Is Seeking a Religious Roommate a Civil Rights Violation?

[Evo]

I looked up the "fair housing act" and it's utterly ridiculous. They state that in the case of a roommate, you can freely discriminate, you just can't put it in writing.

For example, you can't say "property has no wheelchair access", the poor handicapped person has to go out to your house to find out the place wouldn't work out.

It's also illegal to state things like "perfect for single or couple", "nice, quiet neighborhood".

We live in a sick world, IMO.

http://www.craigslist.org/about/FHA#examples

 

[Ivan Seeking]

I looked up the "fair housing act" and it's utterly ridiculous. They state that in the case of a roommate, you can freely discriminate, you just can't put it in writing.

Huh, sure enough. That IS nuts.

I would like to know the basis for that law. This is the sort of thing that once made me a Republican.

 

[BobG]

And, considering the issue is banning the advertisement of a legal activity, then this actually is a free speech issue.

 

[Ivan Seeking]

And, considering the issue is banning the advertisement of a legal activity, then this actually is a free speech issue.

Free speech generally means freedom of expression. This is not an issue of expressed ideas being protected.

 

[Ivan Seeking]

I bet I know the basis for the law: It would be impossible to enforce the law if someone had to check on the actual dwelling for each advertisement. It is a practical solution needed to protect the rights of renters generally and to avoid abuses that would be a nightmare to verify in each and every case.

 

[JaredJames]

For example, you can't say "property has no wheelchair access", the poor handicapped person has to go out to your house to find out the place wouldn't work out.

It's also illegal to state things like "perfect for single or couple", "nice, quiet neighborhood".

http://www.craigslist.org/about/FHA#examples

Virtually every ad I've seen for roommates has violated at least one of these. Then again, I'm in the UK and from what I can tell (looking it up now) as long as you don't take things too far they don't care what you advertise.

 

[Evo]

And, considering the issue is banning the advertisement of a legal activity, then this actually is a free speech issue.

I'd have to disagree, you can illegally advertise a legal product and it's not protected under free speech. Stating a preference is an illegal advertisement in this case.

I'll admit it's a really dumb law.

Ivan is right (above). He posted while I was posting.

 

[JaredJames]

It would appear, that in the UK other laws cover the various issues regarding discrimination for landlords. I haven't found anything specific on house sharing though.

http://www.accommodationseek.co.uk/responsibilities-landlords-tenants.html

Landlords and tenants each have certain rights and responsibilities when they enter into an agreement about the letting of a rental property. Most of these rights and responsibilities are enumerated in the rental agreement form that each party signs, landlord tenant law and laws related to equality such as The Disability Discrimination Act, The Race Relations Act and the Sex Discrimination Act. If you are considering becoming involved with a rental property, either as a landlord or tenant, make sure that you fully investigate your responsibilities before you make any firm decisions.

 

[BobG]

Free speech generally means freedom of expression. This is not an issue of expressed ideas being protected.

It's commercial speech, which has less protection than political speech, but has limited protection, none the less:

CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM'N

(a) Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquires yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Or, more succintly:
1.Is the expression protected by the First Amendment? For speech to come within that provision it must concern lawful activity and not be misleading.
2.Is the asserted governmental interest substantial?
3.Does the regulation directly advance the governmental interest asserted?
4.Is the regulation more extensive than is necessary to serve that interest?

The first test is clearly passed.

The second test is debatable? Does the government have a substantial interest in who you choose for a roommate?

It's legitimate to ban certain advertisements if the ban advances a substantial government interest - preventing large amounts of the population from suffering the diseases associated with smoking, for example. There may be a lot of debate about whether the government should be interested in the personal health of individual citizens, but it's a legitimate restriction if the government wins its debate.

To say making the advertisement about roommates illegal is to suggest that the government has a significant interest when it comes to making choices about who people share their living space with. I think that's a lot tougher test to pass than interests about the health of the general population.

In other words, the dumbness of the law is an indication that the restriction of the advertising is unconstitutional. The wisdom of the law is an indication that the restriction of the advertising is constitutional.

It's a free speech issue regardless of which way the issue is decided.

 

[Evo]

The test is 4 part and these are the 4 tests.

In 1980 the Court established a formal test for determining whether restrictions on commercial speech are constitutionally permissible–now familiar in the courts as the Central Hudson test. The Court defined commercial speech as "expression related solely to the economic interests of the speaker and its audience," and ruled that government may ban "forms of communication more likely to deceive the public than to inform it, or commercial speech related to illegal activity." To regulate commercial speech that is neither misleading nor unlawful, the Court established a four-part test: 1) the State has to assert a "substantial interest" to be achieved in regulating the speech; 2) the regulation must be in proportion to that interest; 3) the regulation must directly advance the State interest; 4) the regulation must be the most limited means available to achieving the State’s interest.

http://www.ibiblio.org/pub/electronic-publications/stay-free/archives/17/freespeech.html

Edit: The test was updated in 1989

The "Central Hudson"Test
This frequently invoked test for analyzing commercial speech regulations has recently been criticized by several justices. At present, only four justices seem committed to using the test.
Regulations affecting commercial speech do not violate the First Amendment if:
1. The regulated speech concerns an illegal activity,
2. The speech is misleading, or
3. The government's interest in restricting the speech is substantial, the regulation in question directly advances the government's interest, and
4. The regulation is narrowly tailored* to serve the government's interest.

*The original Central Hudson test required that the government prove the regulation was no more restrictive of speech than necessary to serve its interest, but in a 1989 case the Court modified the test slightly to the form above.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/commercial.htm

and here is how they get away with it

the Fair Housing Act is authorized by the Fifth and Fourteenth Amendments, in which Congress is given the power to pass laws ensuring that the federal and state governments do not deny any person the equal protection of the laws.

That's got to be a typo, it probably should be section 5 of the 14th amendment.

http://www.answers.com/topic/fair-housing-act-of-1968

 

[Newai]

The dwelling is already rented. After that, the tenant is free to live there pretty much how he/she pleases. She can invite anyone over she wants, and kick them out for any reason, or no reason, discriminating any which way she chooses. She's not running a business; she's inviting a social partner to live with her, to help with rent or not.

 

[JaredJames]

The dwelling is already rented. After that, the tenant is free to live there pretty much how he/she pleases. She can invite anyone over she wants, and kick them out for any reason, or no reason, discriminating any which way she chooses. She's not running a business; she's inviting a social partner to live with her, to help with rent or not.

I find this a tricky definition. How would you apply this to a private home, that has no mortgage (let's take it that it's been paid off) and you rent out your spare rooms (perhaps to help with paying household bills or just for a bit of extra cash)?

Although your definition applies, they are gaining income from such an affair and so it is in a basic sense, a business. Although I'm not sure how the laws apply to said situation. I don't know if it is classed as a business, although I know in the UK you would have to declare the income from it for tax purposes. So again, I'm not sure exactly how the law would apply here. If a contract is signed you are covered by the landlord/tennant laws, if one isn't I'm not sure what happens.

In the states, are there specific laws for landlords/tennants as per the UK?

 

[Evo]

In the states, are there specific laws for landlords/tennants as per the UK?

Yes.

Decision-making: Although the prohibition on discriminatory advertising applies to roommate and shared housing situations, federal Fair Housing laws do not cover the basis of decisions made by landowners who own less than four units, and live in one of the units. This means that in a situation in which a landlord owns less than four rental units, and lives in one of the units, it is legal for the owner to discriminate in the selection process based on the aforementioned categories, but it is illegal for that owner to advertise or otherwise make a statement expressing that discriminatory preference.

Under federal Fair Housing law, the prohibition on discriminatory advertisements applies to all situations except the following:

Shared Housing Exemption -- If you are advertising a shared housing unit, in which tenants will be sharing a bathroom, kitchen, or other common area, you may express a preference based upon sex only.

http://www.craigslist.org/about/FHA#roommates

 

[JaredJames]

but it is illegal for that owner to advertise or otherwise make a statement expressing that discriminatory preference.

This law just doesn't make sense to me. It wasn't long ago people were arguing that the WBC had the right to walk around with banners discriminating against homosexuals and yet now it is illegal to advertise or state something as simple as the type of person you want to live in your property.

 

[Evo]

This law just doesn't make sense to me. It wasn't long ago people were arguing that the WBC had the right to walk around with banners discriminating against homosexuals and yet now it is illegal to advertise or state something as simple as the type of person you want to live in your property.

It all stems from the Civil Rights movement, it was originally Title VIII of the Civil Rights Act of 1968. People went a bit overboard it seems.

 

[JaredJames]

It all stems from the Civil Rights movement, it was originally Title VIII of the Civil Rights Act of 1968. People went a bit overboard it seems.

A bit overboard? Sounds like they've completely jumped ship!

Seriously, after all the ranting in the WBC funeral thread regarding personal freedoms in the US, as an outsider when I see something like that written in a law and people (possibly even the same people) defending it it just looks like they aren't really thinking things through, and in my opinion, as far as I'm concerned it removes credibility as I can't take people like that seriously.

It's OK for me to walk around with a banner calling homosexuals every name under the sun, but to advertise/state I'd prefer not to have a gay flat mate/tennant. Woah there, I've crossed a line.

 

[BobG]

The quote describes how Craig's List interprets the FHA and a 1995 memo from Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity.

Decision-making: Although the prohibition on discriminatory advertising applies to roommate and shared housing situations, federal Fair Housing laws do not cover the basis of decisions made by landowners who own less than four units, and live in one of the units. This means that in a situation in which a landlord owns less than four rental units, and lives in one of the units, it is legal for the owner to discriminate in the selection process based on the aforementioned categories, but it is illegal for that owner to advertise or otherwise make a statement expressing that discriminatory preference.

Under federal Fair Housing law, the prohibition on discriminatory advertisements applies to all situations except the following:

Shared Housing Exemption -- If you are advertising a shared housing unit, in which tenants will be sharing a bathroom, kitchen, or other common area, you may express a preference based upon sex only.

It would probably be beneficial to see the reference in http://www.hud.gov/offices/fheo/disabilities/sect804achtenberg.pdf so a person could decide for themselves whether Craig's List interpreted the memo correctly and whether Atchenberg interpreted the FHA correctly when she wrote the memo:

For example, Intake staff should not accept a complaint against a newspaper for running an advertisement which includes the phrase female roommate wanted because the advertisement does not indicate whether the requirements for the shared living exception have been met. Publishers can rely on the representations of the individual placing the ad that shared living arrangements apply to the property in question. Persons placing such advertisements, however, are responsible for satisfying the conditions for the exemption. Thus, an ad for a female roommate could result in liability for the person placing the ad if the housing being advertised is actually a separate dwelling unit without shared living spaces. See 24 CFR 109.20.

The exemption for gender was an example, not a comprehensive list of when exemptions were warranted. And I'm not sure whether Atchenberg's memo correctly interpreted the FHA, since the FHA specifically states the exemption does not apply to advertisements.

None the less, HUD declined to enforce advertising violations when the advertisement stated restrictions that were legal (shared living area, etc).

 

[Evo]

A bit overboard? Sounds like they've completely jumped ship!

Seriously, after all the ranting in the WBC funeral thread regarding personal freedoms in the US, as an outsider when I see something like that written in a law and people (possibly even the same people) defending it it just looks like they aren't really thinking things through, and in my opinion, as far as I'm concerned it removes credibility as I can't take people like that seriously.

It's OK for me to walk around with a banner calling homosexuals every name under the sun, but to advertise/state I'd prefer not to have a gay flat mate/tennant. Woah there, I've crossed a line.

Hopefully the flak over this incident enrages enough people that the law will be changed, but it's doubtful.

 

[Evo]

The quote describes how Craig's List interprets the FHA and a 1995 memo from Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity.



It would probably be beneficial to see the reference in http://www.hud.gov/offices/fheo/disabilities/sect804achtenberg.pdf so a person could decide for themselves whether Craig's List interpreted the memo correctly and whether Atchenberg interpreted the FHA correctly when she wrote the memo:



The exemption for gender was an example, not a comprehensive list of when exemptions were warranted. And I'm not sure whether Atchenberg's memo correctly interpreted the FHA, since the FHA specifically states the exemption does not apply to advertisements.

None the less, HUD declined to enforce advertising violations when the advertisement stated restrictions that were legal (shared living area, etc).

I'm just amazed at the idiocy of the *advertisement* law. Doesn't this law prohibit basic disclosure? Truth in advertising? What benefit does it give the prospective renter to run all over town looking at places they have no chance of getting? It does absolutely nothing to prevent discrimination. What is the point?

 

[JaredJames]

Exactly Evo, you end up with situations where people aren't being told everything they need to know. By not advertising a place as not being easily accessible (perhaps 5 flights of stairs to it), you aren't providing accurate information. Older persons, disabled persons (heck even people with kids in pushchairs) need to know this otherwise they'll end up showing interest in places they simply cannot hope to get.

If anything I'd say you are giving false impressions in the adverts by not declaring everything.

 

[BobG]

An interesting comment on the consitutionality of the FHA restriction on advertising: http://www.allbusiness.com/society-social/religion-spirituality-religion/13878228-1.html

The comment summarizes the history of Supreme Court cases regarding advertising and the First Amendment. The attitude towards commercial speech has changed drastically over the last 40 years.

The restriction was legal when enacted in 1968, as advertising historically has not been afforded First Amendment protection.

The Central Hudson test came from a 1980 Supreme Court case. Cases upholding the constitutionality of the FHA restriction were pre-Central Hudson.

I'm not sure about the arguments about intimate associations as applied to sharing a house or apartment with a stranger, but it surely applies to advertisements (profiles) in on-line dating websites.

By the way, the article mentions one reason the FHA won't be changed by Congress. Would you really want to be the Congressman that introduces a bill allowing discriminatory advertisements? You know attack ads won't give the details of the bill - they'll just mention the part that generates the most negative responses.

This may well be a situation where Congress would beg the Supreme Court, "Please save us as we are incapable of saving ourselves!"

 

[Newai]

I find this a tricky definition. How would you apply this to a private home, that has no mortgage (let's take it that it's been paid off) and you rent out your spare rooms (perhaps to help with paying household bills or just for a bit of extra cash)?

I wouldn't. And I offered no definition. I described her situation. And her's is not a business.

In your example, the homeowner is making a profit. The Michigan woman I referred to is a tenant.

 

[JaredJames]

I wouldn't. And I offered no definition. I described her situation. And her's is not a business.

In your example, the homeowner is making a profit. The Michigan woman I referred to is a tenant.

But the money she receives for said room is strictly speaking, an income (unless the roommate is put on the original lease and so she receives none of it). Again, I don't know if this constitutes a business transaction.

 

[BobG]

But the money she receives for said room is strictly speaking, an income (unless the roommate is put on the original lease and so she receives none of it). Again, I don't know if this constitutes a business transaction.

It doesn't matter. It's exempted per http://www.fairhousing.com/index.cfm?method=page.display&pagename=FHA_3603 (the pertinent paragraphs were even quoted back in post #34, by the way).

Paragraph 1 would apply to renting one's personal dwelling out when the renter doesn't live there (a military family renting out their house while they're stationed overseas, for example).

Paragraph 2 would apply to renting to a roommate or renting out a room in one's own home.

I'm not sure what the law would be in the UK, though.

 

[Newai]

But the money she receives for said room is strictly speaking, an income (unless the roommate is put on the original lease and so she receives none of it). Again, I don't know if this constitutes a business transaction.

It's not an income. She's not making any money. She doesn't get a cent of it. Even though one roommate might be in possession of the other's rent half, that doesn't mean that money belongs to her. If we play with your take, you could approach this from the other renter's perspective and call her out for running a business, making a profit. Look at it this way:

So, one day, this new renter hands over her half of the rent to the landlord, instead of to her roommate. Does her roommate get to sue for an unpaid bill? Can she complain if the rent check isn't made out to her in her name, but rather the landlord's?

 

[JaredJames]

http://www.thefreedictionary.com/income

1. The amount of money or its equivalent received during a period of time in exchange for labor or services, from the sale of goods or property, or as profit from financial investments.
1. (Economics) the amount of monetary or other returns, either earned or unearned, accruing over a given period of time
2. (Business / Commerce) receipts; revenue

Now, let's not play dumb here. Any money she receives, is income.

If she is allowing someone the use of a room in exchange for money, then yes, she can sue if they don't pay. This has nothing to do with the landlord if the original lease is between the landlord and the woman. The lodger has no tie to the landlord and does not pay them any money. As you said yourself:

The dwelling is already rented. After that, the tenant is free to live there pretty much how he/she pleases. She can invite anyone over she wants, and kick them out for any reason, or no reason, discriminating any which way she chooses. She's not running a business; she's inviting a social partner to live with her, to help with rent or not.

Nothing to do with the landlord.

Why doesn't she get a cent of it? If she chooses to use it to lower the rent then so be it, otherwise she does with it as she pleases. The only time your above scenario, where the money paid in exchange for the room, is specifically for rent to the landlord is if they are on the original lease for the place from the landlord.

 

[Al68]

Free speech generally means freedom of expression. This is not an issue of expressed ideas being protected.

Freedom of speech is not limited to "expressed ideas". No such distinction is contained in the first amendment.

And according to the Universal Declaration of Human Rights: this right includes freedom to...seek, receive and impart information and ideas through any media and regardless of frontiers."

http://www.un.org/en/documents/udhr/

 

[Al68]

I'd have to disagree, you can illegally advertise a legal product and it's not protected under free speech. Stating a preference is an illegal advertisement in this case.

That's exactly what makes this a free speech issue: the fact that the speech in question is illegal despite the fact that it is unrelated to any illegal activity.

 

[mugaliens]

So a woman posts an ad on a church wall looking for a Christian roommate and gets slammed with a civil rights complaint.

http://www.foxnews.com/us/2010/10/2...stian-roommate-advertisement/?test=latestnews

If an athiest posts an add looking for a non-religious roommate, would that person be infringing on the civil rights of the religious?

I think the Fair Housing Center of West Michigan is going to get egg on their face for this one.

Agreed. What's next? Will we no longer be able to choose our spouses based on similar religious beliefs or the lack thereof simply because getting married usually involves moving in together? How about choosing a roommate based on their sex?

It is against the law to give preference to race, creed, and sex when you're renting out an entire unit (apartment, condo, or house), but the law actually protects one's right to choose a roommate based on whatever criteria one wants.

 

[Galteeth]

People slammed Rand Paul for objecting to a certain part of the Civil Rights Act. It is exactly this extension of that principle that forms the rational basis for the libertarian objection.

 

[loseyourname]

I'm just amazed at the idiocy of the *advertisement* law. Doesn't this law prohibit basic disclosure? Truth in advertising? What benefit does it give the prospective renter to run all over town looking at places they have no chance of getting? It does absolutely nothing to prevent discrimination. What is the point?

It isn't just this. I remember when my girlfriend and I were moving in together and getting a larger apartment, we went around and tried to ask whether there were a lot of young kids in the complex, to avoid the noise, and the leasing officers told us the FHA prevented them from revealing any demographic information about the renters. Apparently you're not even legally entitled to know who your neighbors are because that might allow you to discriminate in where you choose to live.

 

[Al68]

Apparently you're not even legally entitled to know who your neighbors are because that might allow you to discriminate in where you choose to live.

And just to beat a (dead?) horse a little more, you can discriminate all you want in this case. The disclosure of information is what is being outlawed by government.

 

[loseyourname]

My point being the law does not only prevent disclosure of intent to discriminate, but also disclosure of information that could be used by potential buyers or renters to discriminate. Interestingly, where I live right now, the leasing officers told us the renters were primarily military and especially German military. I wonder if it was actually legal for them to tell me that. I didn't ask.

 

[BobG]

The test is 4 part and these are the 4 tests.



http://www.ibiblio.org/pub/electronic-publications/stay-free/archives/17/freespeech.html

The "Central Hudson"Test
This frequently invoked test for analyzing commercial speech regulations has recently been criticized by several justices. At present, only four justices seem committed to using the test.
Regulations affecting commercial speech do not violate the First Amendment if:
1. The regulated speech concerns an illegal activity,
2. The speech is misleading, or
3. The government's interest in restricting the speech is substantial, the regulation in question directly advances the government's interest, and
4. The regulation is narrowly tailored* to serve the government's interest.

*The original Central Hudson test required that the government prove the regulation was no more restrictive of speech than necessary to serve its interest, but in a 1989 case the Court modified the test slightly to the form above.

Edit: The test was updated in 1989



http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/commercial.htm

and here is how they get away with it That's got to be a typo, it probably should be section 5 of the 14th amendment.

http://www.answers.com/topic/fair-housing-act-of-1968

So do restrictions on advertising for a roommate meet the Central Hudson test?

1. It is legal to discriminate when choosing a roommate, so the first test doesn't apply.

2. The advertisement was posted in a Christian church and requested a Christian roommate. The ad doesn't appear misleading on the surface, but there's not enough info to know if the ad is misleading or not. It could have been posted by three atheists hoping to lure a Christian roommate into their house so they could convert him/her to atheism. Assuming the woman was a Christian hoping to share an apartment with a fellow Christian, the ad probably isn't misleading.

3. Does restricting the speech serve the government's interest? In other words, by restricting the wording of advertisements, it could make it more difficult (and therefore less likely) for a person to discriminate when choosing a roommate. Is it in the public interest for people to share their living space with a more diverse crowd?

In a way, this is comparable to roommate assignments in a college dorm. Pairing of roommates in college dorms is done using a wide variety of methods, ranging from random assignments to filling out a questionaire to improve the chances of compatibility. Questions asked on questionaires list such things as whether the person is smoker/non-smoker, morning person/night person, neat person/unhygeinic slob, etc. No college discriminates by race, religion, nationality, sexual orientation, etc. Just about all colleges discriminate by gender when assigning roommates. Diversity in assigning roommates is seen as a positive at colleges.

Is diversity in finding a roommate/housemate in the normal world a positive attribute that the government should encourage? Will the advertising restrictions actually increase diversity in choosing roommates/housemates among the general public?

 

[Proton Soup]

It isn't just this. I remember when my girlfriend and I were moving in together and getting a larger apartment, we went around and tried to ask whether there were a lot of young kids in the complex, to avoid the noise, and the leasing officers told us the FHA prevented them from revealing any demographic information about the renters. Apparently you're not even legally entitled to know who your neighbors are because that might allow you to discriminate in where you choose to live.

is there an exception for "retirement communities"? because i was under the impression that they are pretty open about their discrimination.