Roommate.com Doesn’t Violate Fair Housing Law, 9th Circuit Rules

"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,” said the opinion, joined in full by Judge Stephen Reinhardt and in part by Judge Sandra Ikuta. “While we usually share our homes only with friends and family, sometimes we need to take in a stranger to help pay the rent.” If the Fair Housing Act (FHA) applies as equally to roommates as to landlords who may try to keep certain groups of people from renting their property, “it’s quite clear that what Roommate does amounts to a violation,” Kozinski said. Fair-housing councils in San Diego and California’s San Fernando Valley and San Gabriel Valley had accused Roommate.com of helping users violate the FHA, but several Internet groups protested the earlier 9th Circuit ruling, saying it gutted Section 230 protections.

The case turns on the meaning of “dwelling” in the FHA, Kozinski said. The statute suggests it’s a residence for a “family.” “It would be difficult, though not impossible, to divide” a residence into separate dwellings -- perhaps “a bottom bunk and half an armoire?” he said. But “practical sense” demands that the court “stop the FHA at the front door.” For one thing, “it would have been scandalous in the 1960s” when the FHA was written to require women to accept men as roommates, and that’s still “controversial today,” he said. More importantly, the Supreme Court has recognized the Bill of Rights protects “certain intimate or private relationships” against “undue intrusion” by the government, including “a right not to associate,” Kozinski said. “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."

The judge discussed traits or habits that could make a potential roommate undesirable -- “pornography, religious materials … tobacco, drugs … jazz, perfume … furry pets” and even “bathroom hogs.” Sharing a residence with someone means “you risk becoming a suspect in whatever illegal activities they engage in,” he said. “The State is not omnipresent in the home” in the American tradition, the opinion said, quoting the Lawrence decision. A girl wanting to protect her “modesty” or a Jew wanting to protect his culinary practices shouldn’t have to accept a boy or a non-Jew as a roommate, Kozinski said, noting that the U.S. Department of Housing and Urban Development had recently acknowledged as much in dismissing a complaint against a young woman who had asked for a “female christian roommate” on her church bulletin board.

"While Roommate itself has no intimate association right, it is entitled to raise the constitutional claims of its users,” the opinion said. The online service also is protected from liability under California’s Fair Employment and Housing Act, because that law’s definition of “housing accommodation” is similar to the FHA’s “dwelling,” which lets the 9th Circuit “apply the canon of constitutional avoidance,” Kozinski said. A 1995 legislative update to the 1974 law that aimed to clarify the question of roommate preferences has no bearing on the court’s interpretation, he added: “The acts of a subsequent legislature tell us nothing definitive about the meaning of laws adopted by an earlier legislature."

Judge Ikuta’s concurrence challenges the fair-housing councils’ standing to sue, to which Kozinski’s opinion gave scant analysis. Kozinski said that because the councils had investigated Roommate.com’s activities and started new education and outreach campaigns targeting discriminatory advertising online, the resources they spent were “not associated with litigation,” and thus they had independently suffered “a drain” from Roommate.com’s behavior.

That analysis brings 9th Circuit case law and Supreme Court precedent “close to a rupture,” Ikuta said. “If anything, their newfound topical focus on Internet housing advertisements reflected the Fair Housing Councils’ considered judgments of how they could best accomplish their goals in the face of changing client needs created by new technology” -- it was “adaptive and savvy organizational management, not injury.” Ikuta said the 9th Circuit should revisit its organizational-standing test as a full court, to bring itself in line with the Supreme Court’s higher threshold for standing.

Ikuta also disagreed with Kozinski’s “constitutional avoidance” prong that interpreted California law in line with federal law. The California law isn’t “ambiguous” as required, she said: The 1995 update “expresses the state legislature’s intent to exempt sex-specific advertisements for shared living units in a single dwelling from the restrictions of FEHA, but not exempt advertisements that discriminate on the basis of other protected characteristics, such as race or religion.” The California Fair Employment and Housing Commission has already read the statute in that way, upholding a complaint against two roommates who denied rental to a black applicant, she said. The constitutionality of the application of California law to shared-living arrangements is “both novel and difficult,” Ikuta said, adding that she would remand the issue to the district court for consideration.