Court Ruling Could Affect Gay Roommate Services
by Scott Stiffler
attention has been monopolized by the landmark May 15th California
Supreme Court ruling legalizing same-sex marriage in the Golden State,
another ruling in California may have very different repercussions. The
recent ruling from California’s Ninth Circuit may ultimately prohibit
roommate matching services--and any other businesses, for that
matter--from requiring that prospective clients disclose their sexual
preference or gender.
California’s Ninth Circuit Court of
Appeals ruled against Roommates.com, declaring it did not qualify for
the Communications Decency Act’s Section 230 Safe Harbor Protection.
That law gives service providers immunity to liability from the actions
of their clients so long as the provider is only supplying the forum and
not influencing or imposing content. According to the Fair Housing
Councils of San Fernando Valley and San Diego, Roommates.com crossed the
line when it required applicants to declare their sexual orientation as
a pretext to joining the site.
In addition, the site asked whether or not clients
had children; and, if so, how many. Although the court declared that
Roommates.com had indeed created content, it stopped short of ruling on
whether or not it violated the Fair Housing Act.
Chief Jude Alex Kozinski observed that Roommates.com
"makes answering discriminatory questions a condition of doing
business," according to Law.com. Kozinski went on to declare that there
was no difference from their actions and those of a real estate broker
in "real life" rejecting potential clients if they refused to declare
whether or not they were Jewish.
But does Kozinski’s telling reference to "real life"
somehow exempt or otherwise distinguish Internet businesses from their
brick and mortar counterparts?
"When it comes to a website, Congress passed the CDS
[Communications Decency Act], which was primarily to protect operators
if someone posts something on the site they are not responsible for; so
long as they provide a neutral site where people can post things," notes
Michael Seng, a professor at Chicago’s John Marshall Law School and the
Executive Director of the John Marshall Law School Fair Housing Legal
Support Center and Clinic.
The issue for Seng resembles a Craigslist case in
the Seventh Circuit in
Chicago, in which a website’s operators
were found immune if they provide a neutral website in which a poster
placed a discriminatory ad. As a result, Seng points out, "Most of the
websites, once they are notified of such an action, are taking it off,"
even though it’s not clear that the law presently requires that.
This strategy may be a good legal precaution,
according to Seng: "Roommates.com is not neutral. They asked a number of
questions that had to be answered in order to post your ad; questions
about race, sexual orientation--what you were looking for in terms of a
roommate. The court held that by asking those questions, they were
directing people to give discriminatory statements."
In a dissenting opinion, Judge M. Margaret McKeown’s
concern "is not an empty Chicken Little ’sky is falling’ alert,"
according to Law.com’s analysis of the decision. "By exposing every
interactive service provider to liability for sorting, searching and
utilizing the all too familiar drop-down menus, the majority has
dramatically altered the landscape of Internet liability."
This legal disconnect between user and provider is
the key to determining exactly who is liable and who can openly
discriminate. "Under the Fair Housing Act, if a person is looking for a
roommate or if it’s a single family dwelling exempt from the FHA, you
are free to discriminate," Seng says. "What the FHA says is, you may not
advertise the fact. If you are using a broker or an agent, you are
generally not exempt from the FHA."
If a website posting specifies only wanting straight
or male roommates, say, violates local law it could be liable. Paris
Baldacci, a clinical professor of law at the Benjamin N. Cardoza School
of Law in
New York is an expert on tenant
succession rights. "It now goes back to trial to see if they, under
California law and the Fair Housing Act, violate the anti-discrimination
laws," Baldacci says about the California ruling.
In the meantime, the site is not obligated to take
any action; it might start taking protective action, he adds, since it
be violating the letter of the law. Seng notes that the Court of Appeals
ruling remains valid at least throughout the Ninth Circuit, which
includes most of the western states:
California, Nevada, Washington and
There are twelve different circuits in the
U.S., so that
ruling may not apply to them all. But any website in the sates covered
by the ruling would be within the jurisdiction of the court.
But shouldn’t a gay man, citing freedom of speech,
be able to openly declare in any forum his preference for a roommate of
the same sexual orientation?
The courts appear somewhat conflicted when
interpreting where the First Amendment ends and where the Fair Housing
Act begins. "As it applies to the First Amendment, advertising is
normally covered--labeled as commercial speech," Seng points out. "But
commercial speech has less protection that political or artistic
The Supreme Court has ruled that commercial speech
involving discrimination can be regulated without violating the First
Amendment in forums such as newspaper ads. "This is the kind of concern
that First Amendment people have," Baldacci adds, "that sites worry
about liability and won’t facilitate people being able to ask these
On the other hand, anti-discrimination advocates are
hailing the decision because, they argue, it’s wrong for websites to
facilitate discrimination by providing a safe space to say, "I don’t
want to live with people who are gay, straight, or of a different
religion or ethnicity." "These are the issues that will be front and
center when it goes back to the court," Baldacci says. "It’s a battle of
policy interests: First Amendment, discrimination and privacy."
Douglas Leavy, owner of Rainbow Roommates, has found
a solution by observing the very same loophole that protects businesses
from libelous actions of their clients: providing a neutral forum where
prejudicial and preferential information is not solicited, but can be
"Sexual orientation is not part of our listing,"
Leavy says. "They don’t have to state it, but they can. There is a Notes
section where they can elaborate. There are gay people who are surprised
when someone calls them about a room, but is straight. They say, ’I
thought this was a gay-only service.’ But we turn no one away. There’s a
large number of people who would consider themselves straight but gay
Leavy, whose business is licensed as an apartment
sharing agency, uses the website component of Rainbow Roommates
primarily as a way to market its face-to-face boutique service: "The
website is not the foundation of my business. What they are purchasing
are listings in a report format that contains roommate information. Then
there is a section where they can indicate preferences for smoking,
pets, sexual orientation. But for us, orientation is not part of the
Stiffler is a New York City based writer and comedian who has performed
stand-up, improv, and sketch comedy. His solo shows include Damaged by
the 70s and An Evening With Insane Mark Twain & Dead Bette Davis. He
must eat twice his weight in fish every day, or he becomes radioactive.