Critical Juncture for eHarmony Suit

A lawsuit against popular matchmaking Web site eHarmony.com will come to a crossroad today in Los Angeles as both sides meet to argue over class certification.

The suit against the Pasadena-based company alleges that the site violates the state's Unruh Civil Rights Act by failing to provide options for single people who are gay, lesbian or bisexual, because the site's main drop-down menu allows users to select only "man seeking a woman" or "woman seeking a man."

Though the original lead plaintiff in the case, Linda Carlson, has dropped out since the case was filed in 2007, the argument remains the same. EHarmony counters that its method for matching people relies on research on heterosexual couples, and thus wouldn't apply to same-sex pairings.

"EHarmony's limitation to opposite-sex matching is not the result of a political or religious stand by the company, or a 'value' judgment of any kind, but simply a reflection of the research on which its compatibility model was based," a May court filing by the company reads.

Based on U.S. Census and other demographic data on the number of single gay, lesbian or bisexual people in California, as well as the size of eHarmony's customer base, the size of the potential class harmed by the site is between roughly 3,500 and 5,500 people, said co-lead plaintiff attorney Joshua Konecky, of San Francisco's Schneider Wallace Cottrell Brayton Konecky. The proposed class is defined as gay, lesbian or bisexual Californians who attempted to use eHarmony but couldn't, or were deterred from using the service altogether.

But attorneys for eHarmony say that class definition is too vague and cannot be proved by any objective documentation.

"It just isn't the case where there's hundreds of thousands of people and there's a way to find individual proof," lead defense counsel Robert Freitas, of Orrick, Herrington & Sutcliffe, said Wednesday.

The plaintiff hasn't produced any kind of written record, for instance, showing that members of the class tried to access eHarmony but were unsuccessful, he said.

Freitas said that communications between eHarmony and people who wanted to join but were turned away by its opposite-sex-only model indicate that any class would be significantly smaller than the number the plaintiffs have indicated.

Konecky and co-lead counsel Jeremy Pasternak, a San Francisco solo, argue that they are not required to present records to identify all the members of a potential class "from the get-go." A class member would simply need to prove that he or she is gay, lesbian or bisexual and attempted to use eHarmony, or was deterred from using eHarmony because of its "policy against same-sex matching," they argued in their motion for class certification.

Dale Carpenter, a professor at University of Minnesota Law School, said suits like the one against eHarmony represent a "trivialization of anti-discrimination law." Carpenter has written about the case on The Volokh Conspiracy law blog.

Carpenter, who is gay and teaches a seminar on gay-rights issues, said he thinks that anti-discrimination laws, when extended past the "core concerns" of employment and housing, can trample on others' rights to associate freely with like-minded individuals.

He added that "there's no evidence that I'm aware of that any gay people have actually been hurt by not having access to eHarmony or any other dating site."

"There are plenty of alternatives … that's one of the beautiful things about the Internet," he said.

Ultimately, said Carpenter, the suit seems like a symbolic "trophy" in the culture wars, but one that could give opponents of anti-discrimination laws ammunition to argue that such laws are oppressive.

"It needlessly puts weapons in the hands of opponents of gay rights, over a trivial matter."

The suit began in 2007 when Carlson, a lesbian, tried to use the site and sued eHarmony in Los Angeles County Superior Court. She has dismissed herself from the case, and Nate Cardin, a graduate student at Stanford University, is the sole named plaintiff.

The company was founded in 2000 by Neil Clark Warren, a former psychologist who has appeared on "Oprah" and on a show sponsored by the Christian evangelical organization Focus on the Family to discuss his research, according to a biography on his personal Web site.

The site is "not about discrimination," Freitas said. Referring to Warren and his colleagues, he added: "They did the work they were familiar with, they built a model, and they built a business."

Taken to the extreme, the plaintiffs' argument would mean that matchmaking sites aimed at gays, such as MyPartner.com, would also be illegal, Freitas said.

"We think that's wrong," he said.

Konecky counters that the defense's argument about the company having expertise only in opposite-sex relationships "doesn't hold water."

"If that could be a defense it would mean you could say that I've never researched how African-Americans interact ... so I'm not going to include them in the group of people I'm providing my service to," he said.

The case is before Superior Court Judge Victoria Chaney.