Fair Housing Council v. Roommate. Com, LLC

COUNCIL OF SAN FAIR HOUSING VALLEY; The Fair

FERNANDO Diеgo, Housing Plain- Council San tiffs-Appellees,

v. ROOMMATE.COM, LLC, Defendant-

Appellant. Housing of San Fernando Fair Council Valley; Housing Fair Council Plaintiffs-Appellees, Diego,

San Roommate.com, LLC, Defendant-

Appellant. Housing Fair Fernando Council San Valley; Fair Council of Diego, Plaintiffs-Appellees-

San Cross-Appellants, Council of San Valley, Plaintiff,

Gabriel Roommate.com, LLC, Defendant-

Appellant-Cross-Appellee. 09-55272, 09-55875, Nos. 09-55969. Appeals, United States Court of Ninth Circuit. Argued July and Submitted 2011. Filed Feb.

FACTS (“Roommate”) Roommate.com, op- LLC erates internet-based business that helps each roommates find other. Room- 40,000 mate’s website receives over visits a day roughly and postings million new year. roommates are created each When sign users up, must create a profile by answering a questions series of about (argued), Elizabeth Brancart Christo- sex, their sexual orientation and whether Brancart, Brancart, pher Brancart & Pes- children be will with them. An cadero, CA, for the plaintiff-appellees and open-ended “Additional Comments” sec- cross-appellants. tion lets users include information not Timothy Alger L. (argued), Susan B. prompted by questionnaire. Users are Estrich, Kidman, Christopher Scott B. E. asked to list preferences for room- Price, Quinn Urquhart Hedg- Emanuel & characteristics, sex, mate including sexual es, LLP, CA, Angeles, Los for the defen- orientation and familial status. Based on dant-appellant cross-appellee. and profiles preferences, Roommate

matches provides users and them a list of housing-seekers or available rooms meet- ing their criteria. Users can also search listings available based on roommate char- acteristics, sex, including sexual orienta- tion and familial status. KOZINSKI, Before: ALEX Chief Judge, STEPHEN REINHARDT and The Fair Housing San Fer- IKUTA, SANDRA S. Judges. Circuit Valley (“FHCs”) nando and San Diego court, sued Roommate federal alleging Opinion by Judge KOZINSKI; Chief that the questions website’s requiring dis- Partial Concurrence and Partial Dissent sex, closure of sexual orientation and fa- by Judge IKUTA. status, milial sorting, and its steering and matching of users based on those charac- OPINION teristics, violate Fair Housing Act (“FHA”), 42 § seq., U.S.C. 3601 et and the KOZINSKI, Judge: Chief California Fair Employment place There’s no like home. pri- In the (“FEHA”), Act Cal. Gov’t Code 12955. vacy home, your you own can take off your coat, your shoes, kick off your let initially district court dismissed the guard completely down and be yourself. claims, holding that Roommate was im- usually While we share our only homes mune under section 230 of the Communica- family, friends and sometimes we Decency (“CDA”), tions Act 47 U.S.C. need to in stranger take to help pay reversed, holding We that Room- rent. When happens, can govern- mate was by pub- CDA for ment limit whom we Specifically, choose? lishing section, the “Additional Comments” do the provisions (1) anti-discrimination of the but not for posting questionnaires that (“FHA”) Act sex, extend tо the required disclosure of sexual orienta- selection of (2) roommates? status; tion and familial limiting the (“[A]n Combs, at 285 F.3d preferences users’ scope searches cannot, course, sex, injury manufacture the orientation sexual a roommate’s status; system a suit from its matching necessary to maintain ex- familial very prefer- penditure on those of resources on suit users based paired ” (internal omitted)). quotation v. Room- .... marks Fair Hous. Council ences. (9th mates.com, LLC, 521 F.3d commencing litigation, the Prior to (en banc). Cir.2008) investigated alleged Roommate’s vi FHCs immuni- limited to CDA opinion was Our and, in response, olations started new edu activities, ty and didn’t reach whеther campaigns targeted cation and outreach remand, fact, FHA. On violated the discriminatory advertising. roommate that Roommate’s court held district spent campaigns The resources on those discriminatory preferences prompting litigation. were not associated Be users, that matching users based on from cause Roommate’s conduct caused the prefer- these publishing information and independent of FHCs to divert resources FEHA, and violated the FHA and ences litigation costs and frustrated their central enjoined from those activities. Roommate mission, we conclude that the have FHCs grant summary appeals Rоommate organizational standing. injunction, and judgment permanent awarding the the district court’s order also ANALYSIS $494,714.40 attorney’s fees. The FHCs If the FHA extends to shared the amount of the at- cross-appeal FHCs situations, quite it’s clear that what Room- torney’s fees. mate amounts to a violation. The does question ap- the FHA pivotal whether STANDING plies roommates. that argues Roommate the FHCs suffer standing lack because didn’t I organi injury. actual We’ve held that prohibits The FHA discrimination on it standing to sue [when] zation has “direct sex, “race, color, religion, fa- the basis of both a drain on its resources from showed status, origin” milial or national and frustration a diversion of its resources dwelling.” 42 “sale or rental U.S.C. mission.” Fair Hous. Marin of its added). 3604(b) FHA (emphasis § The also (9th Cir.2002). Combs, 899, 905 285 F.3d illegal it “ makes However, ‘standing must be established make, print, publish, or or cause to be by filed independent of the lawsuit ” made, notice, published any printed, or de Jornaleros de Re plaintiff.’ Comite statement, advertisement, with re- or Beach, City Redondo dondo Beach spect dwelling ‍‌​​​‌‌‌​​‌​‌‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌​​​​‌​​​​‌​​‌‌​​​‌‍to the sale or rental aof (9th Cir.2011) (quoting 657 F.3d limitation, any preference, that indicates Lakewood, 272 F.3d City Walker v. race, color, or discrimination based (9th Cir.2001)). organi An 1124 n. 3 sex, status, familial or religion, handicap, injury by [an] zation “cannot manufacture an intention to make origin, national or simply or choos incurring litigation costs limitation, or any preference, such dis- money fixing problem spend crimination. otherwise would not affect added). 3604(c) The Trabajadores (emphasis de Id. at all.” La Asociacion de Forest, meaning on the 624 reach of the statute turns City Lake Forest v. Lake (9th Cir.2010); “dwelling.” see also of F.3d ment, “dwelling” doing FHA as so leads to awkward defines results. structure, thereof portion applying or And the FHA to the selection of “any building, as, occupied designed or or in certainly which is roommates almost leads to re- as, occupancy a residence tended for that defy prevalent sults mores when the 3602(b). A Nonethеless, families.” Id. one or more passed. statute was this in- a living designed unit dwelling is thus wholly implausible is not terpretation occupancy family, mean for intended normally it, adopting we would consider ordinarily elements ing that has the given the FHA is a remedial statute family with a resi generally associated broadly. Therefore, that we construe spaces, bathroom and sleeping dence: concerns, turn to constitutional which pro- facilities, areas, kitchen common strong countervailing vide considerations. rooms, hallways. dens and II difficult, impossi- though It would be ble, single-family house or recog to divide Court has apartment separate “dwellings” into nized “the freedom to enter into and the statute. a purposes “dwelling” of Is a carry private certain intimate or rela right a plus bedroom to access common tionships is a fundamental element of lib if areas? roommates share a bed- What erty by Rights.” Bill of protected Bd. a a “dwelling” room? Could be bottom Rotary v. Rotary Dirs. Int’l Club of bunk an prac- Duarte, and half armoire? It makes 537, 545, 1940, 481 U.S. interpret “dwelling” tical sense to (1987). as an 95 L.Ed.2d 474 “[C]hoices to enter independent living unit the FHA stop into and maintain certain intimate human at the front door. relationships against must be secured un due intrusion the State because of the Congress

There’s no indication that in- role relаtionships safeguarding personal tended to interfere with relation- the individual freedom is central to ships inside the home. Congress wanted our constitutional scheme.” Roberts v. to problem address the of landlords dis- 609, Jaycees, U.S. 468 U.S. 104 criminating in the sale and rental hous- (1984). S.Ct. 82 462 L.Ed.2d Courts ing, deprived protected which classes of right have extended the of intimate associ housing opportunities. But a business marriage, to bearing, ation child child rear transaction a between tenant and landlord ing and cohabitation with relatives. Id. quite is arrangement different from an right protects only While the “highly per between people sharing two same liv- IDK, relationships,” sonal Inс. v. Clark ing space. seriously Congress We doubt (9th Cir.1988) Cnty., 836 F.2d 1193 meant the FHA apply to to the latter. Roberts, 618, 104 (quoting at 468 U.S. S.Ct. Consider, example, prohibi- the FHA’s 3244), right isn’t exclusively restricted tion against sex discrimination. Could family, Int’l, Rotary to Bd. Dirs. 481 1960s, Congress, in the really have meant right U.S. at S.Ct. 1940. to that women must accept men as room- implies right association also to asso Telling may mates? they women not law- Roberts, ciate. at U.S. S.Ct. fully men from of accept- exclude the list able roommates would be controversial

today; it would have been scandalous in To particular determine whether a the 1960s. relationship right to “size, possible dwelling

While it’s to pur read to intimate associatiоn we look to mean of a sub-parts apart- pose, selectivity, home or and whether others are suspect illegal of the rela in whatever activities aspects critical excluded from Int'l, in. they engage Rotary tionship.” Bd. of Dirs. room 107 S.Ct. 1940. The U.S. of an individual’s regulation Government People easily qualifies: relationship

mate ability pick roommate thus intrudes roommates; very few generally have home, special into the which “is entitled roommates; choosing are selective private protection the center of the lives from the crit non-roommates are excluded Carter, people.” of our Minnesota rеlationship, such as aspects ical of the 142 L.Ed.2d 373 S.Ct. from imme using spaces. Aside J., (Kennedy, concurring). “Liberty partner, a romantic it’s family diate gov protects person from unwarranted relationship more inti imagine hard dwelling into a or other ernment intrusions roommates, who mate than that between private places. In our tradition State rooms, Mtchens, rooms, dining share omnipresent home.” is not Law bathrooms, even bedrooms. Texas, 558, 562, 123 rence Holding ac- a roommate’s unfettered Because of FHA a home or applies inside home, choosing a roommate cess government apartment would allow safety privacy and impliсates significant ability restrict our to choose roommates home is the center of considerations. The lifestyles. This compatible with our would Roommates note our private our lives. privacy, autonomy be a serious invasion of observe whom we comings goings, security. night, songs hear what bring back at shower, stages in in sing example, see us various look For women will often modesty learn intimate details most undress and female or roommates because prefer keep private. of us Roommates security to As roommates often concerns. areas, physical belongings girl also to our a have access and common shаre bathrooms to As the person. may and our want in her to walk around towel at our most recognized, are vulnera- a also boy. ‍‌​​​‌‌‌​​‌​‌‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌​​​​‌​​​​‌​​‌‌​​​‌‍might worry “[w]e in front of She asleep ble when are because we cannot or becom- we about advances unwanted sexual safety security monitor own or ing romantically our involved with someone Olson, v. belongings.” our Minnesota pay she must count on to the rent. 1684, U.S. 110 S.Ct. a may An orthodox want roommate Jew (1990). giv- on a roommate means Taking dietary restric- with similar beliefs and space him to the where we

ing full access tions, worry he to about so won’t have are most vulnerable. refriger- finding honey-baked ham the fully potato are ator next latkes. Non-Jew- important, exposed we Equally activities, may not understand or hab- ish roommates belongings, to a roommate’s rules., culinary its, faithfully life. follow all of the proclivities way and This could like the use of different silverware for (pornog- include matter we find offensive materials, prohibi- political dairy products, raphy, propa- meat religious (tobacco, food in against warming tion non-kosher ganda); drugs, fire- dangerous arms); Taking away the abili- (jazz, perfume, frequent kosher microwave. annoying similar visitors, ty to choose di- overnight furry pets); habits that roommates lifestyle (early etary religious restrictions and convictions with our incompatible are risers, cooks, the observant substantially cloth- will burden messy hogs, bathroom borrowers). ability practice his invite live his life ing you others Jew’s When is true faithfully. The same your you religion risk living quarters, share becom- “dwelling” independent faiths that call for to mean individuals of other hous- ing or rituals inside the dietary interpretation restrictions unit is a fair of the text congressional home. and consistent with intent. Because the of “dwelling” construction Department The U.S. include shared units raises substan- recently Development Urban dismissed concerns, tial adopt constitutional young woman for complaint against ad- narrower that construction excludes room- looking for “I am a female Chris- vertising, mate selection from the reach of the FHA. roommate,” on her tian church bulletin board. In its Determination of No Rea- Cause, explained

sonable HUD that “in III light provided of the facts after as- find Because we the FHA sessing the context of the unique adver- doesn’t apply sharing of living relationship tisement and the roommate units, it it’s follows not unlawful to Department involved ... defers to selecting discriminate roommate. As reaching Constitutional considerations unlawful, the underlying conduct is not its conclusions.” Fair Hous. Ctr. W. Roommate’s facilitation of discriminatory (Oct. Trida, Mich. v. No. 05-10-1738-8 roommate searches dоes not violate the (Determination 2010) of No Reasonable FHA. While Roommate itself has no inti Cause). right, mate association it is entitled to a “well-established principle It’s raise the constitutional claims of its users. be interpreted statutes will to avoid Boren, Craig See Frisby constitutional difficulties.” (1976). L.Ed.2d in Schultz, junction entered the district pre court “[W]here an oth cludes Roommate’s members from select acceptable erwise construction of a statute by government roommates unfettered would prob raise serious constitutional regulation. may Roommate therefore raise lems, the Court will construe the statute to these claims on their behalf. problems avoid such unless such construc plainly contrary tion is to the intent of IV Congress.” Pub. Citizen v. Dep’t U.S. of Justice, 491 U.S. 109 S.Ct. The same constitutional concerns (internal (1989) quotation right over to intimate association omitted). marks Because the FHA can would arise if Employ the California Fair reasonably (“FEHA”) be read either to include or ment and Act exclude arrangements, applied shared we to roommates. Accordingly, we can and interpret must choose construction that “housing accommodation” in sec 12955(c) raising avoids constitutional concerns. tion See FEHA to exclude the 289, 299-300, INS v. Cyr, St. 533 U.S. sharing of living Similarly units. to how 2271, 150 (2001)(“[I]f S.Ct. L.Ed.2d 347 an the FHA “dwelling,” defines the FEHA aсceptable otherwise construction of a stat defines “housing accommodation” “any as ute would prob building, structure, raise serious constitutional or portion thereof that lems, as, and where an alternative interpreta occupied is or intended for occupancy fairly as, tion of possible, the statute by we are a one or residence more families.” 12927(d). obligated to construe statute to avoid Cal. Gov. Code ambigu This (internal problems.”) citation and ous us apply definition allows to the canon omitted). quotations marks Reading constitutional avoidance to find that the ruling mates on difficult and the selection of аvoids does not reach FEHA unexplored issue. constitutional roommates. amendment, the FEHA carved also relies on a FEHC In a 1995 concurrence decision, authority of discrimination had from the definition but the FEHC no out to stating tending underlying or “the use words to address the constitutional being FEHA, housing that the advertised is thus imply problems raised sex,” only of one persons available had no reason to consider constitution- in a sharing areas “[w]here al canon: “Whether it is sound avoidance dwelling involved.” Cal. single unit is Gov. policy to discrimination in the selec- ban 12927(c)(2)(B). The concurrence roommates, Code tion of and whether such exemption that the infers from implicates policy rights constitutional must passed in 1974 have cov association, statute privacy questions are not acts of a roommates. But the subse ered for this to resolve. Those are decision nothing legislature tell us definitive quent courts, Legislature issues and the adopted by of laws an meaning about the respectively, Dep’t to decide.” Pension legislature. Larrick, See earlier Emp’t & Dec. Hous. FEHC Benefit Corp. Corp., v. LTV U.S. 98-12, Guar. No. n. 1 1998 WL at *5 2668, 110 1998). We, hand, (July on other history is a haz (“[Subsequent legislative duty have a to consider constitutional con- the intent an inferring basis for ardous adopt interpretation cerns and (internal quotation Congrеss.” earlier ruling constitutionality avoids of a on omitted)); see also Sullivan statute, marks if fairly Cyr, can do so. St. we See Finkelstein, 617, 632, 110 121 S.Ct. 2271. We (1990) (Scalia, J., 2658, 110 L.Ed.2d 563 are as as the district court capable based on concurring) (“Arguments subse issue, resolving de which we review ... legislative history should not be quent Therefore, see no any novo event. footnote.”). seriously, even taken question the dis- need remand this been legislature may have uncer trict court. statute, as passed tain about whether the earlier, roommates, covered decades Because individuals from se- precluding any doubt room

wanted remove sex, lecting roommates based sex- But mates could select each other sex. ual familial raises orientation and status light shed no on the the amendment can concerns, we in- substantial constitutional meaning “housing accommodation” apply- FEHA not terpret the FHA and FEHA, a statutory phrase the does not living ing sharing units. There- modify or reference. fore, prompting, that Roommate’s hold sorting Nothing language publishing in the of the and information forbid- provides “housing that a facilitate roommate selection is not statute accommo quarters. Accordingly, FHA FEHA. includes den dation” shared judgment we vacate the district court’s the canon of constitutional avoid Under entry of ance, judgment of the need and rеmand for interpretation statute are no long defendant. Because the FHCs reading, be the best so as it’s not vacate longer prevailing, we the district “fairly possible.” Cyr, St. 533 U.S. at 299- attorney’s and dis- “fairly possible” It court’s order for fees 121 S.Ct. 2271. attorney’s on fees apply cross-appeals miss that the statute does not room excluding as moot. ‍‌​​​‌‌‌​​‌​‌‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌​​​​‌​​​​‌​​‌‌​​​‌‍Interpreting mates. it as room- impair[s]” organizations’ ceptibly AND REMANDED IN inter-

VACATED PART; carrying IN PART est in their out core missions. DISMISSED

Havens, 378-79, S.Ct. U.S. IKUTA, Judge, concurring Circuit and

dissenting: Housing Fair Councils of San Fernando Valley and San are Diego non-profit organ- concur in majority’s holding

I (FHA) izations with the shared core mission of Fair Act does Housing ap- not ehminаting housing discrimination their sharing of I ply to the units. write They accomplish communities. however, this mis- my separately, express con- through, sion among things, other investi- for organiza- cern our circuit’s test education, gation, and outreach regarding standing tional cannot be reconciled with instances Further, housing discrimination. re- precedent. I re- sponse discovery to their of Roommate’s from Part IV of spectfully dissent the ma- allegedly discriminatory decision, housing advertise- jority FHA applies which anal- ments, Housing Fair spent Councils ysis Employment to the Fair California (FEHA) education, money investigation, on Housing Act claim of the two outreach regarding housing thе trend of Housing Fair Councils.

discrimination on the Internet.

I so good: organizations So far two dedi- combating housing cated to discrimination In order to as an standing organi- assert have spent money combating housing dis- zation, rather than behalf their mem- according crimination. But bers,1 the Fair Councils must precedent, Councils and our these they fact, injury just show suffered an organizations “injured” were for standing as if See individuals. Havens purposes by very expenses that ad- Realty Coleman, Corp. vanced their mission. This a ques- raises tion bring that threatens to loggerheads us words, In other each Fair Housing an Lujan: How can have Council must show that Roommate’s ac- legally protected interest in spending tions caused it to suffer “an invasion of a money to advance its core mission? (a) legally protected interest which is con- (b) particularized, crete and actual or A imminent.” Lujan Wild- Defenders of life, question The answer to this is embed- (citations and internal ded in illogical develop- erroneous omitted).2 quotation marks To meet this ment in correctly our case law. We have requirement, Fair Housing recognized that organizations have stand- must show that “per- Roommate’s conduct to sue on own behalf when a 1. Earth, neither the claim asserted would need to mane to the quested requires al members in the lawsuit.” Friends would otherwise have asserted own If either of the Fair right, Inc. v. Laidlaw Envtl. Servs. standing ^[2] organization’s purpose, the show the on behalf of interests at participation standing that its nor its "[1] stake to sue in their the members, of individu- members relief re- are and [3] (TOC), of ger- had the it 2. There also must be a causal connection be- Inc., and ing able decision. tween the ing. Councils assert the 528 U.S. injury injury must be redressable Id. at and the defendant’s only organizational 181, But 560-61, here, 120 S.Ct. 112 S.Ct. 2130. the Fair Hous- 693, conduct, a favor- stand- 145

1225 simply organi- a setback more than impair organiza- actions defendant’s abstract interests.” Id. zation’s social organization. as an ability to function tion’s an organization’s that invades An action Havens, this we language Based members, obtaining recruiting interest an two-prong organiza- a test: developed hinders collecting clearly dues funding, or injury if it establish an can show tion can function, ability to and organization’s that “(1) mis- organizational its frustration of See, standing. of injury for purposes anis sion; its of resources and diversion 1 Emps. Local Fed’n. Gov’t e.g., Am. of [challenged actions].” Smith combat (9th Cir.2007) Stone, 1033 502 F.Sd 358 Prop. Corp., & Dev. F.3d v. Pac. (“[A]n difficulty recruiting un- increased (9th Cir.2004). our articulation While and as ‘concrete qualifies ion members Havens, with our of the test is consistent City injury”); Walker v. demonstrable’ away it from the of has drifted application (9th Lakewood, 1124-25 F.3d actually organization that an requirement Cir.2001) organization an was (holding that injury. suffer an delayed by, things, other injured among Smith, example, for In considered government payments contractual organization an dedicated to whether contract); client’s non-renewal “eliminatfing] against indi- discrimination Cty. v. Indus. Sonoma Ass’n Constr. by ensuring com- viduals with disabilities (9th Petaluma, F.2d City of pliance [accessibility] with laws” had Cir.1975) build- (holding that restrictive standing developer to sue a estate real injured of builders plan an association properties alleged constructed with who because it decreased very “in a real sense” and construction defects that violat- design consequently, member- construction that those laws. Id. at 1105. Wе held ed association). for ship dues goal organization’s ultimate because in- against has held that was to eliminate discrimination also disabilities, “[a]ny as an violation” ability function dividuals organization’s accessibility law ‍‌​​​‌‌‌​​‌​‌‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌​​​​‌​​​​‌​​‌‌​​​‌‍if its is to of the relevant constituted impaired purpose organization organization’s mission. specified type of service and a frustration provide Id.; see also Fair Hous. Marin organization actions hinder defendant’s (9th Cir.2002) Havens, Combs, core service. F.3d providing from that (holding organization’s 1114. that an mission Havens, equal housing opportunities, al- housing organization promoting a fair FHA, by the was frustrated equal required was to “assist leged that mission violations). FHA alleged through counseling and the defendant’s housing access to organization further held that the met Id. at We referral services.” other prong “diversion of resources” because asserted housing money spent it “in order to monitor discriminatory defendant’s “from organization’s abil- the violations” diverted resources frustrated the practices of— counseling promote ser- efforts awareness “provide referral other ity to ac- compliance and state home- with—federal for low- and moderate-income vices Smith, 358 at 1105. cessibility this laws.” F.3d Id. The Court held seekers.” made allegations no standing be- Yet allegation was sufficient organi- harmed the and de- allocation resources represented a “concrete cause Rather, any all that our organization’s way. ac- zation in Id. injury to the monstrable was that required for diversion consequent precedent on the drain tivities —with spent resources that organization far [that was] organizations’s resources — spend ways.” in other investigation, would education and outreach. “otherwise Be- Servs., bringing litigation, Legal organiza- Inc. v. Exec. fore El Rescate Of- Review, purposely F.2d tions decided to Immigration advance fice of (9th Cir.1991). by on focusing mission discrimination in housing advertisements, online such as Thus, organization held that an we have allegedly those contained on Roommate’s advancing in with a social interest enforce- site. Pursuant to this intentional allocation injured ment of a law the or- was when resources, Housing both Fair Councils money ganization spent enforcing that spent time investigating Roommate’s web- suspiciously like a harm law. This looks specific site to find instances of discrimina- simply organiza- that is “a setback to the Further, Housing tion. Fair Council San interests,” very tion’s abstract social Diego topic hosted conference “on the not a thing Havens indicated was “con- the Internet and fair housing” “con- injury to crete and demonstrable the or- approximately presen- ducted 49 outreach Havens, ganization’s activities.” subject. on the Housing tations” Fair 1114; see also S.Ct. Sierra Valley Council San Fernando “sent an Morton, 727, 738-39, Club v. fair packet education letter and housing (1972) (holding sixty-four media and advertising organization’s that an abstract interest in explicit sources with mention of the fair harm, problem, direct without is insuffi- housing advertising concerns with listings all, cient to standing). establish After form,” in the along electronic with “de- organization created advance enforce- vot[ing] problem more time to the of dis- ment of a not hampered law is in its criminatory listings” rental training its because the law mission is violаted: ab- short, In seminars. Fair violations, sent organization would spent money Councils investigating and Furthermore, have find a new mission. addressing problem they exact organization has no legally address, established to housing discrimina- in keeping budget interest allocation tion, in the way they exact planned to constant, especially in the face of new op- problems, address such education out- portunities to advance its mission. New reach. organizational by undertakings definition but, divert below, resources as shown If anything, their newfound topical focus about nothing per is diversion se housing Internet advertisements re- ruling harmful. Smith’s contrary flected the Fair Housing Councils’ consid- Supreme tension with the Court’s re- judgments ered of how could best quirement that an actually accomplish their goals of chang- face suffer a and particularized inju- “concrete client needs created new technolo- ry.” Lujan, 504 U.S. at 112 S.Ct. gy. they acknowledged, As the Internet was a “new frontier” discrimi- housing response nation. to this “trend” and B the “sheer of housing numbers” discrimi- brings This case the strain between our nation issues raised websites like case precedent law and Roommate’s, the a rupture. close to advertising “major made Internet focus above, As noted the Fair Housing Therefore, Coun- of outreach [their] efforts.” cils have the of eliminating mission unlaw- alleged “diversion” here voluntary was a discrimination, ful housing in part through redirection more resources to areas

1227 acceptable construction a statute would housing problems there were more where problems, raise serious constitutional Housing the Fair Councils and where to bigger impact advancing Court will construe statute avoid could make adaptive problems.” This such Edward J. DeBartolo represents missions. their Corp. Bldg. not v. Fl. Coast & Constr. savvy organizational management, Gulf Council, 575, 568, Great- Trades 485 U.S. injury. Emp’t See Fair Council of (1988). Wash., Mktg. But Corp., 28 S.Ct. Inc. BMC er (D.C.Cir.1994) (“One only tool can used interpretive can this be F.3d ambiguous. It not sаy allegedly dis- when a statute is does hardly [an that BMC injured give power has federal courts the to “rewrite a criminatory employer] state to conform it to constitutional merely because the has law Council Council requirements.” Virginia v. Am. money would better Booksel decided that be Ass’n, Inc., 383, 397, by testing counseling than lers 484 U.S. BMC spent (1988). 636, 98 L.Ed.2d 782 researching.”). or case, In FEHA’s record, language and its Room- it is clear that Given this application by agency the California tasked did not the Fair mate’s activities cause interpreting suggest it that FEHA is injury-in-fact to incur an Councils “unambiguous point on the under consider- Lujan standard. The Fair that meets the States, ation here.” See Salinаs v. United no suffered invasion of 118 S.Ct. 139 L.Ed.2d organizational obtaining interest in expressly FEHA defines “dis- mem- collecting recruiting or funding, dues including crimination” as not “the use of bers; they hampered nor from ad- stating tending imply words that the holding In other- vancing their mission. only housing being advertised is available wise, precedent, faithful our but we are sex,” persons of one in a situation Lujan. unfaithful to sharing areas “[w]here con- precedent is Where dwelling single unit is involved.” Cal. Gov. trary precedent, to our we are the ones 12927(c)(2)(B). is language Code This change. have to Atonio v. Wards Cf. not the FHA. Because statute’s “men- Co., Inc., Packing 810 F.2d Cove example] implies tion of the exclusion [one (9th Cir.1987). suggest I is 1478-79 mentioned,” not United Domin- others time we revisited our circuit’s test en banc. States, Indus., Inc. ion v. United 150 L.Ed.2d II (2001), definition of “discrimina- FEHA’s 12927(c)(2)(B) expresses my concern about our tion” in addition respectfully exempt I intent standing inquiry, legislature’s must dis- state sex- specific for shared majority’s “apply from the decision to sent advertisements single dwelling to units in a from restric- the canon of constitutional avoidance FEHA, exempt advertise- that FEHA does not reach the selec- tions of but find Maj. Op. at 1222-23. ments that discriminate on basis tion of roommates.” characteristics, other interpretive canon constitutional religion.3 otherwise race or avoidance directs that “where an Maj. ignore legislature.” Op. But at 1223. majority contends that we can earlier 3. The determining ambigu- whether a to FEHA the "acts of statute this amendment because ous, subsequent legislature nothing we must the current tell us defini- construe version law, used to See Red Lion meaning adopted laws not what it be. tive about the 122 I reading respectfully

This dissent plain-language from Part IV of the 12927(c)(2)(B) opinion. § is confirmed the deci- Employment sion of the California Fair in Dep’t Commission4 Larrick, Housing v. FEHC

Emp’t and (July Dec. No. WL 750901 1998). involved two Larrick roommates potential not to who decided rent to a third she was black. roommate because Id. at *3. that “plain The Commission held Jeffrey FARMER, Robert FEHA language” applied this shared Petitioner-Appellant, living prohibited situation the two v. rejecting applicant roommates “from McDANIEL, Warden, E.K. the basis of race and color.” Id. at *5. Respondent-Appellee. conclusion, arriving at this the Commission stated none of exceptions FEHA’s No. 10-99017. applicable, specifically noting that United States of Appeals, 12927(c)(2)(B) (but sex-specific “allow[s] Ninth Circuit. not race-specific) advertisements for single dwellings living with shared areas.” Id. at Argued and Submitted Dec. 2011. *6 n. 2. Filed Feb. 2012. (unlike FHA)

Because FEHA un- ambiguous regarding applicability its arrangements, shared living the majority cannot interpret way FEHA in a to avoid problems cоnstitutional may arise if applied the act is to bar advertisements shared arrangements that dis-

criminate on basis of charac- teristics ‍‌​​​‌‌‌​​‌​‌‌‌‌‌‌​​​‌​‌‌​‌​‌‌‌​​​​‌​​​​‌​​‌‌​​​‌‍religion. such race or

constitutionality of applicability FEHA’s arrangements shared is both novel and difficult. Given that neither the

Fair Housing Councils nor Roommate ad- briefs,

dressed issue in this I would remand issue this to allow the district

court to from the parties hear and rule on first Therefore, issue instance. FCC, 367, 380-81, Broad. Co. "agency Commission is the California 23 L.Ed.2d (holding charged adjudicating FEHA enforcement give "great must weight” court interpreting by regula- actions and FEHA clarify to a prop- amendments statute that its State, tion.” Green 42 Cal.4th construction). er duly Once a enacted (2007); Cal.Rptr.3d 165 P.3d statute, longer amendment clarifies a it is no 12935(a). see also Cal. Gov.Code ambiguous, cannot treat it as such

pointing ambiguity. former

Case Details

Case Name: Fair Housing Council v. Roommate. Com, LLC

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 2, 2012

Citation: 666 F.3d 1216

Docket Number: 09-55272, 09-55875, 09-55969

Court Abbreviation: 9th Cir.