July 4, 2016

Understanding the Settlement

Okay, here are the facts:  The Christian dating site “” initially allowed only heterosexuals to use its services; that is, prospective customers could log in as a “man seeking a woman” or a “woman seeking a man,” but not “man seeking a man” or “woman seeking a woman.”  So, a few years ago, two gay men filed a class action lawsuit in state court in California against the parent company of, alleging that the website violated California’s state civil rights act, Cal. Civ. Code § 51, known as the “Unruh Act.”  The Unruh Act – like many state equal protection statutes – actually goes beyond the protections available to plaintiffs under federal laws such as the Civil Rights Act of 1964.  In particular, the Unruh Act protects individuals on the basis of sexual orientation, a protection not available under federal law.

The plaintiffs’ claims are very similar to the arguments raised by the plaintiffs in last year’s landmark Supreme Court decision on gay marriage, Obergefell v. Hodges: that a woman who logs on to is provided with dating services and connected with men to date, but a man who logs on to is not provided with the exact same services.  Specifically, he cannot be matched with a man, have his contact information provided, and so forth – which seems, on face, to violate equal protection in exactly the same way as a state official who will issue a marriage license to marry a man to a woman but not to another man.

In light of this rather clear legal argument, Christian Mingle agreed to a voluntary settlement whereby they would open up their website to same-sex patrons.  Now, if this had been an ordinary lawsuit, that would have been the end of discussion; private parties can (generally) settle lawsuits when and how they choose.  But since the initial lawsuit in this case was brought as a class action, the judge in the case was required to evaluate the settlement to make sure it was “fair, reasonable, and adequate” to the settling class members under California state standards equivalent to FRCP 23(e).  (These standards prevent defendants from cutting a deal with class plaintiffs and/or their lawyers to screw over the rest of the class, who are represented by counsel but not actually present in the courtroom.)  Last week, Magistrate Judge Ann Jones approved the settlement as fair to all plaintiffs.  Readers with long memories may recognize that this settlement is virtually identical to the one entered into by another dating site six and a half years ago.

So this seems like a good thing all around, right?  Christian Mingle avoids a lawsuit, gay Christians get to use a matchmaking service, and the world is a little bit happier and more tolerant today than it was a few weeks ago.  Everyone wins, right?  Why, even a representative of Christian Mingle said they were “pleased to resolve this litigation!”

Apparently, not everyone agrees.  David Smalley, a self-described “pro-gay atheist,” who has written a blog post claiming that he “sides with Christian Mingle.” Read charitably, what Mr. Smalley appears to be arguing is that Christian Mingle (1) shouldn’t have settled with the plaintiffs on the terms that it did, and (2) that the Unruh Act shouldn’t be interpreted as potentially protecting the plaintiffs.  Mr. Smalley also concludes his blog post with a call to action, that “you should stand with Christian Mingle,” too – meaning, I suppose, that we should oppose what Christian Mingle actually did (enter into the settlement) in favor of interpreting California’s Unruh Act in such a way that Christian Mingle could have won on a motion to dismiss.

Primarily, Mr. Smalley seems worried about the “precedent” this settlement might establish.  Indeed, he begins his argument with the declarative sentence “[t]he first problem is the judge’s interpretation of Unruh.”  The reality is that Judge Jones didn’t interpret the Unruh Act in this case; indeed, she wasn’t even the judge to whom the proceedings were assigned.  (That was Superior Court Judge Jane L. Johnson.)  All Judge Jones did was apply fairness standards to make sure that the settlement was fair to all plaintiffs, including class members who weren’t present in court.  Critically, when a court approves of a settlement, the terms of that settlement have no precedential value in terms of interpreting the underlying legal claims raised by the plaintiffs.  It doesn’t imply that the plaintiffs were correct in their view of the law, and it can’t have any effect on future litigants.

Let me say this again, very clearly:  Judge Jones, in approving of the voluntary settlement between Christian Mingle and the plaintiffs, did not evaluate the Unruh Act.  She did not and does not care whether that Unruh Act does or does not prohibit the behavior challenged in the lawsuit, and she did not and does not opine as to the merits of the lawsuit.  All she did was approve that the settlement was fair as fair to all of the class plaintiffs.

I don’t point this out to be pedantic; I do so for two reasons.  The first is that when we understand the difference between a settlement and a judicial opinion, it undercuts the suggestion that brutal coercion has taken place.  (Indeed, Mr. Smalley uses the word “force” ten times in his initial blog post, suggesting that there’s massive government overreach going on.)  Yes, settlements can reflect some pressure given the relative merits of the litigants, but generally we think there’s a pretty significant difference between a court ordering someone to do so something, and what happened here – which is that Christian Mingle voluntarily agreed to a settlement.

Second, it’s tempting to look at a single example and extrapolate out a slippery slope parade of horribles.  As Mr. Smalley concludes, “This settlement opens the flood gates for frivolous law suits all over California, and potentially, the country.”  That sounds pretty scary, but fortunately, it’s just not correct as a matter of law because a settlement isn’t a court ruling and sets no precedent on the merits.  As proof, one need look no further than the fact that e-Harmony executed virtually the exact same settlement six and a half years ago, and the kinds of dire warnings Mr. Smalley references in his post haven’t happened in those intervening six and a half years.  (These hypotheticals are, in my view, the primary content of Mr. Smalley’s blog post; lots of people have already engaged with these on a substantive basis, and I would point you to Jeremiah Traeger’s excellent blog post as an example of one of the best.)

Okay:  so the Christian Mingle settlement isn’t going to wreck life for business owners in California; that’s good.  But what about the other half of Mr. Smalley’s argument?  Does he have a philosophical point that the Unruh Act shouldn’t apply to Christian Mingle? I don’t think so.

Here’s the text of the relevant portion of the Unruh Act, § 51(b) of the California Civil Code:

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

This means that a “business establishment” (such as Christian Mingle) doing business in California can’t provide a service to one group of people that it doesn’t provide to another on the basis of any of the prohibited categories, including sex and sexual orientation.  But, of course, that’s exactly what Christian Mingle has been doing!  Indeed, I think the reason that Christian Mingle was willing to enter into this settlement, like e-Harmony before it, is that what Christian Mingle is doing seems very plainly to violate the Unruh Act’s requirement that requires businesses that serve the public to offer the same service to all customers, regardless of sex.  So, a straight man can sign up on Christian Mingle and the site’s algorithms will match that person with women, give him their contact information, and so forth.  Now, if a woman signs up for Christian Mingle, she cannot get the exact same service that man just got.  Specifically, Christian Mingle will refuse to match her up with a woman, have her contact information provided, and so forth – which is precisely the kind of discrimination the Unruh Act was meant to prevent. See Koire v. Metro Car Wash, 707 P.2d 195 (1985) (“[C]lassifications based on sex are considered ‘suspect’ for purposes of equal protection analysis under the California Constitution.”)

Amusingly enough, Christian Mingle is already in compliance with at least one portion of the Unruh Act, and it might be the one you least suspect; namely, the subclause that protects the full and equal provision of services on the basis of religion.  Yes, despite the “Christian” part of their name, Christian Mingle permits non-Christians to join and use their services, consistent with the Unruh Act.  See, e.g., North Coast Women’s Care Medical Group, Inc. v. Superior Court, 189 P.33d 959, 44 Cal. 4th 1145, 1159 (2008) (discussing how employers can resolve any conflict between their religious beliefs and the Unruh Act’s antidiscrimination provisions).  In other words:  Christian Mingle already makes their matchmaking services available to “all persons… regardless of religion.”  The only change is that now, after this settlement goes into effect, they’ll also make those services available to “all persons… regardless of sexual orientation.”  That’s a good thing, not something to be scared of.

Mr. Smalley’s primary argument to the contrary seems to be that the Unruh Act shouldn’t apply to Christian Mingle because the Act only prohibits discrimination “in all business establishments,” and doesn’t qualify because it’s a website, not a bricks-and-mortar establishment with an actual physical location, like a lunch counter.  He states:

It’s one thing to protect existing customers, like a gay couple sitting in a restaurant being asked to leave (which is what Unruh was designed to prevent); but this claim [against Christian Mingle] isn’t addressing that. … That’s not discrimination.  And it certainly isn’t mistreatment in a business.

(emphasis in original)

As far as I can tell, Mr. Smalley’s argument appears to be that because Christian Mingle is a website and not a physical location, its patrons are not “in” a business for purposes of the Act.  (One might say it depends on what the meaning of “in” is.)  This sort of clever wordplay seems to appeal to some people, but it generally hasn’t fared very well in court.  And indeed, the California courts have consistently held that the Unruh Act applies to online businesses that conduct business in the State of California.  Nat’l Federation for the Blind v. Target Corp., 452 F.Supp.2d 946 (2006)see Surrey v. TrueBeginnings, LLC, 168 Cal.App.4th 414 (2008); see also Cullen v. Netflix, Inc., 880 F.Supp.2d 1017, 1023-25 (2012) (distinguishing between the ADA, which requires a physical place of public accommodation, and the Unruh Act, which does not).

It’s also worth mentioning that the Unruh Act really was one of the first anti-discrimination statutes to be passed by any state in this country; its predecessor was enacted in 1897, and the Unruh Act was codified in (mostly) its present form in 1959.  See Harris v. Capital Growth Investors XIV, 805 P.2d 873, 52 Cal.3d 1142, 1150-1154 (1991) (discussing the history of the Unruh Act).  So we really shouldn’t be particularly surprised that a law whose origins go back more than a century is written in the language of physical brick-and-mortar businesses rather than online companies.  Nor should we want a court to take a hyper-technical linguistic view of the law.  Imagine if – for whatever reason – decided to offer a 50% “white people discount” for products purchased online, or refused to sell products to Mexicans, or the like.  Would anyone really want Amazon to be able to evade legal responsibility for its discrimination by claiming that non-white customers aren’t really “in” Amazon, and thus the Unruh Act doesn’t apply?  No, of course not – and fortunately, California courts have not taken such a view.

In sum:  this is a good settlement, and like the owners of, all of us should be happy about it.  I’ll leave you with the words of former Judge Robert Bork, expressing contrition during his (unsuccessful) Supreme Court nomination hearing for having described the Civil Rights Act of 1964 as “a principle of unsurpassed ugliness.”  Twenty years later, Judge Bork reversed course on his earlier notions:

Had I looked at the civil rights proposals in that way, I would have, as I later came to, that they do much more good.  In fact, they make everybody much happier and they help bring the nation together in a way that otherwise would not have occurred.