Closing Down the Moral Marketplace

In my work on conscience, I focus on our society's need to allow a vibrant moral marketplace to flourish, urging culture war combatants to resist using the levers of state power to shut down arguments with which they disagree.  In the California legal system, this does not appear to be a particularly popular position.  A couple of months ago, a California court ruled that an Arizona adoption-related website was subject to California law in a suit brought by a same-sex couple alleging that the website's owners unlawfully discriminated against them by refusing to post their profile online as potential adoptive parents.  This ruling was key because of California's Unruh Act, which forbids discrimination by any "business establishment." The statute has been interpreted to apply to discrimination based on marital status and sexual orientation.  After the ruling, the parties settled, with the website owners agreeing not to post the profiles of any California residents unless they were prepared to post the profiles of same-sex couples. 

Now there is a suit against the online dating service e-Harmony alleging that the company (which was started by evangelical Christians) violates California law by not including categories of "men seeking men" and "women seeking women."  The plaintiff's lawyer explains that:

[T]he lawsuit was "about changing the landscape and making a statement out there that gay people, just like heterosexuals, have the right and desire to meet other people with whom they can fall in love."

[The] lawyers expect a significant number of gays and lesbians to join the class action, which seeks to force eHarmony to end its policy as well as unspecified damages for those denied eHarmony services based on their sexual orientation.

To be clear, I agree that gays and lesbians have (and should have) the right to "meet other people with whom they can fall in love."  The more pressing question is: against whom should that right be enforceable?  I support legally enforceable rights against discrimination -- including discrimination based on sexual orientation or marital status -- in the economic (i.e., employment) and political (i.e., voting) spheres.  But in the wider social arena (e.g., Boy Scouts, student groups, adoption/dating services) the law can be a blunt (and dangerous) hammer.  And the internet raises the stakes for these invocations of state power, as state borders are increasingly irrelevant.  If the plaintiffs are serious about "making a statement" and doing so in a way that maintains the space needed for others to make their own statements about contested moral issues, I suggest that they boycott eHarmony, support more inclusive dating services, and write fiery op-eds urging the public to do the same.  "Making a statement" suggests that there is a conversation going on; it seems to me that this lawsuit is a conversation-stopper.