03/02/2020 Fair Housing Council v. Roommate. Com, LLC, 666 F. 3d 1216 - Court of Appeals, 9th Circuit 2012 - Google Scholar Inc. v. United States, 532 U.S. 822, 836, 121 S.Ct. 1934, 150 L.Ed.2d 45 (2001), FEHA's definition of "discrimination" in § 12927(c)(2)(B) expresses the state legislature's intent to exempt sex-specific advertisements for shared living units in a single dwelling from the restrictions of FEHA, but not exempt advertisements that discriminate on the basis of other protected characteristics, such as race or religion.[3] 1228 *1228 This plain-language reading of § 12927(c)(2)(B) is confirmed by the decision of the California Fair Employment and Housing Commission[4] in Dep't of Fair Emp't and Housing v. Larrick, FEHC Dec. No. 98-12, 1998 WL 750901 (July 22, 1998). Larrick involved two roommates who decided not to rent to a potential third roommate because she was black. Id. at *3. The Commission held that the "plain language" of FEHA applied to this shared living situation and prohibited the two roommates "from rejecting an applicant on the basis of race and color." Id. at *5. In arriving at this conclusion, the Commission stated that none of FEHA's exceptions were applicable, specifically noting that § 12927(c) (2)(B) "allow[s] sex-specific (but not race-specific) advertisements for single dwellings with shared living areas." Id. at *6 n. 2. Because FEHA (unlike the FHA) is unambiguous regarding its applicability to shared living arrangements, the majority cannot interpret FEHA in a way to avoid the constitutional problems that may arise if the act is applied to bar advertisements for shared living arrangements that discriminate on the basis of protected characteristics such as race or religion. The constitutionality of FEHA's applicability to such shared living arrangements is both novel and difficult. Given that neither the Fair Housing Councils nor Roommate addressed this issue in their briefs, I would remand this issue to allow the district court to hear from the parties and rule on this issue in the first instance. Therefore, I respectfully dissent from Part IV of the opinion. [1] If either of the Fair Housing Councils had asserted standing on behalf of its members, it would need to show that its "[1] members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization's purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). But here, the Fair Housing Councils assert only organizational standing. [2] There also must be a causal connection between the injury and the defendant's conduct, and the injury must be redressable by a favorable decision. Id. at 560-61, 112 S.Ct. 2130. [3] The majority contends that we can ignore this amendment to FEHA because the "acts of a subsequent legislature tell us nothing definitive about the meaning of laws adopted by an earlier legislature." Maj. Op. at 1223. But in determining whether a statute is ambiguous, we must construe the current version of the law, not what it used to be. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) (holding that a court must give "great weight" to amendments to a statute that clarify its proper construction). Once a duly enacted amendment clarifies a statute, it is no longer ambiguous, and we cannot treat it as such by pointing to its former ambiguity. [4] The Commission is the California "agency charged with adjudicating FEHA enforcement actions and interpreting FEHA by regulation." Green v. State, 42 Cal.4th 254, 64 Cal.Rptr.3d 390, 165 P.3d 118, 128 (2007); see also Cal. Gov.Code § 12935(a). Save trees - read court opinions online on Google Scholar. https://scholar.google.com/scholar_case?q=666+F.3d+1216+&hl=en&as_sdt=2006&case=16861526744379903290&scilh=0 8/8