A little loss of liberty

Yesterday's decision by the Ninth Circuit in Fair Housing Council v. Roommates.com illustrates one of the many ways in which promotion of the homosexuality agenda and judicial activism both infringe upon the liberty of all. For a fair treatment of the decision and its legal analysis, see this post by Eugene Volokh. In short, the court decided that Roommates.com does not enjoy immunity under the federal Communications Decency Act where it requires applicants for its roommate matching service to disclose their sex, sexual orientation, and whether they would bring children into the residence. Immunity is important to Roommates.com because the Federal Fair Housing Act forbids advertisement for housing that discriminates on the basis of race, color, religion, sex, familial status, or national origin (but not sexual orientation) and California law prohibits discrimination on the basis of sexial orientation and marital status, among other factors.

Volokh thinks the decision is correct for the reasons stated in the majority opinion. I, not surprisingly, think the decision incorrect for the reasons stated in the dissent. The key to understanding why this case was wrongly decided is to note that interactive service providers such as Roommates.com (and Facebook, Google, etc.) simply sort and deliver information provided by third parties. Congress expressly immunized this activity in the Communications Decency Act. Roommates.com is not alleged to have communicated any discriminatory information in violation of the Federal Fair Housing Act. Instead, the majority assumed for the sake of its decision that the content of Roommates.com is discriminatory and illegal. That Roommates.com requires its users to identify their sex and sexual orientation is problematic only if solicitation of that information itself violates the FHA. The dissent is thus surely right that the majority has conflated the issue of liability under the FHA with the issue of immunity under the CDA.

In short, the court overreached. Overreaching has become commonplace in the Ninth Circuit. But the ubiquity of liberal activism in that circuit does not make the activism right.

The majority's reasoning defies both common sense and the text of the Fair Housing Act. Judge Kozinski, writing for the majority yesterday in Roommates.com, asserted that asking roommate candidates to disclose their sex and sexual orientation "is no different from a real estate broker in real life saying, 'Tell me whether you’re Jewish or you can find yourself another broker.'" This claim is risible. Of course there is no rational reason to refuse to live with or rent to a Jew. However, there are obvious reasons why a straight male might not want to share his intimate living quarters with a woman, a homosexual male, or a married couple.

For this reason, the Federal Fair Housing exempts from its reach landlords who live in the same dwelling as their tenants. In other words, the FHA exempts roommates. But the Ninth Circuit has now re-written the FHA, extending it into the private residences of those who wish to lease residential space. That California has chosen to prohibit housing discrimination on the basis of sexual orientation adds to the tyranny of the Ninth Circuit's decision.