Representations have been consistently made by the gay community that allowing gays to marry will not affect heterosexuals. They note as one example of this that they will not push the government to require religious denominations to conduct gay marriages. Ah, but we now have at least two examples where gay people have persuaded our government to compel the private sector to help gays date, mate and procreate.
In New Jersey, Eric McKinley, a gay man, filed a complaint against eHarmony.com, an Internet matchmaking service. The Division on Civil Rights of the Office of the Attorney General Anne Milgram, headed by J. Frank Vespa-Papaleo, who married his male partner in California in June 2008, chose to enter the proceeding on the side of McKinley. McKinley had complained that, when he accessed the eHarmony website, there were only two options: “male seeking a female” or “female seeking a male.” He alleged, and the New Jersey prosecutor agreed, that the company had violated provisions of the New Jersey Law Against Discrimination prohibiting discrimination against persons on the basis of their sexual orientation.
Through a settlement announced November 19, 2008 (press release and link to agreement), the company agreed to provide the options of “male seeking male” and “female seeking female” on a linked affiliate. It agreed to retain these options for a minimum of two years; post photos of same-sex couples on its website; and contract with a media consultant to “determine the most effective way of reaching the gay and lesbian communities.”
The State of New Jersey agreed to prosecute this case even though:
--there are numerous Internet matchmaking services for gay, lesbian, bisexual and transgender (GLBT) persons, whether they are GLBT-only or both GLBT and heterosexual;
--there are numerous Internet matchmaking services directed at specific groups such as Jews (e.g., JDate.com), African-Americans (e.g. BlackPeopleMeet), Catholics (e.g., Catholicsingles.com), Italians (e.g., Italiansinglesconnection.com), persons with disabilities (e.g., Enablelove.com), Chicagoans (ChicagoDatingNow), Democrats (e.g., Democraticsingles.net), pet lovers (e.g., Mustlovepets.com), smokers (e.g., datingforsmokers.com), and so many more;
--the eHarmony website allowed anyone to use its site, as long as they did not lie, including lies about their gender (so a woman could not say she was a man seeking a woman) and their marital status (a married man had sued eHarmony to use its site but dropped the case before trial); and
--the eHarmony website was limited to fostering heterosexual relationships because it had been founded in 2000 by a clinical psychologist with 35 years of experience in counseling heterosexual couples to promote long lasting relationships, particularly married relationships, and, furthermore, the website used a patented matching system based on his studies and experience about the compatibility of men and women (not men and men, or women and women).
Thus it is that a company has been compelled by our government to start a new service, and fund it and market it for at least two years, to promote gay dating and mating.
On the next day, November 20, a California trial court issued a ruling allowing a case brought by a lesbian against eHarmony to proceed as a class action. The plaintiff’s attorney stated to the press that the New Jersey settlement did not change his case since eHarmony’s agreement with New Jersey to set up a separate website (with an acknowledgement on the main website that they were affiliated), was separate, not equal. He also decried the two-year minimum requirement for eHarmony’s operation of the gay options since eHarmony could choose to discontinue at any time after two years. Presumably, therefore, the California plaintiff will seek to make eHarmony stay in the gay matchmaking business permanently.
In another area of law, antitrust, companies are required to divest lines of business, never to establish them. Yet here we have the government requiring a company to start a new line of business with the prospect that it may never be able to cease that line of business unless it goes bankrupt.
Governor Corzine or Attorney General Milgram should renounce this settlement and defend eHarmony.
eHarmony made no claim that it as a company, or any of its officers or employees, had religious or ethical objections to helping homosexuals date and mate. So, now we turn to the second proceeding.
On August 18, in a case called North Coast Women’s Care Medical Group, Inc. v. Benitez, 44 Cal.4th 1145, the California Supreme Court ruled that, under judicial interpretations of the California Unruh Civil Rights Act affecting actions in 1999 and 2000, a group medical practice could not refuse to provide all manner of fertility services to all patients regardless of their sexual orientation notwithstanding the religious objections of any particular medical doctor member of the group medical practice.
The plaintiff was a lesbian. She and her partner wanted the plaintiff to become pregnant. After failing at self-insemination, she was diagnosed with polycystic ovarian syndrome, a disorder characterized by irregular ovulation, and was referred to North Coast for fertility treatment. The first doctor at North Coast told her in the initial meeting that while she would treat her for fertility, her religious beliefs would preclude her from performing intrauterine insemination (IUI). (On this point, there was a factual dispute.
The doctor stated that she told the patient that her religious beliefs precluded her from medically causing the pregnancy of any unmarried woman, so her refusal was based on the patient’s marital status, not sexual orientation – and, until 2005, the Unruh Act did not prohibit discrimination on the basis of marital status. The patient said that the doctor referred to the patient’s sexual orientation.) In any case, the doctor told her that there were two other doctors with the clinic who had no religious objections and would perform the procedure. It was true that there were other doctors at North Coast who had no religious objections, but the patient decided to try IUI with a male friend’s sperm rather than sperm from a sperm bank. Such sperm needed to be processed and the only doctor with the clinic licensed to process the sperm had religious objections. Thus, the medical clinic referred the patient to a doctor outside the clinic. (His IUI did not result in pregnancy, but in vitro fertilization did.)
The Court ruled that the doctors had no right of free speech or freedom of religion under either the California or United States Constitutions to refuse elective medical treatment, including the establishment of a pregnancy, of a homosexual. The doctors and the clinic violated the law even though they had referred the patient to another doctor. The concurring opinion by Judge Baxter expressed concern for sole practitioners who had religious objections, but observed that that issue was not present in the North Coast case.
Thus, under this decision, and under the Unruh Law, as revised in recent years to include sexual orientation and marital status, our government compels medical personnel to help unmarried or gay or lesbian patients establish a pregnancy. Doctors -- and prospective doctors -- are told by our government to leave their consciences at the door or join medical groups that include doctors who have no consciences.
These two legal proceedings should cause us to appreciate the Bush Administration’s proposal to allow doctors to exercise their consciences. 73 Federal Register 50274 (Aug. 26, 2008). Importantly, not only individuals must be able to exercise their consciences, but their employers must also be allowed to have and exercise consciences as well. For all the talk about business ethics in various contexts such as environmental stewardship, global warming, bribery of foreign officials, sex tourism, pornography on the Web, providing free legal and medical services to the indigent, refusing to do business with particular regimes (Zimbabwe, Sudan, etc.), we obviously are not encouraging conscientious action by the private sector across the board, no matter the issue.
Are we not free to refuse (for business or moral reasons) to help unmarried persons, regardless of their sexual orientation, date, mate and procreate? Are we not free to promote heterosexual marriage without being compelled by our government to promote relationships among homosexuals?
We have seen this scene play out before. Henry VIII was determined to have a male heir. In contemporary parlance, it was his reproductive right. He chose to exercise this right by using a woman who was not his wife and making her his wife. He had a right to marry – whomever he wished. Furthermore, the king was responsible for new legislation by which the law and Parliament recognized this right to marry and this right to reproduce -- and compelled the private sector to recognize this woman as his wife and their children as his heirs. A private subject who had long since resigned his office of Chancellor, Sir Thomas More, conscientiously remained silent, simply silent.
Sir Thomas More's story, told by Robert Bolt in “A Man for All Seasons , ” was revived on Broadway this year (until December 14). I suggest our legislators, prosecutors and judges watch the 1966 movie version. Thomas More declared, “I do none harm. I say none harm. I think none harm. And if this be not enough to keep a man alive, then in good faith I long not to live.” And Henry executed him.
James M. Thunder is a Washington, D.C., attorney. He is a former general counsel of Americans United for Life. His master's thesis was on marriage and his graduate studies included the subject of polygamy in America.