“Female Roommate Wanted”

It’s a fairly standard advertisement.  But for years, many scholars and lawyers have thought it constitutes illegal sex discrimination under the Fair Housing Act.  In Fair Housing Council v. roommate.com,  a recent opinion by Alex Kozinski and joined by Stephen Reinhardt (so there’s your first surprise), the 9th Circuit has said that such ads are permissible.

I realize that this isn’t strictly an environmental question, but the case is interesting for the creative moves it makes on statutory interpretation, and in any event, I’m assuming that lots of Legal Planet readers either teach Property or deal with property law in their practices, so it might of interest to our readers.

The problem actually serves as a hypothetical in the Dukeminier casebook: is it a violation to advertise for a “female roommate”?  Students frequently rebel against the standard answer: yes.  So did the 9th Circuit, and here is its chain of reasoning:

1)       The FHA forbids discrimination “with respect to the sale or rental of a dwelling”; so what is a “dwelling”?
2)      The opinion says that the FHA “stops at the apartment door”, essentially meaning that a “dwelling” means any individual’s unit, be it one room of an apartment, or even one chunk of a bunk bed.  Thus, if you say you only want a female roommate, that’s not discriminating with respect to a “dwelling” because she might be in another room or another part of the bunk.
3)      Is this forced?  Yes, the Court concedes.  But:
4)      There is no way that Congress could have intended anything else.  The Court noted that the language was adopted in 1968: “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.”

And moreover:
5)      We know that the judiciary should construe statutes to avoid constitutional implications, and
6)      Citing (inter aliaLawrence v. Texas, the opinion says that forcing, say, women and men to share living quarters would risk running afoul of the right to “initimate association” (although it doesn’t cite my colleague Ken Karst’s seminal piece on the matter.) So
7)      They will adopt this construction of the statute to avoid constitutional problems, and thus one can discriminate.

In short: so much for textualism (yet again!).  And from that well-known left-wing judicial activist, Alex Kozinski.  More seriously, this was a Court that was trying to do what judges should do: construe statutes in such a way as to avoid absurdities and maintain important policies enacted by the Legislature.  It resisted the formalist temptation to look at plain language divorced from context.  We can only wish that, say, the California Supreme Court in the redevelopment case had done the same.

Pop quiz: What if someone then advertises for a white roommate, or a Christian roommate?   That is still illegal.  But do you know why?

Ponder this over the weekend.  And have a good one.

, , , , , ,

Reader Comments

10 Replies to ““Female Roommate Wanted””

  1. Another example of textualism disrespected:
    The California Constitution requires that “A voter-nomination primary election shall be conducted to select the candidates for congressional and state elective offices in California.” [Article II, Sec. 5(a)] That’s a Prop. 14 “top two” primary.
    But elections officials are treating elections for Judge of the Superior Court of California as if they are elections for county, not state, offices.
    I thought we had state trial courts; go figure. 🙂

  2. Another example of textualism disrespected:
    The California Constitution requires that “A voter-nomination primary election shall be conducted to select the candidates for congressional and state elective offices in California.” [Article II, Sec. 5(a)] That’s a Prop. 14 “top two” primary.
    But elections officials are treating elections for Judge of the Superior Court of California as if they are elections for county, not state, offices.
    I thought we had state trial courts; go figure. 🙂

  3. The reason why racial discrimination in roommate selection would still be illegal lies in the Civil Rights Act of 1866, codified at 42 USC 1982: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” In Jones v. Mayer, 392 U.S. 409 (1968), the Supreme Court held that it applies both to public and private race discrimination. Unless a Court holds that discrimination in roommate selection does not involve “real and personal property,” it would apply.

    As for advertising for a Christian roommate, it would turn on the identity of the plaintiff. if the plaintiff was Jewish, then Section 1982 would apply. In Shaarei Tefila Congregation v. Cobb, 481 U.S.615 (1987), the Supreme Court held that it applied because in 1866, Jews were regarded as a separate “race”: thus, discrimination against Jews is prohibited by the Act.

    Done!

  4. The reason why racial discrimination in roommate selection would still be illegal lies in the Civil Rights Act of 1866, codified at 42 USC 1982: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” In Jones v. Mayer, 392 U.S. 409 (1968), the Supreme Court held that it applies both to public and private race discrimination. Unless a Court holds that discrimination in roommate selection does not involve “real and personal property,” it would apply.

    As for advertising for a Christian roommate, it would turn on the identity of the plaintiff. if the plaintiff was Jewish, then Section 1982 would apply. In Shaarei Tefila Congregation v. Cobb, 481 U.S.615 (1987), the Supreme Court held that it applied because in 1866, Jews were regarded as a separate “race”: thus, discrimination against Jews is prohibited by the Act.

    Done!

  5. More on textualism in California:
    “Whether a court would actually stop the project because of such alleged violations is not clear, said UC Berkeley assistant law professor Bertrall Ross, an election law expert. The conditions in the law, he added, were not in the ballot summary that voters saw at the polls, and judges often attach more importance to that than the underlying statute. ”
    – from an LA Times article on the bullet train
    http://www.latimes.com/news/local/la-me-bullet-legal-20120326,0,6325897.story

  6. More on textualism in California:
    “Whether a court would actually stop the project because of such alleged violations is not clear, said UC Berkeley assistant law professor Bertrall Ross, an election law expert. The conditions in the law, he added, were not in the ballot summary that voters saw at the polls, and judges often attach more importance to that than the underlying statute. ”
    – from an LA Times article on the bullet train
    http://www.latimes.com/news/local/la-me-bullet-legal-20120326,0,6325897.story

Comments are closed.

About Jonathan

Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

READ more

POSTS BY Jonathan