Metropolitan News-Enterprise


Friday, February 3, 2012


Page 1


Fair Housing Act Held Inapplicable to Roommate Search


By a MetNews Staff Writer


An online service that allows users to advertise for roommates, and to specify preferences based on race, gender and sexual orientation—among other things—did not violate the Fair Housing Act, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

“There’s no indication that Congress [when it enacted the FHA in 1968] intended to interfere with personal relationships inside the home,” Chief Judge Alex Kozinski wrote. “Congress wanted to address the problem of landlords discriminating in the sale and rental of housing, which deprived protected classes of housing opportunities. But a business transaction between a tenant and landlord is quite different from an arrangement between two people sharing the same living space. We seriously doubt Congress meant the FHA to apply to the latter.”

The panel decision threw out a judgment obtained by the Fair Housing Councils of San Fernando Valley and San Diego, which claimed that discriminated in violation of the FHA and the state Fair Employment and Housing Act. U. S. District Judge Percy Anderson of the Central District of California found in violation and issued an injunction against asking for preferences based on prohibited characteristics or matching roommates on that basis.

He also awarded the plaintiffs nearly $500,000 in attorney fees.

The first time the Ninth Circuit ruled on this matter, a panel decision in 2007 and an en banc ruling in 2008, it held that the Communications Decency Act didn’t protect from liability for information it explicitly solicited via drop-down boxes or enabled through a search engine which explicitly allowed for searching based on “I’d like a white roommate,” etc. appealed on both standing and substantive grounds.

Yesterday, the panel held that because the councils had to spend money on an educational campaign, apart from what they spent in the litigation, they had suffered harm and had standing to sue. But the panel ruled against them on the substance.

Kozinski, who had written the previous opinions in the plaintiffs’ favor, said the FHA could not be construed as interfering with a relationship as intimate as that between roommates in the absence of a clear showing of congressional intent.

“Telling women they may not lawfully exclude men from the list of acceptable roommates would be controversial today; it would have been scandalous in the 1960s,” the chief judge wrote.

“People generally have very few roommates; they are selective in choosing roommates; and non-roommates are excluded from the critical aspects of the relationship, such as using the living spaces,” Kozinski also wrote. “Aside from immediate family or a romantic partner, it’s hard to imagine a relationship more intimate than that between roommates, who share living rooms, dining rooms, kitchens, bathrooms, even bedrooms.”

He cited Lawrence v. Texas, 539 U.S. 558, 562 (2003), striking down the Texas sodomy statute:

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.”

That liberty, he said, includes the right to select a roommate who observes the same religious dietary restrictions, so that an Orthodox Jew will not “have to worry about finding honey-baked ham in the refrigerator next to the potato latkes,” or having a roommate not understand the requirements for separation of dairy and meat products, for example.

Judge Stephen Reinhardt joined in the opinion, while Judge Sandra Ikuta agreed on the substantive issue but wrote separately to argue that the councils lacked organizational standing.

The case is Fair Housing Council of San Fernando Valley v., 09-55272.          


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