Believing that rejecting applicants based on sexual orientation
violated the state's Law Against Discrimination (LAD), 2 Eric McKinley
filed a complaint with the Division on Civil Rights (DCR).
Approximately two years later, before McKinley's claim was
resolved, Linda Carlson, a California resident, also decided to use
eHarmony to find a partner.4 When she realized the website would not
allow her to search for a female companion, she filed a class action
complaint in Los Angeles County Superior Court asserting that the
* Professor of Law, Nova Southeastern University. I would like to thank my research
assistant, Nicole Castano, for her helpful comments and my colleagues, Johnny C. Burris and
Robert M. Jarvis, for their excellent suggestions.
1. David Colker, Eharmony to Offer Same-Sex DatingService; To Settle a Civil Rights
Complaint, the Website Gives Up Its Policy of Heterosexuals Only, L.A. TIMES (Nov. 20,
2008), at 3, availableat 2008 WLNR 22136822.
2. N.J. STAT. ANN. §§ 10:5-1 to -49 (West 2012).
3. Colker, supra note 1. The Division on Civil Rights (DCR) is part of the New Jersey
Office of the Attorney General/Department of Law and Public Safety. Division on Civil
Rights, About Us,
STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL,
http://www.nj.gov/oag/dcr/about.html (last visited Mar. 8, 2012). For more than fifty years
this agency has been responsible for investigating discrimination complaints and eliminating
such inequity in New Jersey. Id. Notably, the state was the first to investigate civil rights
grievances and has one of the most comprehensive antidiscrimination laws in the country. Id.
4. See Class Action Complaint for Discrimination on the Basis of Sexual Orientation
in Violation of the Unruh Civil Rights Act, California Civil Code §51 et seq. at 3, Carlson v.
eHarmony.com, Inc., No. BC371958 (Cal. Super. Ct. May 31, 2007), 2007 WL 1849942
[hereinafter Carlson Class Action Complaint].
727
728
QUINNIPIAC LAW REVIEW
[Vol. 30:727
Unruh Civil Rights Act5 prohibited this "heterosexuals only" policy. 6
Although one of these proceedings was before an administrative body
while the other was litigated in court, and the actions were based on
different state statutes, the cases are fundamentally alike and reached
similar outcomes. After years of conflict and consistent refusal to admit
any wrongdoing, eHarmony settled both by agreeing, among other
concessions, to create a new website that would match gays and
lesbians.
This Article explores why eHarmony, a private company, decided
to provide its services to a group whose beliefs are contrary to its core
values. Part II presents a brief history of online dating with an emphasis
on eHarmony, the self-proclaimed "#1 Trusted Online Dating Site for
Singles." Part III discusses the New Jersey and California sexual
orientation discrimination complaints and explains the negotiated
settlements. Part IV provides a legal analysis of the conflict between
public accommodations laws and First Amendment claims in the context
of this controversy and speculates as to what might have happened had
the parties not settled. Finally, Part V concludes that eHarmony may
have agreed to match same-sex partners because, in addition to the
heavy financial burden it had already suffered,9 the defendants probably
realized they would have ultimately losto following even more
expensive and much lengthier battles.
5. CAL. CIV. CODE § 51(b) (West 2012).
6. Carlson Class Action Complaint, supra note 4.
7. See infra notes 43-78 and accompanying text.
8. EHARMONY, http://www.eharmony.com (last visited Mar. 8, 2012). Online dating
reviewers agree that eHarmony is "one of the largest dating sites." See, e.g., Top 10 Online
Dating Services, MYONLNEDATINGSERVICE.COM, http://www.myonlinedatingservice.com
(last visited Mar. 8, 2012).
9. Kathleen Gilbert, Christian-FoundedDating Website eHarnony Forcedto Cater to
Homosexuals, LIFESITENEWS.COM (Nov. 21, 2008), http://www.lifesitenews.com/news/
archive/ldn/2008/nov/08112104.
10. See infra notes 245-49 and accompanying text. Nevertheless, some contrary
precedent exists. Similar to McKinley's New Jersey action, in 2005 Brad Becker filed a
complaint with the California Department of Fair Employment and Housing, citing the Unruh
Civil Rights Act, and alleging discrimination because eHarmony refused to match gays and
lesbians. Chloe Albanesius, eHarnony Dispute Heads to Mediation, PCMAG.COM (Nov. 21,
However, unlike in New
2008), http://www.pcmag.com/article2/0,2 817,2335280,00.asp.
Jersey, the California agency disagreed and found the Act "does not mandate a result whereby
a business offers the exact same services to every customer." Id.
2012])
A MATCH NOT MADE IN HEAVEN
729
II. BACKGROUND
When Match.com, a pioneer in online dating," launched its
company in 199512 it is likely that few, if any, realized it was the
beginning of a seismic shift in the way people meet mates. In fact,
researchers estimate that more than forty million people log on to dating
websites each month to search for their soul mate." Online dating's
growing popularity led to an explosion of additional services, now
estimated to be between 1,500 and 2,500 in the United States alone.14
However, although almost all these websites permit participants to seek
opposite and/or same-sex partners," from its inception eHarmony
11. The New Jersey statute includes a typical definition: "'Internet dating service'
means a person or entity directly or indirectly in the business, for profit, of offering,
promoting or providing access to dating, relationship, compatibility, matrimonial or social
referral services principally on or through the Internet." N.J. STAT. ANN. §56:8-170 (West
2012).
12. About Match.com, MATCH.COM, http://www.match.com/help/aboutus.aspx (last
visited Mar. 8, 2012).
13.
Online Dating, INTERNET ALLIANCE,
http://www.internetalliance.org/articles/
online dating.shtml (last visited Mar. 8, 2012). Not surprisingly, estimates of the number of
online daters are not consistent, but many commentators agree on forty million. 'Why I Hate
to Date Online' Challenges Cultural Dating Phenomenon, WOMEN'S HEALTH WKLY. (Aug.
28, 2008), availableat 2008 WLNR 15833445 (suggesting that the numbers may be as high
as fifty million or as low as eighteen million). Major sites reportedly registered more than 593
million visits in October 2011. Stephanie Rosenbloom, Love, Lies and What They Learned,
N.Y. TIMES (Nov. 12, 2011), at STI, available at http://www.nytimes.com/2011/ll/13/
fashion/online-dating-as-scientific-research.html?pagewanted=all (citing Internet tracking
firm Experian Hitwise).
14. Estimates vary widely. Compare Press Release, Marketdata Enterprises, Inc., U.S.
Dating Services Market Worth $2.1 Billion, Held Up Well During the Recession (Jan. 30,
2012), available at http://www.marketdataenterprises.com/pressreleases/Dating%20Mkt
%20PR%202012.pdf (stating there are "1,500+ dating websites") with Joe Tracy, How Many
Online Dating Sites Are There?, Online Dating FAQ, ONLINE DATING MAGAZINE,
http://www.onlinedatingmagazine.com/faq/howmanyonlinedatingsitesarethere.html
(last
visited June 12, 2012) (noting Online Dating Magazine estimates approximately 2,500 online
dating sites exist in the United States and more than twice that number worldwide). Many of
these sites are niche groups including such a variety as FarmersOnly.com,
TheAtlasSphere.com (for Ayn Rand fans), Nerdsatheart.com, DateMyPet.com, STDmatch.net
(for singles with sexually transmitted diseases), MatureSinglesOnly.com (for people over
fifty) and Veggielove.com. Phyllis Coleman, Online Dating: When "Mr. (Or Ms.) Right"
Turns Out All Wrong, Sue the Service!, 36 OKLA. CITY U. L. REv. 139, 142-43 (2011).
GiveAndDate.com, launched in 2009, targets socially conscious singles in New York City.
Id. To communicate with others, members must make a donation to a partnered charity. Id.
15. Notably, when Consumer-Rankings.com selected the top five gay dating sites in
2012, they primarily chose sites that match both heterosexuals and homosexuals. Top 5 Gay
Dating Sites of 2012, CONSUMER-RANKINGS.COM, http://www.consumer-rankings.com/
730
[Vol. 30:727
expressly limited its services to heterosexual couples.' 6
The restriction is understandable because founder Neil Clark
Warren and his service were initially identified with the conservative
Christian movement, people whose religious and political beliefs
typically cause them to strongly disapprove of same-sex romantic
relationships.17 Notably, when questioned in 2005 about his policy of
refusing to match homosexuals, Warren had two responses. For one
thing, he said, same-sex marriage is illegal in most states and "[w]e
don't really want to participate in something that's illegal." 8 He also
claimed he did not know enough about gay and lesbian relationships to
match these couples, as doing so "calls for some very careful thinking.
Very careful research." 9 Thus he explained that, while he had
performed "extensive research" prior to creating his unique matching
system, 20 all his data involved married male/female couples and he had
dating/gaydating (last visited June 18, 2012) (listing in descending order chemistry.com,
match.com, perfect match.com, gay.com, and spark.com and comparing the main features of
each as well as the number of lesbian, gay, bisexual, and transgender (LGBT) members). A
few sites do cater exclusively to homosexuals. See, e.g., Gay Dating Service, powered by
perfectmatch.com, http://www.perfectmatch.com/onlinedating/gay-dating.asp?p=n&SID=135
89519&AID=10874304 (last visited Mar. 8, 2012); Frequently Asked Questions,
ONEGOODLOVE.COM, http://www.onegoodlove.com/index.php?cmd=th,faq#mark 3 (last
visited Mar. 8, 2012) (noting it is the "only dating site built for and by the relationship-minded
gay and lesbian community").
16.
See Janet Kornblum, eHarmony: Heart and Soul, USA TODAY (May 18, 2005), at
DI, available at http://www.usatoday.com/life/people/2005-05-18-eharmonyx.htm (stating
that initially the website was marketed primarily to Christians, as being "'based on the
Christian principles of Focus on the Family author Dr. Neil Clark Warren"' but in recent years
Warren neither mentions nor apparently even maintains the connection to this religious
group); Charles Proctor, Same-Sex Site Hits Sour Note for Eharmony: Evangelicals, Gays
UnitedIn Displeasure,30 L.A. Bus. J. 1 (Dec. 1, 2008), availableat 2008 WLNR 25957802.
17. In fact, several commentators credit the religious right with helping eHarmony
become one of the top three Internet dating sites in the country. In 2008, the other two were
Match.com LLC and Yahoo Inc.'s YahooPersonals.com. Proctor, supra note 16.
18. Kornblum, supra note 16. Ironically, this argument is now being used against the
company. See infra notes 178-79 and accompanying text.
19. Kornblum, supranote 16 (internal quotations omitted).
20. A graduate of Pepperdine University, Princeton Theological Seminary, and the
University of Chicago, Warren spent thirty-five years as a clinical psychologist and then
served as dean at the Fuller Theological Seminary before starting eHarmony in 2000. Dr.Neil
Clark Warren Bio, Founder of eHarmony, FOUNDERBIOS.COM, http://founderbios.com/dr-
neil-clark-warren.php (last visited Mar. 8, 2012) [hereinafter Founder ofeHarmony]. Based
on his experiences in counseling thousands of married couples, Warren concluded
compatibility appeared to be the primary distinction between good marriages that survived
and people who divorced because their differences become harder to resolve over time. Id.
As a result, Warren and a research professor at the University of Southern California, Dr.
2012]1
731
no idea if it would be transferrable to homosexuals.21
In light of Warren's opposition, and as other sites routinely match
people of all sexual orientations, 2 an obvious question is what would
cause those searching for same-sex partners to care that one company
rejects them. In other words, rather than file suit, why would gays and
lesbians not just join one of the services where they are welcome?23 The
answer may be found in eHarmony's "aggressive marketing efforts" 24
which promote its patented "Compatibility Matching System" 2 5 that
Galen Buckwalter, spent three years trying to identify the characteristics present in the most
Id. According to the company's advertising, eHarmony's
successful relationships.
application utilizes these "key dimensions of personality that predicted compatibility and the
potential
for
long-term
relationship
success."
Company
Overview,
EHARMONY,
http://www.eharmony.com/about/eharmony/ (last visited May 28, 2012); see also Lisa
Baertlein, Dating Site eHarmony Has 436 Questions for You, USA TODAY (June 2, 2004),
available at http://www.usatoday.com/tech/webguide/internetlife/2004-06-02-eharmony
x.htm (quoting former eHarmony Chief Executive Officer Greg Forgatch: "[w]e don't make it
easy. You have to go through a 436-item questionnaire just to get a chance to pay").
21. This was still the company's position when the California class action lawsuit was
filed in 2007. See Carlson Class Action Complaint, supra note 4. Their attorneys denied
discrimination against gays and lesbians. Instead, they continued to insist eHarmony only
matched heterosexuals because their years of research was limited to observing successful
relationships between men and women. Eric Bailey, Sex, Lies and Internet Dating Sites:
eHarmony
Bows
to
Same-Sex
Couples
in
Class
Action
Settlement,
PROTECTCONSUMERJUSTICE.ORG (Jan. 26, 2010), http://www.protectconsumejustice.org/sex
-lies-and-internet-dating-sites-eharmony-bows-to-same-sex-couples-in-class-actionsettlement.html. It is interesting to contrast this argument with what eHarmony said about
changing the extensive questionnaire that applicants must submit. Michelle Garcia, The
(Online) Dating Game, ADVOCATECOM
(Mar. 31, 2010), http://www.advocate.com/
politics/commentary/2010/03/31/online-dating-game?page=0,1
(noting that Nancy Sub,
Senior Director Product Management, said, although a small number of adjustments were
required, not many changes were necessary to make the compatibility test applicable to
homosexuals: "'For example, on eHarmony, we have a question that talks about your potential
partner's attitudes toward opposite-sex friendships,' she says. 'We figured that wasn't
relevant to gay and lesbian singles . . . .').
22. Bob Egelko, EHarmony Accused of Discrimination;Service Sued for Not Offering
Same-Sex DatingOpportunities, S.F. CHRON. (June 2, 2007), at B2, availableat 2007 WLNR
10322684. In fact, according to one of Carlson's attorneys, eHarmony is "the only prominent
matchmaking service that excludes gays and lesbians." Id.
23.
See, e.g., Peter Watson, eHarmony Lawsuit Was Frivolous, Unnecessary, JACKSON
StUN (Nov. 30, 2008), at A9, available at 2008 WLNR 27200016 (agreeing that gays and
lesbians are entitled to equality, but arguing that the way to achieve it is not to "sue legitimate
businesses, especially when there are gay-friendly alternatives available"). Notably, after
admitting he has a special interest in the company as he met his wife on eHarmony, the author
calls the lawsuit "a civil rights shakedown." Id.
24.
eHarmony.com, Inc. Company Profile, HOOVER'S,
http://www.hoovers.coml
company/eHarmonycom Inc/rrcrrhi-1-1NJHW5.html (last visited June 5, 2012).
25. Withers v. eHarmony, Inc., 267 F.R.D. 316, 318 (C.D. Cal. 2010) (noting that
732
[Vol. 30:727
selects matches
by taking into account the 29 Dimensions@ of Compatibility that help predict
the potential for relationship success. The results are single matches unlike
anything you will find anywhere else. Our goal at eHarmony is to be more
than a dating service to you. We want [sic] help you find the love of your
life. 26
After reading this description, it is easy to see why people subscribe
and often even pay a premium for eflarmony.2 7 The website claims it
offers a unique service-one it proudly boasts nobody else can
provide. 28 Further, the company's emphasis on long-term relationships
makes it particularly attractive to potential clients searching for a
lifelong mate. Notably, however, eHarmony's success leads to a
business plan calling for seemingly "constant advertising" so as to
continuously enroll new people. 29 This is because when clients are
matched with the person with whom they wish to share their lives, their
goals are met and they no longer need a dating service. Consequently,
they terminate their memberships and, if the website was successful in
making the match, presumably these customers will never need the
service again.30 Apparently recognizing this dilemma, for its ten year
"eHarmony promises its subscribers that it is '[d]ifferent' in that it uses a 'patented
Compatibility Matching System@' to 'narrow[ ] the field from millions of candidates to a
highly select group of singles that are compatible with you . . . based on 29 dimensions of
personality that are scientifically-based predictors of long term relationship success"').
26. Scientific Match Making, EHARMONY, http://www.eharmony.com/why/science (last
visited Mar. 8, 2012) (emphasis added). This patented Compatibility Matching System®
requires that users complete a detailed questionnaire emphasizing compatibility and
communication. See supra note 20 and accompanying text.
27. Online DatingDelivers, DET. FREE PRESS (Mar. 21, 2010), at D5, availableat 2010
WLNR 5907311 (calling eHarmony the "most expensive" site). Interestingly, for a small
additional fee, eHarmony also offers "Total Connect," which includes "RelyID" that verifies
user identities (i.e., makes sure people are who they say they are) and "secure call" which
allows subscribers to talk to their matches by phone without revealing personal contact
information, as well as an expanded personality profile.
28. Complaint in Intervention at 4-6, Schmidt v. eHarmony, Inc., No. CVO9-2266 GHK
(RCx) (C.D. Cal. Feb. 4, 2010), available at 2010 WL 1370302 [hereinafter Schmidt
Complaint].
29. eHannony.com, Inc. Company Profile,supra note 24. It is interesting to note that,
apparently to expand membership, the company also provides additional services including
but not limited to advice on weddings, parenting, and relationships. Id.
30. Lisa Allen, Looking for Love, DAILY DEAL (Feb. 26, 2010), available at 2010
WLNR 4462484 (noting that, for investors, "[c]asual-dating sites are less risky than their
commitment-minded counterparts" as users are more likely to remain involved on the site if
A MATCH NOT MADE INHEAVEN
2012]
733
anniversary in 2010, eHarmony ran a $30 million Love Begins Here
campaign that included television spots directed by an Academy Awardwinning 31 documentary filmmaker. 3 2
In addition to promoting its distinctive system, eHarmony tries to
distinguish itself by demonstrating that it is the most effective site in
finding love that lasts. However, marriage researchers have not
established objective criteria to measure "success." 3 3 Lacking actual
scientific data, many services use the number of marriages between
people who met through their site as the standard.3 4 For example, since
a 2009 survey commissioned by eHarmony found that nearly five
percent of all people who married the previous year met on its website,
that figure has been prominently displayed on its home page.
they are not just searching for "the one" because, once they find a lifelong mate, they
presumably are "signing off forever"). Of course, this is not completely true. One spouse
likely will die before the other. People who lose a partner when they have been in a
successful marriage are more likely to want to marry again. And seniors are the fastest
growing market for online dating services. Jessica Brown, More Seniors Going Online, Say
"I Do," USA TODAY (July 9, 2011), available at http://yourlife.usatoday.com/sexThus, a
relationships/marriage/story/2011/07/More-seniors-go-online-say-I-do/49243558/1.
widow or widower, especially one who found his or her first mate online, may very well
return to the Internet site that first matched them.
31. Director Errol Morris's The Fog of War won the Academy Award for Best
Documentary in 2003. This film tells the story of some of the "seminal events" of Twentieth
Century America through the eyes of former Secretary of Defense, Robert S. McNamara. The
Fog of War: Synopsis, ERROL MORRIS, http://www.errolmorris.com/film/fow.html (last
visited Mar. 8, 2012).
32.
eHarmony@O 10th Anniversary Ad Campaign Declares: Love Begins Here,
EHARMONY, http://www.eharmony.com/press-release/30/ (last visited Mar. 8, 2012)
(explaining that the campaign "celebrates the joy that comes from being loved for exactly who
you are").
33. Carl Bialik, Marriage-MakerClaims Are Tied in Knots: Online Dating Sites Say
Hordes ofPeople Ultimately Marry, But Their Methods Have Plenty ofHitches of Their Own,
WALL ST. J. ONLINE (July 29, 2009), http://online.wsj.com/article/SB12487987734748
7253 .html.
34.
Id.
35. EHARMONY, http://www.eharmony.com (last visited Mar. 8, 2012) (noting that,
according to a "2009 U.S. survey conducted for eHarmony by Harris Interactive@,"
"eHarmony is responsible for nearly 5% of marriages in the U.S"). Match.com hired the
research firm of Chadwick Martin Bailey to conduct studies that would reveal information
about dating behavior. Based on their 2010 survey, 17% of those married in the previous
three-year period met each other through an online dating site. MATCH.COM AND CHADWICK
MARTIN BAILEY 2009 - 2010 STUDIES: RECENT TRENDS: ONLINE DATING, at 1, 2 tbl. 1,
available at http://cp.match.com/cppp/media/CMBStudy.pdf. In addition, 30% said they
met each other on Match.com. Id. at 2 tbl. 2. This number was almost twice the "2nd Ranked
Competitor" at 16% and exactly double the "3d Ranked Competitor at 15%." Id.
734
[Vol. 30:727
With promises like these, as well as other statistics indicating that
an estimated 2.2 million Americans have married people they met online
since dating websites first began more than fifteen years ago, 36 it should
be no surprise that gays and lesbians objected to being excluded.
Regardless of sexual orientation, it seems almost everyone yearns to find
his or her "soul mate." 37 eHarmony's advertising states it is the best at
helping singles find the perfect person for them. 38 Thus, when
McKinley and Carlson were unable to register on the popular site, 9 they
claimed the company improperly violated their civil rights under their
respective state statutes by discriminating against them based on sexual
orientation.4 0
III. ACTIONS AND OUTCOMES
A. New Jersey Complaint
Shortly after McKinley discovered eHarmony refused to match
36. Current Online Dating and Dating Services Facts & Statistics,
DATINGSITESREVIEW.COM, http://www.datingsitesreviews.com/staticpages/index.php?page=
online-dating-industry-facts-statistics (last visited Mar. 8, 2012).
37. They're Just Not Into You, CHI. TRIB (Dec. 1, 2008), at 32, available at 2008
WLNR 22989523. Nevertheless, some sites are designed for daters who are looking for fun
rather than a serious relationship.
See, e.g., Online Casual Dating - iHookup, ZDNET,
(last visited Mar. 8, 2012)
http://downloads.zdnet.com/abstract.aspx?docid=4018741
(asserting "casual dating is hot right now and the selection of people to meet for no strings
attached fun has never been better"); ONLINEBOOTYCALL.COM, http://www.onlinebooty
call.com/signup (last visited Mar. 8, 2012) (promoting the website by saying "[w]hether you
want to meet new people, make friends, date casually, hook up, or booty call,
OnlineBootyCall.com is the online dating site for you").
38. Why eHarmony, EHARMONY, http://www.eharmony.com/why/ (last visited May 28,
2012).
39. eHarmony concedes they have refused to sign up approximately one million people.
But they assert they have good reasons including that thirty percent of the rejections are based
on the fact that the applicants are married. As the company's goal is "to find happy, lasting
relationships" for singles, this exclusion makes sense. Other denials are more difficult to
explain away. For example, those who the questionnaire identifies as possibly having "severe
depression" and applicants under sixty who have been married more than four times are also
turned away. Paul Farhi, Ads Tap Into Fear of Rejection, FORT WORTH STAR TELEGRAM
(May 16, 2007), at C3, availableat 2007 WLNR 9216628. However, according to a different
source, the prohibition on multiple marriages is actually more stringent, allegedly eliminating
those who have been divorced more than twice. Founderof eHarmony, supra note 20.
40. Carlson Class Action Complaint, supra note 4; Complaint, McKinley v.
eHarmony.com, Inc., No. PQ271B-02846 (N.J. Office of Attorney General, Div. Civ. Rights
Mar. 14, 2005) [hereinafter McKinley Complaint].
735
2012]
gays and lesbians, he filed a civil rights complaint alleging that New
Jersey's Law Against Discrimination prohibited this "heterosexual only"
policy. 4 1 The statute provides, inter alia, that:
All persons shall have the opportunity . .. to obtain all the accommodations,
advantages, facilities, and privileges of any place of public accommodation ...
without discrimination because of . .. sexual orientation . .
.
subject only to
conditions and limitations applicable alike to all persons. This opportunity is
42
recognized as and declared to be a civil right.
B. Settlement
Three years after McKinley filed his complaint, the parties settled.43
The case against eHarmony and Warren was dismissed with prejudice in
return for an agreement that was simple and favorable to the
complainant." It included three main issues:
1. Merits
It was to be made clear that, although the DCR initially found
probable cause, it never reached a decision on the merits 45 and neither
eHarmony nor Warren admitted any wrongful conduct.46
2. Compensation
eHarmony promised to pay the complainant $5,000 and the DCR
$50,000 for administrative expenses.47 The company also agreed to give
McKinley a complimentary one-year membership 48 and offered a free
six-month subscription to the first 10,000 users who registered within a
41.
McKinley Complaint, supra note 40.
42.
N.J. STAT. ANN.
§
10:5-4 (West 2012). Although this statute has been amended
several times, the relevant portions existed in 2005 when McKinley filed his civil rights
action.
43. Settlement Agreement, Consent Order and General Release, McKinley v.
eHarmony, No. PQ271B-02846 (N.J. Office of Attorney General, Div. Civ. Rights Nov. 12,
2008), available at http://www.nj.gov/oag/newsreleases08/pr20081119a-eHarmony-SA.pdf
[hereinafter McKinley Settlement Agreement].
44. Id.
45. Id. atT2.
46. Id. at 3; see also Bailey, supra note 21.
47.
McKinley Settlement Agreement, supra note 43, at 13.
48.
Id. at5d.
736
[Vol. 30:727
year from the launch of the new service.49
3. Match Homosexuals and Bisexuals
The company agreed to provide services to same-sex couples
according to specific terms, including that there must be options for
users to identify themselves as a male seeking a male or a female
seeking a female.5 0 Accessibility, procedures, and subscriptions had to
be "substantially similar" to those for users seeking opposite-sex
partners, but creating a new website with a different name to match
homosexuals was acceptable so long as its relation to eHarmony was
disclosed.5 ' Because the new site, Compatible Partners,52 had separate
subscribers, clients of one could not be matched with customers of the
other which meant bisexuals would have to join, and pay for, both.
The settlement also provided that eHarmony.com and the new
same-sex matching site must include pictures of individual gays and
lesbians as well as homosexual couples.54 In addition, eHarmony
committed to (1) attempt in good faith, for at least two years, to make
the new site a success; (2) market the new service; (3) use a media
consultant who was familiar with representing the gay and lesbian
communities; and (4) launch the new site by March 31, 2009.
Undoubtedly, creation of Compatible Partners represents the most
But, although
significant benefit obtained through the settlement.
initially pleased with the agreement that established the new and
different site, bisexuals and homosexuals, including McKinley, soon
49.
50.
Id.
Id. atT5a.
51. McKinley Settlement Agreement, supra note 43, at I 5b.
52. http://www.compatiblepartners.net/ (last visited July 2, 2012).
53. Id. at 1 5a, Sc; see also Press Release, eHarmony, Inc., eHarmony, Inc. Settles with
New Jersey Attorney General, Agrees to Launch Same-Sex Matching Service in 2009,
EHARMONY (Nov. 19, 2008), http://www.eharmony.com/press/release/15/.
54. McKinley Settlement Agreement, supra note 43, at T 5e; see also Donna Weaver,
N.J. Man's Efforts Push eHarmony to Launch Gay Site, PRESS OF ATLANTIC CITY (Apr. 3,
2009), at C6, available at 2009 WLNR 6315745; Elise Young, Settlement Moves eHarmony
Into Same-Sex Dating, RECORD (Nov. 20, 2008), available at 2008 WLNR 22278554.
("eHarmony.com will post photos of homosexual couples, include such couples in its
advertising and post a link to the same-sex site. It also may post a disclaimer pointing out that
its matching system is based on research involving heterosexuals. The Compatible Partners
site must state that it is affiliated with eHarmony.").
55. McKinley Settlement Agreement, supra note 43, at 5h, Si, 5g.
56. Id.at 5a.
2012]1
737
objected to what they claimed was an illegal "separate but equal"
response.s?
Predictably, perhaps, when McKinley settled in November 2008,
eHarmony's lawyers moved to dismiss Carlson's California case as
moot.58 However, Judge Victoria Chaney denied the motion, certified
the class, and ordered the parties to mediation.' 9
C. CahiforniaComplaint
This lawsuit,60 which is remarkably similar to the New Jersey
action, began in the same way. But when Linda Carlson, a lesbian,
realized she could not join eHarmony because there was no homosexual
option, she filed suit in state court6 ' rather than look to a civil rights
agency. Despite selecting a different forum she, like McKinley, alleged
the company's refusal to match same-sex couples violated a state statute,
specifically the Unruh Civil Rights Act, which provides:
All persons within the jurisdiction of this state are free and equal, and no
matter what their ... sexual orientation are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.
Thus, although the actions were alike in that they raised the same
fundamental issue-whether eHarmony could legally refuse to match
same-sex couples-the claims were brought under different state
57. Beth DeFalco, EHarmony to Provide Same-Sex Matches, STAR-LEDGER (Newark,
N.J.) (Nov. 20, 2008), at 18, available at 2008 WLNR 22165204. In fact, the day after they
agreed to the settlement, McKinley pronounced the agreement "fabulous," explained he was
happy with the outcome, and said he was thinking about signing up for Compatible Partners.
Id; see also Young, supra note 54 (noting that McKinley called the settlement "a great
victory"). However, just a few months later when the site actually launched, McKinley said
the "separate but equal" setup was "not enough" and that he had not won a "complete
victory." Weaver, supra note 54; see also Gail Rosenblum, Imperfect Harmony, STAR TRIB.
(Minneapolis, Minn.) (Dec. 27, 2008), at IE, availableat 2008 WLNR 25072080.
58. Albanesius, supra note 10.
59.
Id
60. Initially, in addition to eHarmony and its founder/owner, Carlson had sued Warren's
wife, Marylyn. Mrs. Warren was dismissed without prejudice "on or about January 29,
2008." Settlement Agreement and Release of Claims, Cardin v. eHarmony.com, Inc., at I
(Ca. Super. Ct. Jan. 22, 2010), available at http://www.schneiderwallace.com/Settlements/
eHarmonySettlement.pdf [hereinafter Cardin Settlement Agreement].
61. See generally Carlson Class Action Complaint, supra note 4.
62. Id. at 4; CAL. CIV. CODE § 51(b) (West 2012).
738
[Vol. 30:727
statutes. Moreover, while it is true that these laws are similar, they are
not the same and, obviously, are different jurisdictions. Therefore,
settlement of the New Jersey civil rights action did not render the
California litigation moot despite eHarmony's contrary assertions.
Nevertheless, the California case also eventually settled.6 However, by
the time it was resolved more than a year after McKinley's action ended,
the class65 had been certified and Carlson was replaced as the named
plaintiff by 26-year-old Nate Cardin.66
D. Settlement
Responding to the "separate but equal" objections raised following
the McKinley settlement, the dating service agreed to provide a link to
Compatible Partners on the eHarmony website next to those for other
groups including Jewish, Christian, African-American, and senior
clients.67 The company also agreed to allow users to choose a same-sex
option on its website's main page. Someone who made this selection
would automatically be transferred to Compatible Partners where the
Further, while separate
eHarmony logo would be displayed. 69
registrations on eHarmony and Compatible Partners continue to be
required for bisexuals, these subscribers no longer have to join both or
pay twice to be able to see matches on the two sites. 70
The settlement cost the service a significant amount of money.71
Not only did eHarmony promise to give approximately 150 Californians
63. See Albanesius, supra note 10.
64. Cardin Settlement Agreement, supra note 60.
65. The "settlement class" was stipulated as "[a]ll gay, lesbian, and bisexual individuals
who, while residents of California, attempted to use the eHarmony.com website to be matched
with an individual of the same sex but were denied the opportunity to do so at any time
between May 31, 2004 and January 25, 2010." Id. at 1.
66. Id.
67. In return, eHarmony was to receive a dismissal with prejudice. Id at 2.
68. Cardin Settlement Agreement, supra note 60, at 3.
69. Id.
70.
Id. at 3; Samuel Axon, eHarmony Settles Lawsuit, Will Merge Gay and Straight
DatingSites, MASHABLE (Jan. 28, 2010), http://mashable.com/2010/01/28/eharmony-lawsuit.
71. Of course, "significant" is a relative term. While, as a private company, eHarmony
does not release its figures, estimates are that its revenues were approximately $250 million in
2009. The company had about thirteen percent of the market. Julia Boorstin, The Big
Business of Online Dating, CNBC.COM (Feb. 12, 2010), http://www.cnbc.com/id/
35370922/The Big Businessof OnlineDating.
2012]
739
in the class a total of up to $516,800 to share,7 2 it also agreed to pay
Probably demonstrating
almost $1.5 million to class counsel.73
eHarmony's keen interest in its reputation, the agreement also addressed,
and controlled in great detail, how the settlement would be announced
and discussed in the media.74
This agreement is relatively recent so it is difficult to predict what
its impact will be. However, despite what seemed to be legitimate fears
that the lesbian, gay, bisexual, and transgender (LGBT) community
would be angry about eHarmony's original "heterosexuals only" policy,
and might even boycott the new site," Compatible Partners boasted
Thus, it appears that
200,000 members by its one-year anniversary.
even with some inevitable backlash,n the concession to provide services
72. Cardin Settlement Agreement, supra note 60, at 5. After the administrative
expenses were paid, Cardin, the named plaintiff and class representative, was to receive
$5,000 (in addition to his class share). Id. Members of the class who were not barred by the
statute of limitations were to receive a pro rata share not to exceed $4,000. Id. If a balance
remained, members of the class whose claims were barred by the statute of limitations were to
be given a pro rata share not to exceed $2,000. Id. Assuming there was still a balance, the
rest of the money would be donated to certain named groups whose work benefits gay,
lesbian, or bisexual individuals. Cardin Settlement Agreement, supra note 60, at 5.
73. Id. at 6. Of course, this does not include what eHarmony paid for its own legal
representation.
74. Id. at 7.
75. Proctor, supra note 16. As soon as eHarmony announced the policy change
allowing homosexuals to join its service, Match.com Chief Executive Thomas EnraghtMoony dubbed Compatible Partners "a forced decision that wouldn't allow eHarmony clients
to find 'nonjudgmental love."' Id.
76. Garcia, supra note 21.
77. Proctor, supra note 16. Warren's decision to provide services to people seeking
same-sex partners was not well received by everybody. In fact, it created "a backlash" among
the conservative Christian community who had been eHarmony's "most loyal supporters and
reliable customers." Id. Some of these couples who met through the site, and had been
recommending it to their friends, said they "feel betrayed" by eHarmony's "distressing and
damaging" choice to abandon the long-held position against matching same-sex partners. Id.
Joe Tracy, publisher of Online Dating Magazine, summed up the quandary well: "[T]he
company is in a bind: It will have to contend with a disgruntled base of customers, while
trying to win over gays and lesbians who felt shunned by eHarmony for years." Id.; see also
Gilbert, supra note 9. Gilbert's article reprints a letter to Warren from Peter LaBarbera, the
President of Americans for Truth About Homosexuality, claiming that by agreeing to this
settlement, he "sold his soul (or at least eHarmony's)." Gilbert, supra note 9 (internal
quotations omitted). Other parts of the correspondence said:
You could have set an example to Christians and freedom-loving Americans
everywhere by fighting on principle for your company's First Amendment right not
to be bullied into submission by a politically correct state bureaucracy. . . . Instead,
you capitulated. In addition to hurting the cause of Christianity, you have damaged
740
[Vol. 30:727
to same-sex partners was a wise business decision.
IV. STATE PUBLIC ACCOMMODATIONS LAWS AND FIRST AMENDMENT
Civil rights statutes generally prohibit places of public
accommodations-such as hotels, schools, public transportation, or
hospitals-from discriminating against classifications of people7 9 when
offering accommodations, advantages, employment, facilities, housing,
privileges, and services. These laws were passed to ensure elimination
of "barriers to economic advancement and political and social
integration that have historically plagued certain disadvantaged
groups.o,80 Thus, to protect specified individuals, certain establishments
can be prevented from treating people differently simply because of
particular characteristics. Consequently, an owner's right to operate his
business as he wants is not absolute. Instead, it is balanced against
the cause of freedom and particularly religious freedom in America. It appears that
eHarmony is no longer a 'match' for Integrity.
Id.
78. The demographics seem to support this conclusion. Gays and lesbians are
sometimes referred to as "DINKs-double income, no kids-who have the freedom to travel
more often and higher 'disposable incomes' to buy luxury items." How Much Do Gays
Earn?, GLAAD, http://www.commercialcloset.com/common/news/reports/detail.cfn?Classif
ication=report&QID=5426&ClientlD= 11064&TopiclD=384&subsection-resources&subnavresources (last visited Mar. 10, 2012). Of course, this is changing as more same-sex couples
are adopting children, using assisted reproduction, or raising children from a possibly
heterosexual previous relationship. Nevertheless, when comparing couples, what appears to
be a statistically significantly higher number of both partners in a homosexual relationship
work outside the home than those in opposite-sex relationships. Id. Although the perception
is that they are also generally higher earners, "few agree on actual figures." Id; see also
National Marketing Studies Confirm the Affluence of the Gay and Lesbian Market,
RAINBOwREFERRALS, http://www.rainbowreferrals.com/sponsors/statistic.asp (last visited
June 17, 2012) (attempting to persuade advertisers to market to gays and lesbians because
they are "this relatively untapped, lucrative and extremely brand loyal market" and listing
statistics as to why this is a good idea such as that the "Annual Value of the Gay and Lesbian
Market is $515 Billion").
79. The lists vary from state to state but generally include sex, race, color, religion,
ancestry, national origin, disability, medical condition, marital status, and/or sexual
orientation. See, e.g., CAL. CtV. CODE § 51(b) (West 2012). The New Jersey statute, which
includes the opportunity to obtain publicly assisted housing, has an even more extensive list,
which includes "race, creed, color, national origin, ancestry, age, marital status, affectional
[sic] or sexual orientation, familial status, disability, nationality, sex , gender identity or
expression or source of lawful income used for rental or mortgage payments." N.J. STAT.
ANN. § 10:5-4 (West 2012).
80. Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984).
2012]
741
another person's right to access public places and benefits. While
statutory language and judicial interpretations vary by jurisdiction, some
patterns emerge.
Although early non-discrimination laws were very restricted,' state
legislation has evolved and is now broader in at least three ways: the
groups involved, rights and advantages included, and companies that
must comply. In other words, because of the expanded coverage, these
statutes protect more people,82 proscribe many additional types of
discrimination, and apply to a greater number of businesses.
Unfortunately, this development also increases the very real possibility
of a clash between, on the one hand, a company's First Amendment
rights to free speech83 and expressive association, and, on the other, a
person or group's right to be free from differential treatment based on
prejudice.84
A. Place ofPublicAccommodation
In deciding if these laws apply to a specific situation, judges
initially looked to whether the establishment was a place of public
accommodation that provided goods and services in physical locations.8 5
Even though the federal statute continues to define public
81. The first federal and state civil rights statutes focused on racial discrimination and
included a limited list of establishments that were considered places of public
accommodation. Lisa G. Lerman & Annette Sanderson, Discriminationin Access to Public
Places: A Survey of State and FederalPublic Accommodations Law, 7 N.Y.U. REV. L. & Soc.
CHANGE 215, 218-25 (1978).
82. Nevertheless, more than half the states still do not prohibit discrimination in public
accommodations based on sexual orientation. Kelly Catherine Chapman, Note, Gay Rights,
the Bible, and Public Accommodations: An EmpiricalApproach to Religious Exemptions for
Holdout States, 100 GEO. L.J. 1783, 1785-86 (2012).
83. Corporations have First Amendment rights similar to those of a natural person.
Citizens United v. FEC, 130 S. Ct. 876, 899-913 (2010).
84. Boy Scouts of America v. Dale, 530 U.S. 640, 657 (2000) (noting that "[a]s the
definition of 'public accommodation' has expanded from clearly commercial entities, such as
restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the
potential for conflict between state public accommodations laws and the First Amendment
rights of organizations has increased"). For an excellent, comprehensive discussion of this
clash, see James M. Gottry, Note, Just Shoot Me: PublicAccommodation Anti-Discrimination
Laws Take Aim at FirstAmendment Freedom ofSpeech, 64 VAND. L. REV. 961 (2011).
85. This was based on the common law notion that innkeepers and common carriers had
an obligation to accept all "travellers [sic]." Lerman & Sanderson, supranote 81, at 218.
742
[Vol. 30:727
accommodations narrowly, 86 state laws 87 now typically include just
about all businesses." As a case in point, the New Jersey LAD notes
that its list of fifty enumerated types of covered places is not exclusive.
Similarly, the Unruh Act provides that it "applies to all business
establishments of every kind whatsoever"9 0 and California courts
86. 42 U.S.C.A. § 2000a(b) (West 2012) (providing that, to qualify as a public
accommodation under the federal Civil Rights Act, an establishment (1) must affect
commerce or (2) its discrimination must be supported by state action as well as fall within one
of the four following categories expressly listed as a covered business: "facilities principally
engaged in selling food for consumption on the premises; gasoline stations; places of
The Act prohibits
exhibition or entertainment; other covered establishments").
"discrimination or segregation on the ground of race, color, religion, or national origin" and
states "[a]ll persons" are entitled to "the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any place of public
accommodation." Id. § 2000a(a). The law specifically exempts private clubs or other
establishments not actually open to the public, except if the facilities are available to
customers or patrons of an establishment that falls within subsection (b). Id. § 2000a(e).
87. Because the eHarmony actions were brought under California and New Jersey
statutes, and as most cases apply state rather than federal legislation, this Article focuses on
state public accommodations law.
88. Historically, public accommodations provided essential products or services but
later cases include other, non-required businesses. See, e.g., Lahmann v. Grand Aerie of
Fraternal Order of Eagles, 43 P.3d 1130, 1135-36 (Or. Ct. App. 2002) (noting public
accommodations laws now apply to "recreational" businesses and using dating services as an
example); Barry v. Maple Bluff Country Club, 586 N.W.2d 182, 186-91 (Wis. Ct. App. 1998)
(treating country club as place of public accommodation in case of first impression).
89. N.J. STAT. ANN. § 10:5-5(1) (West 2012) (emphasis added):
A place of public accommodation" shall include, but not be limited to: any tavern,
roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp,
whether for entertainment of transient guests or accommodation of those seeking
health, recreation or rest; any producer, manufacturer, wholesaler, distributor, retail
shop, store, establishment, or concession dealing with goods or services of any
kind; any restaurant, eating house, or place where food is sold for consumption on
the premises; any place maintained for the sale of ice cream, ice and fruit
preparations or their derivatives, soda water or confections, or where any beverages
of any kind are retailed for consumption on the premises; any garage, any public
conveyance operated on land or water, or in the air, any stations and terminals
thereof; any bathhouse, boardwalk, or seashore accommodation; any auditorium,
meeting place, or hall; any theatre, motion-picture house, music hall, roof garden,
skating rink, swimming pool, amusement and recreation park, fair, bowling alley,
gymnasium, shooting gallery, billiard and pool parlor, or other place of amusement;
any comfort station; any dispensary, clinic or hospital; any public library; any
kindergarten, primary and secondary school, trade or business school, high school,
academy, college and university, or any educational institution under the
supervision of the State Board of Education, or the Commissioner of Education of
the State of New Jersey.
90. CAL. CIV. CODE § 51(b) (West 2012) (emphasis added).
2012]
743
repeatedly explain listed categories are "illustrative rather than
restrictive." 9'
should be relatively
Defining "public accommodation"
straightforward. But as the number of statutes grew and coverage was
extended, the interpretations presented an increasingly complicated and
inconsistent picture. One important aspect of this issue is whether an
actual facility for transacting business is required. Obviously, the
answer is critical for an online dating website like eHarmony that does
not have a physical location at which it interacts with clients.
As Roberts v. Jaycees92 seemed to open the door to eliminating the
"location" requirement, the case provides a good place to start this
discussion. The Court concluded a nonprofit membership organization
was a place of public accommodation because this "expansive definition
reflects a recognition of the changing nature of the American
economy." 93 But sixteen years later, Boy Scouts of America v. Dale
again suggested the need for a "physical location." 94 The majority
objected that, after the organization expelled an assistant scoutmaster
based on his sexual orientation, the New Jersey Supreme Court "applied
its public accommodations law to a private entity without even
attempting to tie the term 'place' to a physical location."9 '
Despite the conflict these decisions appear to have created, 6 recent
91. See, e.g., Semler v. General Elec. Capital Corp, 127 Cal. Rptr. 3d 794, 805 (Cal. Ct.
App. 2011).
92. 468 U.S. 609 (1984). In the mid 1970s, the Minneapolis and St. Paul chapters of the
United States Jaycees began admitting women. Id at 614. Both groups included a substantial
number of female members ten years later. Id. When multiple sanctions failed, the national
organization informed them that their charters would be revoked. Id Shortly thereafter,
individuals in both chapters filed discrimination charges with the Minnesota Department of
Human Rights alleging the exclusion of women from full membership required by the bylaws
violated the Minnesota Human Rights Act. Roberts, 468 U.S. at 614.
93. Id. at 626.
94. 530 U.S. 640, 657 (2000).
95. Id. (emphasis added). The Justices buttressed their conclusion by pointing out in a
footnote that the four other state supreme courts, in addition to one federal circuit court, that
had addressed the issue determined that the Boy Scouts were not a place of public
accommodation; only the New Jersey Supreme Court disagreed. Id at 657 n.3.
96. See also Nat'l Org. for Women v. Little League Baseball, Inc., 318 A.2d 33 (N.J.
Super. Ct. App. Div. 1974) which concluded that this "statutory noun 'place' [of public
accommodation]" is one "of convenience, not of limitation." Id. at 37. This language could
be read to imply no stationary location was required. However, the opinion went on to say
that "place" of public accommodation in the case of Little League is "obviously the ball field
at which tryouts are arranged, instructions given, practices held and games played." Id.
744
[Vol. 30:727
lower court opinions have determined that websites like eHarmony can
In fact, building on Justice
be places of public accommodations.
Brennan's analysis in Roberts, a New Mexico trial judge used the
"changing nature of the American economy" language to support his
conclusion that a photography company that advertises both on its
website and through "multiple internet search engines" is a public
accommodation." Thus, in Elane Photography, LLC v. Willock, Judge
Malott explained that although marketing on the Internet was
"essentially unknown" when both Roberts and Dale were decided, it
"has grown to a major means of commercial activity."99 As a result, a
company that seeks widespread participation in its business through the
web is engaged in substantial commercial activity and should be
considered a public accommodation. 00 Further, as "the hallmark of a
place of public accommodation [is] that 'the public at large is
invited,"' 0 1 an association like Little League is subject to the LAD
97. See, e.g., Butler v. Adoption Media, LLC, 486 F. Supp. 2d 1022, 1059-60 (N.D.
Cal. 2007). But see Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1116 (N.D. Cal. 2011)
(quoting Harris v. Capital Growth Investors XIV, 805 P.2d 873, 893 (Cal. 1991))
(determining that a social networking website was not a place of public accommodations
under the Americans with Disabilities Act (ADA) and noting that the only way an Unruh Act
violation may be maintained independent of an ADA claim is if a plaintiff pleads "intentional
discrimination in public accommodations in violation of the terms of the Act").
Acknowledging that only "actual, physical spaces" can be "places of public accommodation"
under the ADA, the justices stated that the state legislature substituted reference to "all
business establishments of every kind whatsoever" for the list of physical places that had
previously been included in the Unruh Civil Rights Act. Id. at 1115, 1116 (quoting CAL. CIV.
CODE §51(b) (2012)) (internal quotations omitted). As a result, lawmakers established Unruh
is broader than the ADA and not susceptible to the limited construction that applies to the
federal disability statute. See id. at 1116. In NationalFed'n of the Blind v. Target Corp., 582
F. Supp. 2d 1185, 1196-97 (N.D. Cal. 2007), the federal district court concluded that both
Unruh and the state Disabled Persons Act are broader than the ADA and, therefore, do not
require a nexus to physical stores. For a good discussion of this issue, see Ryan Campbell
Richards, Reconciling The Americans With Disabilities Act and Commercial Websites: A
FeasibleSolution?, 7 RUTGERS J.L. & PUB. POL'Y 520 (2010).
98. Memorandum Opinion and Order on Cross-Motions for Summary Judgment, Elane
Photography, LLC v. Willock, CV-2008-06632 at 5 (Dist. Ct. N.M. Dec. 11, 2009) (on file
with the author) [hereinafter Elane Photography Memorandum Opinion and Order].
99. Id.
100. See id.
101. Little League, 318 A.2d at 37. As the two actions where the plaintiffs sought to
hold eHarmony liable were in New Jersey and California, it is interesting to note that, in 1983,
the California Supreme Court actually cited Little League in deciding a Boys' Club that
rejected girls solely on the basis of sex was a "business establishment" under the Unruh Civil
Rights Act. Isbister v. Boys' Club of Santa Cruz, Inc., 707 P.2d 212, 217 (Cal. 1985).
2012]
745
"because the invitation is open to children in the community at large
with no restriction (except for sex) whatever."l 02 Consequently, the
organization could not discriminate against girls based on gender.1 03
These arguments also apply to eHarmony. Currently regarded as
the third most popular dating website,'1" it also seems to be "[a]n
establishment which by advertising or otherwise extends an invitation to
the public generally."' 05 In this context, its aggressive media campaign
and $30 million per year advertising budget' 0 6 are particularly important.
Moreover, virtually all the dating service's contact with its clients is
through its comprehensive website-where it also encourages people to
use its many other services including advice on a number of issueso 7 _
by providing links for easy access. Additionally, both because "the
traditional concept of a physical location is not crucial" in deciding if the
business is a "public accommodation,"'o and through multiple
advertising avenues "it literally opens its doors to the public to provide
members of the public with goods and services,"109 eHarmony meets the
criteria for a public accommodation. However, while it "makes no
difference" if the business is in "a fixed location,""i0 what does appear to
matter is selectivity."'
102. Little League, 318 A.2d at 37-38.
103. Id. at 37.
104. The Top 10 Online Dating Sites of 2012, TOPIOBESTDATINGSITES.COM,
http://www.topl0bestdatingsites.com/?kw-most%2520popular/o2520online%2520dating&c=
9362025667&t-search&p=&m=p&adpos=ltI &a=1&gclid=CLjX8dfo_60CFVCR7QodClICs
(last visited June 17, 2012). In contrast to social networking sites as well as other online
dating services, eHarmony "emphasize[s] privacy," has an "'elongated' communication
process," and charges higher subscription fees on average. eHarmony 's Steady Growth,
ONLINEPERSONALSWATCH (Jul. 13, 2010), http://www.onlinepersonalswatch.com/news/
2010/07/eharmonys-steady-growth.html. This strategy has resulted in the service's popularity
among more serious daters. Id.; see also eHarmony.com, Inc. Company Profile, supra note
24.
105. Clover Hill Swimming Club, Inc. v. Goldsboro, 219 A.2d 161, 165 (N.J. 1966).
106. eHarmony.com, Inc. Company Profile, supra note 24; see also supra notes 24-32
and accompanying text.
107. These issues include advice on dating, relationships, pregnancy, parenting, safety,
and more. See eHarmony Advice, EHARMONY, http://advice.eharmony.com/?cid=corp&
aid=1000 (last visited Mar. 12, 2012).
108. Elane Photography Memorandum Opinion and Order, supra note 98, at 5.
109. Id. at 6. This, of course, is the very definition of "public accommodation."
110. Id.
111. But see supra note 97 and accompanying text. Young v. Facebook, Inc., 790 F.
Supp. 2d 1110, 1116 (N.D. Cal. 2011) (concluding that a social networking website was not a
place of public accommodations under the Americans with Disabilities Act (ADA) and noting
QUINNIPIAC
746
LAW REVIEW
[Vol. 30:727
When addressing this issue, Kiwanis International v. Ridgewood
Kiwanis Clubll 2 is helpful; it clarified the Little League standard and
concluded that the local club was not a place of public
accommodation." 3 In contrast with the "parent" organization, which
had encouraged large scale solicitation and "membership roundups," the
Ridgewood group, one of Kiwanis' chartered clubs, was very
Thus, important to the decision was the fact that
selective.1 4
Ridgewood was "small, comprised of only twenty-eight members."" 5
Also, as "a primary screening mechanism in the maintenance of the
quality of membership," each applicant had to be sponsored by a current
member and formally voted in by the directors."' 6 Further, several local
requirements, including but not limited to the candidate's willingness to
pray at meetings and to recite the pledge of allegiance, were added to the
national qualifications.' 17 Based on all these factors, by considering
only the local group,"' the Third Circuit was able to correctly state, "[i]f
the test of 'place of public accommodation' is unselectivity,
unrestrictedness, and open invitation, as Little League informs us that it
is, it is evident Kiwanis Ridgewood's practices do not pass that test."" 9
that the only way an Unrub Act violation may be maintained independent of an ADA claim is
if a plaintiff pleads "intentional discrimination in public accommodations in violation of the
terms of the Act"). Acknowledging that only "actual, physical spaces" can be "places of
public accommodation" under the ADA, the court stated that the state legislature substituted
reference to "all business establishments of every kind whatsoever" for the list of physical
places that had previously been included in the Unruh Civil Rights Act. Id. As a result,
lawmakers established Unruh is broader than the ADA and simply not susceptible to the
limited construction that applies to the federal disability statute. However, in National Fed'n
of the Blind v. Target Corp., 582 F. Supp. 2d 1185, 1196-97 (N.D. Cal. 2007), the federal
district court concluded that both Unruh and the state Disabled Persons Act (DPA) are broader
than the ADA and, therefore, neither requires a nexus to physical stores. Id.
112. 806 F.2d 468 (3d Cir. 1986).
113.
114.
Id.at476.
Id. at 475.
115. Id. Notably, ten people had been members for more than twenty years and, in the
preceding decade, no more than twenty members joined. Kiwanis, 806 F.2d at 475.
116. Id.
117. Id.
118. The Third Circuit explicitly stated that the "focus must necessarily be on Kiwanis
Ridgewood, a club with but twenty-eight members, [and therefore] it is apparent that evidence
dealing with the whole of the Kiwanis International complex is irrelevant in determining
whether Kiwanis Ridgewood is a place of public accommodation within the purview of the
New Jersey Law Against Discrimination." Id. at 476 n. 14. However, it seems unusual for a
court to look to a particular club rather than the national or international group. In this case,
of course, it is particularly important because that decision actually determined the outcome.
119. Id. at 476.
2012]
747
Conversely, online dating services should pass with flying colors.
Notably, however, when compared to similar sites, eHarmony might
have a slightly better, but ultimately still unsuccessful, counter
eHarmony could truthfully assert that, like Kiwanis
argument.
Ridgewood, it is much more selective than its competitors. In fact,
although the company strongly opposed a rival's marketing campaign in
2007 that claimed eHarmony turns down many applicants, those same
allegations could actually undermine a conclusion that the website is a
public accommodation. On television and in magazines, the competitor
showed young men and women pondering why they were turned down
by eHarmony: .'I mean, I am a good person. Right?' asks an actress as
a giant red 'Rejected by eHarmony' graphic slams onto the TV screen.
has rejected more than 1 million people
The ads note that eHarmony
1 20
who are 'looking for love."'
Even while attempting to get the ads stopped or changed,
eHarmony admitted that the numbers were correct.121 As a result, rather
than attack the statistics, the company claimed the advertisements were
misleading as they implied the company was "being arbitrary-or worse,
racially and religiously discriminatory-in turning people away."1 22
Now, almost five years later, eHarmony's "spin" might be that it was
simply being "selective" in choosing members. In addition, the service
would probably claim that, unlike in Clover Hill Swimming Club, Inc. v.
Goldsboro, where an African-American veterinarian was denied
membership based on his race, their denials were based on legitimate
"personal associational preferences of their members."l 23 For example,
thirty percent of the applicants were eliminated because they were
married.12 4 John Claassen, a thirty-six-year-old lawyer, tried to join but
was rejected because-although he was legally separated-his divorce
was not final.12 5 Claassen filed a discrimination complaint alleging the
company-which "freely advertises its discriminatory policy of
excluding legally separated individuals"-violated state law by refusing
120.
121.
122.
Farhi, supra note 39.
Id.
Id.
123.
219 A.2d 161, 166 (N.J. 1966).
Moreover, the restrictions were not based on the
natural limits in the number of clients eHarmony could successfully serve.
124. Farhi, supra note 39.
125.
Not-Quite-Single Lawyer Sues after Rejection by eHarnony, THE ARGUS (Fremont,
Cal.) (Mar. 29, 2006), availableat 2006 WLNR 5329189.
748
[Vol. 30:727
to allow him to register.126
The disgruntled attorney argued the dating service should permit
subscribers to make the decision as to whether they wanted to date a
person who was not yet divorced.127 But eHarmony pointed to
numerous customer surveys showing most members "want their matches
to be divorced, widowed or never married at all."' 28 The case was
resolved when, after a little more than two years, Claassen dismissed his
suit with prejudice. 2 9
Inaddition to objections based on marital status, eHarmony rejected
twenty-seven percent of those who applied because they were under
twenty-one' 30 and nine percent because they gave inconsistent answers
on the 258-question form.'3 ' In 2007, applicants were also denied
membership if they were homosexuals or their profiles indicated they
were depressed.132 Of course, only the latter two groups are protected
under civil rights actsl 33 but, at least so far, it appears no one has sued
claiming he was illegally rejected because of a mental or physical
disability.
126. Complaint for Damages and Injunctive Relief at 6, Claassen v. eHarmony.com, Inc.,
No. RG06260908 (Cal. Super. Ct. Mar. 21, 2006).
127. Not-Quite-Single Lawyer Sues after Rejection by eHarmony, supra note 125.
128. Id.
129. Request for Dismissal, Claassen v. eHarmony.com, Inc., No. RG06260908 (Cal.
Super. Ct. July 1, 2008). Other services allow those who are separated to join, and some
websites actually target married people. See, e.g., ASHLEY MADISON, http://www.ashley
madison.com (last visited June 17, 2012) (displaying the trademarked motto, "Life is short.
Have an affair"). Therefore, this group has opportunities to participate in online dating-just
not on the arguably more-selective eHarmony.
130. Farhi, supra note 39. Currently, the minimum age is eighteen. Terms of Service,
EHARMONY, http://www.eharmony.com/about/terms (last visited Mar. 15, 2012). Courts have
upheld such age limits using rational basis analysis. See, e.g., City of Dallas v. Stanglin, 490
U.S. 19 (1989) (upholding ordinance that restricted use of dance halls to people between
fourteen and eighteen because it did not infringe on First Amendment right of association and
was rationally related to legitimate purpose so it did not violate Equal Protection Clause). See
also infra notes 157-63 and accompanying text.
131. Farhi, supra note 39. Disagreement exists about just how many questions there are.
Id.; see also supra note 20 and accompanying text.
132. Farhi, supra note 39.
133. People with mental disabilities are covered under the ADA. 42 U.S.C.A. §
12102(1) (West 2012) (emphasis added) (defining "disability" as "a physical or mental
impairment that substantially limits one or more major life activities of such individual" or
"record of such an impairment" or "being regarded as having such an impairment"). Thus,
depression that "substantially limits one or more major life activities" can be a disability. See,
e.g., Lizotte v. Dacotah Bank, 677 F. Supp. 2d 1155 (D.N.D. 2010).
2012]1
749
B. "DistinctlyPrivate"
Even if eHarmony is a place of public accommodation, the
company might contend it fits within the exception for businesses that
are "distinctly private."l34 If this argument were successful, civil rights
statutes would not apply and eHarmony could refuse to match potential
clients based on their sexual orientation. Indeed, both statutes 135 and
cases' 36 typically include an exemption from antidiscrimination laws for
places that are "distinctly private." Such protection is not surprising
given that the prohibition on discrimination is only for places of public
accommodations. Notably, however, while it is easy to see why litigants
might seek to fall within this exclusion, there are not many reported
appellate decisions where they have even attempted to do so.
Kiwanis International v. Ridgewood Kiwanis Club provides the
134. See, e.g., N.J. STAT. ANN. § 10:5-5(1) (West 2012).
135. Id.
136. See, e.g., Warfield v. Peninsula Golf & Country Club, 896 P.2d 776, 790 (Cal.
1995) (stating that even if the business is a public accommodation, the prohibition does not
apply to "truly private social clubs" or organizations that are by nature distinctly private).
Only a few courts have interpreted or discussed this "distinctly private" concept. See supra
notes 134-35 and accompanying text; see also infra notes 137-55 and accompanying text.
137. Although generally not directly relevant to the specific issue raised in this Article,
the laws also do not apply to "membership decisions of a charitable, expressive, and social
organization." Curran v. Mount Diablo Council of the Boy Scouts, 952 P.2d 218, 236 (1998).
Nevertheless, had either of the actions actually gone to trial, eHarmony's arguments probably
would have included claims that it is an "expressive" or "social" group. The relevant statutory
language is:
Nothing herein contained shall be construed to include or to apply to any
institution, bona fide club, or place of accommodation, which is in its nature
distinctly private; nor shall anything herein contained apply to any educational
facility operated or maintained by a bona fide religious or sectarian institution, and
the right of a natural parent or one in loco parentis to direct the education and
upbringing of a child under his control is hereby affirmed; nor shall anything herein
contained be construed to bar any private secondary or post secondary school from
using in good faith criteria other than race, creed, color, national origin, ancestry,
gender identity or expression or affectional [sic] or sexual orientation in the
admission of students.
N.J. STAT. ANN. § 10:5-5(1) (West 2012); see also Wazeerud-Din v. Goodwill Home and
Missions, Inc., 737 A.2d 683, 685-86 (N.J. Super. Ct. App. Div. 1999) (internal citations
omitted) (holding that nine-month residential program providing participants with intensive
religious Christian instruction to liberate them from the "chains of addiction" by accepting
"Jesus Christ as Savior and Lord of one's living" was not a "place of public accommodation"
under the LAD because it is a religious program and is also excepted because it is an
"educational facility operated or maintained by a bona fide religious or sectarian institution").
750
[Vol. 30:727
primary discussion of this statutory language.' 3 8 It clarifies the emphasis
on "selectivity" as the standard for determining "public accommodation"
as well as for deciding if a club is "distinctly private."' 39 Thus, the
opinion explains,14 0 if a club like Kiwanis Ridgewood is "bona fide,"
and is not a "place of public accommodation" due to its selective
membership practices, "it must be private as that term is used in the
statute."l 4 1
Clover Hill 42 presents another illustration. The New Jersey
Supreme Court rejected the organization's claim that the public
accommodation law did not apply "because it is an accommodation
138. 806 F.2d 468, 476-77 (3d Cir. 1986). The court said a "distinctly private" club
"represents the other side of the 'public accommodation' coin." Id. at 476.
139.
Id. at 476-77.
140. Because no one was claiming that Kiwanis Ridgewood was not a "bona fide"
private club under the statute, the court did not need to provide criteria for falling within this
exception. Id. at 476. Thus, the decision exposes a flaw in the "private club exception"-the
absence of a clear definition. See, e.g., 42 U.S.C.A. § 2000a(e) (West 2012) (stating
"provisions of this subchapter shall not apply to a private club or other establishment not in
fact open to the public"). Nevertheless, both the federal statute and case law appear to require
the activity or endeavor must be selective in choosing members. See, e.g., Wright v. Cork
Club, 315 F. Supp. 1143, 1154-56 (S.D. Tex. 1970) (explaining that, to fall within the private
club exemption, an organization must demonstrate it has an established selection process for
member applications, limits facilities and services only to members and bona fide guests, is
controlled by membership, is nonprofit and operated solely for members' benefit and pleasure,
and directs publicity solely to members for their information and guidance). Acknowledging
that none of the following is dispositive, Professor Barbara Osborne provides a list of criteria
courts consider in reaching their decisions. These include:
* Size of the club-smaller clubs are more likely to be private.
* Selectivity in membership-more exclusive clubs are more likely to be private
whereas clubs that advertise for members are likely a public accommodation.
* Substantiality of dues-higher fees are more likely to be private.
* Procedural formalities followed by the club-an absence of procedures most
likely indicates a public accommodation.
* Members control over governance of the club-a lack of membership
participation is likely to indicate a public accommodation.
* Use of the club's facilities by non-members-liberal guest policies or rental
by non-members is likely to indicate a public accommodation.
* The club's history and purpose-the predominance of a profit motive is likely
to indicate a public accommodation.
* Member's property interest-members with an ownership stake may indicate
a private club while clubs owned by corporations are more likely to be a
public accommodation.
Barbara Osborne, Gender, Employment, and Sexual HarassmentIssues in the Golf Industry,
16 J. LEGAL ASPECTS SPORT 25, 38-39 (2006).
141.
142.
Kiwanis, 806 F.2d at 476.
Clover Hill Swimming Club, Inc. v. Goldsboro, 219 A.2d 161 (N.J. 1966).
2012]
751
'which is in its nature distinctly private."' 1 43 In reaching this conclusion,
the justices considered several factors beginning with the observation
that foreshadowed Little League: "[a]n establishment which by
advertising or otherwise extends an invitation to the public generally is a
The club tried to support its
place of public accommodation."'"
assertion that it fell within the exemption by raising the fact that
membership was restricted. 145 But this argument also failed. All
accommodations' facilities-public or private-are constrained in how
Consequently, "this
many people they can effectively serve.146
limitation cannot act to change an otherwise public accommodation into
a private one."1 4 7 Moreover, an owner's "[s]elf-serving declarations ...
are not determinative of its character." 4 8 Thus, neither the fact that it
"referred to itself as a 'private facility' nor that its materials stated "all
applications would be subject to approval by club officials" required
treating the club as "distinctly private."1 4 9
The court noted that one important factor in the decision was that
the establishment was organized for profit and controlled by
stockholders rather than members. 50 In other words, because it was "a
143.
Id. at 164-66.
144. Id. at 165.
Clover Hill provides support for treating eHarmony as a public
accommodation. The court seemed to have no trouble dismissing the club's contention that it
did not engage in public advertising because "its activities clearly indicate that it sought to
attract new members from the public at large." Id. Moreover, not only did Clover Hill
display a large sign outside its entrance describing the facilities and ways to obtain additional
information, it also placed advertisements in several newspapers. Clover Hill, 219 A.2d at
165. While these ads contained ice skating safety advice, they also listed a post office box
number which could only have been included to provide a method for potential applicants to
seek to join. Id In fact, people who did write were sent extensive promotional literature
which extolled the virtues of membership along with application forms. Id. In many ways,
eHarmony's assertive marketing strategy seems similar.
145. Id
146.
Clover Hill, 219 A.2d at 165.
147.
148.
Id.
Id.
149.
Id. at 165-66.
150. Clover Hill, 219 A.2d at 166. Cases like Clover Hill refer to "members" as
distinguished from owners. Id. eHarmony's clients are not stakeholders like owners but are
either
members
or
subscribers.
eHarmony
Review,
DATINGSITESREVIEWS.COM,
http://www.datingsitesreviews.com/staticpages/index.php?page=2010000100-eharmony (last
visited June 17, 2012). Members can post profiles without charge but they cannot
communicate through the site with other members or subscribers. Id. Subscribers pay a fee
and can correspond with other subscribers. Id. Unfortunately, however, it is impossible to tell
by looking at a profile whether the person who posted it is a member or subscriber. This is
important because it means that failure to receive a reply may simply mean the person is a
752
[Vol. 30:727
commercial venture" it is more likely to be considered public. 5' As the
opinion made clear, this is significant because the exception for
distinctly private organizations was "designed to protect the personal
associational preferences of their members." 5 But that is generally not
an issue in cases like this where Clover Hill was created not because
some residents wanted "to associate themselves in a swimming club, but
rather because an entrepreneur was seeking a profitable investment."153
At this juncture, it might be helpful to state the obvious: like Clover
Hill, the eHarmony website was created to generate a profit for its
owners by providing a service to its clients-matching singles with
mates. 154 Indeed, there can be no doubt that the dating site was always
supposed to be "a commercial venture." Just as was true in Clover Hill,
it is important that the company is controlled by its owners rather than
members or subscribers.155 Thus, eHarmony would almost certainly be
treated as a public accommodation rather than a "distinctly private"
organization. This means that, while the laws do recognize an
exemption for places that are private, a request for this exception by
eHarmony would likely have been doomed.
C. Conflict with FirstAmendment
Had either McKinley or Carlson gone to trial, eHarmony probably
would have argued that applying the public accommodation law would
violate its associational and free speech rights.156
member who cannot answer rather than that he is a subscriber who can but apparently chose
not to. Id.; see also Brodsky v. Match.Com, LLP, No. 3-09-CV-2066-F-BD, 2010 WL
3895513, *1 (N.D. Tex. Sept. 30, 2010) (asserting Match.com fraudulently induces people to
join by promising that they will be able to access 15 million user profiles without disclosing
that only approximately 1.4 million of these are subscribers who can actually communicate);
Schmidt Complaint, supra note 28, at 13 (claiming this practice, among others, is an
"unlawful, unfair and/or fraudulent business act[] or practice[]").
151. Clover Hill, 219 A.2d at 166.
152. Id.; see also supranotes 123-28 and accompanying text.
153.
Clover Hill, 219 A.2d at 166.
154. It seems eHarmony is meeting, and even exceeding, the objectives of both groups.
With a reputed $250 million value in 2009, owners are apparently enjoying the financial
rewards associated with a successful business. In addition, the company is also satisfying
many clients based on its claims that the website is responsible for 542 marriages each day.
EHARMONY, http://www.eHarmony.com (last visited Mar. 14, 2012) (claiming these
relationships "account[ ] for nearly 5% of new U.S. marriages").
155. See supra notes 150-53 and accompanying text.
156. See U.S. CONST. amend. I.
2012]
753
For support, the company might have turned to City of Dallas v.
Stanglin, where the Supreme Court held that a city ordinance limiting
dance halls to individuals between fourteen and eighteen neither
infringed on First Amendment rights of association nor violated the
Equal Protection Clause. 5 7 The restriction certainly hindered a minor's
ability to dance with adults (as only minors were allowed to enter the
facilities), and it definitely impeded the opportunity for an individual
over eighteen to dance with these underage customers, but it was not
sufficient to invalidate the law. 58 Although these relationships might be
described as "associational," they simply do not involve the sort of
expressive association that the First Amendment protects.15 9 The
"hundreds of teenagers" who regularly attend a particular dance hall "are
not members of any organized association." 60 While "they are patrons
of the same business establishment," the majority of these adolescents
do not even know each other.'6 1 Moreover, the dance hall allows all
minors who are willing to pay the admission fee to enter.162 Most
importantly, no one contends that these clients "take positions on public
questions" or perform other similar activities.163
D. AssociationalRights
To determine if eHarmony (or any group) is within the First
Amendment's expressive associational rights, it is necessary to consider
whether the business engages in "expressive activity that could be
Thus, in approaching such claims, judges need "to
impaired."'"
157.
158.
490 U.S. 19 (1989).
Id.
159.
160.
161.
Id. at 24.
Id.
Stanglin, 490 U.S. at 24-25.
162. Id.
163. Id. at 25-26 (internal quotations and citations omitted).
164. Boy Scouts of America v. Dale, 530 U.S. 640, 655 (2000). In this context, the
protection is not limited to advocacy groups. Id at 648. In Roberts v. US. Jaycees, 468 U.S.
609, 622 (1984) (emphasis added), the Court observed that:
An individual's freedom to speak, to worship, and to petition the government for
the redress of grievances could not be vigorously protected from interference by the
State unless a correlative freedom to engage in group effort toward those ends were
not also guaranteed. According protection to collective effort on behalf of shared
goals is especially important in preserving political and cultural diversity and in
shielding dissident expression from suppression by the majority. Consequently, we
have long understood as implicit in the right to engage in activitiesprotected by the
754
[Vol. 30:727
distinguish nonexpressive from expressive associations and to recognize
that the former lack the full constitutional protections possessed by the
latter."1 65
In these situations, courts typically use a two-step analysis. The
threshold issue is whether the group engages in "expressive association."
If it does, the inquiry turns to whether inclusion of the unwanted group
or individual would significantly affect the group's ability to express
itself. Contrary to Stanglin where the minors did not "take positions on
public questions," 166 Dale determined that the adult leaders who
inculcate scouts with the group's value system are an example of an
expressive association.16 7 After giving "deference" to the association's
assertions that "homosexual conduct is inconsistent with values
embodied in the Scout Oath and Law,"s 68 and noting the organization
does not want to promote homosexual conduct as a legitimate form of
behavior, the inquiry turned to whether James Dale's presence as an
assistant scoutmaster would "significantly burden" the expression of
those ideas. 16 9 According to the Court, Dale's "forced inclusion . . .
would significantly affect the Boy Scouts' ability to advocate public or
private viewpoints"170 because he was one of the gay Scouts "who have
become leaders in their community and are open and honest about their
sexual orientation." 17 ' Therefore, just by being an assistant scoutmaster,
he would interfere with the Scouts' choice not to promote a view
contrary to its beliefs. 172
First Amendment a corresponding right to associate with others in pursuit of a
wide variety of political, social, economic, educational, religious, and cultural
ends.
165. Roberts, 468 U.S. at 638 (O'Connor, J., concurring). Notably, however, while there
must be "expressive activity," organizations do not have to associate only for the "purpose" of
disseminating a certain message to warrant these protections. Id.
166. Stanglin, 490 U.S. at 25-26 (internal quotations and citations omitted); see also
supra notes 157-63 and accompanying text.
167. Dale, 530 U.S. at 650.
168. Id.
169.
170.
Id. at 653.
Id at 648-50.
171. Dale, 530 U.S. at 653 (internal citation omitted).
172. Disagreeing with the state courts, the Justices concluded the Boy Scouts' message
would be significantly affected by forcing the organization to include Dale for several
reasons:
* To be protected, the group does not need to associate for the purpose of
communicating a certain message. Instead, it must only participate in
expressive activity that "could be impaired."
2012]
755
Even though the Boy Scouts and eHarmony both disapprove of
homosexuality, based on several important differences, Dale is not
applicable to the dating service. For one thing, the "general mission of
the Boy Scouts is clear: '[T]o instill values in young people.""" One of
the important ways the organization tries to accomplish this is by having
adult leaders spend time teaching scouts such things as camping,
archery, and fishing. 7 4 During this time together, scoutmasters and
assistants like Dale share the group's values in two ways-"expressly
and by example."' 75 As a result, "[i]t seems indisputable that an
association that seeks7 6 to transmit such a system of values engages in
expressive activity."'
eHarmony has no such mission. While Warren certainly appears to
share the Boy Scouts' rejection of homosexuality, the website's "general
mission" is not to transmit values to children or anyone else. Rather, the
company was created to help singles "experience[ ] the joy of falling in
love with someone who sees you, loves you, and accepts you for who
you are." 77 Initially, eHarmony asserted that its objective for its clients
was marriage, and homosexuals at that time could not marry anywhere
in the United States.78 But that argument is not persuasive (and, even
assuming it were, it is much less viable now that a growing number of
states are permitting gays and lesbians to wed).1 7 9 Further, based on its
* Even if the Boy Scouts do discourage leaders from discussing their views on
sexual issues (a fact the organization denies and for which it presents contrary
evidence), its method of expression is protected.
* All members of a group do not have to agree on every issue for the group's
policy to be "expressive association." Because the Boy Scouts' expression
would be burdened, the Court must decide if applying New Jersey's public
accommodations law would violate the Scouts' freedom of expressive
association. It concluded it would.
Id. at 655-56.
173.
174.
175.
Id. at 649-50 (quoting Roberts, 468 U.S. at 636 (O'Connor, J., concurring)).
Id.
Dale, 530 U.S. at 649-50.
176.
177.
Id. at 650.
EHARMONY, http://www.eharmony.com (last visited Mar. 14, 2012).
178. See supranote 18 and accompanying text.
179. The following states (and the District of Columbia) issue marriage licenses to samesex couples: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and
the District of Columbia. Defining Marriage: Defense of Marriage Acts and Same-Sex
Marriage Laws, NAT'L CONF. OF STATE LEGISLATURES, http://www.ncsl.org/default.aspK?
tabid-16430 (last updated June 2012). After the California Supreme Court ruled in May 2008
that gays and lesbians have the right to marry, voters passed Proposition 8, a constitutional
amendment defining marriage as one man and one woman. Id. However, a federal district
756
[Vol. 30:727
own marketing campaign, what eHarmony is really promising is not
marriage but rather an opportunity to fall in love forever with the person
who is perfect for you.s 0
Another significant distinction is that, because the Boy Scouts
apparently have taken an official position on homosexual conduct, they
arguably warrant First Amendment protection. 18' This is not true for
eHarmony's "heterosexuals only" policy that seems to lack any
legitimate purpose. As the Dale Court explained, an expressive
association (even assuming eHarmony would fall within this category)
cannot "erect a shield against antidiscrimination laws simply by
asserting that mere acceptance of a member from a particular group
would impair its message."' 82 Unlike in Dale, the "heterosexual only"
rule appears to be simply a discriminatory practice rather than a primary
reason for the organization. This is important because "whether
innocent or subtly purposeful," companies should not be allowed "to
frustrate the legislative determination to prevent discrimination."' 8 3
judge ruled that Proposition 8 violated equal protection under the United States Constitution.
Id.
On February 7, 2012, the Circuit Court of Appeals for the Ninth Circuit held that the
amendment was unconstitutional as it failed to meet even the rational basis test. Perry v.
Brown, 671 F.3d 1052 (9th Cir. 2012), reh'g en banc denied, 2012 WL 1994574 (9th Cir.
June 5, 2012). Avoiding the issue of whether homosexuals have a fundamental right to marry,
the court concluded the right, once granted, could not be taken away. Id. at 1083-84. Four
months later, the court en banc refused to rehear the case, possibly paving the way for a
Supreme Court decision. Meanwhile, however, gays and lesbians are still not being issued
licenses. Scott Wooledge, Perry v. Brown: Weighing the Risk, Cost andPotentialRewards of
Taking the Case to the Supreme Court, PROP 8 TRIAL TRACKER (June 27, 2012),
http://www.prop8trialtracker.com/2012/06/27/weighing-the-risk-cost-and-potential-rewardsof-taking-prop-8-to-the-supreme-court.
180. Other significant and relevant statements on the website include "Get matched with
singles uniquely right for you," "eHarmony is committed to helping singles find love every
day," "Our Compatibility Matching System does the work for you by narrowing the field from
thousands of single prospects to match you with a select group of compatible matches with
whom you can build a quality relationship," "At eHarmony, we believe you deserve to find
love - true love that comes with a lasting relationship. Because of this, we are committed to
assisting singles everywhere in their search to find love and romantic fulfillment," and "We
are committed to matching you with truly compatible men or women in order to provide you
with the best online dating and relationship experience possible." EHARMONY,
http://www.eharmony.com (last visited Mar. 8, 2012).
181. Dale, 530 U.S. at 650-51.
This is not undermined by the fact that some
heterosexual members disagree with this position or that the Boy Scouts have not revoked
their memberships. Allowing for dissent does not mean an organization forfeits its First
Amendment rights. Id. at 655-56.
182.
183.
Id. at 653.
Clover Hill Swimming Club, Inc. v. Goldsboro, 219 A.2d 161, 166 (N.J. 1966).
2012]
757
Probably the most meaningful difference is that, while the Boy
Scouts are a "private, not-for-profit organization engaged in instilling its
system of values in young people,"' eHarmony is one of the three
services singles use most to find a mate, date, or companion in an
industry projected to generate $2 billion in the United States by 2013.85
Similar to the Clover Hill Swimming Club, eHarmony is controlled by
its owners (rather than its members) whose plan was to create a company
that generates a profit.18 6 The dating service is in business to earn
money rather than to change members' minds about homosexuality or
While the First Amendment protects an
same-sex marriage.
organization that takes an official position on an issue, as the Boy Scouts
did, it does not protect a for-profit company whose policy discriminates
against a protected group. 87
E. Compelled Speech
Because eHarmony is not engaged in expressive speech, a claim
that it was being forced to express a view with which it disagreed would
also most likely lose.'88 However, the company might assert that, in
prohibiting discrimination based on sexual orientation, these statutes
violate its constitutional rights. By requiring the website to match samesex couples, eHarmony would argue the government would be coercing
it into appearing to sanction these relationships-a position that Warren
has strongly and consistently rejected as contrary to his own
fundamental values.' 89
To support its contention, eHarmony might try to use Hurley v.
Irish American Gay, Lesbian and Bisexual Group of Boston, where the
Court concluded a state "may not compel affirmance of a belief with
184.
Dale, 530 U.S. at 644.
185.
How PopularIs Online Dating?, ONLINE DATING MAGAZINE, http://www.online
datingmagazine.com/faq/howpopularisonlinedating.html (last visited July 1,2012).
186. Although Clover Hill does not advertise directly to the public, see supra note 144,
and eHarmony does, see supra notes 29, 31 and accompanying text, the important point is that
both are "commercial venture[s] operated to return a profit to [their] owners." Clover Hill,
219 A.2d at 166.
187. See Dale, 530 U.S. at 648.
188. See supra notes 164-87 and accompanying text. Further, even if eHarmony was
engaged in expressive association, most viewers would not be aware of or understand the
heterosexual only message. See infra note 214 and accompanying text.
189. See supra notes 17-21 and accompanying text.
758
[Vol. 30:727
which the speaker disagrees."o90 Nevertheless, although a correct
statement of the law, it would not apply to eHarmony. In Hurley, private
organizers of a St. Patrick's Day parade refused to allow the Irish
American Gay, Lesbian and Bisexual Group (GLIB), a non-heterosexual
Irish descendants group, 9 ' to march with them.19 2 The opinion held that
requiring private citizens to include an association with a message the
organizers oppose violates the First Amendment. 9 3 This is because, as
"all speech inherently involves choices of what to say and what to leave
unsaid," an important tenet of free speech is that one who chooses to
speak may also decide "what not to say."1 94
The Justices unanimously agreed in Hurley that, because the word
"parade" itself indicates participants are "making some sort of collective
point, not just to each other but to bystanders along the way,"'" these
events were "a form of expression." 9 6 Moreover, including the group
would be "expressive" because GLIB was created to march and
"celebrate its members' identity as openly gay, lesbian, and bisexual
descendants of the Irish immigrants, to show that there are such
individuals in the community, and to support the like men and women
who sought to march in the New York parade."' 97
190. See 515 U.S. 557, 573 (1995).
191. The Court made it clear that the organizers were not rejecting individual gays and
lesbians. Instead, they refused to allow GLIB to march "as its own parade unit carrying its
own banner." Id. at 572. This was appropriate because "every participating unit affects the
message conveyed by the private organizers." Id. Denying them the right to do so "produced
an order essentially requiring petitioners to alter the expressive content of their parade." Id. at
572-73.
192. Hurley, 515 U.S. at 560-61. The trial court rejected the idea that including GLIB
infringed on organizers' First Amendment rights. Id. at 563. Because of their lack of
selectivity in choosing parade participants and failure to associate a clear message with the
parade, the court found that the parade had no expressive purpose. Id. The Massachusetts
Supreme Court affirmed but, similar to the lower court, did not find a discernible message
entitled to First Amendment protection. Id. at 561-66. Thus, the state courts concluded that
the parade was a public accommodation and, therefore, Massachusetts law prohibited refusing
them an opportunity to participate because of their sexual orientation. Hurley, 515 U.S. at
563-65.
193. Id. at 566. The Court reversed the state decisions that upheld application of the
Massachusetts anti-discrimination law. Id.
194. Id. at 573 (quoting Pacific Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 11
(1986) (plurality opinion)).
195. Hurley, 515 U.S. at 568.
196. Id.
197. Id. at 570. In fact, they wanted to walk behind a banner that clearly would be
communicating a message that was not one endorsed by the organizers. Id. at 572.
2012]
759
However, in Butler v. Adoption Media, LLC, 19 8 a recent and more
relevant case, a federal district judge noted that no reported decision
has extended Hurley to a commercial enterprise engaged in commercial
activity. 20 0 Thus, if such an attempt were made by eHarmony, it should
be rejected. The defendants in Butler, Dale and Nathan Gwilliam, 20 1
operated popular adoption-related websites including ParentProfiles.com
that, for a monthly fee, provided a forum for people to post information
about themselves if they were attempting to adopt a child.202 Pregnant
women and mothers planning to place their children with adoptive
parents checked the site to review these "profiles" to help them decide
who they thought would be the best parents for their offspring.20 3
Based on a policy similar to eHarmony's, the website restricted its
services to couples in traditional man/woman relationships. 204
Consequently, ParentProfiles.com rejected an application from
homosexual domestic partners, Michael and Richard Butler.205 One of
the Gwiliams said the "opposite gender component is an essential
component of the policy," and, consequently, even if same-sex couples
were permitted to marry in all fifty states, the website owners would still
be reluctant to change their rule.206 Judge Hamilton drew an analogy
important to the online dating industry:
The website ParentProfiles.com is not "expressive speech." It is a commercial
enterprise. . . . Indeed, ParentProfiles.com is more akin to a commercial
Internet dating service than it is to an Internet "publication." The "service"
requires that the prospective parents be pre-approved for adoption by the
appropriate agency in their own states of residence, but apart from that, it
operates as any matchmaking service. Just as the operators of Internet dating
services do not schedule dates orperform marriages,but rathersimply provide
interested individuals with a vehicle for making contact and arranging
introductions, the operators of ParentProfiles.com do not preside over
198. 486 F. Supp. 2d 1022 (N.D. Cal. 2007).
199. Ashleigh Bergeron, Case Note, Butler v. Adoption Media, LLC: EradicatingSexual
Orientation Discriminationin Cyberspace, 17 L. & SEXUALITY 173, 180 (2008) ("Although
other cases have . . . dealt with discrimination against homosexual individuals by private
businesses, none before have dealt with such discrimination by private Internet businesses.").
200. Butler, 486 F. Supp. 2d at 1060.
201. The Butlers also sued websites owned and operated by the Gwilliams. Id. at 1025.
202. Id.
203. See id. at 1059.
204.
205.
Butler, 486 F. Supp. 2d at 1026.
Id.
206.
Id. at 1026 (internal quotations omitted).
760
[Vol. 30:727
meetings between birth mothers andprospective adoptive parents, and do not
broker or arrangeany adoptions. The website simply provides an opportunity
for prospectiveparents-for afee-to post information about themselves on a
website in the hope that a birth mother will select them as the adoptive parents
for their [sic] babies.207
Specifically addressing whether the defendants were "Internet
publishers," the court noted that they were paid to post the profiles
drafted by their customers.20 s Merely "publishing" information written
by prospective parents does not transform discriminatory conduct into
"speech itself."20 9 The Butlers were neither seeking to restrict what the
defendants are permitted to say nor compelling them to say anything.
Instead, the Gwilliams were refusing to do business with these potential
parents because of their sexual orientation. 210 The defendants, whose
business is selling adoption-related services to the public, are not entitled
to First Amendment protection simply because there may be some
speech involved-particularly as they are just posting their clients'
language.2 11
The same is true for eHarmony. While "some kernel of expression"
might be found "in almost every activity a person undertakes," 212 the
conduct must be expressive enough to fall within "speech" that would be
protected. 1 This generally requires showing "an intent to convey a
particularized message" exists as well as that it is very likely those who
see it would understand the meaning.2 14 eHarmony would fail both
prongs: (1) it does not communicate disapproval of same-sex
relationships by refusing to match gays and lesbians and (2) people
accessing the website would not realize that was supposed to be the
message. Therefore, the antidiscrimination laws should apply and
207. Id. at 1059 (emphasis added).
208. Butler, 486 F. Supp. 2d at 1059.
209. Id. (internal quotations omitted).
210. Id. at 1026. The plaintiffs also claimed discrimination based on marital status, id, at
1054-56, which is not an issue in this Article and will not be discussed.
211. Butler, 486 F. Supp. 2d at 1059.
212. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
213. Id.
214. Texas v. Johnson, 491 U.S. 397, 404 (1989) (stating that, in deciding whether
burning a flag at a protest rally "possesses sufficient communicative elements to bring the
First Amendment into play," the Court has asked if "an intent to convey a particularized
message was present, and whether the likelihood was great that the message would be
understood by those who viewed it") (internal quotations and citation omitted).
2012]
761
eHarmony's defense would fail.
Turner Broadcasting System Inc. v. FCC2'5 suggests a related
argument that, rather than engaging in expressive speech, eHarmony is
merely a passive conduit for the speech of others. The provision Turner
Broadcasting challenged 2 16 treated broadcast providers and cable
operators differently. However, the discrimination was not based on
content but only on how each transmitted its message.2 17 Cable
operators would not have to alter their own message in response to the
communications they were forced to carry because they are known as
"conduit[s]" for others' speech.218 Consequently, "little risk" exists that
viewers would attribute the broadcast stations' message to the cable
company.219 A dating website is similar to the cable company that does
not present a common theme; it is unlike the parade in Hurley that does.
Online dating sites are businesses created to earn a profit for their
owners by offering a service to their clients. While eHarmony might
provide limited oversight on what is posted, it is commonly understood
that subscribers typically create their own profiles. Therefore, similar to
Turner, eHarmony would likely be viewed as a passive conduit.220
F. CommercialSpeech
The First Amendment affords only limited benefits to commercial
speech. 2 21 However, speech does not become commercial simply
215. 512 U.S. 622 (1994).
216. The challenge was to a "must carry provision" that required cable operators to
provide a specified number of channels for public broadcast stations. Id. at 626.
217. Id.
218. Id. at 629.
219. Turner, 512 U.S. at 655.
220. Contrast this with a newspaper that does not generate every item it prints but does
not need to do so to obtain First Amendment protection. Hurley v. Irish-Am. Gay, Lesbian
and Bisexual Grp. of Bos., 515 U.S. 557, 570 (1995). Indeed, these publications routinely
print edited "speech" written by others; these compilations indisputably enjoy First
Amendment protection. Id. This is because newspapers typically publish non-commercial
protected information. Additionally, they are "more than a passive receptacle or conduit for
news, comment, and advertising. The choice of material to go into a newspaper, and the
decisions made as to limitations on the size and content of the paper, and treatment of public
issues and public officials-whether fair or unfair-constitute the exercise of editorial control
and judgment." Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974). In fact, to take
it one step further, "even the simple selection of a paid noncommercial advertisement" is
"squarely within the core of First Amendment security." Hurley, 515 U.S. at 570.
221. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978) (noting that the Court
762
[Vol. 30:727
because money changes hands. Instead, commercial speech is "related
solely to the economic interests of the speaker and its audience." 22 2 The
Butlers asserted "any speech that is incidentally affected by application
of the Unruh Act is commercial speech at best . ... 223 Therefore, they
argued, because the only expression on ParentProfiles.com is related to
advertising services provided to prospective parents, any related conduct
is not entitled to the same constitutional protection as protected
speech.224 Predictably, the owners disagreed. They contended that, as
forcing their company to post the plaintiffs' profiles on
ParentProfiles.com's "web publication" would constitute compelled
speech, it would improperly interfere with their constitutional right to
decide what to say and what not to say.225 The success of this claim
depended on a threshold finding that the website constitutes expressive
speech.
The Butlers said it did not and maintained that a commercial speech
analysis was appropriate-and thus First Amendment protection was not
available-because the site charged to post profiles.226 Not surprisingly,
the Gwilliams contested that view and observed that, while newspapers
charge for advertising, they cannot be forced to accept every submission
that anyone wants them to print. 227 Consequently, they insisted they
could not be compelled to post the Butlers' information as their website
should be entitled to the same protection afforded newspapers. 228
has "afforded commercial speech a limited measure of protection, commensurate with its
subordinate position in the scale of First Amendment values, while allowing modes of
regulation that might be impermissible in the realm of noncommercial expression").
222. Kansas City Premier Apts., Inc. v. Mo. Real Estate Comm'n, 344 S.W.3d 160, 168
(Mo. 2011) (quoting Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557,
561 (1980)).
223. Butler v. Adoption Media, LLC, 486 F. Supp. 2d 1022, 1059 (N.D. Cal. 2007).
224. Id.
225. Id at 1058.
226. Id. at 1059.
227. Butler, 486 F. Supp. 2d at 1058.
228. Id. Generally, what is important in how much protection speech warrants is
content, not whether the speaker was paid. In fact, "[i]f a newspaper's profit motive were
determinative, all aspects of its operations-from the selection of news stories to the choice of
editorial position-would be subject to regulation if it could be established that they were
conducted with a view toward increased sales." Pittsburgh Press Co. v. Pittsburgh Comm'n
on Human Relations, 413 U.S. 376, 385 (1973); see also Gottry, supra note 84, at 968-70
(internal quotations and citation omitted) (discussing the difference between commercial
speech and speech by commercial entities and pointing out that, although most believe "a
speaker is no less a speaker because he or she is paid to speak," there are "some commentators
2012]
763
The Butlers did not stop there. They correctly noted that statutes
prohibiting different treatment in public accommodations are valid and
applicable because they are not aimed at the suppression of speech.22 9
For example, the Unruh Act prevents California companies from
discriminating based on sexual orientation.230 As a result, rather than
requiring the company to "espouse or denounce any particular
viewpoint" as ParentProfiles.com asserted, the law simply prevents them
from engaging in "discriminatory conduct" for which there is no
231
Otherwise, those who were prejudiced against a particular
protection.
declare "ideological opposition" to dealing with
could
simply
group
those individuals on First Amendment grounds by alleging that they
wished to "send a message." 2 32 Such a rule "would eviscerate
governments' ability to eliminate discrimination." 23 3
The Supreme Court has also recognized a difference between
advertisements that only proposed a business transaction and those that
"communicated information, expressed opinion, recited grievances,
protested claimed abuses, and sought financial support on behalf of a
movement whose existence and objectives are matters of the highest
public interest and concern." 23 4 Based on this distinction, the owners
claimed the information on ParentProfiles.com is not commercial speech
because it does not propose financial transactions. 235 In fact, they noted
that accepting money for adoptions would actually be illegal baby
selling.236 Thus, they claimed the civil rights laws could not be used to
coerce them to change their speech and post profiles to which they
[who] suggest that participating in the marketplace should automatically subject an enterprise
to civil rights laws and deprive them of any First Amendment protection").
229. See Second Amended Complaint at 14-16, Butler v. Adoption Media, LLC, 486 F.
Supp. 2d 1022 (N.D. Cal. 2007) (No. C-04-0135 PJH), 2006 WL 1042182; see also Roberts v.
U.S. Jaycees, 468 U.S. 609, 623-24 (1984) (concluding that antidiscrimination laws do not
violate the First Amendment because they do not target speech; instead, they "reflect[] the
State's strong historical commitment to eliminating discrimination .....
230. See Butler,486 F. Supp. 2d at 1033.
231. Id. at 1058.
232. Id. at 1059 (internal quotations omitted).
233. Id.
234. Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385
(1973) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 266 (1964)). As a local ordinance
that prohibited classifying employment advertisements by sex fell into the first category, the
Court held it did not violate a newspaper's First Amendment rights. Id.
235. Butler, 486 F. Supp. 2d at 1058.
236. Id.
764
QUINNIPIAC
LAW REVIEW
[Vol. 30:727
objected.237 The judge rejected this whole line of reasoning as "without
merit" 238 and concluded that ParentProfiles.com is not "expressive
speech."239
Similarly, the eHarmony website is not expressive speech and, thus,
its refusal to match same-sex couples would not be protected.
Homosexuality is certainly a topic that stimulates interesting, and
sometimes quite heated, debate. When it does, that discussion should
and does receive First Amendment protection. But that is not the law
where a commercial business like eHarmony was not engaging in
expressive speech. The site simply refused to provide its services to a
portion of the population because of their sexual orientation. It seems
likely, and correct, that a court would find the rejections were
"discriminatory conduct" that violated the law.
Further, the outcome would probably be the same even if
eflarmony's website includes some expressive content. The defendants
still would not prevail in their First Amendment argument based on the
test in UnitedStates v. O'Brien.240 In that situation, the Court concluded
a governmental regulation that placed a burden on expressive activity "is
sufficiently justified if it is within the constitutional power of the
government; if it furthers an important or substantial governmental
interest . .. and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that
interest." 24 1 Applying this test to the eHarmony litigation:
* California and New Jersey have the constitutional authority to
ban discrimination on the basis of sexual orientation in public
accommodations,
* The states' interest in combating discrimination on the basis of
sexual orientation is "important or substantial," and
* "The incidental restriction" on the First Amendment is no greater
than is necessary as both the Unruh and LAD Acts prohibit such
discrimination to eliminate the harms caused by the discriminatory
conduct but not to silence particular viewpoints.
237.
238.
239.
240.
241.
Id.
Id. at 1059.
Butler, 486 F. Supp. 2d at 1059.
391 U.S. 367 (1968).
Id at 377.
2012])
765
Finally, a brief look at Rumsfeld v. Forum for Academic and
InstitutionalRights, Inc242 would be beneficial. This case helped define
the distinction between regulating conduct and speech. It rejected the
argument that federal legislation that required law schools provide
access to military recruiters violated First Amendment rights.24 3
Because the schools "remain free under the statute to express whatever
views they may have on the military's congressionally mandated
employment policy," the Court found that federal law "regulates
conduct, not speech." 244
Obviously, Warren, and even the website, remain "free" to express
their views on homosexuality and same-sex marriages. They are not,
however, "free" to discriminate against gays and lesbians.
V. CONCLUSION
After several years fighting for his "heterosexuals only" policy,
Warren agreed to provide his matchmaking services to homosexuals and
bisexuals.24 5 Why did eHarmony give up? The answer, according to a
company statement following the first settlement in 2008, is: "Although
we believed that the complaint resulted from an unfair characterization
of our business, we ultimately decided it was best to settle with the
Attorney General since litigation outcomes can be unpredictable."246 In
addition, an eHarmony lawyer acknowledged the administrative
proceeding, which began in 2005, had become "a burden for the
company." 24 7 Notably, however, following the resolution in New Jersey,
the judge refused to dismiss the California case as moot. 24 8 In fact,
eHarmony did not settle on the west coast until more than a year later
even though, presumably, that lawsuit's outcome was also
"unpredictable" and class actions in court are obviously even more
burdensome, expensive, and time-consuming than administrative
proceedings.
So, while suing can be costly and uncertain, both of which no doubt
242. 547 U.S. 47 (2006).
243. Id.
244. Id. at 60.
245. McKinley Settlement Agreement, supra note 43, at
Agreement, supra note 60, at 3.
246. Gilbert, supra note 9, at 1.
247. Id.
248. See Albanesius, supra note 10.
5; Cardin Settlement
766
QUINNIPIAC
LAW REVIEW
[Vol. 30:727
helped motivate eHarmony to capitulate, it is likely that another
contributing factor was that the company's attorneys convinced Warren
that, based on the law, he would probably lose. A cynical observer
might also mention that gays and lesbians represent an affluent market 249
that could boost the number of subscribers, and therefore earnings, in a
very competitive industry where every successful match can become
fodder for the vast advertising machine.
249.
See supranote 78 and accompanying text.

eHarmony and Homosexuals: A Match Not

Transcription

Similar documents

Vancouver Sun - HEARTS introduction service

consumers are having second thoughts about online dating

Montreal GAZETTE - Misty River Introductions

Wellesley Akatarawa - Wellesley Country Park

Fraggle Rock, Clos Du Foulon, Le Foulon

Accommodation Request Form

Mainstream

SAEINDIA newletter issue 04, 2013

504 Direct Guidelines and Procedures

as PDF