Fair Housing and Roommates: Contesting a Presumption of Constitutionality

I. INTRODUCTION Gene Kavenoki wanted to rent out a room in his apartment to a stable person with whom he could get along well.1 Unaware that he was engaging in multiple violations of federal law, die graduate student posted the following advertisement on Roommates.com: "I am not looking for freaks, geeks, prostitutes (male or female), druggies, pet cobras, drama, black Muslims or mortgage brokers."2 Responding to allegations that he was discriminating on the basis of race, Kavenoki explained that he was doing "no such thing," but was instead "discriminating against people who don't share my slighdy warped sense of humor."3 Although Kavenoki intended only to find a suitable roommate, his advertisement violated section 3604(c) of the Fair Housing Act ("FHA") because the language of the advertisement was facially discriminatory on both racial and religious grounds.4 While, under an exception to the FHA,5 Kavenoki could legally discriminate6-based on race, religion, or any other basis-in his actual roommate choice, he could not legally declare his discriminatory intentions or criteria in an advertisement. Kavenoki's situation underscores the incongruous effects of the FHA on those searching for a roommate: Although someone looking for a roommate is making a choice about a person to share living spaces and private circumstances, the person looking for a roommate may not put personal preferences in a roommate advertisement. Additionally, while someone looking for a roommate may actually discriminate in making his choice, he may not state his "discriminatory" preferences in his advertisement. This Comment argues that section 3604(c) of the FHA is unconstitutional as applied to roommate choice.7 Specifically, section 3604(c) is unconstitutional under the First Amendment as embodied in the commercial speech doctrine and in the right to freedom of intimate association.8 Because real tension exists between antidiscrimination policies and constitutional rights, Congress and the courts must carefully consider how to best accommodate both core constitutional rights and important anti-discrimination policies. This Comment will first introduce the FHA and the historic treatment of the current question in Part II. Part III will argue that section 3604(c) of the FHA is unconstitutional under the commercial speech doctrine. Part IV will argue that section 3604(c) is also unconstitutional under the right to freedom of intimate association. Part V will discuss the importance of anti-discrimination laws and the costs and benefits of three possible options that attempt to accommodate both individual constitutional rights and antidiscrimination policies. Part VI will provide a brief conclusion. II. THE FAIR HOUSING ACT The FHA, which has its roots in emotionally charged historical practices, contains provisions that put some individuals, including those seeking roommates, in a precarious position. While courts have generally rejected assertions that portions of the FHA are unconstitutional, their rejection is unfounded because these claims rest on strong constitutional doctrines and absolutely merit attention. A. Introduction to the Fair Housing Act 1. The historical background In 1968, Congress enacted the FHA9 in a desperate attempt to reduce racial discrimination in housing.10 Although it had been two decades since the Supreme Court had found that the enforcement of racially discriminatory housing covenants violated the Equal Protection Clause,11 racial discrimination in housing was still rampant and discrimination had merely retreated to less transparent forms.12 For example, mortgage lenders refused to make loans to individuals in minority-predominant neighborhoods, loan application procedures discouraged minorities, and marketing policies often excluded minority areas.13 In the 1960s, riots in urban areas made the need for change blatantly apparent. Trying to understand the urban dynamic, the government created the National Advisory Commission on Civil Disorders. …