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.