Gay by Force

In November, California voters approved Proposition 8, which amended the state constitution to define marriage as a union between a man and woman, thereby reversing a May 15 decision in which the state Supreme Court declared an earlier ban on same-sex marriage unconstitutional. The legal logic underlying both the challenge to Proposition 8 and the decision it overturned is shaky. Yet as a matter of fundamental fairness (which is not always the same as the demands of a particular constitution), the package of legal arrangements known as civil marriage should be available to all couples, regardless of sexual orientation.

Ideally, the government would leave marriage to private institutions, which managed to maintain it for almost all of its history. Short of that, those institutions and the individuals who follow their teachings should be free to accept or reject gay unions as they see fit, which means they should not have to worry about being sued for unlawful discrimination.

Such fears played a conspicuous role in the Proposition 8 campaign, and the eHarmony case shows they're not fanciful. Eric McKinley, the gay man who filed the New Jersey civil rights complaint that forced eHarmony to start matching same-sex couples, says the company's straights-only strategy was "very hurtful" and made him feel like "a second-class citizen."

Unlike a government that claims exclusive authority to approve adoptions or marriage, eHarmony has plenty of competitors, including online matchmakers that advertise themselves as gay-friendly alternatives. Yet McKinley could not bear the thought that one of many dating services chose to focus on heterosexuals. Such intolerance of diversity undermines the struggle for gay rights by feeding fears that equal treatment by the government means equal treatment by everyone.