Roommate Wanted: The Right to Choice in Shared Living

• Author: John T. Messerly
• Position: J.D., The University of Iowa College of Law, 2008
• Pages: 03

J.D., The University of Iowa College of Law, 2008; B.A., Iowa State University, 2005. I would like to thank my parents, siblings, and family for their constant support; Professor Todd Pettys for his help with and insight into the research and structure of this Note; and John Mauck for giving me the assignment that brought this issue to my attention. SDG. Page 1951

I Introduction

In February 2006, the Chicago Lawyers' Committee for Civil Rights Under Law ("CLCCRUL") sued the website Craigslist for publishing advertisements for roommates that violated federal housing-discrimination law.¹ The ads contained such phrases as "looking for gay latino,"² "African-Americans and Arabians tend to clash with me so that won't work out,"³ and "Requirements: Clean Godly Christian Male."⁴ CLCCRUL did not limit its legal action to Craigslist; it also filed complaints against the individuals who posted the ads.⁵ The individuals currently face such penalties as monetary damages, injunctions, and compulsory attendance at fair-housing classes.⁶

The Craigslist lawsuits are not the only incidents where courts have applied housing-discrimination statues to shared-living situations. In 1999, a California woman seeking a housemate refused to share her apartment with a black man because she felt uncomfortable doing so; he sued her for violating state housing-discrimination law.⁷ The court realized that the case "raise[d] significant issues of the constitutional protections of freedom of speech and the right to privacy and association," but stated that it had no power to declare the statute unconstitutional before an appellate court had done so.⁸ The court awarded the man $740 in compensatory damages and expenses, and required the woman to attend and pay for "four hours of training on housing discrimination."⁹ Page 1952

Other cases have been much more costly. In 1996, three housemates living in Madison, Wisconsin, were looking for two new housemates.¹⁰ A lesbian woman applied for a spot, but when the housemates discovered her sexual orientation they refused to share their home with her.¹¹ She responded by suing them under the city's housing-discrimination ordinance.¹² The court upheld an award of over $3,000 in damages and $23,000 in attorney's fees.¹³

Over the past century, legislatures have enacted housing-discrimination laws to ensure equal access to housing for all citizens.¹⁴ This Note does not argue against the existence of housing-discrimination law per se. When homes are sold, or when the non-resident landlord of a ten-story apartment complex evaluates potential tenants, the constitutional considerations are vastly different than when an individual looks for someone with whom to share her personal living space. Housing-discrimination laws are properly directed to the former situations, but they should not apply to the latter.¹⁵

However, the government and private individuals have begun to apply these housing-discrimination laws to shared-living arrangements in a way that inhibits individuals' ability to choose the people with whom they will share their living spaces.¹⁶ This occurs even where the legislature did not intend for these laws to apply to shared-living arrangements.¹⁷

The right to choice in shared living, i.e., an individual's right to choose the members of her household, is a fundamental liberty right at the core of Page 1953 an individual's constitutional rights to privacy,¹⁸ freedom of intimate¹⁹ and expressive association,²⁰ free exercise of religion,²¹ and free speech.²²Shared living, when it is voluntary, can provide deep, meaningful relationships for those who live together and can produce positive results for the community.²³

This Note discusses the strong, constitutional support underpinning the right to choice in shared living and concludes that current housing-discrimination laws are unconstitutional when applied in a way that affects individuals' ability to choose with whom they will live.²⁴ Part II provides a survey of current state and federal laws that have been or could possibly be applied to restrict individuals' right to choice in shared living. Part III then discusses the constitutional protections for the right to choose one's cohabitants, including the rights to privacy, freedom of association, free exercise of religion, and freedom of speech. Having established the de facto right to choose, Part Iv addresses issues involved in exercising the right through public advertisement. Finally, Part v concludes that current housing-discrimination laws, as courts have applied them to an individual's choice in shared living, violate the U.S. Constitution.

II A Survey Of State And Federal Statutory Restrictions On The Right To Choice In Shared Living

A Section 1982 of the Civil Rights Act of 1866

Congress first addressed the issue of equal housing opportunities when it passed section 1982 of the Civil Rights Act of 1866.²⁵ This statute gave "all citizens" the same rights as white citizens to "inherit, purchase, lease, sell, Page 1954 hold, and convey real and personal property."²⁶ Unlike later legislation, section 1982 is not a "comprehensive open housing law" because it only applies to racial discrimination.²⁷ Section 1982 is also different from later laws in that it contains no exemptions of any kind.²⁸ in this respect, it is potentially further-reaching than the Fair Housing Act (discussed below in Part LLC).²⁹

Section 1982 was Congress's attempt to enforce the Civil War amendments and preempt the so-called Black Codes that several southern states enacted to return newly freed slaves to "virtual slave[ry]."³⁰ Among other things, the Black Codes unconstitutionally restricted blacks' ability to make contracts, purchase homes, and engage in commerce.³¹ Congress's intent in passing section 1982 was not to compel transactions between whites and blacks, but rather to equalize the races by removing the state-erected barriers that prohibited blacks from conducting transactions with willing participants of either race.³² In this context, section 1982 was a constitutional exercise of Congress's ability to enforce the Thirteenth Amendment by "abolishing all badges and incidents of slavery."³³

Prior to the landmark case Jones v. Alfred H. Mayer Co.,⁵⁴ it was thought that section 1982 applied to state action only;³⁵ if that was the case, the Page 1955 statute would have no bearing on shared-living situations. However, the Jones Court held that private individuals can violate section 1982.³⁶ If section 1982 were to apply to private conduct, it would modify all previous constitutional protections for the right to choice in shared living.³⁷ The arguments made below in Part III, then, would be subject to section 1982's prohibition of race discrimination.³⁸ However, extending section 1982 into the realm of private conduct has proved to be extremely controversial.³⁹

The practical effects of Jones's interpretation of section 1982 would be that individuals could make face-to-face choices among potential roommates-and advertise their intent to make these choices-on any grounds other than race. There is no exception whatsoever for shared living; section 1982 would apply to every aspect of housing law. However, it is unclear whether section 1982 would bar advertisements that express racial preferences if no discrimination were detectable in the subsequent face-to-face transaction. Page 1956

B State Housing-Discrimination Law

While section 1982 remained the only federal legislation related to housing discrimination for over a century, the states began to supplement it with statutes of their own.⁴⁰ Some of these laws, rather than focusing on equal opportunity, went one step further and attempted to eradicate discrimination in the provision of housing.⁴¹ States did not limit the laws to the area of racial discrimination-they also addressed discrimination based on gender, religion, and national origin.⁴² In this respect state law provided, at least in part, the impetus for the later expansion of federal law to cover similar classifications.⁴³

These state laws remain in effect today and, for the most part, provide remedies that are separate and independent from the protections offered under federal law.⁴⁴ In some cases, state and local legislatures have enacted extremely broad statutes that regulate discrimination far beyond the Page 1957 traditional categories of race, gender, religion, and national origin.⁴⁵ It is not unusual for these state statutes also to forbid discrimination based on such categories as sexual orientation, source of income, and "unfavorable discharge from military service."⁴⁶ The District of Columbia's statute is exceptionally broad, prohibiting in any real-property transaction or advertisement discrimination based on such additional classifications as "personal appearance," "gender identity or expression," "family responsibilities," "matriculation," "political affiliation," "place of residence," or "business."⁴⁷

These statutes are not mere lip service to desires for a utopia free from discrimination; they are enforced in shared-living situations and produce harsh results for anyone who would attempt to have free rein in choosing the people with whom she will live.⁴...