Does the Right to Choose a Roommate Include a Right to Advertise Discriminatory Preferences?

Last week, Eugene blogged about the Ninth Circuit’s opinion in Fair Housing Council v. Roommate.com.  As Eugene noted, the court, in an opinion by Judge Alex Kozinski,

holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

I agree that (a) the Fair Housing Act was not meant to impinge on roommate decisions and (b) if a is wrong, the right to intimate association nevertheless prohibits the government from interfering with one’s choice of roommate.

However, I was surprised that the opinion didn’t address a more subtle argument, to wit: if the Fair Housing Act does apply to roommate situations, even if it would be unconstitutional for the government to punish someone for his choice of roommate it is not unconstitutional for the government to prohibit someone from advertising discriminatory preferences.

The reasoning would be that while who one chooses to live with involves intimate association rights, publicly advertising one’s discriminatory preferences in an advertisement for a roommate is not only not an “intimate” activity, it’s a very public one.

Indeed, it’s my understanding that during the Clinton Administration, HUD’s position was that it could (and would) prohibit advertising that expressed discriminatory preferences even when acting on those preferences would be constitutionally protected.  (The relevant regulations allowing punishment for such behavior were eventually withdrawn because of a related controversy over what was seen as HUD’s overly vigorous interpretation of what constituted discriminatory advertising.)

It’s not clear that HUD’s position has changed.  Judge Kozinski points out that HUD recently dismissed a claim against a woman who advertised for a Christian roommate on a church bulletin board based in part on the unique context of the ad, but it’s not clear that HUD would take the same position about an ad seeking a white roommate published in the Washington Post classifieds.

As I discuss in You Can’t Say That!, I think that as a policy matter people should be able to advertise discriminatory roommate preferences.  Beyond standard libertarian concerns, banning such advertisements doesn’t actually decrease discrimination, it just imposes costs all around, not least on, e.g., a black individual seeking housing who winds up traveling to meet various potential roommates who will inevitably turn him down.  Meanwhile, the people who will be most affected by an advertising ban will be members of small minority groups who will have difficulty satisfying their roommate preferences if they can’t advertise them.  It’s easy enough to find a white or black roommate in Washington, DC, but what if you are a Gay Hispanic Republican, seeking the same (discrimination based on political affiliation is banned in DC)?  The counter-argument, of course, is that allowing discriminatory advertising creates dignitary harms to members of disfavored groups and “normalizes” the public expression of discriminatory housing preferences.

Given my Gay Hispanic Republican example, if I were a judge I’d likely be sympathetic to the argument that bans on advertising discriminatory preferences puts too great a burden on the exercise of intimate association rights to be constitutionally permitted. Whether precedent supports such an argument, however, is not clear.  I expect that the next major case against an entity like Roommate.com will need to take up this issue.