03/02/2020 Fair Housing Council v. Roommate. Com, LLC, 666 F. 3d 1216 - Court of Appeals, 9th Circuit 2012 - Google Scholar allow the government to restrict our ability to choose roommates compatible with our lifestyles. This would be a serious invasion of privacy, autonomy and security. For example, women will often look for female roommates because of modesty or security concerns. As roommates often share bathrooms and common areas, a girl may not want to walk around in her towel in front of a boy. She might also worry about unwanted sexual advances or becoming romantically involved with someone she must count on to pay the rent. An orthodox Jew may want a roommate with similar beliefs and dietary restrictions, so he won't have to worry about finding honey-baked ham in the refrigerator next to the potato latkes. Non-Jewish roommates may not understand or faithfully follow all of the culinary rules, like the use of different silverware for dairy and meat products, or the prohibition against warming non-kosher food in a kosher microwave. Taking away the ability to choose roommates with similar dietary restrictions and religious convictions will substantially burden the observant Jew's ability to live his life and 1222 practice his religion faithfully. The same is true of *1222 individuals of other faiths that call for dietary restrictions or rituals inside the home. The U.S. Department of Housing and Urban Development recently dismissed a complaint against a young woman for advertising, "I am looking for a female christian roommate," on her church bulletin board. In its Determination of No Reasonable Cause, HUD explained that "in light of the facts provided and after assessing the unique context of the advertisement and the roommate relationship involved ... the Department defers to Constitutional considerations in reaching its conclusions." Fair Hous. Ctr. of W. Mich. v. Tricia, No. 05-10-1738-8 (Oct. 28, 2010) (Determination of No Reasonable Cause). It's a "well-established principle that statutes will be interpreted to avoid constitutional difficulties." Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). "[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 466, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (internal quotation marks omitted). Because the FHA can reasonably be read either to include or exclude shared living arrangements, we can and must choose the construction that avoids raising constitutional concerns. See INS v. St. Cyr, 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ("[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is fairly possible, we are obligated to construe the statute to avoid such problems.") (internal citation and quotations marks omitted). Reading "dwelling" to mean an independent housing unit is a fair interpretation of the text and consistent with congressional intent. Because the construction of "dwelling" to include shared living units raises substantial constitutional concerns, we adopt the narrower construction that excludes roommate selection from the reach of the FHA. III Because we find that the FHA doesn't apply to the sharing of living units, it follows that it's not unlawful to discriminate in selecting a roommate. As the underlying conduct is not unlawful, Roommate's facilitation of discriminatory roommate searches does not violate the FHA. While Roommate itself has no intimate association right, it is entitled to raise the constitutional claims of its users. See Craig v. Boren, 429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). The injunction entered by the district court precludes Roommate's members from selecting roommates unfettered by government regulation. Roommate may therefore raise these claims on their behalf. IV The same constitutional concerns over the right to intimate association would arise if the California Fair Employment and Housing Act ("FEHA") were applied to roommates. Accordingly, we interpret "housing accommodation" in section 12955(c) of the FEHA to exclude the sharing of living units. Similarly to how the FHA defines "dwelling," the FEHA defines "housing accommodation" as "any building, structure, or portion thereof that is occupied as, or intended for occupancy as, a residence by one or more families." Cal. Gov. Code § 12927(d). This ambiguous definition allows us to 1223 apply the canon of constitutional avoidance to find that the *1223 FEHA does not reach the selection of roommates. In a 1995 amendment, the FEHA carved out from the definition of discrimination "the use of words stating or tending to imply that the housing being advertised is available only to persons of one sex," "[w]here the sharing of living areas in a single dwelling unit is involved." Cal. Gov. Code § 12927(c)(2)(B). The concurrence infers from this 1995 exemption that https://scholar.google.com/scholar_case?q=666+F.3d+1216+&hl=en&as_sdt=2006&case=16861526744379903290&scilh=0 4/8