Thursday, January 25, 2007
Does the Fair Housing Act cover online roommate preferences? The New York Times published this week an opinionated article about online roommate services, many of which contain explicit preferences for a roommate of a particular race, or religion, or sex (which is not automatically excluded from coverage by the Act!). At least one Fair Housing Act lawsuit against an online service is pending. The author suggested that the Act might violate notions of free speech, in that it prohibits “publish”[ing] or “advertis”[ing] a preference on the ground of race, religion, sex, etc., 42 U.S.C. § 3604(c), even though it otherwise excludes from its coverage such discrimination by someone who merely rents out a room (or two or three, but not four) in his or her house, 42 U.S.C. § 3603(b)(2) (the so-called “Mrs. Murphy” exception). The article suggested that this situation might amount to prohibiting speech about lawful conduct –- a conclusion that certainly would be troubling under the First Amendment.
But here’s a different way of looking at the situation. The “Mrs. Murphy exception” was included in the Act to protect homeowners who rent out a few rooms (boardinghouses were far more prevalent in 1968 than they are today). Because of the unappealing (in 1968, at least) specter of federal law coming down on the stereotype of such a boardinghouse owner –- a fictional widow called Mrs. Murphy, who simply didn’t feel comfortable renting to black people –- the law provided an exception for her. How far should the exception reach? The limits were designed to try to protect little old Mrs. Murphy but ONLY little old Mrs. Murphy. The three-other-family limit was created presumably because if a homeowner rents more than three other rooms, this owner looks less like a Mrs. Murphy and a lot more like an apartment landlord.
Similarly, if the homeowner “publishes” the rental, the owner isn’t acting like Mrs. Murphy; the owner is acting more like a businessperson. (Little old Mrs. Murphy would only have put a sign “Room for Rent” on her drafty old house and spread the opening by word of mouth). This is why “publishing” makes the discrimination unlawful. It’s NOT that it’s speech about conduct that’s lawful. The reason for the rule is that if you publish, the law presumes that you’re not the kind of little old boardinghouse owner upon whom the law grants sympathy and the Mrs. Murphy exception.
This having been said, why shouldn’t there be an exception for publishing roommate preferences? I suggest that the Mrs. Murphy boardinghouse exception be abolished (a 70-year-old Mrs. Murphy today has lived most of her life in a world with the Fair Housing Act) and replaced with an exception that allows anyone –- fee simple owner or renter –- to be exempted from the Act if they rent to only ONE other person. They would be exempted whether or not they “publish” their preference (a far more routine occurrence in the day of the Internet than it was in 1968, of course). Do I approve of such discrimination in finding a roommate? No. But just as law wisely does not make it unlawful to discriminate in whom one invites to lunch, the limited interest in personal privacy should exclude from the Fair Housing Act the choosing of a sole roommate, even for the most distasteful reasons.