Fair Housing Council v. Roommate. Com, LLC

Opinion by Chief Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge IKUTA.

OPINION

There’s no place like home. In the privacy of your own home, you can take off your coat, kick off your shoes, let your guard down and be completely yourself. While we usually share our homes only with friends and family, sometimes we need to take in a stranger to help pay the rent. When that happens, can the government limit whom we choose? Specifically, do the anti-discrimination provisions of the Fair Housing Act (“FHA”) extend to the selection of roommates?

FACTS

Roommate.com, LLC (“Roommate”) operates an internet-based business that helps roommates find each other. Roommate’s website receives over 40,000 visits a day and roughly a million new postings for roommates are created each year. When users sign up, they must create a profile by answering a series of questions about their sex, sexual orientation and whether children will be living with them. An open-ended “Additional Comments” section lets users include information not prompted by the questionnaire. Users are asked to list their preferences for roommate characteristics, including sex, sexual orientation and familial…

concurring and dissenting:

I concur in the majority’s holding that the Fair Housing Act (FHA) does not apply to the sharing of living units. I write separately, however, to express my concern that our circuit’s test for organizational standing cannot be reconciled with Supreme Court precedent. Further, I respectfully dissent from Part IV of the majority decision, which applies its FHA analysis to the California Fair Employment and Housing Act (FEHA) claim of the two Fair Housing Councils.

I

In order to assert standing as an organization, rather than on behalf of their members, 1 the Fair Housing Councils must show they suffered an injury in fact, just as if they were individuals. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 , 102 S.Ct. 1114 , 71 L.Ed.2d 214 (1982). In other words, each Fair Housing Council must show that Roommate’s actions caused it to suffer “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted). 2 To meet this requirement, the Fair Housing Councils…

Elizabeth Brancart (argued), Christopher Brancart, Brancart & Brancart, Pescadero, CA, for the plaintiff-appellees and cross-appellants.

Timothy L. Alger (argued), Susan B. Estrich, Scott B. Kidman, Christopher E. Price, Quinn Emanuel Urquhart & Hedges, LLP, Los Angeles, CA, for the defendant-appellant and cross-appellee.

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT and SANDRA S. IKUTA, Circuit Judges.

Opinion by Chief Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge IKUTA.

KOZINSKI, Chief Judge:

There's no place like home. In the privacy of your own home, you can take off your coat, kick off your shoes, let your guard down and be completely yourself. While we usually share our homes only with friends and family, sometimes we need to take in a stranger to help pay the rent. When that happens, can the government limit whom we choose? Specifically, do the anti-discrimination provisions of the Fair Housing Act ("FHA") extend to the selection of roommates?

Roommate.com, LLC ("Roommate") operates an internet-based business that helps roommates find each other. Roommate's website receives over 40,000 visits a day and roughly a million new postings for…