Sometimes, I write up an opinion just because it interests the hell out of me. This is one of them.
When one signs up for Roommates.com seeking a roommate for your house, the prompts ask you to fill in information about your sex, sexual orientation, and whether children will be living with you, and in the “Additional Comments” section you're encouraged to fill in any other preferences you have. The site then matches you up, and/or you can search for others meeting your preferences.
The Fair Housing Councils of San Fernando Valley and San Diego sued, claiming that this process enabled discrimination forbidden under the federal Fair Housing Act as well as California law.
The first time the Ninth Circuit ruled on this matter, in 2007-08 (panel, then en banc), it held that the Communications Decency Act didn't protect Roommates.com 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. [There was no liability, however, for discriminatory preferences revealed and searched upon via the "Additional Comments" box.]
On remand, the district court held that the site's prompting of discriminatory preferences from users, matching users based on that information and publishing these preferences violated the Fair Housing Act, and forbade Roommates.com from those activities. The Court also granted the plaintiffs $494,714.40 in attorney’s fees. Everyone appealed -- the plaintiffs seeking more money, Roommates.com seeking a reversal of the judgment altogether.
Today, a panel of the 9th Circuit held Roommates.com could not be held liable on the merits for discrimination under the Fair Housing Act by enabling site users to discriminate on who their roommates would be, or explicitly making such matches based on user preferences.
[The same judge, the affable libertarian Chief Judge Alex Kozinski, wrote both opinions.]
Why? In short, because the Fair Housing Act couldn't intrude into as private a space as one's own dwelling without raising serious constitutional concerns.
There’s no place like home. In the privacy of your own home, you can take off your coat, kick off your shoes, let your guard down and be completely yourself. While we usually share our homes only with friends and family, sometimes we need to take in a stranger to help pay the rent. When that happens, can the government limit whom we choose? Specifically, do the anti-discrimination provisions of the Fair Housing Act (“FHA”) extend to the selection of roommates?
I'm going to quote a lot here, because Judge Kozinski is a
really good writer:
The Supreme Court has recognized that “the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights.” “[C]hoices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” Courts have extended the right of intimate association to marriage, child bearing, child rearing and cohabitation with relatives. Id. While the right protects only “highly personal relationships,” the right isn’t restricted exclusively to family...
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. 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.
Because of a roommate’s unfettered access to the home, choosing a roommate implicates significant privacy and safety considerations. The home is the center of our private lives. Roommates note our comings and goings, observe whom we bring back at night, hear what songs we sing in the shower, see us in various stages of undress and learn intimate details most of us prefer to keep private. Roommates also have access to our physical belongings and to our person. As the Supreme Court recognized, “[w]e are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings.” Taking on a roommate means giving him full access to the space where we are most vulnerable.
Equally important, we are fully exposed to a roommate’s belongings, activities, habits, proclivities and way of life. This could include matter we find offensive (pornography, religious materials, political propaganda); dangerous (tobacco, drugs, firearms); annoying (jazz, perfume, frequent overnight visitors, furry pets); habits that are incompatible with our lifestyle (early risers, messy cooks, bathroom hogs, clothing borrowers). When you invite others to share your living quarters, you risk becoming a suspect in whatever illegal activities they engage in.
Government regulation of an individual’s ability to pick a roommate thus intrudes into the home, which “is entitled to special protection as the center of the private lives of our people.” “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.” Lawrence v. Texas, 539 U.S. 558, 562 (2003). Holding that the FHA applies inside a home or apartment would allow the government to restrict our ability to choose roommates compatible with our lifestyles. This would be a serious invasion of privacy, autonomy and security.
For example, women will often look for female roommates because of modesty or security concerns. As roommates often share bathrooms and common areas, a girl may not want to walk around in her towel in front of a boy. She might also worry about unwanted sexual advances or becoming romantically involved with someone she must count on to pay the rent.
An orthodox Jew may want a roommate with similar beliefs and dietary restrictions, so he won’t have to worry about finding honey-baked ham in the refrigerator next to the potato latkes. Non-Jewish roommates may not understand or faithfully follow all of the culinary rules, like the use of different silverware for dairy and meat products, or the prohibition against warming non-kosher food in a kosher microwave. Taking away the ability to choose roommates with similar dietary restrictions and religious convictions will substantially burden the observant Jew’s ability to live his life and practice his religion faithfully. The same is true of individuals of other faiths that call for dietary restrictions or rituals inside the home.
(I barely removed a word in that section. There's minimal case citation; just logic and experience.)
So, basically, the Court says that the FHA's protections against discrimination in one's "dwelling" has to be construed to only include independent living units, and not shared living units. Roommates.com can do whatever it wants.
And that makes sense ... within the realm of the examples Judge Kozinski provided -- gender and religious discriminations within one's own dwelling can make sense. But, race? That's where this feels dicey. What legitimate purpose does enabling racial discrimination serve?
Am interested in your thoughts on this decision -- is it the right outcome, even if it'll lead to some discrimination we might frown upon; or does it not go far enough to recognize the full reach of civil rights law in curtailing Roommates.com from enabling its users from making discriminatory choices?