Non-Discrimination Requirement Applied to Roommate Service Violates Constitutional Privacy Rights

A panel of the 9th Circuit Court of Appeals ruled on February 2 that an on-line roommate matching service could not be prosecuted for allowing persons seeking roommates to express preferences concerning the sex, sexual orientation and familial status of people they would accept as roommates.  The court held that forbidding such expressions of preference would violate the constitutional liberty interest of individuals seeking roommates, and that the roommate service could assert that interest as a defense to discrimination claims by the Fair Housing Council of the San Fernando Valley and the Fair Housing Council of San Diego.  Fair Housing Council v. Roommate.Com, LLC, 2012 Westlaw 310849 (Feb. 2, 2012).  But the court also held that the fair housing statutes should be construed not to apply to roommate situations, saving the constitutionality of the statutes.

"There's no place like home," wrote Chief Judge Alex Kozinski.  "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 happenes, can the government limit whom we choose?  Specifically, do the anti-discrimination provisions of the Fair Housing Act extend to the selection of roommates?"

The federal statute forbids discriminating in the "sale or rental of a dwelling," and also forbids expressing a preference based on such grounds as "race, color, religion, sex, handicap, familial status, or national origin," with state law adding "sexual orientation" and "gender identity" to the forbidden grounds.  The court decided that the word "dwelling" should be construed so as not to apply to roommate situations.  "It would be difficult, though not impossible, to divide a single-family house or apartment into separate 'dwellings' for purposes of the statute," wrote Judge Kozinski.  "Is a 'dwelling' a bedroom plus a right to access common areas?  What if roommates share a bedroom?  Could a 'dwelling' be a bottom bunk and half an armoire?  It makes practical sense to interpret 'dwelling' as an independent living unit and stop the FHA at the front door."

The court found "no indication that Congress intended to interfere with personal relationships inside the home."  Furthermore, extending the statute to cover such situations would raise serious issues of associational freedom.  "Because of a roommate's unfettered acces to the home, choosing a roommate implicates significant privacy and safety considerations," said the court.  "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" and, of course, vice versa.  "When you invite others to share your living quarters," wrote Kozinski, "you risk becoming a suspect in whatever illegal activities they engage in."

In light of constitutional protection for the privacy of the home, the court stated, applying the non-discrimination requirement to roommate selection "would be a serious invasion of privacy, autonomy and security."  Since the anti-discrimination statutes do not "apply to the sharing of living units," the court concluded, "it follows that it's not unlawful to discriminate in selecting a roommate.  As the underlying conduct is not unlawful, Roommate's facilitation of discriminatory roommate searches does not violate the FHA.  While Roommate itself has no intimate association right, it is entitled to raise the constitutional claims of its users.  The court found that the same concerns would arise under California law.

The court vacated the district court's judgment, as well as its award of attorneys fees to the plaintiff enforcement agencies, and directed that the case be dismissed.  Judge Sandra Ikuta concurred in the ultimate disposition of the case, but wrote a partial dissent because she arrived at her result differently, questioning the standing of the two agencies to bring a federal case against, and also questioning the majority approach of applying a limiting interpretation to the statute in order to avoid declaring it unconstitutional on its face, rather than unconstitutional as applied to the situation of roommates.  She noted that the court had adopted an interpretation of the statute in the absence of briefing by the parties on this issue or the creation of a trial record, and would have remanded the case to the district court "to hear from the parties and rule on this issue in the first instance."

This case attracted considerable attention on an earlier appeal, when the court held that although's internet service provider could not be sued for discrimination based on the content of's website, itself did not enjoy such immunity. had argued that because it was the users of its site who designated preferences in completing the listing forms, itself could not be charged with discrimination.  In that ruling, the court said that did not enjoy immunity when it provided a form that specifically sought to elicit roommate preferences.  However, the court did not rule in that case on the merits of the discrimination claim, sending the case back to the trial court, which had ruled in favor of the enforcement agencies on the merits.  That ruling is now reversed.

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