Legal Commentary

Federal Government Acknowledges Constitutional Limits on Housing Discrimination Law

By Eugene Volokh

From the Department of Housing and Urban Development?s Determination of No Reasonable Cause in Fair Housing Center of West Michigan v. [Redacted] (paragraph break added):

[A]n individual complained to Complainant about a rental advertisement posted on a bulletin board at the [Redacted] Church ... stat[ing] (in relevant part): ?I am looking for a female christian roommate....? ...

The advertisement contains statements that indicate a preference or limitation based on religion and gender. In general, 42 U.S.C. 3604(c) prohibits such statements whether made verbally or in writing.

However, in light of the facts provided and after assessing the unique context of the advertisement and the roommate relationship involved in this particular situation potentially involving the sharing of personal religious beliefs, the Department defers to Constitutional considerations in reaching its conclusion.

I?m happy to see that the Department acknowledged that there were constitutional constraints here, though I?m not sure exactly what it understood the constitutional limits to be. The Fair Housing Act generally allows a person to discriminate based on race, religion, and the like in choice of roommates, at least if the person is the ?owner,? see 42 U.S.C. § 3603(b)(2); but it still bars ?any notice, statement, or advertisement ... that indicates? such a lawful preference.

One could argue that this prohibition, as applied to roommate selection, interferes with First Amendment rights to promote a lawful commercial transaction. One could argue that it unduly burdens the right to intimate association, since it makes it much harder for someone to effectively choose whom to live with (though it doesn?t outright prohibit such selection). And one could argue that it unduly burdens the right to associate for purposes of creating a religious household, though I?m not sure that there is much precedent for recognizing a right defined in that specific way. I discussed the first two theories, and also talked about government agencies that were more willing to restrict such constitutional rights, in this 2007 post.

In any event, I?m glad that HUD recognizes some constitutional constraints here, even though it declined to clearly explain just what they are. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Full post as published by The Volokh Conspiracy on November 05, 2010 (boomark / email).