Roommate Preferences Are Sacred, Circuit Says

(CN) - A website that paired prospective roommates based on personal details like gender, sexual orientation and religion did not violate federal housing law, the 9th Circuit ruled Thursday.

The San Francisco-based federal appeals panel found that the Fair Housing Act (FHA) does not apply to roommates, to whom we give "full access to the space where we are most vulnerable." Rather, such relationships are governed by the right to intimate association.

"Because of a roommate's unfettered access to the home, choosing a roommate implicates significant privacy and safety considerations," Chief Judge Alex Kozinski wrote for a three-judge panel. "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. Roommates also have access to our physical belongings and to our person. As the Supreme Court recognized, '[w]e are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings.' Minnesota v. Olson, 495 U.S. 91, 99 (1990). Taking on a roommate means giving him full access to the space where we are most vulnerable."

The Fair Housing Council of the San Fernando Valley and the Fair Housing Council of San Diego sued Roommate.com, a popular online meeting place for potential housemates, over a section of the website that allowed users to seek roommates or available rooms based on specific characteristics, including sex, sexual orientation and familial status. The plaintiffs alleged that requiring users to disclose that kind of information violated both federal and California fair-housing laws.

After a protracted battle over whether the website was protected under the Communications Decency Act, which eventually ended up before an en banc panel of the 9th Circuit, U.S. District Judge Percy Anderson ruled in Los Angeles that the "prompting of discriminatory preferences" violated both laws and ordered the website to cease doing so. The 9th Circuit reversed Thursday on appeal.

The reach of the FHA does not extend to "personal relationships inside the home," the panel found (emphasis in original).

"Congress wanted to address the problem of landlords discriminating in the sale and rental of housing, which deprived protected classes of housing opportunities," Kozinski wrote. "But a business transaction between a tenant and landlord is quite different from an arrangement between two people sharing the same living space. We seriously doubt Congress meant the FHA to apply to the latter. Consider, for example, the FHA's prohibition against sex discrimination. Could Congress, in the 1960s, really have meant that women must accept men as roommates? 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."

The roommate relationship, then, clearly falls under the high court's recognition "that 'the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights,'" Kozinski found.

"The roommate relationship easily qualifies," he wrote. "People generally have very few roommates; they are selective in choosing roommates; and non-roommates are excluded from the critical aspects of the relationship, such as using the living spaces. Aside from immediate family or a romantic partner, it's hard to imagine a relationship more intimate than that between roommates, who share living rooms, dining rooms, kitchens, bathrooms, even bedrooms."

Though Judge Sandra Ikuta agreed with Kozinski's interpretation of the limits of the FHA, she wrote separately to dispute the court's standing analysis.

Neither the Fair Housing Council of the San Fernando Valley nor the Fair Housing Council of San Diego were immediately available for comment.

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