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A Right To Choose Whom You Live With -- and To Speak About This in Ads:

My post about the Ninth Circuit's Fair Housing Act / 47 U.S.C. § 230 decision focused on the § 230 immunity for online services, since that's what the panel opinion focused on. But it leads me to bring up again some thoughts I had about the housing discrimination law question.

In my view, the right to intimate association, which the Court has recognized, ought to give people a right to choose whom they live with, including based on religion, race, sex, sexual orientation, family status, handicap, and the like. And both that right and the right to free speech ought to give people a right to express this preference in ads.

My initial thinking on this was prompted by a 2002 decision in which the California Fair Employment & Housing Commission penalized Melissa DeSantis $500 for inflicting "emotional distress" on a would-be roommate by allegedly telling him that "I don't really like black guys. I try to be fair and all, but they scare me." The decision also required her to pay the would-be roommate $240 in expenses — and take "four hours of training on housing discrimination." (See Department of Fair Employment & Housing v. DeSantis, 2002 WL 1313078, Case Nos. H 9900 Q-0328-00-h, C 00-01-180, 02-12 (Cal. FEHC May 7, 2002).)

People have gotten used to the notion that businesses can't discriminate based on race, sex, religion, and the like in choosing whom to hire, whom to let in their restaurant, or whom to rent to. This does burden the employer's or owner's freedom of choice, but the dominant view (whether right or wrong) is that this burden is fairly slight, and is outweighed by the felt need to save certain groups from being systematically excluded from important opportunities.

But antidiscrimination law has to stop somewhere. The government can't tell me not to discriminate based on race or religion (or sex!) in choosing a spouse, even though marital choices obviously have important economic effects. Likewise, the government shouldn't be able to interfere with my choice of dinner guests or house guests — or, I think, roommates who would share a two-bedroom apartment.

Such interference, it seems to me, violates the right to intimate association, which the Supreme Court has recognized as a protected unenumerated right. There's no Supreme Court caselaw on the right to intimate association in choice of roommates, but the Court has suggested that the right might apply to sufficiently selective private clubs, and at least one lower court has found that members of a selective club with several hundred members have a constitutional right to choose their fellow members. Surely the same should apply to someone choosing whom to live with in a two-bedroom apartment.

The Wisconsin Court of Appeals rejected this view, in the case cited in the next paragraph, but I think its reasoning — that the right of intimate association is forfeited when one rents out a room in one's house, because of the financial nature of the transaction — was mistaken. Those who reject unenumerated rights generally may reject the right to intimate association, as well as the right to marry, parental rights, and other unenumerated rights. But existing law does accept that the Constitution secures some unenumerated rights, including the right to intimate association, and the right to choose whom to live with seems to me a very strong candidate for such protection.

California law in fact partly reflects the judgment that people should be free to choose whom they live with, concluding (in Cal. Gov. Code § 12927(c)(2)(A)) that owners of "single-family house[s]" are allowed to discriminate in selecting roomers or boarders, if they have only one such boarder; "owner" has been read to include a tenant who's renting to a roommate, and presumably "house" would be seen as including an apartment. Likewise, the Fair Housing Act lets owners of property discriminate in selecting roommates. (Not all housing laws are this protective of roommate's intimate association rights; see Sprague v. City of Madison, which held Ann Hacklander-Ready liable for refusing to accept a lesbian as a housemate, and made Hacklander-Ready pay $300 in damages and $23,000 in attorneys' fees; David Bernstein has more on the subject.) But both under California law and under federal law, it's illegal to tell prospective roomates about one's roommate preference, even when it's legal to actually discriminate based on that preference. It's illegal to put out an ad saying "Single white female seeks same to share apartment" (that's expressing a preference based on race and marital status), or "lesbian pagan seeks same" (preference based on sexual orientation and religion) — and it's illegal to say that to people in person.

This advertising restriction, it seems to me, is unconstitutional in two ways. First, it interferes with people's freedom of speech; while the government may prohibit commercial advertising that expresses an intent to illegally discriminate, the law here bars people from expressing an intent to do something that's quite legal — choose one's roommate based on one's own preferences. (In the DeSantis case, incidentally, the Commission specifically declined to find that DeSantis actually discriminated against the would-be roommate based on race — it only found that she inflicted "emotional distress" on him by making the statement.)

Second, the advertising ban substantially burdens the freedom of intimate association. Though the law doesn't ban the exercise of the right to choose one's roomate as such, it does ban a very important tool through which one can exercise this right, which is advertising. If the lesbian pagan wants to find another lesbian pagan, she'll have a hard time doing that if she has to waste time sorting through dozens of applicants who don't qualify. What's more, she presumably can't even ask them about their sexual orientation or religion, since that itself might be seem as expressing a "discriminatory statement." In constitutional lingo, the law places a "substantial burden" on the exercise of the right to intimate association, even though it doesn't ban it outright.

It's also not clear that the law is doing the discriminated-against roommates any great favor. If people won't rent to me because they're looking for a black or Hispanic or Asian cotenant, I'd rather know that up front, in the ad itself, rather than spending my time doing something that, unbeknownst to me, is entirely futile (and in fact quite lawfully futile, so long as the tenant says nothing to me about her real criteria and her reasons for rejecting me). That's a less important factor than the constitutional arguments, but I think it's also worth bearing in mind.

Anderson (mail) (www):
Everything I "know" about the right of intimate association, I learned writing my casenote on Dale v. Boy Scouts.

What struck me there was the reluctance of Rehnquist and Scalia to acknowledge any such right. It seemed to me that "intimate" association was the best way to resolve the case -- parents have the right to determine who will provide educational services to their children.

Instead, the Court went with its rather forced "expressive association" theory. I wonder, if the present case reaches the high Court, whether there will be a similar stretch to decide the case on any *other* basis but "intimate association."
5.15.2007 5:18pm
Nate F (www):
Idiosyncrasies like this are the reason I could never convince myself to enter the legal profession. The idea that it's legal to discriminate on this basis but illegal to say that seems insane. But hey, what do I know? Interesting post, regardless.
5.15.2007 5:21pm
Rich B. (mail):
I don't know.

When I went to college, I didn't get a choice in freshman year roommate (as in sharing a room, not just sharing common areas in an apartment.) The person assigned to me was possibly of a different race (I'm not sure anymore whether "White" and "Indian" are separate races or not). In any event, if I had been horrified about the thought of sharing a room with a person from India, there wasn't much I could do about it, short of dropping out of the college. I don't think they would have given me a new room just because I was prejudiced.

Sure, there's an intimate association issue, but it seems very small compared to the University telling me who I could date or marry. A public college certainly control my religion, stop my free speech, or deny me access because of race. I don't see any problem, though, with their violating my right to "expressive association" in this case.
5.15.2007 5:27pm
JB:
Good point. This really shows how divorced antidiscrimination law has become from its stated goals. Instead, they've been twisted to hurt everyone.
5.15.2007 5:28pm
Rich B. (mail):
. . .certainly CANNOT control . . .
5.15.2007 5:28pm
liberty (mail) (www):
If I am reading what this says correctly-- and I wonder whether I am...This is honestly the scariest thing I've read in a long time. It really sounds totalitarian. On the bright side, so far at least I don't think has been enforced much -- like maybe 0.0001% of offenders, since basically everyone puts their preferences in their roomie ads and most include gender as of their preferences.
5.15.2007 5:36pm
A.C.:
This sort of thing could kill newspapers that depend on classified ad revenue. But then, newspapers seem to be on the way out anyway, as are most other general-interest venues.

In the future, everybody will post their roommate ads on the lesbian pagan website, or the straight white evangelical website, or whatever. They'll get the roommates they want, but they'll miss out on other general-interest content that reaches the whole population.

So a measure designed to foster integration will have the opposite effect. Are we surprised?
5.15.2007 5:52pm
Hans Bader (mail):
The Fifth Circuit held that freedom of intimate association protected a truly private club from a New Orleans race and sex discrimination ordinance in the case of Louisiana Debating and Literary Association v. The City of New Orleans, 42 F.3d 1483 (5th Cir. 1995).

I agree that this First Amendment protection should extend to speech about personal housing, too.

Protecting speech against stupid "fair housing" provisions would have saved me from the indignity of being discriminated against, not to mention 50 cents in phone bills, when I was a young man.

When I once looked for rental housing, I got an angry response when I called one would-be renter, who was pissed that a man was trying to live with her and her apartment-mates.

She didn't want to live with a man, but she couldn't say that in the paper, so I ended up calling her because I didn't know of her discriminatory preference. And she took out her frustration on me.

I would have been better off if she had been able to openly say "no males" so that I wouldn't have spent 50 cents on making a phone call on the phone of the hotel where I was staying.

I could easily have called other landlords seeking a place to live.
5.15.2007 5:55pm
JosephSlater (mail):
First, it's really a matter of scale, isn't it? At least most of us wouldn't mind an anti-discrimination law that held that large apartment buildings couldn't systematically reject prospective tenants on the basis of race or relgion, but we feel differently about one person and that person's roommate. Maybe that's why most anti-discrimination laws have a "minimum number of employees" requirement (e.g., Title VII).

Second, the "it's illegal to say you're going to do it but not illegal to do it" concept reminds me of a couple of rules in labor law. It generally violates the National Labor Relations Act for a covered employer to tell covered employees that if they vote for a union, he will close his plant simply because he hates unions. But an employer can legally close an entire plant, simply because the owner hates unions.
5.15.2007 5:59pm
whit:
under various statutes in most states, there is no right to free association as long as a judge declares you are a "victim" of domestic violence, whether or not you want to be declared as such.

scenario: cops go to your house for 911 call. establish PC that your roommate committed a domestic violence assault. in many states, that's a mandatory arrest. then, a judge will (almost always in my state) issue a no-contact order even if the alleged victim desires otherwise.

boom. there goes your right to ANY association with this person, let alone intimate.

you invite him over, and cops find out he's present - it's a mandatory arrest. even though the respondent was invited over. doesn't matter.

so, basically, if the cops have probable cause to arrest a domestic relation (roommate, lover, relative etc.) for domestic violence crime against you - you lose the right to associate with that person, at least until the hearing date for the nocontact order. and i have seen judges extend these orders AGAINST the wishes of the alleged victim.

no free association there.
5.15.2007 5:59pm
Curt Fischer:
The right to intimate association is an interesting concept. Why is it not in conflict with laws in many local jurisdictions that "no more than X unrelated people may live together", or similarly-phrased laws?

I am not a lawyer but have always wondered what the bases of such "X unrelated people laws" were.
5.15.2007 6:16pm
The Emperor (www):
I see professor Volokh's point, but do we really want a situation where, say, 30% of housing ads say "no blacks", "no asians", "no whites", etc.? On balance, I'm not sure we are better off with racism on display like this. And who knows, if people couldn't discriminate in their ads, they might actually meet someone they liked whom they would never have considered otherwise.
5.15.2007 6:23pm
neurodoc:
There's no Supreme Court caselaw on the right to intimate association in choice of roommates, but the Court has suggested that the right might apply to sufficiently selective private clubs...

EV, could you elaborate on the right to intimate association in sufficiently selective private clubs? I ask apropos of Burning Tree Country Club, a very exclusive invitation-only, all-male bastion, where the initiation fee is probably >$100K and presidents (Eisenhower, Kennedy, Nixon, Ford), senators, and other important personages have played golf. Because BTCC will not take female members or allow them to play, the county (Montgomery) and state (Maryland) have beaten them up by taking away a tax break for undeveloped open space (was $186K a year) and stripped them of a liquor license. I presume these coercive measures are all legally permissible, since otherwise its wealth, sophisticated, and powerful members would have successfully challenged these measures.

So BTCC cannot be required by law to accept women as members and/or guests, but it can be "encouraged" to do so by the granting or withholding of property tax breaks and a liquor license to serve its small private membership? Are they not a "sufficiently selective private club()" to exercise a "right to intimate association" without losing what would otherwise be theirs (tax abatement and license to serve liquor)? If they are not a "sufficiently selective private club()," then what would a qualifying one look like? (Note: I'm not arguing on behalf of BTCC or similar clubs, just asking an expert about the relevant law.)
5.15.2007 6:23pm
Henri Le Compte (mail):
It seems to me that we are only a few conceptual hops away from having the government mandating that we all must have a social network that "looks like America." I mean, of course, for our own good and all.

Afterall, doesn't our social network of friends and acquaintances determine, to some extent, our employment and housing opportunities. And isn't it the proper role of government to make sure that the people we work with and live with "look like America"? So why wouldn't our other social organizations-- like the one consisting of our friends, perhaps?-- be the proper object of governmental regulation?

Makes perfect sense to me! I, for one, look forward to being freed of the obligation of having to go out and make my own friends. It will be so much better when the government starts doing that for me.
5.15.2007 6:25pm
KeithK (mail):

under various statutes in most states, there is no right to free association as long as a judge declares you are a "victim" of domestic violence, whether or not you want to be declared as such.


Putting aside the question of whether this practice is good or bad, it doesn't affect whether there is a right to intimate association. One can be deprived of rights through due process of law. In this example the judicial hearing resulting in a no-contact order seems to fulfill that requirement, at least in the abstract.

Certainly we can agree that it's reasonable for a physically abusive individual to lose his right to associate with his victim. The only question is where and when to draw the line and the process by which the relevant authorities have to prove what is sufficiently abusive.
5.15.2007 6:32pm
neurodoc:
Why is it not in conflict with laws in many local jurisdictions that "no more than X unrelated people may live together", or similarly-phrased laws?

Curt Fischer, I can't tell you where exactly the law is on this today. You could probably find out for yourself, though, by going forward from Moore v. East Cleveland, 431 U.S. 494 (1977). In that case, a divided court invalidated a local government's attempt to enforce a signle-family zoning ordinance that defined "family" so narrowly as to prevent a grandmother from living in the same residence with her son and two grandsons who were first couins rather than brothers.
5.15.2007 6:36pm
Larry2:
Emperor: I read your post to mean that you prefer the approach taken by the California agency and the Wisconsin Court to tell individuals who they must share an apartment with. Doesn't this seem to be more than a little bit down the road to "1984"?

JosephSlater: I think it's more than a difference of scale. Living in the next apartment is hugely different than living in the same apartment, sharing a bathroom, etc.
5.15.2007 6:37pm
whit:
keith, i have no problem with that right to association being rescinded in cases where 1) there is a hearing to establish that there was a crime of domestic violence

AND (****big AND***)

the victim REQUESTS it

the problem is that the right is removed for BOTH people to associate with each other (although only the respondent gets arrested) even against the wishes of the alleged victim

that's my point.

a judge can (and does) make the decision to prohibit contact between both parties even against the wishes of the alleged victim

that clearly takes away a right to free association

and it generally adversely affects the poor far more than the wealthy, btw, because they often can't afford an attorney etc. to try to get the order lifted.

i've had to make numerous arrests (because it's the only mandatory arrest under WA state law - domestic violence offenses) where two people were sitting together (like on a street corner) etc. and one was the prphibited by an order to contact the other

and in many cases, the alleged victim did NOT wish the order to exist in the first place, did not even petition for it to be served, and did not desire to assist in any prosecution etc.

on a relatively thin level of evidence, a judge can (and does) do this all the time.
5.15.2007 6:39pm
liberty (mail) (www):
whit,

The reason that this isn't always done is that the victim could be intimidated into not requesting it. That is just the argument - I'm not defending it. But it should of course be kept in mind when debating whether such laws make sense.
5.15.2007 6:48pm
David Wilson (mail):
It is worth mentioning that the federal anti-discrimination laws, based tenuously as they are on the Commerce Clause, don't in my opinion pass Constitutional muster. And I think state and local laws to the same effect violate freedom of association as recognized by (by various arguments) the First, Fifth, Fourteenth and even Fourth amendments. Telling people who they can and can't associate with is a grosser violation of human rights than even suppressing free speech.
5.15.2007 7:16pm
AF:
Racists have long claimed a right to discriminate on the basis of race, whether as a matter of state rights, property rights, or the right to intimate association. The rights of racists are in fact infringed by anti-discrimination laws. But reducing the harm that comes from racial discrimination justifies (and requires) infringing the rights of racists.

It is for this reason that I am unmoved by concerns about "burdening" the intimate association rights of racists. Perhaps there is some core of intimate activity where there really should be a right to discriminate on the basis of race. But it should very narrow indeed because discrimination is harmful and there should be no right to cause harm to others. Limiting the right to intimate racism to its proper scope burdens the right to intimate association, just as eliminating Jim Crow burdened state rights and eliminating commercial discrimination burdened property rights, but the burden is usually justified.

In particular, the ban on advertising a racist preference in roommates seems to draw the line at the right place. In many cities there is a large market for roommates. If renters were allowed to openly advertise their racist preferences, racial discrimination would become more efficient, the supply of housing available to racial minorities would be restricted, and racial minorities would pay higher prices for housing than racial majorities. I see no reason why racial minorities should have to pay for the racism of others.

Note that I am limiting my comments to race. These considerations do not necessarily apply to other types of discrimination. Please do not respond to this comment by discussing sex, religion, etc. because I am not talking about that.
5.15.2007 7:17pm
A. Zarkov (mail):
"The government can't tell me not to discriminate based on race or religion (or sex!) in choosing a spouse, even though marital choices obviously have important economic effects."

Well not yet. But how about dating ads where you express a racial, religious and sexual preference? I think it's only a matter of time before we see those kinds of ads forbidden because they "offend" someone, or make people feel "uncomfortable." While a lot people think this won't happen because it's too outrageous, let me remind you that 20 years ago we would have said the same thing about same sex marriage. The same forces that have already driven us this far will continue to operate. One day the government will tell you whom you can date.
5.15.2007 7:21pm
Amanda (mail) (www):
The flipside of advertising "no male/ married/ heathen" roommates wanted is "female/ single/ religious" roommates welcome.

I currently live in a three bedroom apartment. One of my roommates, Amy, lived there last year. When it came time to advertising for roommates to fill the other two bedrooms for this year, she advertised the apartment as "gay friendly; cats welcome".

Her advertisement contained the same description of the apartment's physical space as the landlord had put up a few years ago, when Amy first moved in and the landlord still lived in this very apartment (it's a condo). That ad said, however, "Must be gay-friendly and not allergic to cats," as the landlord is a lesbian with two cats. Amy is straight and has no pets, but she included the language without really thinking, figuring it was part of the character of the place.

Adam, our third roommate, saw the description of the apartment, and was glad, for as we learned shortly after he moved in, he's gay.

Half a year later, we finally discussed the text of this apartment ad. (By this point, it had long been clear we were all gay-friendly, and had all been hoping to vicariously enjoy a live-in cat that belonged to someone else). Amy had never connected the ad she wrote to Adam's moving in; and I had never paid attention to the text of the ad since I found the apartment through a friend.

I've since resolved to include "gay-friendly" in any future ad for roommates or tenants I post.
5.15.2007 7:46pm
liberty (mail) (www):
AF,

But according to your logic, women might have to pay more for housing than men, if those sexist men keep choosing to only allow males to live in their housing. Women already make less! How can you not see how sexist it is to prevent discrimination on the basis of race but not sex, and allow women to pay unfairly high rents once "renters were allowed to openly advertise their sexist preferences [and] sex discrimination [became] more efficient, the supply of housing available to [women was] restricted, and [women] would [have to] pay higher prices for housing ..."

If your logic is correct it should apply equally to gender as to race.

However, your logic is of course totally flawed. In fact, there is no reason to beleive that forcing renters to hide their preferences would do anything to change rental rates, nor that people don't have a right to live with whomever they choose - for whatever reason. And its really very frightening how easily this right is given up.

You say:

The rights of racists are in fact infringed by anti-discrimination laws. But reducing the harm that comes from racial discrimination justifies (and requires) infringing the rights of racists.

It is for this reason that I am unmoved by concerns about "burdening" the intimate association rights of racists. Perhaps there is some core of intimate activity where there really should be a right to discriminate on the basis of race. But it should very narrow indeed because discrimination is harmful and there should be no right to cause harm to others.


Notice that you talk of rights being infringed to prevent "harm" - not to prevent another infringement of rights. But what is "harm"? That is so vague. And what is this narrow scope? Apparently it doesn't include my right to choose who I live with. Nor who I want to work for me. What about who I have sex with? If I turn down a date with someone because I don't find certain races as attractive, is that okay? If that is okay, then how come I can't use the same logic for who I live with? What if I want to live with someone who speaks Korean because I want to learn Korean and I think it would be cool to have a Korean roommate -- I can't advertise that I am looking for a native Korean because that is "racist"? Or I have to justify exactly why I care? What if I just like Asians and think it would be fun to have an Asian roommate -- or I am fresh off the boat from China and would feel much more comfortable in my new city living with another Chinese person? There are many ways around this-- advertise only in Chinese in Chinese newspapers-- but it makes no sense at all to ban this. It would be nicer to be able to stick up an ad on the NYU bulletin board and find maybe an English speaking Chinese person to live with, so I can learn some English... etc

Its just so scary how we are willing to give up basic rights of self determination : who we live with, who we hire, who we fire, what we can say, who we let into our private clubs... simply because we think government should protect us from some abstract "harm"...
5.15.2007 7:47pm
Clayton E. Cramer (mail) (www):
The Emperor writes:

I see professor Volokh's point, but do we really want a situation where, say, 30% of housing ads say "no blacks", "no asians", "no whites", etc.? On balance, I'm not sure we are better off with racism on display like this. And who knows, if people couldn't discriminate in their ads, they might actually meet someone they liked whom they would never have considered otherwise.
How do you know that you wouldn't enjoy sex with [fill in the blank]? Your insistence on discriminating against [the same sex, opposite sex, obese people, skinny people, people with more tattoos and piercings than hair follicles, people that don't bathe very often] means that you are missing so many opportunities.

AF writes:

In particular, the ban on advertising a racist preference in roommates seems to draw the line at the right place. In many cities there is a large market for roommates. If renters were allowed to openly advertise their racist preferences, racial discrimination would become more efficient, the supply of housing available to racial minorities would be restricted, and racial minorities would pay higher prices for housing than racial majorities. I see no reason why racial minorities should have to pay for the racism of others.

Note that I am limiting my comments to race. These considerations do not necessarily apply to other types of discrimination. Please do not respond to this comment by discussing sex, religion, etc. because I am not talking about that.
Why not? What makes race an illegitimate basis for picking a roommate, but "sex, religion, etc." are okay?

I happen to agree that race is a lousy basis for deciding on acceptable roommates. But once you've let the government in, what makes it any more acceptable to refuse to rent to a man, or a Jew?
5.15.2007 8:38pm
Wisconsin Law Student:
Craigslist says that you can post room-mate gender preferences when there are certain shared common areas.

From craigslist:


Under federal Fair Housing law, the prohibition on discriminatory advertisements applies to all situations except the following:

Shared Housing Exemption -- If you are advertising a shared housing unit, in which tenants will be sharing a bathroom, kitchen, or other common area, you may express a preference based upon sex only.

Private Club and Religious Exemptions -- A relgious community or private club whose membership is not restricted based upon race, color, or national origin may restrict tenancy only to its members in a property that it owns, and may advertise to that effect.

Housing for Older Persons Exemption -- As discussed below, certain complexes for elderly persons are exempt from prohibitions on familial status discrimination, including the prohibitions on discriminatory advertising.
5.15.2007 9:44pm
Wisconsin Law Student:
Nate, you said:

Idiosyncrasies like this are the reason I could never convince myself to enter the legal profession. The idea that it's legal to discriminate on this basis but illegal to say that seems insane. But hey, what do I know? Interesting post, regardless.


It is still illegal to discriminate--but the problem is, who will know if it isn't in the ad? The ad (in print) makes it easy to show that there was discrimination. If the discrimination is more covert, who will ever find out about it? Of course, there are some tenant's rights groups that do investigations, but otherwise it is hard to find out what is going on in people's heads. So they don't get caught.

To a couple of other people: I'm not so sure that saying gay-friendly, etc. is completely legal. Again from Craiglist, it may be illegal to state a preference or otherwise make an ad that appears to exclude certain groups. So saying "perfect for a childless couple" is not OK. Which sort of makes sense. If I saw an ad saying gay-friendly, I'm not sure I would feel welcome to apply. (Which I understand that some posters think is the point.) However, if I wanted a gay-friendly place, I would probably look in newspapers and websites that catered to the gay community. It is perfectly legal to do niche marketing, and probably smarter if you truly have a strong preference for a certain group, but can't legally say so in your ad.

The bottom line is, if you don't want to rent to a certain group, it will be hard for anyone to know that you discriminated against them. Only landlords with many, many properties could create an obvious pattern of discrimination. So for most individuals, you are free to select people to live with/rent to on whatever basis you like. It is still illegal, but you won't get caught. However, if you post an ad, the proof of discrimination is in black and white.

In the end, is that such a bad thing? The law protects groups for not being able to find a place to live. But it also--the way it plays out--allows people to live with and associate with who they want. So what if a few people apply not knowing that they aren't welcome and become unwitting victims of discrimination? They are probably better off not renting with a room-mate that would be intolerant of them. This to me seems far better than allowing blatant discrimination, especially where large, corporate landlords are concerned. The discrimination laws protect us, and as they are enforced now, are not completely draconian.
5.15.2007 10:02pm
The Emperor (www):
Some people above seem to have missed my point. I think it's OK to discriminate in these private matters. I'm just saying that advertising discrimimination publicly has a pretty negative impact on society generally.
5.15.2007 10:07pm
Guest12345:
AF:
If renters were allowed to openly advertise their racist preferences, racial discrimination would become more efficient, the supply of housing available to racial minorities would be restricted, and racial minorities would pay higher prices for housing than racial majorities.


Err, there is a little flaw in your logic there. Not being able to advertise your discrimination doesn't mean it's not happening. Prohibition on advertising in your theoretical world wouldn't change the amount of available housing in the least.
5.15.2007 10:17pm
David M. Nieporent (www):
Perhaps, The Emperor -- but the first amendment doesn't generally permit the government to decide that society would be better off without certain viewpoints being expressed.
5.16.2007 12:19am
AF:
the first amendment doesn't generally permit the government to decide that society would be better off without certain viewpoints being expressed.

Nobody questions the right to express racist viewpoint. The question is whether you have the right to act on that viewpoint by openly discriminating on the basis of race in the market for roommates.
5.16.2007 12:32am
A. Zarkov (mail):
" … penalized Melissa DeSantis $500 for inflicting 'emotional distress' on a would-be roommate by allegedly telling him that "I don't really like black guys. I try to be fair and all, but they scare me."

Considering the statistics on sexual assault, DeSantis' fear of a black male roommate is reasonable. Indeed, I can understand why she wouldn't want to share an intimate space with a strange man of any race. In this matter the law is clearly an ass.
5.16.2007 4:12am
David M. Nieporent (www):
Nobody questions the right to express racist viewpoint. The question is whether you have the right to act on that viewpoint by openly discriminating on the basis of race in the market for roommates.
But that isn't the question here. You do have the right, at least under federal law, to act on that viewpoint by openly discriminating on the basis of race in the market for roommates. What you can't do -- and what was at issue in this case -- is talk about it. The federal law punishes only speech, not conduct.

I can decide up front that I will only room with a Jewish man, and can legally discriminate against non-Jews. The only thing that I can't do is announce that I am going to do so.

I don't see how that's even constitutional under the first amendment. See, e.g., Greater New Orleans Broadcasting, where the court struck down a law banning private casino advertisements in places where casinos were legal. It's one thing to ban advertising of illegal conduct -- but not legal conduct. The government can't have an interest in banning discussion of something that is legal to do. You can't criminalize truthful speech just because it might hurt someone's feelings.
5.16.2007 6:32am
A.C.:
Until I saw this discussion, it never occurred to me that there would be ANY restrictions on advertising for roommates who would common space in a house or apartment. The idea of government regulation in this area truly shocks me, because I see housemate relationships as a fairly high level of intimacy. It tends to lead to things like standing up in each other's weddings. In short, it's NOT a commercial transaction in my mind, and treating it the same way you would treat commercial property rentals is absurd.

That said, I think a lot of the fuss here is about the distinction between HOW people live and their membership in some fairly arbitrary social groups. One group I know ran into trouble with their university (NOT government) for posting an ad for a group house limited to Christian men. They were accused of discrimination agains Jews, Muslims, etc., but their real objective was to have a house near campus for OBSERVANT Christian men who preferred to live by certain rules. The equivalent would be an Orthodox Jewish house where all residents committed to observing the Sabbath and keeping kosher. That's what these guys were trying to set up, and it annoyed them considerably when they were blocked.

I think the same argument can be applied to race. Someone mentioned Chinese immigrants wanting to live together to ease the transition to a new society, but I can see other people having a strong preference for roommates of their own cultural background. And not just whites, either. The assumption seems to be that whites will do all the discriminating, but that's rather unlikely in a large urban area.

That's why I would prefer to see ads that post their "house rules" in positive terms ("Korean-speaking household with an emphasis on Korean culture"), rather than simply saying "no whites." That leaves room for the odd white, black, or whatever person to argue that he or she WANTS to live by those rules and answered the ad with full knowledge that they existed.
5.16.2007 7:17am
PersonFromPorlock:
EV:

The government can't tell me not to discriminate based on race or religion (or sex!) in choosing a spouse....

Why not? Granted, such a law might be so hard to enforce that it'd run afoul of the Equal Protection Clause, but in principle marriage is just one more contract, as liable to legal requirements as any other. Given the other restrictions on 'intimate' association that already exist, I think you're mistaking what the government chooses not to do (for the moment) for what it can't do.
5.16.2007 8:08am
Larry2:

how about dating ads where you express a racial, religious and sexual preference? I think it's only a matter of time before we see those kinds of ads forbidden because they "offend" someone, or make people feel "uncomfortable."


I agree with this post, and that of Person from Porlock just above, that under the theories behind the cases discussed there isn't anything keeping government agencies from sanctioning you for this sort of discrimination, even though it involves the most intimate aspect of one's life.

I'm still shocked that people would advocate that government has the power to intrude into these aspects of peoples' lives.
5.16.2007 11:26am
AF:
See, e.g., Greater New Orleans Broadcasting, where the court struck down a law banning private casino advertisements in places where casinos were legal. It's one thing to ban advertising of illegal conduct -- but not legal conduct.

The law draws a distinction between the private choice who to live with, where discrimination is permitted, and participation in the housing market, where discrimination is prohibited. A discriminatory ad is illegal market discrimination, not legal private discrimination. An ad that merely advertised legal private discrimination --"Avoid Canadian roommates! Ask me how!" -- would be fine.

But if the Fair Housing Act does fall afoul of Greater New Orleans Broadcasting (and I guarantee you that no court would so find, at least as to racial discrimination), what does that prove? That discriminating in roommates should be banned altogether, not just the advertising of it?
5.16.2007 11:29am
WHOI Jacket:
But, how do you prove "discrimination" in roommates. If I rent out a room and turn down Mordecai Goldfeldmanstein because I think that he has an annoying laugh and banal conversation, can I expect a summons because turning down a person in a "selected minority group" is prima facie evidence of discrimination?
5.16.2007 11:45am
Benjamin Davis (mail):
The ad is the marketplace and having a nondiscriminatory marketplace is good - given the history of this country. If someone discriminates as regards a recognized category in denying the rental of the house, then the victim can sue for appropriate redress. The First Amendment right of the owner or first renter is balanced with 13th, 14th and 15th Amendment rights it seems and one can see that even in strict scrutiny the view may be that the asserted right of intimate association does not overcome a compelling state interest in eradicating forms of discrimination in housing that are corrosive. The key for me is that the discriminator does not have a trump card because of the power relation. I am not losing sleep over those intimate associational rights.

A more interesting topic is whether state adoption authorities should take into account discriminatory preferences of potential adoptive parents in matching children and adoptive parents. That's a real conundrum on a very intimate issue where the state action is central to the process. Let's imagine adoptive parents wanting to adopt children that look like the one's they would have had. Or the distinct possibility of age discrimination of persons who want a baby over older children. Maybe those are spaces where the right of intimate association and the nondiscrimination right are balanced more towards the right of intimate association given the task of raising children being seen as being a very much more difficult task then having a roommate. Not sure.
Best,
Ben
5.16.2007 12:07pm
David M. Nieporent (www):
The law draws a distinction between the private choice who to live with, where discrimination is permitted, and participation in the housing market, where discrimination is prohibited. A discriminatory ad is illegal market discrimination, not legal private discrimination.
This is a distinction without a difference. The "participation in the [roommate] market" is the "private choice who to live with." These aren't two separate behaviors. The ad isn't an independent activity; its only purpose is to choose the person one is going to privately live with.
But if the Fair Housing Act does fall afoul of Greater New Orleans Broadcasting
...only with respect to roommates, I mean...
(and I guarantee you that no court would so find, at least as to racial discrimination), what does that prove? That discriminating in roommates should be banned altogether, not just the advertising of it?
No, obviously; the opposite.


A more interesting topic is whether state adoption authorities should take into account discriminatory preferences of potential adoptive parents in matching children and adoptive parents.
That may be "interesting" in an academic sense, but even given the views of the left that protecting approved minorities from even private discrimination trumps all constitutional rights (e.g., Harper vs. Poway, Aguilar vs. Avis), I'm pretty confident in concluding that at no point will the government mandate that people adopt a child on a non-discriminatory basis any more than the government will mandate that people get married on a non-discriminatory basis.
5.16.2007 12:56pm
CrosbyBird:
In particular, the ban on advertising a racist preference in roommates seems to draw the line at the right place. In many cities there is a large market for roommates. If renters were allowed to openly advertise their racist preferences, racial discrimination would become more efficient, the supply of housing available to racial minorities would be restricted, and racial minorities would pay higher prices for housing than racial majorities. I see no reason why racial minorities should have to pay for the racism of others.

As several have stated above, this doesn't eliminate much in the way of racially discriminatory practices in terms of actual housing available. It makes it worse, in some ways, because now if I'm a black man looking for an apartment, I show up for several apartments where the person is "reviewing several applicants" and I waste my time looking at apartments I'd have avoided if I'd only known up front that I wasn't welcome based on my race.

Race, of course, is an easy one, because you generally don't need to ask questions to find out if someone is of a different race. It would be a lot harder to find out if someone was Jewish or an atheist without tipping your hand that you intended to discriminate.

I can see an argument for laws preventing discriminatory housing preferences on the part of multi-unit landlords, and a less compelling but still understandable one for people renting the other apartment in a two-family, but it seems overbroad to force a person to share common areas with anyone they would choose not to share them with.
5.16.2007 1:06pm
jimbino (mail):
Important topic, but the problem of illegal or legal discrimination coupled with illegal advertising is far broader. When I was a head hunter, I just knew that IBM wanted only non-smokers and favored tall, black guys. This was in the days before smoking in the workplace was banned in my city.

So I was in the position of interviewing countless candidates who either smoked or smelled of smoke who had no idea that they had a snowballs chance of getting referred to IBM. That wasted both my time and theirs.

Similarly, no employer, especially in a small business, who pays health benefits to employees, would be in his right mind to hire a woman in her twenties, single or married, over a male applicant, because of the $7000 or so hit he takes if she gets pregnant. He can't ask her, of course, so he merely discriminates against all young women, legally or otherwise.

This of course adversely affects single and intending-to-remain-childfree women, including those who have intentionally submitted to sterilization. I have advised women in that position to bring up the subject themselves: assure the prospective employer during the interview, and even in her resume, of her childfree status and even present evidence of her sterilization!

It is a simple fact that women employees in their 20s are worth far less than their male counterparts, on average, for many reasons, especially in the sciences, math and engineering. I think it unfair to maintain further barriers to their hiring in the form of advertising bans and benefit plans. If an employer were free to pay the market-clearing price to hire a person, taking consideration of age, sex, race, etc., all of us would be saved a lot of time and trouble.
5.16.2007 1:14pm
A.C.:
I'm not even comfortable saying "discriminate" when it is a question of shared housing rather than renting out self-contained residences. The term I favor is "finding a congenial roommate." Some people may favor people of their own sex, race, or ethnic/religious background as part of this sorting process, but it is still a process of finding the best match rather than one of putting a product on the market and selling it to anyone that turns up. If people can't be candid during this match-making process, there's a problem. I know that my solution in such a case would be to avoid the problem by living alone. Hypocrisy is a bigger sin in my mind than simply having a strong preference for gay Italians.
5.16.2007 1:34pm
AF:
No, obviously; the opposite.

It's not obvious to me. The right of intimate association rests on the premise that there is a sphere of private activity separable from the mark. If no distinction can be drawn between private activity and market participation, then there is no constitutional right (state, property, intimate association, or otherwise) discriminate on the basis of race in that private activity.
5.16.2007 2:03pm
Mary Katherine Day-Petrano (mail):
"But antidiscrimination law has to stop somewhere."

Oh, stop all the protesting Eugene. As I recall, I told you many months ago that it was my belief the federal anti-discirmination laws could bust the Communication Decency Act immunity shield for web sites and blogs. As I recall, you answered that idea with a lot of First Amendment rhetoric, and I do respectfully regard you as one of the foremost scholars on the First Amendment. And you did not like the idea the anti-discrimination laws would prevail over the Communication Decency Act immunity even then.

It is a wonderful day for all of America's disabled, I must say! You may not be celebrating, but many of us are, YES!!

In our discussions, as I told you, I do not discount your idea there are First Amendment concerns for the web sites and blog owners. But I also pointed out, which you have never addressed in any meaningful manner, the serious First Amendment concerns protecting certain victims of internet discrimination -- the classic e.g. I gave was where a person with autism or who is blind uses assistive technology (speech recognition or screen reader) to engage in speech or right to petition has subsequently been discriminated (or retaliated) against on a web site or blog.

Two First Amendment concerns, one enforced in my example by the Americans With Disabilities Act or Sec. 504 or 508 of the rehabilitation Act. In Geibler, the Ninth Circuit noted that the ADA and RA can be interpreted by using cases under the FHA.

I am simply suggesting that, although I can understand as a blog owner your anti-reaction to this Ninth Circuit decision, there are two sides, and those of us who are rountinely discriminated against on web sites and blogs because of our disabilities and need to use assistive technology see this as a great, bright day.

I cannot help but wonder if Bar Examiners who have internet web site, induce electronically filed bar appications, gather applicant information, and request that others step forward and tell-all about bar applicants can now be sued under the Ninth Circuit decision, particularly where some of the info solicited about bar applicants may come from persons not educated to know when they are discriminating that can run afoul of the ADA's Title II implementing regulations, e.g. 28 C.F.R. Sec. 35.130(b)(1) &/or (b)(3) prohibiting causing or subjecting a disabled person to discrimination).

Eugene, why don't you write another good law review article on this topic?
5.16.2007 2:12pm
Mary Katherine Day-Petrano (mail):
"This really shows how divorced antidiscrimination law has become from its stated goals."

Quit the belly-aching. I just re-read Coleman v. Zatechka, Americans With Disabilities Act, college roommates anti-discrimination case. I can see the possibilities where the internet becomes involved.

I also reinterate everything I said in my post, above.
5.16.2007 2:21pm
Mary Katherine Day-Petrano (mail):
"In the future, everybody will post their roommate ads on the lesbian pagan website, or the straight white evangelical website, or whatever. They'll get the roommates they want, but they'll miss out on other general-interest content that reaches the whole population.

So a measure designed to foster integration will have the opposite effect."

I disagree ... VMI comes to mind.
5.16.2007 2:26pm
Mary Katherine Day-Petrano (mail):
"When I once looked for rental housing, I got an angry response when I called one would-be renter, who was pissed that a man was trying to live with her and her apartment-mates.

She didn't want to live with a man, but she couldn't say that in the paper, so I ended up calling her because I didn't know of her discriminatory preference. And she took out her frustration on me."

This brings to mind the Second Circuit Space Hunters roomate case (rudeness, shoutdowns found actionable). As I said, when the internet becomes involved, imagine the possibilities ...
5.16.2007 2:29pm
Mary Katherine Day-Petrano (mail):
After having learned on this blog that both vampires and autistics are repelled by garlic (thank you Eugene), I wonder, however, if I had to list on the roomates web site if I could still make my preference known for "no garlic."
5.16.2007 2:40pm
Mary Katherine Day-Petrano (mail):
For those who did not read the previous garlic-vampire discussion, autistics cannot be in a room with the smell of garlic, and certainly not roomate housing.
5.16.2007 2:42pm
Mary Katherine Day-Petrano (mail):
"It is worth mentioning that the federal anti-discrimination laws, based tenuously as they are on the Commerce Clause, don't in my opinion pass Constitutional muster."

???????

The last time I looked, the Americans With Disabilities Act is a "federal anti-discrimination law," and clearly 42 U.S.C. Sec. 12101(b)(4) says in plain language it is based on both the Commerce Clause and the Fourteenth Amendment; but since that statute was carefuly drafted to uses "including" language, there is a clear indication the list is not exhaustive' thus, because 42 U.S.C. Sec. 12131(2) addresses "communication" barriers, it is quite readily apparent from the plain language of the ADA read as a whole, that the disability "federal anti-discrimination law" is based on the First Amendment as well.

And the ADA DOES pass Constitutional muster, see Tennessee v. Lane (US 2004), Goodman v. Georgia (US 2006).

Or were you talking only about other "federal anti-discrimination laws" without specifying which ones?
5.16.2007 2:50pm
Mary Katherine Day-Petrano (mail):
"The federal law punishes only speech, not conduct."

Did you read the FHA?
5.16.2007 3:06pm
Mary Katherine Day-Petrano (mail):
"A more interesting topic is whether state adoption authorities should take into account discriminatory preferences of potential adoptive parents in matching children and adoptive parents. That's a real conundrum on a very intimate issue where the state action is central to the process."

This brings to mind one of my favorite cases, Doe v. County Centre, PA (3rd Cir). Cheers.
5.16.2007 3:29pm
Vivictius (mail):
Hum....multiple, off-topic posts obsessing over the ADA... yep, Mary is back. Pardon me for not cheering.

But, since Im in a good mood, I'll try and be helpfull and reduce your ignorance. Monumental of a task as that may be.

While it is VERY clear that you want to share your concern for various ADA related issues, some methods of sharing information and / or gathering support are more effective then others. For instance, multiple off-topic posts on someone's blog are not known to cause people focus on your chosen topic and ignore what that came to read about in the first place. A more probable response is thinking "Oh look, the crazy ADA lady is back" and scrolling past your posts without reading them.

If you truly wish to aid progress in this area you are more likely find sucess in writing your own blog or possibly finding one that might host the occasional post of yours. Cheers.
5.16.2007 4:41pm
David M. Nieporent (www):
It's not obvious to me. The right of intimate association rests on the premise that there is a sphere of private activity separable from the mark. If no distinction can be drawn between private activity and market participation, then there is no constitutional right (state, property, intimate association, or otherwise) discriminate on the basis of race in that private activity.
This whole "market participation" thing is a red herring. There's no "market" here. The "sphere of private activity" is living with somebody as a roommate. The ad is just a way to facilitate that private activity; it is not part of a commercial enterprise. We have two protected activities:

* Intimate association with a roommate.
* Free speech.

And yet when we combine the two, you think they should both be unprotected from Big Brother?
5.16.2007 5:08pm
AF:
There's no "market" here.

Tell that to rooommates.com, who kicked off this whole discussion.
5.16.2007 5:39pm
Mary Katherine Day-Petrano (mail):
Actually, viscious, I mean Vivicitius, if you practiced in the area of jurisprudence of housing rights for the disbaled, which my husband who has taken several such cases does, you would know that anytime FHA discirmination is alleged as a count, an ADA or Rehab Act count is alleged as well. It is not myself who is off-topic, but rather yourself who desires censorship of my ideas and viewpoints.

Why should I allow you to sign the song of segregation to "get your own blog," when I much prefer inclusion and integration in the mainstream marketplace of American ideas on this blog? I like the Volokh. There are excellent debates here.
5.16.2007 6:07pm
Mary Katherine Day-Petrano (mail):
What a cop out to say it is ok for everyone else to talk about racial discrimination, gender discrimination, regious discrimination, etc., but somehow disability discrimination is "off-topic?" Discrimination is discrimination. It is just that some people have an obvious aversion to people with disabilities.
5.17.2007 2:21am
Brian G (mail) (www):
I don't think people have the right to decide who they will live in. Government knows best, and if they say it is best for you to live with a certain roomate, by God then you should obey them without dissent.
5.17.2007 2:22am
Mary Katherine Day-Petrano (mail):
Recently, a Judge named Whittemore pointed at me and uttered "Are you blind?" because I couldn't see the court reporter with my 20/60 vision.
5.17.2007 2:25am
Hans Bader (mail):
AF's notion that "intimate association" disappears when one enters a market by advertising one's preferences is ludicrous.

The fact that you enter the "market" by posting on a dating web site doesn't mean that you lose your freedom of intimate association.

The Supreme Court has held speech to be protected even when it is in a paid ad (see New York Times v. Sullivan).

And it has held intimate decisions --like birth control --to not only be protected, but to require protection of related speech in the marketplace (such as in purchase of, or commercial advertising of, birth control devices, see the Eisenstadt v. Baird and Carey and Bigelow decisions).

Moreover, as I explained above, banning people from expressing their discriminatory roommate preferences actually increases the cost and indignity of discrimination. So the restriction on speech does not substantially advance any legitimate state interest.

And things less intimate than personal housing decisions have been held protected by freedom of intimate associations, as I noted above, citing the Louisiana Debating and Literary Association case.
5.17.2007 12:03pm
AF:
Hans, I didn't say the right to intimate association disappears when one enters a market or otherwise makes public one's private associations. It's just overcome by the state's stronger interest in prohibiting discrimination. "It may well be that a considerable amount of private or intimate association occurs in such a setting, as is also true in many restaurants and other places of public accommodation, but that fact alone does not afford the entity as a whole any constitutional immunity to practice discrimination when the government has barred it from doing so." N.Y. State Club Ass'n v. City of New York; Roberts v. Jaycees, etc.

The argument has been made that the right to intimate association is stronger for roommates than for private clubs. But offering a room for rent is more public than such clubs in a crucial respect: it proposes a commercial transaction to strangers, whereas private clubs generally require sponsorship by a member to join. Moreover, unlike some clubs (eg Boy Scouts) the choice of roommate is not an expressive association.

Thus, the logic of Greater New Orleans Broadcasting and other cases treating advertising as speech doesn't apply to intimate racism, because by virtue of advertising it the underlying conduct (discrimination) is no longer legal (as it is no longer constitutionally protected intimate association) and the advertising of illegal activity can be banned.
5.17.2007 2:12pm