TRENTON, N.J. — A homosexual activist reached an out-of-court settlement with the popular and successful online dating service eHarmony to begin a similar service for homosexuals.

In 2005, Eric McKinley filed a discrimination complaint against the service, founded by Neil Clark Warren, a clinical psychologist and author. McKinley alleged that eHarmony violated New Jersey’s Law Against Discrimination by not providing service to homosexuals. The state’s attorney general office pursued an investigation and came up with a finding of probable cause.

“I heard their advertisement and thought, ‘Hey, this could work for me,’” McKinley told the Pasadena Weekly. “So I went to their website but couldn’t pass the initial screen. There was no option for man seeking man. It made me feel angry, mad and sad — a whole range of emotions.”

Instead of going to trial, eHarmony’s lawyers decided on a settlement because, as they said in a press release, “litigation outcomes can be unpredictable.”

The settlement requires the company to:

• Start a new website for homosexuals, which they’re going to call CompatiblePartners.net, that has to be clearly identified as part of eHarmony;

• Give McKinley a free one-year subscription and the first 10,000 users free six-month subscriptions to it;

• Pay McKinley $5,000 and the state of New Jersey $50,000 to cover the costs of the litigation;

• Post photos of same-sex couples in the “Diversity” section of eHarmony’s site as examples of couples who have successfully used the service;

• Revise anti-discrimination statements on its websites and other company publications;

• Commit to advertising the Compatible Partners site and hire a consultant “experienced in promoting the ‘fair, accurate and inclusive’ representation” of homosexuals in the media in order to help them market more directly to homosexuals.

But this isn’t the only lawsuit the company has to deal with. The day after this settlement was announced in November, a class-action suit was certified in California alleging essentially the same things that McKinley alleged in New Jersey. That suit is seeking monetary damages against eHarmony, and plaintiffs don’t even have to show any actual injury in order to be awarded damages. All they have to show is that they tried to sign up for eHarmony any time since May 31, 2004 and that they were denied access to the site.

The company became a surprise success story in the dot-com bubble because the man who founded it, Warren, is a well-known evangelical psychologist whose books had been published by Focus on the Family.

That his site was able to appeal to many non-Christians to become one of the largest dating Internet sites on the Web was an unexpected turn of events.

But its famous 436-question personality test is based on his experience of presiding “over the funerals of hundreds of marriages,” as he states on his website, most of which could have been avoided if the couple had figured out that they were incompatible with one another before they even started dating.

‘Convictions Be Damned’

Many Christians have accused eHarmony of giving up too easily on this case, but the company disputes that characterization.

Bob Freitas, an attorney who represented eHarmony, noted that people ignored the 2005 lawsuit until the settlement was reached. But in the intervening three years, he said the company filed to dismiss the case, and when the state reached a finding of probable cause, they filed for reconsideration and took other similar legal moves.

But they decided to settle because, Freitas said, “litigation is distracting, it’s expensive” and one can never know what the outcome will be.

Freitas said the company tried to argue that eHarmony wasn’t set up to serve homosexuals since it did all the research for their services based solely on heterosexual relationships. But the state didn’t buy that argument.

In fact, in their finding of probable cause, the state said that a barber who refused to cut hair on blacks because he hadn’t been trained to do it could still be convicted of violating the Law Against Discrimination.

According to Patrick Gillen, an assistant professor of law at Ave Maria School of Law, the eHarmony case is but the first step in litigation against Christian-based businesses to force them to condone the homosexual lifestyle.

“It’s true to say that eHarmony has a particular business focus,” he said. “But you have to remember that it was founded by evangelicals who were trying to be sure their conduct in business was true to their moral outlook on life.”

But, he added, with this settlement, the state of New Jersey is effectively saying, “If you want to do business, you have to do business on the state’s terms, religious convictions be damned.”

In fact, New Jersey has a reputation for bringing these types of discrimination suits. It was from there that the Boy Scouts of America v. Dale case came, where the New Jersey Supreme Court said the Scouts had to keep James Dale on as a scoutmaster even though he was an admitted homosexual. The U.S. Supreme Court overturned that ruling.

CatholicMatch?

Despite the obstacles eHarmony faced in the “Garden State” and the ones they currently face in California (which include a $4,000 minimum mandatory payment to any claimant who comes forward with proof of being denied service), the settlement still causes many people concern.

Brian Barcaro, a founding partner of CatholicMatch.com, said they are making no adjustments in their business plan at this point.

“I don’t think most people have an objection to how we go about servicing Catholics,” he said. “Our concerns are no different than any others about what would impinge on Catholics’ abilities to practice their faith.”

Thomas Szyszkiewicz

writes from southeast Minnesota.